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DUANE GROVENBURG ET AL. RUSTLE MEADOW ASSOCIATES, LLC, ET AL. (AC 37719) DiPentima, C. J., and Prescott and Gold, Js.
Argued January 18—officially released June 20, 2017 (Appeal from Superior Court, judicial district of Hartford, Hon. Richard M. Rittenband, judge trial referee.) Barbara M. Schellenberg , with whom was Ari J. Hoff- man , for the appellants (defendants).
Jared M. Alfin , for the appellees (plaintiffs). *3 Opinion
DiPENTIMA, C. J. In this appeal, we address the
contours of judicial review in cases in which a discre-
tionary determination of a common interest ownership
association is challenged. The defendants, Rustle
Meadow Associates, LLC (company), Rustle Meadow
Homeowners Association, Inc. (association), and its
president, Jeffrey D. Miller, appeal from the judgment
of the trial court in favor of the plaintiffs, Duane
Grovenburg and Kristine Grovenburg. The defendants’
principal contention is that the court improperly set
aside the association’s discretionary determination
regarding the plaintiffs’ request to erect a fence on their
property. Specifically, they claim that the court failed
to apply the proper legal standard governing review of
such determinations, as established by our Supreme
Court in
Weldy Northbrook Condominium Assn.,
Inc
.,
The relevant facts are gleaned from the court’s memo-
randum of decision and the undisputed evidence in the
record before us. Rustle Meadow is a planned commu-
nity created pursuant to the Common Interest Owner-
ship Act (act), General Statutes § 47-200 et seq.
[2]
Consistent with the strictures of that act, the Declara-
tion of Rustle Meadow (declaration) was recorded on
the Canton land records in January, 2006. Seе General
Statutes § 47-220 (a) (common interest community may
be created ‘‘only by recording a declaration executed
in the same manner as a deed’’);
Peck Milford Hunt
Homeowners Assn., Inc
.,
Approval of the development of Rustle Meadow by the Canton Planning Commission was conditioned on, inter alia, the dedication of an eight acre portion of the property to ‘‘open space.’’ In accordance therewith, the company granted ‘‘a perpetual conservation restriction and easement’’ (conservation easement) to the town of Canton. Among the covenants agreed to by the company were that ‘‘the [c]onservation [a]rea shall be maintained in its present condition, and no topographic changes shall be made,’’ and that ‘‘there shall be no removal, destruction or cutting of trees, shrubs or plants’’ in the conservation area. That conservation easement is memorialized in both the ‘‘Description of Land Being Declared’’ and an A-2 survey appended to the declara- tion (declaration survey). [3]
Rustle Meadow is described in the public offering statement [4] admitted into evidence as a ‘‘common inter- est equestrian community’’ that features ‘‘the use of a premier barn, outdoor arena, indoor arena (if built), acres of pasture, acres of open space, a gorgeous stream, and walking and riding trails . . . .’’ Miller is the sole member of the company, which developed Rus- tle Meadow, and has remained the owner of five of its seven units. Rustle Meadow is governed by the associa- tion, upon which the declaration confers various pow- ers and responsibilities. [5] The association, in turn, acts through its executive board (board), as recognized in both the declaration and the association’s bylaws. At all relevant times, the board was comprised of Miller, his wife, Linda Welles, and his sister, Pam Claywell. [6]
Welles owns one unit in Rustle Meadow, known as ‘‘Unit 4,’’ where she and Miller reside. On August 11, 2006, the plaintiffs purchased an abutting property, which the statutory warranty deed (deed) describes as ‘‘Unit No. 3 of Rustle Meadow.’’ That deed provides in relevant part that ‘‘[s]aid real property is conveyed together with and subject to the terms, conditions, agreements, obligations and easements contained in the [d]eclaration . . . . The [g]rantee, by acceptance of this deed, agrees to become a member of [the associa- tion] and to abide by the Certificate of Incorporation, Bylaws, Rules and other regulations of the [a]ssocia- tion.’’ Section 21.1 of Article XXI of the declaration likewise provides that ‘‘[t]he acceptance of a deed or the exercise of any incident of ownership . . . of a Unit constitutes agreement that the provisions of the Documents are accepted and ratified by such Unit Owner . . . and all such provisions recorded on the Land Records of the Town of Canton are covenants running with the land and shall bind any Persons having at any time any interest or estate in such Unit.’’ At trial, the plaintiffs testified that they reviewed the declaration individually and with their attornеy prior to purchasing the property, and were aware of the restrictive cove- nants contained therein. [7]
Various exhibits admitted into evidence, including the declaration survey, indicate that the plaintiffs’ unit is 1.76 acres in size and narrow in shape. [8] Their unit is bordered to the west by land designated as ‘‘Open Space’’ and subject to the conservation easement. Those exhibits also indicate that a northeasterly portion of the plaintiffs’ parcel is subject to a ‘‘pasture ease- ment’’ for which development rights to create common elements of Rustle Meadow were reserved by the company. [10]
Article X of the declaration sets forth various restric- tions on the units in Rustle Meadow. Pertinent to this appeal is § 10.1 (k). Titled ‘‘Approval of Building and Landscaping Plans,’’ it provides in relevant part: ‘‘No building, shed, swimming pool, pavement, fence, wall *5 or other structure or improvement of any nature shall be erected upon any Unit in the Common Interest Com- munity without the prior written consent of the Declar- ant . . . . No Unit Owner shall make any exterior addition, change or alteration to a Unit or any residence located therein . . . or substantially change the topog- raphy of a Unit including the removal of any trees with- out the prior written consent of the Declarant which consent shall not be unreasonably withheld. Detailed plans of any such construction or landscaping or any addition, change or alteration thereto shall be submitted to the Declarant . . . . The Unit Owner must receive written approval from the Declarant prior to commenc- ing such construction, landscaping or making any addi- tions, changes or alterations. Any unauthorized construction or changes must be restored to its previous condition at such Unit Owner’s expense.’’ Section 13.1 (a) (ii) of Article XIII, which addresses ‘‘Additions, Alterations and Improvements by Unit Owners,’’ simi- larly provides in relevant part that a unit owner ‘‘[m]ay not make any changes, additions, alterations, or improvements to any structure in or on any Unit . . . or make any substantial change to the topography of a Unit . . . including the removal of trees, without the prior written approval . . . as provided in Section 10.1 (k) of this Declaration . . . . Such approval by . . . the [a]ssociation shall not be unreasonably withheld.’’
During construction of their residence, the plaintiffs requested approval to install an in-ground swimming pool on their property. [11] The declarant granted that request, and the pool was completed in the fall of 2008. An ‘‘as-built’’ survey, which was admitted into evidence, indicates that the pool is located behind the plaintiffs’ residence to the south. At its closest point, the pool measures 24.2 feet from the southeasterly side yard property line.
