5011 Community Organization v. Harris , 16 Conn. App. 537 ( 1988 )

Stoughton, J.

This is an appeal by the plaintiffs¹ from the trial court’s denial of a declaratory judgment upholding certain deed restrictions and the denial of a permanent injunction to restrain the defendants from building on the land in question anything other than a residential structure. The plaintiffs argue that the trial court erred (1) in not enforcing certain restrictions contained in a deed dated November 18, 1914, (2) in concluding that the proposed commercial use of the land would not be violative of said restrictions, and (3) in denying the plaintiffs equitable relief in the form of a declaratory judgment and an injunction. Our conclusion with respect to the second issue is dispositive of this appeal and, accordingly, we do not address the remaining two claims.

The trial court made the following findings of fact. Early in 1986, the defendants, Burger King Corporation and Te-Al Foods Corporation, applied for a permit to build a restaurant in Hartford on three parcels of land owned by Thomas Harris and John Testa. One of these parcels, hereinafter lot three, has an abandoned gasoline station situated upon it. The remaining two parcels, which will be referred to as lots one and two, had no structures upon them except for a billboard on lot one. The three parcels are located in a B-3 zone which would ordinarily permit the construction of the proposed Burger King restaurant. Lots one and two were owned by Testa and were part of a forty-four lot subdivision as shown on a 1914 map of the property of Joseph P. Halliday. Lot three is not a part of the original subdivision and it is beyond dispute that a restaurant may be constructed on it.

In the fall of 1914, Halliday conveyed lot one to Nellie F. Wall with certain restrictions as to the type and number of dwellings that may be constructed on the lot. This or similar deed restrictions appear on the land records with respect to thirty-seven of the forty-four lots of this subdivision, including lot two. On December 28, 1962, lot one had the restriction rerecorded on the conveyance to Testa.

In October of 1986, Testa and Harris sold all three parcels of land to agents of Te-Al Foods Corporation. The deed by which Testa conveyed lots one and two contained the provision that “[b]oth of said premises are conveyed subject to any and all provisions of any ordinance, municipal regulation, a public or private law and to building, building line and zoning restrictions of the town of Hartford, with particular reference to restrictions set out in a deed from Ernest C. Halliday to Nellie F. Wall, Trustee, dated August 15, 1914 and recorded at Volume 404, page 569 of the Hartford Land Records.” This paragraph refers to the Halliday to Wall deed recording the restrictions as to lot one. No reference was made in this deed to the original deed containing similar restrictions as to lot two.

The amended building application indicates that the proposed Burger King restaurant is to be situated on lot three. A parking area, menu board, microphone for drive-through orders, lights and brick trash enclosure are to be located on either lot one or lot two.

The issue before the trial court was whether the deed restrictions on lots one and two were still enforceable, and, if so, to what extent they were enforceable. The trial court reached the following conclusions: (1) that there existed a common scheme of development in the original forty-four lot subdivision; (2) that, owing to the Connecticut Marketable Record Title Act, the restrictions as to lot one were still in effect while the restrictions as to lot two had not been sufficiently demonstrated by the plaintiffs; and (3) even though the plaintiffs had demonstrated that the restrictions as to lot one remained in force, the deed restrictions did not prohibit the defendants’ proposed use of the property. For these reasons, the court declined to grant the plaintiffs’ request for injunctive relief. Additionally, it refused to render a declaratory judgment that the deed restrictions were valid and enforceable on the ground that the plaintiffs had not complied with Practice Book § 390 (d) which requires that all persons having an interest in the subject matter of the complaint be given reasonable notice thereof. The court noted that only about one half of the members of the original subdivision had received notice of this action. On that ground, the court refused to render a declaratory judgment. We agree with the trial court that the deed restrictions do not prohibit the defendants’ proposed use of the property and we therefore need not reach the remaining assignments of error.

The trial court concluded, and we agree, that the restrictions on the subdivision were created to benefit the lot owners. Thirty-seven of the forty-four lots comprising the subdivision contained similar restrictions. Moreover, there was no evidence that Halliday intended to retain ownership .of any part of the tract. It is clear that there was a common scheme of development in the original subdivision. Marion Road Assn. v. Harlow, 1 Conn. App. 329, 333, 472 A.2d 785 (1984).

Halliday conveyed lot one to Nellie F. Wall with a deed containing the following restrictions: “It is hereby agreed that only one dwelling house shall be erected on said lot either a single or a two-family house, said single house to cost not less than Three Thousand (3000) Dollars, and said two-family house to cost not less than Fifty-five Hundred (5500) Dollars, and that no out building shall be erected upon said lot other than a private garage. Said garage shall be at least thirty (30) feet distance from the rear of the house, and shall not be erected until a dwelling house on said lot is completed. As part consideration for this deed it is hereby further agreed that all lots appearing on said plan shall be sold by the grantee herein, or his heirs or assigns, subject to the same restrictions as are contained in this deed.”

Several courts have considered whether a restrictive covenant which limits the number and nature of residential dwelling houses also prohibits the use of the subject land for commercial parking lots. Courts have construed similar restrictions to limit only the nature of the dwellings and conclude that they did not restrict other uses of the land. Shaddock v. Walters, 55 N.Y.S. 2d 635 (1945) (holding that a covenant directing that no building should be erected on any portion of the premises except dwelling houses to be used for residential purposes only, did not prohibit use of certain lots subject to the restrictions as a parking field); Mahrt v. First Church of Christ, Scientist, 75 Ohio L. Abs. 5, 142 N.E.2d 567 (1955), aff'd, 75 Ohio L. Abs. 24, 142 N.E.2d 678, reh. denied, 75 Ohio L. Abs. 27, 142 N.E.2d 680 (1956) (holding that restrictions in a deed purporting to preserve all lots in an allotment as individual building sites, but not providing that such restricted lots were to be used for residences and for no other purpose whatsoever, did not prohibit the use of a restricted lot for off street parking for a church).

A restrictive covenant must be narrowly construed and ought not to be extended by implication. Neptune Park Assn. v. Steinberg, 138 Conn. 357, 361, 84 A.2d 687 (1951). Moreover, if the covenant’s language is ambiguous, it should be construed against rather than in favor of the covenant. Hooker v. Alexander, 129 Conn. 433, 436, 29 A.2d 308 (1942).

We agree with the trial court that the restrictions do not prohibit the use of the property in question as a parking lot, but only limit the quality and type of dwellings that may be erected thereon. Additionally, we agree with the trial court that a menu board, microphone, lights and a brick trash enclosure are structures and not outbuildings which would be prohibited by the restrictions. “[W]hile a building is always a structure, all structures are not buildings.” Katsoff v. Lucertini, 141 Conn. 74, 78, 103 A.2d 812 (1954); Hendryx Co. v. New Haven, 104 Conn. 632, 640, 134 A. 77 (1926). Moreover, this is not an instance where the restrictions expressly prohibit any commercial use of the property or contain an affirmative dedication that the property shall be used for residential purposes only. Cf. Shore-front Park Improvement Assn., Inc. v. King, 157 Conn. 249, 251, 253 A.2d 29 (1968); Pulver v. Mascalo, 155 Conn. 644, 646, 237 A.2d 97 (1967); Baker v. Lunde, 96 Conn. 530, 540, 114 A. 673 (1921). These are permissible structures under the terms of the restrictive covenant.

There is no error.

In this opinion Norcott, J., concurred.

1 5011 Community Organization is a nonprofit corporation representing individual property owners on Ashford and North Main Streets in Hartford.