Opinion
The defendants, Mark R. Suda, Jr., and Michelle L. Suda, appeal from the rendering of summary
judgment in favor of the plaintiffs, Thomas Cappo and certain other neighbors who reside on Ox Yoke Lane in Norwalk,
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on both the plaintiffs’ complaint and the defendants’ counterclaim. The court rendered summary judgment in favor of the plaintiffs on their complaint in which they sought to enforce a restrictive covenant through a temporary
The defendants, in both the answer to the plaintiffs’ complaint and in the allegations of their counterclaim, admit that the properties belonging to the plaintiffs and the defendants are depicted on a “Map Showing Section Two of Cricklewood, Norwalk ... as Map No. 3714” (Section Two) and admit that their deed contains a reference to restrictive covenants as set forth in volume 416 at page 118 of the Norwalk land records. This restriction, as provided in their warranty deеd, states: “Said tract is subject to the following restrictions: 1. No more than one dwelling together with an attached garage shall be constructed thereon.” 2
“In general, restrictive covenants fall into three classes: (1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee presumptively or actually for the benefit and protection of his adjoining land which he retains. . . . With respect to the second class of covenants, any grantee under such a general or uniform development scheme may enforce the restrictions against any other grantee.”
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(Citations omitted; internal quotation marks omitted.)
Contegni
v.
Payne,
The issues to be resolved on appeal are (1) whether the restrictive covenant on all the properties located in Section Two, including those of the parties, has been abandoned and (2) whether the trial court had the jurisdiction to render summary judgment on the complaint seeking injunctive relief and the counterclaim seeking declaratory relief when notice was not given to interested parties. We conclude that the court had jurisdiction and affirm the judgment of the court.
ABANDONMENT OF THE RESTRICTIVE COVENANT
The defendants claim that, although a restrictive covenant that prohibits resubdivision for the purpose of building an additional dwelling was contained in their deed, that restriction has been abandoned because resubdivisions have occurred in surrounding properties, which the defendants contend are part of the same subdivision as their property. The parties reside in a subdivision referred to as Section Two. All thirteen of the lots in Section Two have been developed, and none of the lots contain mоre than one dwelling. Two other parcels originating from the same grantor and developed into abutting subdivisions exist, namely, “Crickle-wood” and “Bow End Road.” Resubdivisions have occurred in Cricklewood. The court held that the three subdivisions, Section Two, Cricklewood and Bow End Road, were not a single general plan of development and, accordingly, rendered summary judgment in favor of the plaintiffs. We agree that the subdivisions are separate and not part of one plan of development and, therefore, agree with the court that the Section Two restrictions have not been extinguished or abandoned as a result of resubdivisions that occurred in Cricklewood.
A review of the record indicates that the following facts are not in dispute. The estate of Herman Aaron (estate) was the original common grantor of the land that became the Cricklewood, Section Two, and Bow End Road subdivisions. In 1950, the estate along with Benjamin B. Kirkland, Jr., and Fred L. Spitzer submitted Cricklewood for subdivision approval to the planning commission and thereafter to the common council of the city of Norwalk. Cricklewood involved a fourteen lot subdivision of properties, as delineated on map 3364, and consisted of properties ranging in size from 1.36 to 3.328 acres. Six of the fourteen parcels in Cricklewood were created from over nine acres of property conveyed by the estate to Kirkland and Spitzer. The deed conveying the property from the estate to Kirkland and Spitzer required that the tract “shall be subdivided into not more than six building lots any one of which shall not be less than one acre in area” and that “ [n] o building other than a one-family dwelling house, together with such outbuildings as are usual and incidental thereto shall be erected on any lot until the exterior plans thereof have been approved .... This provision shall terminate as of January 1,1975.” For at least four other plots in Cricklewood, the estate released the owners from whatever deed restrictions the estate had placed on their property so that resubdivisions were permitted on those plots. A number of lots in Cricklewood have been resubdivided, but none of those resubdivisions created a lot that is smaller than one acre.
Cricklewood abuts the Section Two development. The following facts, as stated by the court in its memorandum of decision, are supported by the record. Section Two, as delineated on map 3714, “contains thirteen separate lots each specifically defined as to acreage and boundaries. The properties range in size from 1.02 to 1.55 аcres. This subdivision was submitted for approval by the executors of the [estate] in 1952. . . . The subdivision was recorded in the Norwalk land records on June 12, 1952. Each and every tract on map . . .3714 was sold subject to the restriction of ‘no more than one dwelling together with an attached garage shall be constructed thereon.’ Since 1952, all of the lots have been developed, but none of the lots contains more than one dwelling.”