In December, 2009, the plaintiffs received written notice from the Canton building official that ‘‘[t]he pool is in violation because it is not properly fenced as required by [the] Connecticut State Building Code.’’ The plaintiffs thereafter submitted to Miller a written pro- posal to install a fence around the pool. [12] The fencing proposed by the plaintiffs would border ‘‘Unit 2’’ to the southeast, and not Welles’ ‘‘Unit 4’’ property to the northwest. In that June 23, 2010 e-mail, the plaintiffs invoked §§ 10.1 (k) and 13.1 (a) (ii), stating that ‘‘[a]pproval is expected as soon as possible аnd per the [declaration] ‘shall not be unreasonably withheld.’ ’’ They further advised that ‘‘any problems, issues, etc. should be submitted to our attorney with a copy to us. He will then contact your legal counsel to resolve.’’ Miller responded two days later on behalf of the associa- tion and requested further information on the pro- posal. Hours later, the plaintiffs sent Miller another e-mail, in which they largely disagreed with the need for further information. In that communication, the *6 plaintiffs also asked Miller to ‘‘provide us with the appropriate sections in the declaration, [association] rules, or our lot purchase agreement [and] the exact sections that define the green zone.’’ See footnote 13 of this opinion.
On July 2, 2010, Miller again responded to the plain- tiffs via e-mail and elaborated on his request for further information. In particular, he stated that ‘‘[t]he reason for the scale drawing is to ascertain where the fence is on the property, most importantly in relation to the green zone. Markings on the ground are not sufficient as they can be erased or damaged in the construction process. Then there is no way to agree post construction on where the fence should have been installed. Accurate measurements from known immovable points are needed, and then the approved location is well known and reproducible.’’ With respect to the plaintiffs’ query about the ‘‘green zone,’’ Miller stated that ‘‘[§] 10.1 (k) of the declaration is very clear on landscaping changes requiring approval. The green zone has been established by the association, and was discussed with you prior to purchasing [Unit 3] and clearing the lot. All of the trees cut on both sides of the house . . . are those that were outside of the green zone, all the trees and shrubs inside the green zone were not cut. Numerous discus- sions took place where you acknowledged the green zone. The green zone falls within the authority of the board in approving landscape changes after construc- tion. The ‘green zone’ is simply a term which names a section of the land adjacent to the wooded property lines where the association will tightly regulate any landscape changes to maximize the visual buffer between adjacent lots. You have already done unap- proved landscaping on your unit that affects this visual buffer. Any landscaping approval by the board will include consideration of maintaining the integrity of the green zone.’’ In a subsequent e-mail sent ten days later, Miller advised the plaintiffs that ‘‘[t]he pool fence will most likely not be approved any closer than fifteen feet to the property line. Maintaining a visual buffer between lots in this community is a reasonable crite- ri[on] from which to make a decision . . . . The lan- guage in [§] 10.1 [k] says ‘consent shall not be unreasonably withheld’. A visual buffer is a common community practice, is seen as an asset to a community, and is widely used by both town planning commissions and common interest communities. The board feels this is an entirely reasonable criteri[on] on which to base landscaping decisions.’’
Days later, the plaintiffs submitted certain revisions to their fence proposal that included a brochure of the proposed fence material and a drawing with what they termed ‘‘clear permanent points of measurement’’ for the fence’s proposed location. That drawing indicated that the fence would be 8.5 feet from the southeasterly property line, which borders ‘‘Unit 2’’ of Rustle Meadow. *7 In their correspondence, the plaintiffs also stated that ‘‘[t]he [d]eclaration, lot purchase agreement, construc- tion contract, all of the written agreements we have for our home do not mention or stipulate a ‘green zone’ or a ‘[fifteen] foot’ requirement or any other foot require- ment. Therefore they are not relevant to the approval of the type of fence we have requested to install. We have a property line which is noted on the drawing. Any requirement to a ‘green zone’ that does not exist in the lot plans or declaration is inappropriate and unreasonable.’’ They further indicated that the pro- posed fence complied with town regulations. The plain- tiffs then requested a decision on their proposal in writing by the board.
Miller furnished the decision of the board in a July 23, 2010 e-mail to the plaintiffs. In that decision, Miller reiterated that ‘‘a proper scale drawing is needed.’’ He then stated that ‘‘[a]s the proposed fence appears to fall well within the [fifteen] foot visual buffer we call the green zone . . . the fence as drawn is not approved. . . . The board would likely approve a black Echelon fence that is on or adjacent to the patio edge (on the east side), and encourages you to submit a drawing proposing that. . . . If you prefer to locate the fence as close to the [g]reen [z]one line as possible, the board will require a fence maintenance plan for any section of fence that lies within [three] feet of the green zone, or within [eighteen] feet of the property line. . . . In addition, if the proposed fence is within 1.5 feet of the green zone the board will require that the line be surveyed, as the flagging currently in use is only an approximation. Whether or not you can find the term ‘green zone’ in the declaration does not affect the authority of the board to determine what are acceptable landscaping changes to take place in the community. Authority comes from [§] 10.1 (k) of the declaration that outlines the landscape review process. . . . The [fifteen] foot visual buffer green zone is something that is already in place, and was previously acknowledged by you. The board has every intention of keeping it in place. Continuing to state that the board’s landscaping review criteria are inappropriate and quoting town zon- ing [requirements are] not responsive to the board’s request. The town’s requirements are in addition to, but are not the only requirements in a planned community like Rustle Meadow. Please submit a pool fence con- struction plan and an accurate scale drawing that ade- quately respects the [fifteen] foot visual buffer green zone if you would like it to be considered.’’
Sixteen months later, Miller sent the plaintiffs an e-mail dated December 2, 2011, in which he noted that it had ‘‘been months since we heard from [you] on submitting a suitable loсation for the pool fence’’ and cautioned that ‘‘[t]he association can no longer tolerate this safety risk, and will be writing a letter to the town asking for enforcement.’’ Miller subsequently contacted *8 the Canton building department and informed it that ‘‘[t]here has been no pool fence’’ on the plaintiffs’ prop- erty ‘‘since the pool was completed in 2008.’’ Miller also stated that fencing previously proposed to the associa- tion by the plaintiffs ‘‘placed the fence unnecessarily within a [fifteen] foot visual buffer zone along the prop- erty line. The board denied the fence location on that basis, and encouraged a fence proposal that was outside of the [fifteen] foot buffer. . . . The entire summer and fall of 2011 has passed with no new proposal. . . . [A] temporary garden wire type fence has been put up. While this is better than nothing, the board is concerned that this dangerous situation is not being rectified . . . . While we understand winter weather might not allow an immediate correction, we would hope that an acceptable plan could be submitted to this board before spring, and construction could begin when weather allows.’’ The building department thereafter sent the plaintiffs a certified letter that requested ‘‘[y]our compli- ance in addressing this serious violation . . . .’’
In the spring of 2012, Attorney Louis N. George sub- mitted a revised fence proposal on behalf of the plain- tiffs. That submission states in relevant part: ‘‘Attached are the plans for the fence and where it will be located. Town regulations allow the fence to be placed at the boundary line. There are no [a]ssociation regulations limiting the location of the fence. Our clients are, how- ever, intending to place the fence approximately eight feet from the boundary. Hopefully you will embrace this compromise. The fence design is one that you had already stated would be fine. Please let us know if this is acceptable.’’ Included in that submission was an updated depiction of the proposed fence location, which the plaintiffs sketched onto a copy of the ‘‘as- built’’ survey of the pool. In the eight foot section between the proposed fence and the southeasterly prop- erly line, the plaintiffs indicated that ‘‘[b]amboo type shrubs to be placed every [six-eight] feet . . . . Nurs- ery indicated this type of shrub would grow in this wet, shaded area. These shrubs along with existing vegeta- tion on side yard will provide more than sufficient cov- erage.’’ In response, the board requested ‘‘details regarding the species and mature height of the bamboo and a scale drawing of the plan . . . .’’ Several months passed as discussions continued between the parties.
