126 Conn. App. 1
Conn. App. Ct.2011Background
- Plaintiffs own thirteen lots on Section Two of Cricklewood, Norwalk, each deed restricting to no more than one dwelling with attached garage.
- Defendants own property in the same area and sought to resubdivide and build a second dwelling, challenging the covenant's enforceability.
- Record shows Cricklewood and Bow End Road are separate subdivisions with different development histories and grantors.
- Courts below granted summary judgment for plaintiffs enjoining resubdivision and second dwelling construction on defendants' lot.
- Defendants counterclaimed for a declaratory judgment that the restriction had been extinguished and sought notice-related relief; plaintiffs sought injunctive relief.
- Court concluded Section Two was not part of a single, general plan with Cricklewood or Bow End Road and found no abandonment of the covenant.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the Section Two covenant abandoned by Cricklewood resubdivisions? | Cappo asserts Section Two developed under a uniform scheme; Cricklewood changes do not extinguish it. | Suda contends intermingled resubdivisions show a common development plan and abandonment. | No abandonment; Section Two not part of Cricklewood common scheme. |
| Did the trial court have jurisdiction to grant summary judgment given notice failures under Practice Book § 17-56? | Plaintiffs argue lack of notice to nonparties does not defeat injunctive relief or declaratory judgment, and summary judgment was proper. | Suda argues failure to join or notify interested persons invalidates declaratory relief and requires remand. | Court had jurisdiction; notice issues did not require remand; judgment affirmed on merits. |
Key Cases Cited
- Contegni v. Payne, 18 Conn.App. 47 (1989) (enforceability of uniform covenants under a common development scheme)
- DaSilva v. Barone, 83 Conn.App. 365 (2004) (factors for existence of a common development plan; termination and notices)
- Vestuti v. Miller, 124 Conn.App. 138 (2010) (summary judgment burden; absence of genuine issues of material fact)
- Grady v. Schmitz, 16 Conn.App. 292 (1988) (change in circumstances may justify withholding enforcement of covenants)
- Moscowitz v. Planning & Zoning Commission, 16 Conn.App. 303 (1988) (zoning relevance to restrictive covenants; not controlling on covenants)