The third area involving property of the estate, as delineated on map 3713, is a
On the basis of these undisputed facts, the court concluded that the defendants’ position that the Section Two subdivision should be developed in accordance with the Cricklewood development, an abutting subdivision, “is simply not consistent with the admitted facts and documentation provided to the court. Even recognizing that there are lots in the abutting Cricklewood subdivision that have been resubdivided, there are no facts other than supposition on the part of the defendants that there was an intent to allow the covenants of the Cricklewood subdivision to direct development on a separately approved subdivision, with different owners, different restrictions, different approvals and different lot size.”
We set forth our standard of review and relevant principles of law. “The standard of review of a trial court’s decision to grant summary judgment is well established. [W]e must decide whether the trial court erred in determining that there was no genuinе issue as to any material fact and that the moving party is entitled to judgment as a matter of law. ... A material fact is a fact which will make a difference in the result of the case. . . . [I]ssue-finding, rather than issue-determination, is the key to the procedure. . . . [T]he trial court does not sit as the trier of fact when ruling on a motion for summary judgment. . . . [Its] function is not to decide issues of material fact, but rather to determine whether any such issues exist. . . .
“The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opрosing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact.” (Citations omitted; internal quotation marks omitted.)
Vestuti
v.
Miller,
When uniform covenants are contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme, any grantee under such a general or uniform development scheme may enforce the restrictions against any other grantee.
Contegni
v.
Payne,
supra,
“There are several factors that help to establish the existence of a common grantor’s intent to develop the land according to a uniform plan. These factors include (1) the common grantor’s selling or stating an intention to sell an entire tract of land, (2) the common grantor’s exhibiting a map or plot of the entire tract
Once a common scheme has been established, it is possible to find that the restrictive covenants are not enforceable because they have been abandoned. “ [W]hen presented with a violation of a restrictive covenant, the court is obligated to enforce the covenant unless the defendant can show that enforcement would be inequitable. ... [A] [c]hange in circumstances . . . may justify the withholding of equitable relief to enforce a covenant. . . . Such a change in circumstances is decided on a case by case basis, and the test is whether the circumstances show an abandonment of the original restriction making enforcement inequitable because of the altered condition of the property involved.” (Citations omitted; internal quotation marks omitted.)
Grady
v.
Schmitz,
We first ask whether the plaintiffs met their burden to obtain summary judgment on their complaint seeking to enjoin construction based on the restrictive covenants found in the parties’ deeds. The defendants admitted that the thirteen parcels in Section Two were developed under a common scheme using substantially uniform restrictions. 4 Excepting the defendants’ property, none of the owners of the parcels in Section Two have sought or received resubdivision approval, nor have repeated violations of the restrictions occurred in Section Two. Thus, the deed restrictions have not been abandoned. The plaintiffs met their burden to obtain summary judgment by demonstrating the absence of any genuine issue of material fact and showing, as a matter of law, that they were entitled to enjoin the defendants from resubdividing their lot and building a second dwelling in contravention of the restrictive covenant.
The next issue to be resolved is whether the defendants raised a genuine issue of material fact that Section Two was developed according to a common scheme that includes Cricklewood and Bow End Road. The defendants claim substantial
The defеndants argue that the plaintiffs’ evidence regarding Cricklewood was “incomplete” and that a few of the deeds in Cricklewood were substantially identical to those in Section Two. It was the defendants’ burden to raise genuine issues of material fact as to whether the development in Cricklewood affected the development in Section Two. The defendants did not present to the trial court any evidence regarding the Cricklewood deeds. Even if they had, evidence of similar restrictions in a few plots would be insufficient to demonstrate that Cricklewood and Section Two were part of the same common plan because enforceable restrictive covenants usually involve the presence of the same or similar restrictions in
all or substantially all
of the deeds conveyed by the common grantor. See
Whitton
v.
Clark,
Because the defendants have not raised a genuine issue of material fact that Section Two was developed as part of a common scheme that includes Cricklewood and Bow End Road, we do not need to address the defendants’ claim that evidence of resubdivisions in Cricklewood was sufficient to demonstrate that the deed restrictions in Section Two have been abandoned. 6
We agree with the trial court that the restrictions in the Section Two deeds have not been extinguished or abandoned as a result of resubdivisions that ocсurred in Cricklewood, and we agree that the two subdivisions were not developed under a common scheme. Thus, the defendants’ claims fail.