At the time of the association’s June 21, 2013 annual meeting, both the plaintiffs and the association were represented by legal counsel. The minutes of that meet- ing state in relevant part that ‘‘[d]iscussion was held regarding the visual buffer area between units that the board calls the green zone. The [plaintiffs] stated that there is no specific boundary in the documents to restrict activity. [Miller] stated that the [plaintiffs] had acknowledged in writing the need to maintain a visual green zone buffer between units for privacy and to maintain the wooded character of the community. The *9 board noted that the standard buffer is [twenty feet] but that the [plaintiffs] were given a concession for [fifteen feet] because they have the narrowest lot.’’ The minutes reflect that the plaintiffs had submitted a revised pool fence proposal, but had not yet responded to the board’s request for additional information. The minutes further indicate that the plaintiffs ‘‘agreed to provide the details on the pool fence plantings requested by the board and to submit a proposal for creation of an undisturbed visual buffer area,’’ which the board ‘‘agreed to review . . . when provided and respond within [two] weeks.’’
By letter dated July 9, 2013, George responded to the board’s request for further information on behalf of the plaintiffs. With respect to the proposed plantings, George stated that ‘‘Scabrida Clumping Bamboo’’ would be installed ‘‘between the side yard fencing and the property line on the [southwesterly] side of the house with the vacant lot, as noted on the drawing.’’ He also explained that ‘‘[t]he bamboo grows [twelve-fourteen feet] tall by [three feet] wide for each bush’’ and that this species ‘‘is non-invasive, vigorous and easy to grow . . . .’’ As to the buffer area between Units 3 and 4, George indicated that the plaintiffs ‘‘would be glad to agree to continue adding shrubs and ground cover to this area in the future.’’ Months passed without any formal response or action by the board. Nevertheless, discussions between the parties’ respective attorneys continued in an attempt to reach an agreement. It is undisputed that, at some point in the fall of 2013, coun- sel for the association withdrew his representation due to a personal matter.
The plaintiffs commenced this civil action in Decem- ber, 2013. At that time, the association had not rendered a decision on the plaintiffs’ pending proposal. [14] The operative complaint dated April 17, 2014, contains three counts. The first count set forth a cause of action under the act; see General Statutes § 47-278 (a); and alleged, inter alia, that the defendants ‘‘failed to approve [the fence proposal] even though all the requirements were met’’ and ‘‘unreasonably’’ denied that proposal and ‘‘conditioned the Association’s approval of the fence on . . . compliance with the fictional Green Zone.’’ The first count also alleged that the defendants improp- erly issued certain fines against the plaintiffs ‘‘for vio- lating a fifteen (15) foot visual buffer area between [their] property and Miller’s home (the ‘Green Zone’).’’ The second count alleged a breach of fiduciary duty on the part of the defendants. The third and final count sought the appointment of a receiver for the association pursuant to General Statutes § 52-504. [16]
In their prayer for relief, the plaintiffs sought ‘‘[1] monetary damages; [2] interest; [3] costs of suit; [4] appointment of a receiver to manage and operate the [a]ssociation as a matter of equity pursuant to [§] 52- *10 504; [5] an injunction prohibiting [Miller] from assigning his rights or powers as the owner of [the company] or as the president of the association to his wife, heirs, successors, assigns and/or family members [from] hold- ing a position on the [board] or рarticipating in any voting concerning the association, as well as any and all relief requested in [the plaintiffs’] application for an injunction, which is incorporated herein by reference; [17] [6] an injunction ordering the association to permit the plaintiffs to erect a fence around their swimming pool in accordance with the Town of Canton’s rules and/or regulations; [7] an order that there is no ‘Green Zone’ as defined by [the defendants] at [Rustle Meadow] and/ or that applies to the plaintiffs’ property at [Rustle Meadow]; [8] an order that all statutory liens arising from fines and/or penalties assessed against the plain- tiffs by the association from the beginning of time to date are removed, discharged and declared null and void; [9] attorney’s fees and costs pursuant to [§] 47- 278 (a); and [10] any and all other relief, legal or equita- ble, that the court deems just and proper.’’ (Footnote added.)
The defendants thereafter filed both an answer and a counterclaim. In that counterclaim, the defendants sought recourse related to (1) certain unpaid assess- ments levied against units in Rustle Meadow; (2) fines imposed by the association for unauthorized landscap- ing allegedly performed by the plaintiffs; and (3) fines imposed by the association against the plaintiffs due to their alleged interference with a boundary marker. In answering that counterclaim, the plaintiffs either denied its allegations or claimed that they lacked suffi- cient knowledge and therefore left the defendants to their burden of proof.
During a pretrial deposition, portions of which were admitted into evidence at trial, the plaintiffs’ counsel asked Miller to define the ‘‘green zone.’’ Miller stated that ‘‘[i]t’s a visual buffer that is one of the standards that the association uses to evaluate changes to land- scaping . . . in the conduct of its business of the subdi- vision.’’ When counsel requested a more detailed explanation of that ‘‘buffer,’’ Miller stated that ‘‘[i]t’s an area where natural vegetation would be protected and not removed, destroyed, cut, or in other ways inhibited so as to provide a visual buffer between adjoining build- ing lots.’’ Miller further confirmed that ‘‘[t]here are no documents recorded at the [Canton] town hall that con- tain the phrase, the Green Zone.’’
A court trial was held in November, 2014. One day before trial was to begin, the plaintiffs filed a motion in limine seeking to preclude any testimony or docu- mentation relating to the green zone, arguing that because the term ‘‘green zone’’ is not contained in either the declaration or any other material recorded on the Canton land records, it is ‘‘is clearly unenforceable’’ *11 under the act. The trial court agreed, stating that ‘‘it doesn’t seem . . . that it’s reasonable if it is not in writing. . . . I’m granting the motion in limine because I don’t think that the so-called green zone, being unwrit- ten, is . . . sufficient notice to the prospective buyer.’’
Trial proceeded over three days, during which the court heard testimony from the plaintiffs, Miller, and Welles. Following the close of evidence, the court held a hearing on the issue of attorney’s fees, at which the plaintiffs represented that they had incurred $47,420.33 in such expenses.
In its January 14, 2015 memorandum of decision, the court reiterated its previous finding, made while ruling on the motiоn in limine, that the ‘‘green zone is not reasonable because it was not in writing . . . . [T]here is nothing in writing in the declaration or bylaws to indicate to anyone, including the plaintiffs, that there is a green zone . . . . Accordingly, this court finds that it was illegal and inequitable for the association to deny the applications for a fence around the pool in the [green zone].’’ (Citation omitted.) The court then proceeded to rule in favor of the plaintiffs on all counts of the defendants’ counterclaim. At the same time, the court ruled in favor of the defendants on the plaintiffs’ request for the appointment of a receiver for the association.
