16 Conn. App. 537 | Conn. App. Ct. | 1988
Lead Opinion
This is an appeal by the plaintiffs
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 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 hav
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
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
There is no error.
In this opinion Norcott, J., concurred.
5011 Community Organization is a nonprofit corporation representing individual property owners on Ashford and North Main Streets in Hartford.
Dissenting Opinion
dissenting. I do not agree with the majority opinion holding that a paved parking lot for patrons and employees, a lighted menu board, a microphone and speaker for drive-through orders, overhead lights and a brick trash enclosure, all of which are integral and necessary components for the operation of a fast-food restaurant under a franchise from Burger King, are permissible structures under the terms of the restrictive covenant under review.
The language and expressed intent of the applicable restrictions are clear and self defining: “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 outbuilding 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.”
In the present case, there is no need to apply rules of interpretation. The specific restrictions (1) that only one dwelling house be erected on the lot, either a single or a two-family house, and (2) that no outbuilding
In opening this tract of land for building in 1914, Ernest C. Halliday desired to have it maintained as a one and two-family residential development, which it still is. It was for this reason that his grantees were forbidden to erect any buildings, except one and two-family dwelling houses of a certain cost. The terms one-family and two-family dwellings are in common use in this jurisdiction. There appears to have been no occasion for defining them in our cases. The reason for this may well be that they need no definition. A one-family house is a house designed for occupancy by one family; a two-family house is one designed for occupancy by two families. See Hooker v. Alexander, 129 Conn. 433, 436, 29 A.2d 308 (1942).
The case of Mellitz v. Sunfield Co., 103 Conn. 177, 179, 129 A. 228 (1925), is conclusively on point. The following facts in Mellitz parallel those now before this court. A conveyance of property in Bridgeport to one
Linsky divided this tract of land into forty-three building lots, of which thirteen fronted on Fairfield Avenue and thirty on Ellsworth Street. The plaintiff acquired lot eleven located on Fairfield Avenue and constructed his dwelling there in accordance with these restrictions. Linsky subsequently conveyed to the defendant lot one, located on the southwesterly corner of Fairfield Avenue and Ellsworth Street, and having a frontage of one hundred thirty feet on Fairfield Avenue and one hundred forty-four feet on Ellsworth Street, and the adjoining lots two and three have a combined frontage of one hundred feet on Fairfield Avenue. Linsky added to the original restrictions in his transfers to the defendant.
The defendant constructed a brick and tile building on lot two, and a cement driveway on lot three. The building was a store used for selling automobile accessories and supplies, and also gasoline, oil and grease. On lots two and three the defendant had also constructed and maintained two underground gasoline tanks, seven gasoline pumps, and a number of air,
The Supreme Court made three rulings, one of which is determinative here. The court first held that the plaintiff could enforce only the restrictive covenants in the conveyance to him. As a prior purchaser, he had no right to enforce Linsky’s additional restrictions in the conveyances to the defendant. The second ruling was that the business conducted by the defendant on lots two and three was a store “used for the sale of ordinary merchandise.” The third ruling is controlling of the issue under review here.
The court concluded that lot one, the corner lot, was restricted to residential purposes, and that none of it was to be used for business purposes. The defendant had constructed a crushed stone driveway on lot one which it used in connection with its business conducted on lots two and three. Its patrons were those using automobiles and they passed to and from lots two and three over and across lot one. The Mellitz court’s analysis of the same issue we face in the present case applies directly and decisively to the defendant’s proposed establishment on adjacent unrestricted land of a Burger King restaurant with its necessary paved parking lot for patrons and employees, a light menu board, a microphone and speaker for drive-through orders, overhead lights and a brick trash enclosure on either lot one or two: “The direct benefit to such a business from hav
To reinforce its conclusion in Mellitz that the plaintiff there was entitled to an injunction restraining the defendant from using lot one for any purpose in connection with the business conducted on lot two, or for any purpose other than that specified in the restrictions contained in the conveyance of the Bartram heirs to Linsky, the court quoted extensively from Laughlin v. Wagner, 146 Tenn. 647, 244 S.W. 475 (1922).
In Laughlin v. Wagner, supra, the defendant owned land fronting on Belvedere Street and Madison Avenue. It was subject to the restriction: “Any house erected on the Belvedere side to be used for residence purposes only, to be two stories or more in height, and to be built on established house lines.” Id., 649. The defendant also owned the lot lying between the plot on Belvedere Street and that on Madison Avenue,
For these reasons, I would hold that a paved parking lot for patrons and employees, a light menu board,
The following zoning regulations were adopted by the Court of Common Council of the city of Hartford on February 8, 1926, and approved on February 9, 1926: “Ordinance Regulating and Restricting Height, Number of Stories and Size of Buildings and other Structures, the Percentage of Lot that may be Occupied, the Size of Yards, Courts and other Open Spaces, the Density of Population and the Location and Use of Buildings, Structures, and Land for Trade, Industry, Residence, and other Purposes and Establishing the Boundaries of Districts for said Purposes and Providing Penalties for Their Violation.”
This ordinance was authorized by 23 Special Acts 987, No. 484, Entitled “An Act Authorizing the City of Hartford to Create Zoning Districts.”