II
FAILURE TO GIVE NOTICE TO INTERESTED PARTIES
The defendants also claim that the trial court lacked jurisdiction to render summary judgment on both the plaintiffs’ complaint and the defendants’ counterclaim. It is undisputed that, if Practice Book § 17-56 (b),
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which
governs declaratory
We first set forth our standard of review when determining whether the court had jurisdiction to render summary judgment. “[W]e have long held that because [a] determination regarding a trial court’s subject matter jurisdiction is a question of law, our review is plenary. . . . Subject matter jurisdiction involves the authority of the court to adjudicate the type of controversy presented by the action before it. . . . [A] court lacks discretion to consider the merits of a case over which it is without jurisdiction . . . .” (Internal quotation marks omitted.)
Caltabiano
v.
L & L Real Estate Holdings II, LLC,
Our Supreme Court has held that “failure to notify interested persons in a declaratory judgment action does not implicate the court’s subject matter jurisdiction.”
Batte-Holmgren
v.
Commissioner of Public Health,
The defendants claim that the residents of Crickle-wood and the six unnoticed owners of Section Two who are not plaintiffs in this action are indispensable parties whose substantive rights and interests will be necessarily and materially affected by the outcome of this litigation. See footnote 1 of this opinion. The issue is whether we should remand this action for the purpose of joining or providing notice to those parties. We first note that the plaintiffs did not seek a declaratory ruling but, rather, sought an injunction against the defendants. Thus, the requirements of Practice Book § 17-56 do not apply to the plaintiffs’ claim, and the lack оf notice does not affect the court’s rendering of summary judgment on the plaintiffs’ complaint. Moreover, we conclude that, in the present case, the substantive rights and interests of the missing persons will not be affected by our considering whether it was appropriate for the court to render summaiy judgment on the defendants’ counterclaim
We first discuss the interests of the residents of Cricklewood. In the defendants’ counterclaim for declaratory relief, the issue before the court was whether Section Two is part of a larger plan of development that includes Cricklewood. Regardless of the outcome, the unnoticed lot owners in Cricklewood are not affected because questions relating to a claimed larger common scheme of development did not in any way affect the restrictions in their deeds. In
Mannweiler
v.
LaFlamme,
We next discuss the interests of the six unnoticed owners of Section Two who are not parties to this action. We note that “a person who is not a party generally will not be bound by a declaratory ruling. Practice Book § 17-56 (d).”
Batte-Holmgren
v.
Commissioner of Public Health,
supra,
In the present case, the court declined to make the declaratory ruling that the defendants sought and refused to find thаt the restrictive covenants that govern Section Two had been extinguished based on resubdivi-sions that occurred in Cricklewood because it concluded that Cricklewood and Section Two were not developed according to a single common scheme. On the basis of our careful review of the record, and our discussion in part I of this decision, we agree. The unnoticed owners in Section Two, should they ever seek to resubdivide their plots for the purpose of building a second dwelling, are subject only to the stare decisis impact of this ruling. Accordingly, we decline to remand this case so that the remaining residents of Section Two may be joined or afforded notice. We conclude that the plaintiffs were entitled to a judgment as a matter of law on both their complaint seeking injunctive relief on the basis of the deed restrictions and on the
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
The plaintiff appellees include the following residents of Ox Yoke Lane: Thomas Cappo and Marcia Cappo, who reside at number sixteen, Gary Brandman, who resides at number five, Lucy P. Ely, who resides at number two, Edith Geiser, who resides at number eight, Henry Holowinko and Mary Ann Holowinko, who reside at number three, and Rosemary Andersen, who resides at number fоurteen. The total number of lots in the Ox Yoke Lane subdivision is thirteen. Counting the defendants, the owners of seven lots are parties to this litigation, whereas six owners are not parties.
Prior to the plaintiffs’ action for injunctive relief, the defendants sought and received approval from the Norwalk planning commission to resubdivide their property and to build a second dwelling on their subdivided property. The defendants do not claim that the permission from the planning commission can override the restrictive covenant in their deed. A landowner who
seeks a perpetual restriction on the use of subdivided property may limit development by the use of restrictive covenants. A municipal commission, however, does not have the power to deny an application for subdivision approval based on such a covenant if the application otherwise meets the requirements of the local subdivision regulations or the enabling statutes.
Moscowitz
v.
Planning & Zoning Commission,
“The doctrine of the enforceability of uniform restrictive covenants is of equitable origin. The equity springs from the presumption that each purchaser has paid a premium for the property in reliance upon the uniform development plan being carried out. While that purchaser is bound by and observes the covenant, it would be inequitable to allow any other landowner, who is also subject to the same restriction, to violate it.”
Contegni
v.
Payne,
Moreover, the development in Section Two meets the four factors outlined in
Contegni
v.