The court then issued six specific orders. First, it ordered ‘‘[a] temporary injunction . . . that the associ- ation permit the plaintiffs to erect a fence around their swimming pool in accordance with the town of Canton’s rules and/or regulations, whether in the green zone or not. Further, the defendants are prohibited from interfering with the plaintiffs’ use of the ‘green zone,’ whether the plaintiffs remove, replace, alter or add trees and foliage. The green zone is, after all, the plaintiffs’ property. The defendants are ordered to cooperate with the plaintiffs in case a variance is needed or any other action is needed by them to accomplish the erection of the fence around the swimming pool as desired by the plaintiffs. [Second] the defendants are ordered to remove, immediately, any liens that have been placed against the plaintiffs’ property for fines/assessments. [Third] a temporary injunction is issued prohibiting Miller from assigning his rights or powers as the owner of the subdivision or as the president of the association to his wife, heirs, successors, assigns and/or family members [from] holding a position on the board of the association as well as any and all relief requested in [the] plaintiffs’ application for an injunction except for arms-length sales of individual lots, and their request for a receiver. [Fourth] the green zone as defined by the defendants as it applies to the plaintiffs’ property at the development is hereby declared null and void. [Fifth] all parties are prohibited from disparaging or criticizing each other to others, including, but not lim- ited to, possible buyers of lots in the subdivision. [Sixth, *12 the defendants’] counterclaim [is] hereby rejected. The defendants’ request for attorney’s fees is denied.’’
Last, the court rendered an award of attorney’s fees in favor of the plaintiffs in the amount of $57,718.25. The defendants subsequently filed a ‘‘motion to reargue and reconsider memorandum of decision’’ and a ‘‘motion for articulation and rectification,’’ both of which the court summarily denied. The defendants commenced this appeal on February 23, 2015.
Days later, the defendants filed a motion requesting a stay of the injunctive relief ordered by the court pending resolution of this appeal. On March 27, 2015, the trial court issued the following order: ‘‘Denied. With the exception that, for clarification purposes, Jeffrey Miller, Linda Welles, Pam Claywell and unit owners may serve on the board of directors of the association. The court finds that the balance of the equities is in favor of the plaintiffs. Under [Practice Book §] 61-12, there is little likelihood that the [defendants] will prevail because it is well settled law that temporary injunctions are not appealable. [18] There is no irreparable harm to be suffered by the defendants upon immediate implementation of the judgment. As for the automatic stay provided during an appeal, this court, sua sponte, hereby terminates that stay.’’ (Footnote added.) That same day, the court granted the plaintiffs’ application for a prejudgment remedy in the amount of $72,718.25. [19]
On March 24, 2015, the plaintiffs filed in the trial court a motion for contempt, claiming, inter alia, that the defendants had continued to impose assessments on the plaintiffs’ unit. In its April 6, 2015 order, the court stated that ‘‘[t]he motion for contempt is denied on the basis that [the defendants’ counsel] has repre- sented that no liens have been filed . . . .’’ The court nonetheless ordered that ‘‘[t]he association is to remove any assessment against the plaintiffs for legal fees related to this case and any legal fees from here on in related to this case, which the court declares said fees to be null and void. . . . The termination of the auto- matic stay remains in place, except that the plaintiffs may not execute on the prejudgment remedy or its substitution while the appeal is pending.’’ On April 24, 2015, the defendants filed an amended appeal with this court to encompass those additional rulings.
On May 13, 2015, this court granted a motion for review filed by the defendants with respect to the trial court’s denial of a stay of injunctive relief and sua sponte termination of the automatic stay. This court vacated those orders, specifically determining that the trial court’s judgment awarding injunctive relief was permanent in nature and, thus, appealable. This court therefore remanded the matter to the trial court with direction to (1) consider whether a stay of such relief should be imposed in this case under General Statutes § 52-477 and (2) to reconsider whether the automatic *13 stay should be terminated pursuant to Practice Book § 61-11.
On June 25, 2015, the trial court issued an order in response thereto. In that order, the court reiterated that the ‘‘green zone’’ was not in writing. It then found that ‘‘the due administration of justice requires an order that the stay be terminated because it is unlikely that the [defendants] will prevail in view of the fact that the ‘green zone’ is illegal.’’ The court thus terminated the stay ‘‘to the extent that the plaintiffs may install a perma- nent fence surrounding the swimming pool within the ‘green zone,’ but shall use their best efforts not to inter- fere with shrubbery and trees. . . . For the same rea- sons, the ‘green zone’ being illegal, the stay is terminated as to the fines imposed by the defendants because of alleged violation of said ‘green zone.’ The court granted a prejudgment remedy on behalf of the plaintiffs, but no attachment or garnishment should be made because the parties have agreed to a certificate of deposit to be held in escrow, which will cover the prejudgment remedy.’’ The defendants then filed a further motion for review with this court regarding that order. This court granted review of that motion, but denied the relief requested.
I The principal issue in this appeal is whether the trial court applied the proper legal standard governing judi- cial review of the discretionary determinаtions of an association in a common interest community, or whether, as the defendants contend, its decision consti- tuted a ‘‘gross departure’’ from that standard. In answer- ing that question, we note that this is an emerging area of the law that has received relatively little treatment by the appellate courts of this state. We begin, therefore, with an overview of the development of common inter- est community jurisprudence.
A
Background
‘‘Although common-interest communities date back
into the 19th century, they have become a widely avail-
able form of housing only since the 1960s.’’ 2
Restatement (Third), Property, Servitudes § 6.13, com-
ment (b), p. 239 (2000); accord
Cape May Harbor Vil-
lage & Yacht Club Assn., Inc Sbraga
, 421 N.J. Super.
56, 69,
As our Supreme Court has explained, the act ‘‘con-
templates the voluntary participation of the owners’’
within a common interest community.
Wilcox
v.
Willard
Shopping Center Associates
,
‘‘Historically, restrictive covenants have been used
to assure uniformity of development and use of a resi-
dential area to give the owners of lots within such an
area some degree of environmental stability.’’
Montoya
Barreras
,
Owners of units in a common interest community,
in turn, secure the right to enforce those restrictions
against others. See General Statutes § 47-278;
Bella
Vista Condominium Assn., Inc
. v.
Byars
, 102 Conn.
App. 245, 254,
At first blush, the inherently restrictive nature of a
common interest community may appear to conflict
with public policy favoring the free and unrestricted
use of real property, which ‘‘was dominant in the United
States throughout the nineteenth century .
.
.
.’’
Pertzsch
v.
Upper Oconomowoc Lake Assn
., 248 Wis.
2d 219, 232,
In reviewing the determinations of an association in
a common interest community, Connecticut, like most
jurisdictions, draws a crucial distinction between the
authority
to exercise the rights and responsibilities
delineated in a declaration; see
Cantonbury Heights
Condominium Assn., Inc
. v.
Local Land Development,
LLC
,
With respect to the former, principles of contract
interpretation control. It is well established that the
declaration is the constitution of a community orga-
nized pursuant to the act.
Weldy Northbrook Condo-
minium Assn., Inc
., supra,
On the other hand, as to the exercise of an associa-
tion’s discretionary authority under a declaration,
courts across the country agree that a degree of defer-
ence is warranted. As the Supreme Court of California
recognized decades ago, ‘‘[g]enerally, courts will uphold
decisions made by the governing board of an owners
association so long as they represent good faith efforts
to further the purposes of the common interest develop-
ment, are consistent with the development’s governing
documents, and comply with public policy.’’
Nahrstedt
v.
Lakeside Village Condominium Assn
., supra, 8 Cal.
4th 374; see also
McNamee
v.
Bishop Trust Co
.,
Ltd
.,
There are innumerable cаses like the one now before us, in which a dispute arose over restrictive covenants that required association approval prior to construction on, or the alteration of, a unit in a common interest community. As the Supreme Court of Hawaii observed, ‘‘[c]ovenants requiring submission of plans and prior consent before construction . . . are commonly found in leases and deeds around the country. Most courts have found these approval clauses to be valid and enforceable as long as the authority to consent or approve is exercised reasonably and in good faith.’’ McNamee Bishop Trust Co ., Ltd ., supra, 62 Haw. 402–403; see also Gleneagle Civic Assn Hardin , 205 P.3d 462, 469 (Colo. App. 2008) (‘‘[t]he majority view with respect to covenants requiring submission of plans and prior consent to construction by the developer . . . *18 is that such clauses, even if vesting the approving authority with broad discretionary powers, are valid and enforceable so long as the authority to consent is exercised reasonably and in good faith’’ [internal quota- tion marks omitted]). [23]
More specifically, ‘‘[m]ost jurisdictions . . . recog-
nize the validity and, in a proper case, the enforceability
of covenants requiring consent to construction or
approval of plans even if those covenants do not contain
explicit standards for approval.’’
Cypress Gardens, Ltd
.
v.
Platt
,
The Restatement (Third) of Property, Servitudes,
adopts such an approach. As the reporter’s note states,
it ‘‘follows the trend of modern statutes in taking an
expansive view of the powers of a property-owners
association with respect to . . . protection of property
values in the community through covenant enforcement
and other actions to advance the collective interests of
the common-interest community.’’ 2 Restatement
(Third), Property, Servitudes § 6.4, reporter’s note, p.
92 (2000). Although it disavows the existence of an
implied design control power; see id., § 6.9 and com-
ment (b), p. 171; the Restatement recognizes that the
exercise of an explicit design control power is ‘‘likely
to increase property values by preventing aesthetic nui-
sances’’; id., § 6.9, comment (d), p. 173; as such power
is ‘‘intended to protect the legitimate expectations of
members of common-interest communities.’’ Id., § 6.13,
comment (a), p. 234; accord
Nahrstedt Lakeside Vil-
lage Condominium Assn
., supra,
With respect to design control powers that vest dis- cretion in an association to approve a proposed activity, the Restatement notes ‘‘two kinds of risks for property owners. [First, owners] may not be able to develop in accordance with their expectations because they can- not predict how [that discretion] will be applied. Sec- ond, property owners may be subject to arbitrary or discriminatory treatment because there are no stan- dards against which the appropriateness of the power’s exercise can be measured.’’ 2 Restatement (Third), Property, Servitudes § 6.9, comment (d), p. 173 (2000). To alleviate those risks, the Restatement imposes a reasonableness standard on the exercise of discretion- ary design control powers. Section 6.13 (1) provides in relevant part that an association has the duty ‘‘to act reasonably in the exercise of its discretionary powers including rulemaking, enforcement, and design-control powers . . . .’’ Id., § 6.13 (1) (c), p. 233. The reason- ableness standard ‘‘at its core, allows for an adjudicative posture that honors the fundamental underpinnings of association functioning and structure, is responsive to association aims, takes into account investment-backed owner expectations, and appreciates the potential for abuse.’’ P. Franzese, ‘‘Common Interest Communities: Standards of Review and Review of Standards,’’ 3 Wash. U. J.L. & Policy 663, 669 (2000).
B Weldy In Weldy , our Supreme Court, in accordance with courts throughout the country, recognized that a degree of deference is warranted to an association exercising its powers under a declaration. Relying on the Restatement (Third) of Property, Servitudes, the court observed that ‘‘declarations and other governing docu- ments contain broad statements of general policy with due notice that the board of directors is empowered to implement these policies and address day-to-day prob- lems in the [association’s] operation. . . . Thus, the declaration should not be so narrowly construed so as to eviscerate the association’s intended role as the governing body of the community. Rather, a broad view of the powers delegated to the association is justified by the important role these communities play in main- taining property values and providing municipal-like services.’’ (Internal quotation marks omitted.) Weldy v. Northbrook Condominium Assn., Inc ., supra, 279 Conn. 737. The court continued: ‘‘Because an associa- tion’s power should be interpreted broadly, the associa- tion, through its appropriate governing body, is entitled to exercise all powers of the community except those reserved to the members. . . . This broad view of the powers delegated to the [common interest communi- ty’s] board of directors is consistent with the principle *20 inherent in the [common interest ownership] concept . . . that to promote the health, happiness, and peace of mind of the majority of the unit owners since they are living in such close proximity and using facilities in common, each unit owner must give up a certain degrеe of freedom of choice which he might otherwise enjoy in separate, privately owned property. . . . [U]nit owners comprise a little democratic sub society of necessity more restrictive as it pertains to [the] use of [common interest] property than may be existent outside’’ the common interest community. (Citations omitted; internal quotation marks omitted.) Id., 738.
In so noting, our Supreme Court expressly relied on
Hidden Harbour Estates, Inc
. v.
Norman
, 309 So. 2d
180 (Fla. App. 1975), an early case that employed a
reasonableness standard of review to discretionary
association action. In that case, the court held that
‘‘the association is not at liberty to adopt arbitrary or
capricious rules bearing no relationship to the health,
happiness and enjoyment of life of the various unit
owners. On the contrary, we believe the test is reason-
ableness.’’ Id., 182. In another early decision addressing
the exercise of such discretion, the Court of Appeals
of Maryland similarly reasoned that ‘‘[t]he language
used in the covenants . . . makes plain the desire to
regulate the construction of the dwellings in such a
manner as to create an attractive and desirable neigh-
borhood. We think the parties had a right voluntarily
to make this kind of a contract between themselves;
and the covenant does not create any interference with
the fee of the property that would require it to be
stricken down as against public policy. It does not pre-
vent the owner from conveying the property or impose
any unlawful restraint of trade, but affects only its
method of use. We hold that any refusal to approve the
[proposed alterations] would have to be based upon a
reason that bears some relation to the other buildings
or the general plan of development; and this refusal
would have to be a reasonable determination made in
good faith, and not high-handed, whimsical or captious
in manner.’’
Kirkley Seipelt
, supra,
In
Weldy
, our Supreme Court instructed that review
of an association’s discretionary determinations
requires a two part inquiry. ‘‘When a court is called
upon to assess the validity of [an action taken] by [an
association], it first determines whether the [associa-
tion] acted within its scope of authority and, second,
whether the [action] reflects
reasoned
or arbitrary and
capricious decision making.’’ (Emphasis added; internal
quotation marks omitted.)
Weldy Northbrook Condo-
minium Assn., Inc
., supra,
Weldy
was decided by our Supreme Court in 2006.
The two part test articulated therein has therefore gov-
erned review of determinations by common interest
community associations in Connecticut for more than
one decade. See, e.g.,
Gugliemi
v.
Willowbrook Condo-
minium Assn., Inc.,
Superior Court, judicial district of
Hartford, Docket No. CV-11-6018687, 2013 Conn. Super.
LEXIS 700 (March 28, 2013) (applying
Weldy
’s two part
test), aff’d,
C
Reasonableness
As courts across this state have recognized,
Weldy
articulated a two part test that governs review of discre-
tionary association determinations. At the same time,
that case involved no claim as to whether the associa-
tion’s determination was reasonable, a distinction
underscored by our Supreme Court. Rather, ‘‘the only
issue before the court’’ was the authority of the associa-
tion.