Payne,
supra,
In addition to the differences between the deed restrictions, other undisputed evidence supports the court’s conclusion that Section Two was developed independently of Cricklewood as “a separately approved subdivision, with different owners, different restrictions, different approvals and different lot size.” Section Two was developed by the estate alone and approved in 1952; Cricklewood was developed by both the estate and two other parties and approved in 1950. The lots in Section Two range in size from 1.02 to 1.55 acres; the lots in Cricklewood ranged in size from 1.36 to 3.328 acres.
Some of the lots in Cricklewood have been resubdivided, but none of the resubdivisions created a new lot that is less than one acre in area. It is difficult to understand the defendants’ claim that because certain larger lots in Cricklewood were resubdivided into one acre parcels, the restrictive covenants in the Section Two deeds were abandoned, thus allowing the defendants to resubdivide their parcel into two parcels approximately one-half acre in size each.
Specifically, the defendants challenge the court’s statements that the development “was intended to comply with the one acre zoning requirement [that was] in effect” at the time and that “the [grantor’s] intent was to create one acre zoning -without an allowance for сhange.” It is undisputed that neither party submitted evidence as to what the zoning requirements were in Norwalk at any relevant time. Our review of the record reveals that, at oral argument before the trial court, the defendants’ counsel represented that a zoning change from one acre to one-half acre occurred in 1984. Presumably on the basis of this representation, the court made a few passing references to zoning in its memorandum of decision.
The issue before the court, however, was whether the plaintiffs were entitled to enjoin development on the defendants’ property on the basis of a restrictive covenant found in the parties’ deeds. Zoning provisions are generally irrelevant to the interpretation and enforcement of restrictive covenants. See
Moscowitz
v.
Planning & Zoning Commission,
16 Conn.
App. 303, 311 n.8, 316,
Practice Book § 66-5 provides in relevant part: “A motion seeking corrections in the transcript or the trial court record or seeking an articulation or further articulation of the decision of the trial court shall be called a motion for rectification оr a motion for articulation, whichever is applicable. Any motion filed pursuant to this section shall state with particularity the relief sought. . . .”
Practice Book § 17-56 (b) provides in relevant part: “All persons who have an interest in the subject matter of the requested declaratory judgment that is direct, immediate and adverse to the interest of one or more of the plaintiffs or defendants in the action shall be made parties to the action or shall be given reasonable notice thereof. . . .
“The party seeking the declaratory judgment shall append to its complaint or counterclaim a certificate stating that all such interested persons have been joined as parties to the action or have been given reasonable notice thereof. If notice was given, the certificate shall list the names, if known, of all such persons, the nature of their interest and the manner of notice.”
To the extent that the defendants argue that the unnoticed residents of the Bow End Road subdivision, map 3713, are indispensable, we find this claim even more attenuated than that relating to the unnoticed Cricklewood residents. None of the lots on Bow End Road have been resubdivided. The defendants make no claim that the development of Bow End Road in any way impacts the development of Section Two or that the deed restrictions on the Bow End Road properties have been abandoned.
The defendants also claim that the trial court improperly granted the plaintiffs’ motion for summary judgment on the defendants’ counterclaim because the appropriate remedy for a failure to provide notice pursuant to Practice Book § 17-56 (c) is to strike the claim. In their motion for summary judgment on the defendants’ counterclaim, the plaintiffs raised two grounds: one procedural, that the defendants failed to provide notice to all interested persons, and one substantive, that the defendants could not demonstrate that the deed restriction had been abandoned. The defendants did not respond to either of these arguments at the trial court. The court rendered summary judgment on the counterclaim on the procedural ground.
Practice Book § 17-56 (c) provides in relevant part that “no declaratory judgment action shall be defeated by the nonjoinder of parties or the failure to give notice to interested parties. The exclusive remedy for nonjoinder or failure to give notice to interested persons is by motion to strike . . . .” We conclude that the trial court erred in rendering summary judgment on the defendants’ counterclaim on thе ground that the defendants failed to provide notice to all interested persons. It is well established, however, that an appellate court “can sustain a right decision although it may have been placed on a wrong ground.” (Internal quotation marks omitted.)
Fennelly
v.
Norton,
The court determined that Cricklewood and Section Two were not developed according to a single common scheme, nor have the Section Two restrictions been extinguished or abandoned as a result of the resubdivision of parcels in Cricklewood. We agree. Despite the court’s mistaken determination that the defendants failure to provide notice to all interested persons defeated their declaratory judgment counterclaim, the court did not err in rendering summary judgment on the counterclaim.