Weldy Northbrook Condominium Assn., Inc
.,
supra,
A criticism of some decisions that apply a reasonable-
*22
ness standard in this context is that they do so ‘‘without
defining what reasonable means.’’ W. Hyatt, ‘‘Common
Interest Communities: Evolution and Reinvention,’’ 31
J. Marshall L. Rev. 303, 354 (1998). For example, in
Hidden Harbour Estates, Inc
. v.
Norman
, supra, 309
So. 2d 182, the court stated simply that ‘‘we believe
the test is reasonableness. If a rule is reasonable the
association can adopt it; if not, it cannot.’’ Given the
near universal recognition that a degree of deference
to discretionary association determinations is appro-
priate, courts in recent years have noted the need for
‘‘a more objective ‘reasonableness’ standard by which
to judge the discretionary actions of community associ-
ations.’’
Tierra Ranchos Homeowners Assn
. v.
Kitchu-
kov
, supra,
No Connecticut appellate court has addressed the
contours of the reasonableness metric in the context
of common interest ownership communities. It is aрpro-
priate, therefore, to look to other jurisdictions for guid-
ance.
Weldy Northbrook Condominium Assn., Inc
.,
supra,
Mindful of the deference accorded to associations
vested with discretionary authority, many courts have
held that a reasonableness analysis properly begins with
consideration of the rationale and stated bases for the
association’s determination. See
Laguna Royale Own-
ers Assn
. v.
Darger
,
Courts also give considerable weight to the purposes
underlying a common interest community. As one
stated, ‘‘[w]e hold that in exercising its [discretionary]
power .
.
. [the] [a]ssociation must act reasonably,
exercising its power in a fair and nondiscriminatory
manner and withholding approval only for a reason or
reasons rationally related to the protection, preserva-
tion and proper operation of the property and the pur-
poses of [the] [a]ssociation as set forth in its governing
instruments.’’
Laguna Royale Owners Assn
. v.
Darger
,
supra,
Accordingly, application of the reasonableness stan-
dard in the context of a challenge to discretionary asso-
ciation action cannot focus exclusively on the interests
of the disgruntled unit owner or the executive board
of an association. Rather, courts must remain cognizant
of the larger interest of the common interest commu-
nity. See
Nahrstedt Lakeside Village Condominium
Assn
., supra,
At the same time, an association cannot exercise its
discretionary authority in an arbitrary or capricious
manner.
Weldy
v.
Northbrook Condominium Assn.,
Inc
., supra,
Before turning our attention to the decision of the
trial court, two additional aspects of the reasonableness
standard merit discussion. The first pertains to the allo-
cation of the burden of proof in an action in which a
unit owner in a common interest community challenges
an
association’s
discretionary
decisionmaking.
Although our appellate courts have not addressed this
issue, we note that our Supreme Court in
Weldy
expressly relied on the Restatement (Third) of Property,
Servitudes, in recognizing a broad view of the powers
delegated to the association and the corresponding def-
erence accorded thereto. See
Weldy Northbrook Con-
dominium Assn., Inc
., supra,
Furthermore, a contrary result strikes us as illogical
in light of the deference accorded to associations in
matters involving discretionary determinations under a
declaration, as well as our Supreme Court’s ‘‘broad view
of the powers’’ delegated to an association in a common
interest community.
Weldy
v.
Northbrook Condomin-
ium Assn., Inc
., supra,
A second noteworthy aspect of the reasonableness
standard pertains to its inherent nature. As many courts
have recognized, the determination of whether an asso-
ciation reasonably exercised its discretion is a question
of fact. Connecticut law likewise recognizes that the
question of reasonableness presents an issue of fact.
See, e.g.,
Deming
v.
Nationwide Mutual Ins. Co
., 279
Conn. 745, 759 n.15,
In
Peterson
v.
Oxford
,
D Trial Court Decision On January 14, 2015, the court issued its memoran- dum of decision. In that decision, the court specifically addressed the propriety of the green zone and the asso- ciation’s failure to approve the plaintiffs’ fence pro- posal. It stated: ‘‘Is there a green zone? The short answer is no. At the start of this trial, this court granted the plaintiffs’ motion in limine prohibiting the defendants from introducing any unrecorded maps or unrecorded documents that show a green zone. The court found that the green zone is not reasonable because it was not in writing, that the green zone, being unwritten, is not sufficient notice to a prospective buyer. . . . The green zone as hereinbefore described is in the mind of Miller, and there is nothing in writing in the declaration or bylaws to indicate to anyone, including the plaintiffs, that there is a green zone, namely, a fifteen foot wide piece of land claimed by Miller from the boundary of the plaintiffs’ in toward the rest of their property, a distance of fifteen feet, surrounding the entire property of the plaintiffs. Accordingly, this court finds that it was illegal and inequitable for the association to deny the applications for a fence around the pool in the green zone hereinbefore described.’’ (Citation omitted.) In a later portion of the decision concerning ‘‘the defen- dants’ actions in restricting landscaping by the plain- tiffs,’’ the court likewise noted that the conduct of the association in ‘‘withholding . . . the approval for a fence’’ was unreasonable because the ‘‘green zone . . . did not exist in writing . . . .’’ On appeal, the defen- dants contest the propriety of those determinations.
1 Motion in Limine We begin with the defendants’ contention that the court improperly granted the motion in limine to pre- clude evidence relating to the green zone. The following additional facts are relevant to that issue. One day prior to trial, the plaintiffs filed a motion in limine seeking to preclude any testimony or documentation ‘‘that relates to the green zone.’’ The plaintiffs emphasized that all restrictions on the use of property within a common interest community are required to be included in the declaration thereof. Because Miller admitted in his deposition testimony that the term ‘‘green zone’’ is not contained in either the declaration or any other material recorded on the Canton land records, the plaintiffs argued that ‘‘the green zone is clearly unenforceable’’ under the act.
When the court heard argument on the motion on the first day of trial, the defendants’ counsel responded by stating, ‘‘Your Honor, this motion in limine is a won- derful way to start this case because it identifies where *28 the issues are, where the conflicts are’’ between the parties. He emphasized that the declaration expressly vests discretionary authority in the association to approve or deny all exterior development and landscap- ing within Rustle Meadow. At that time, counsel brought Weldy to the court’s attention, which he described as ‘‘the only . . . Supreme Court case on point,’’ and furnished a copy of that decision to the court. He stated that, in Weldy , ‘‘the [Supreme Court] was called upon for the first time . . . to decide how [to] deal with’’ the discretion of an association in a common interest community. Noting the two part test articulated therein, counsel explained that ‘‘the second part of the test [asks whether] the homeowners’ associa- tion acted reasonably or did it act arbitrarily and capri- ciously.’’ The ultimate issue before the court, he continued, was the determination of whether the associ- ation reasonably exercised its discretionary authority. Accordingly, he argued that evidence of the ‘‘green zone’’ was both relevant and necessary to resolving that issue.
The trial court did not agree with the defendants. It stated: ‘‘The motion in limine is granted. . . . Appar- ently [Miller] decided what the green zone is, and . . . it doesn’t seem to me that it’s reasonable if it is not in writing. If he wants to testify as to why he did what he did, I don’t have a problem with that. I’ll evaluate that as I will any other witness, but I’m . . . granting the motion in limine because I don’t think that the so-called green zone, being unwritten, is . . . sufficient notice to the prospective buyer. I mean, [Miller] says in his deposition that if you want to know what the green zone is, ask me. I don’t think that’s sufficient. . . . [I]f we’re talking about discretion, at this point I think that is . . . beyond discretion.’’
The court thereafter excluded or redacted certain evidence and testimony throughout the course of trial. For example, the court redacted Miller’s statement that ‘‘[t]he [fifteen] foot green zone needs to be respected’’ from his July 22, 2008 e-mail to the plaintiffs, which was sent prior to the construction of the swimming pool. The court likewise redacted the plaintiffs’ July 23, 2008 response to that communication, in which they stated that they were ‘‘confident that when the pool and grading is donе, the green zone will be at least the [fifteen] feet. Looking at the [southeasterly] side yard, it looks like the only area the dirt is encroaching is by the side of the deck. Once [the] patio is in and we do landscaping I am sure you will be pleased with the amount of green we add or maintain.’’
On appeal, the defendants claim that the court
improperly excluded such evidence regarding the green
zone. ‘‘The scope of our appellate review depends upon
the proper characterization of the rulings made by the
trial court.’’ (Internal quotation marks omitted.)
Olson
*29
v.
Accessory Controls & Equipment Corp
., 254 Conn.
145, 156,
On appeal, the plaintiffs submit that the court prop-
erly determined that the green zone had to be in writing.
In so doing, however, they rely on decisional law arising
outside the context of common interest communities.
See, e.g.,
Wykeham Rise, LLC
v.
Federer
, 305 Conn.
448,
The plaintiffs’ reliance on the statute of frauds like-
wise is untenable. Under Connecticut law, the statute
of frauds operates as a special defense to a civil action.
See, e.g.,
Suffield Development Associates Ltd. Partner-
ship Society for Savings
,
More significantly, this is not a case that lacks a
written agreement. Under Connecticut law, restrictive
covenants in a common interest community must be
included in the declaration thereof; General Statutes
§ 47-224 (a) (12); which, in turn, must be filed on the
land records. General Statutes § 47-220 (a). Consistent
with that statutory imperative, the Declaration of Rustle
Meadow was recorded on the Canton land records prior
to the plaintiffs’ purchase of their unit in the common
interest community. That declaration contains numer-
ous restrictive covenants. At trial, the plaintiffs testified
that they reviewed the declaration prior to purchasing
their unit and were aware of the restrictive covenants
contained therein. See
Dolan-King Rancho Santa Fe
Assn
.,
The declaration contains reciprocal provisions
regarding the association’s discretionary authority over
design control matters. See footnote 26 of this opinion.
Section 10.1 (k) of Article X vests sweeping design
control powers in the association, which, like those at
issue in
Buick Highland Meadow Estates at Castle
Peak Ranch, Inc
., supra,
The record before us contains ample documentary evidence indicating that the so-called ‘‘green zone’’ was a criterion considered by the association in the exercise of its discretionary design control authority under §§ 10.1 (k) and 13.1 (a) of the declaration. In a portion of deposition testimony that was admitted into evi- dence, the plaintiffs’ counsel inquired as to Miller’s use of the term ‘‘green zone’’ in communications with the plaintiffs. The following colloquy transpired:
‘‘[The Plaintiffs’ Attorney]: Why did you use the word Green Zone in your e-mail? . . .
‘‘[Miller]: Because—I used the phrase, fifteen foot Green Zone, because I had discussed with the [plain- tiffs] previously the fifteen foot Green Zone, and that’s why I said it needed to be respected.
‘‘[The Plaintiffs’ Attorney]: Can you define the fifteen foot Green Zone, please?
‘‘[Miller]: It’s a visual buffer that is one of the stan- dards that the association uses to evaluate changes to landscaping and—evaluate changes to landscaping and the—in the conduct of its business of the subdivision.
‘‘[The Plaintiffs’ Attorney]: And it is sort of unclear. When you were describing the Green Zone as a buffer, can you just articulate what, in your definition, a fifteen foot Green Zone is as it relates to the plaintiffs’ property?
‘‘[Miller]: ‘‘It’s an area where natural vegetation would be protected and not removed, destroyed, cut, or in other ways inhibited so as to provide a visual buffer between adjoining building lots.’’
In his July 2, 2010 e-mail to the plaintiffs, Miller simi- larly stated that ‘‘[t]he green zone falls within the author- ity of the board in approving landscape changes after construction. The ‘green zone’ is simply a term which names a section of the land adjacent to the wooded property lines where the association will tightly regulate any landscape changes to maximize the visual buffer between adjacent lots.’’ In a subsequent e-mail sent days later, Miller informed the plaintiffs that ‘‘[m]aintaining a visual buffer between lots in this community is a . . . criteri[on] from which to make a decision . . . .’’ The minutes of the association’s June 21, 2013 annual meet- ing likewise reflect that discussion transpired on ‘‘the need to maintain a visual green zone buffer between units for privacy and to maintain the wooded character of the community.’’ Similarly, when Miller contacted the Canton building department in 2011, he made no mention of any ‘‘green zone,’’ but rather indicated that *32 the plaintiffs had proposed a fence within a ‘‘visual buffer zone.’’ That correspondence further indicated that the plaintiffs’ proposal had been denied because it ‘‘placed the fence unnecessarily within’’ that visual buffer zone. (Emphasis added.)
Throughout this litigation, the defendants have con- ceded that there is no reference to either the ‘‘green zone’’ or that visual buffer area in the declaration or other documents of Rustle Meadow. Courts across the country nevertheless have rejected similar claims regarding the lack of written, objective standards to guide the exercise of broadly drawn design control pow- ers. [35] At the same time, the exercise of discretionary design control powers that do not contain explicit stan- dards remains subject to a reasonableness standard. [36] The Restatement (Third) of Property, Servitudes, like- wise provides that a common interest associations has a duty ‘‘to act reasonably in the exercise of its discre- tionary powers including rulemaking, enforcement, and design-control powers . . . .’’ 2 Restatement (Third), Property, Servitudes § 6.13 (1), p. 233 (2000). That stan- dard is consistent with the broad view of powers dele- gated to common interest associations espoused by our Supreme Court in Weldy , as well as the precept that restrictive covenants vesting broad discretionary authority in an association are ‘‘intended to protect the legitimate expectations of members of common- interest communities.’’ Id., § 6.13, comment (a), p. 234.
Furthermore, we perceive a practical problem with
the position urged by the plaintiffs. If the discretionary
criteria to be considered by an association in exercising
its design control powers must be specifically enumer-
ated and explicated in writing, the size and complexity
of such covenants increases exponentially. Section 10.1
(k) of the declaration plainly confers on the association
the authority to evaluate aesthetic considerations. Yet,
as one court aptly observed, ‘‘[t]he covenant, by making
no attempt to set forth оbjective ‘aesthetic considera-
tions,’ implicitly recognizes, as do we, that it is impossi-
ble to establish absolute standards to guide a judgment
of taste.’’
Palmetto Dunes Resort Brown
, 287 S.C.
1, 6–7,
In Weldy , our Supreme Court adopted a ‘‘broad view’’ of the discretionary authority contractually accorded to associations in common interest communities; Weldy Northbrook Condominium Assn., Inc ., supra, 279 Conn. 738; and set forth a reasonableness standard to govern review thereof. In accordance with that prece- dent, as well as the authority of sibling jurisdictions discussed in this opinion and the Restatement (Third) of Property, Servitudes, we conclude that a restrictive covenant in a declaration of a common interest commu- nity that confers broad design control authority on an association need not specifically state the criteria to be considered in the exercise of that authority. That authority must be exercised reasonably, and not in an arbitrary or capricious manner. Id., 734.
Whether termed a ‘‘green zone,’’ a ‘‘visual buffer,’’ or
a ‘‘visual green zone buffer,’’ evidence regarding that
criterion was highly relevant to the question of whether
the association reasonably exercised its discretionary
design control authority. In granting the motion in
limine, the court prohibited the defendants from intro-
ducing, inter alia, evidence (1) of the rationale for that
criterion, which impaired the court’s ability to deter-
mine whether the association’s exercise of discretion-
ary authority was based on legitimate interests of the
common interest community, (2) that the plaintiffs had
actual notice of that criterion prior to the construction
of their swimming pool, and (3) that the association
previously had permitted activity in the green zone area
of the plaintiffs’ unit when a septic system was installed.
The preclusion of such evidence was harmful, as it
likely affected the result in the present case. See
Danko
Redway Enterprises, Inc.,
2 Application of Reasonableness Standard We next consider the defendants’ contention that the trial court applied an improper legal standard in evaluating the association’s exercise of its discretionary design control authority regarding the plaintiffs’ fence proposal. The defendants claim that the court’s analysis departed from the mandate of Weldy , which espoused a deferential view of discretionary associatiоn authority, the exercise of which is governed by a standard of reasonableness. At its essence, their claim is that the court departed from that deferential posture and failed to engage in a proper reasonableness analysis in the context of common interest communities. We agree.
The court’s decision contains no reference to the act,
*34
Weldy
,
[38]
or any authority from Connecticut or elsewhere
pertaining to common interest communities. Its sole
legal citation is to
Busker
v.
United Illuminating Co
.,
The legal basis articulated in the court’s memoran- dum of decision was its determination that the visual buffer area known as the green zone was illegal and unreasonable because it was not in writing. In part I D 1 of this opinion, we have explained why that determina- tion is untenable. The critical inquiry, then, is whether the association’s exercise of its design control authority ‘‘reflects reasoned or arbitrary and capricious decision making.’’ (Internal quotation marks omitted.) Weldy v. Northbrook Condominium Assn., Inc ., supra, 279 Conn. 734.
Application of the reasonableness standard properly begins with consideration of the association’s discre- tionary determination and the reasons therefor. Regret- tably, the court’s decision contains no discussion of that essential component of a reasonableness analysis. The record indicates that the association’s exercise of its design control authority over the proposed fencing on the plaintiffs’ unit was animated by two related inter- ests—the desire to maintain a visual buffer to preserve privacy within the common interest community, and the desire to maintain the wooded character of that community. In various correspondence with the plain- tiffs, Miller, on behalf of the association, stated that ‘‘[t]he ‘green zone’ is simply a term which names a section of the land adjacent to the wooded property lines where the association will tightly regulate any landscape changes to maximize the visual buffer between adjacent lots.’’ The minutes of the association’s June 21, 2013 annual meeting likewise reflect that ‘‘[d]is- cussion was held regarding the visual buffer area between units that the board calls the green zone,’’ and, specifically, ‘‘the need to maintain a visual green zone buffer between units for privacy and to maintain the wooded character of the community.’’ The trial court, however, furnished no findings as to whether main- *35 taining privacy between units and preserving the wooded character of the cоmmunity were legitimate interests of the common interest community.
There also is no indication that the trial court exam-
ined the governing instruments of the community to
ascertain the collective purposes of the association. We
note in this respect that although §§ 10.1 (k) and 13.1
(a) confer broad design control authority on the associa-
tion; see footnote 26 of this opinion; one aspect of
that authority is identified with particular specificity.
Section 13.1 (a) (ii) provides in relevant part that a
unit owner ‘‘[m]ay not make any changes, additions,
alterations, or improvements to any structure in or on
any Unit or to the Common Elements or make any
substantial change to the topography of a Unit or to
the Common Elements
including the removal of trees
,
without the prior written approval’’ of the association.
(Emphasis added.) Section 10.1 (k) likewise proscribes
the ‘‘removal of any trees without the prior written
consent’’ of the association. The court’s factual determi-
nation as to whether the association’s discretionary
action was reasonable must weigh the intent and pur-
pose of those explicit contractual provisions set forth
in the declaration.
Lake at Twelve Oaks Homes Assn.,
Inc
. v.
Hausman
, supra,
Had the court found that the interests proffered by
the association were legitimate ones, it next would have
to determine whether the association’s exercise of its
discretionary design control authority was rationally
related thereto. See, e.g.,
Laguna Royale Owners Assn
.
Darger
, supra,
The record is hampered by the fact that the court
did not make any findings as to the substance of the
proposal that the plaintiffs submitted to the associa-
tion. The undisputed documentary evidence in the
*36
record indicates that, under the plaintiffs’ revised pro-
posal, fencing would be erected approximately eight
feet from the southeasterly properly line, with ‘‘Sca-
brida Clumping Bamboo’’ to be planted ‘‘every [six-
eight] feet’’ between the fence and the property line.
At the behest of the association, the plaintiffs also sub-
mitted written documentation indicating that ‘‘[t]he
bamboo grows [twelve-fourteen feet] tall by [three feet]
wide for each bush’’ and that this species ‘‘is non-inva-
sive, vigorous and easy to grow . . . .’’ Essential to any
determination of whether the association’s exercise of
its discretionary authority was reasonable are factual
findings as to the specifics of the plaintiffs’ proposal and
their relationship to the association’s stated interests in
maintaining privacy between units and preserving the
wooded character of the community. No such findings
are present in the court’s decision. Absent such factual
findings, a court reviewing the discretionary determina-
tion of an association cannot properly ascertain
whether any legitimate interests of the common interest
community justify the denial of a proposed activity.
See, e.g.,
Dodge Carauna
, supra,
The record is further impaired by the court’s errone- ous granting of the motion in limine, which we dis- cussed in part I D 1 of this opinion. As a result, the defendants were precluded from presenting relevant and probative evidence regarding the visual buffer area known as the green zone. For example, the defendants at trial attempted to introduce into evidence documen- tation of the location of a septic system that was installed on the plaintiffs’ property. When the court inquired as to ‘‘the purpose’’ of such evidence, their counsel noted that the septic system was shown on that document to be ‘‘well within’’ the green zone area. Counsel thus argued that the document undermined any claim ‘‘of the green zone being this absolute, incon- trovertible thing . . . .’’ After Miller confirmed that the document was on file with the town health department, the defendants’ counsel stated that ‘‘what it goes to is the idea that there’s this inviolate green zone that cannot be touched, and . . . this simply shows the location of the septic system within that area . . . much closer to the lot line.’’ The plaintiffs’ attorney objected on the basis of the court’s prior ruling on the motion in limine. The court sustained that objection, stating, ‘‘I don’t see the relevance of this at all,’’ and thus precluded evidence of that intrusion into the green zone. [42]
In granting the motion in limine, the court also fore-
closed the introduction of evidence as to whether the
plaintiffs had actual notice of the green zone, as the
defendants steadfastly maintained. As this court has
observed, ‘‘[t]he concept of notice concerns notions of
*37
fundamental fairness, affording parties the opportunity
to be apprised when their interests are implicated in a
given matter. . . . [T]he modern approach to notice-
giving attaches primary importance to actual notice and
treats technical compliance with notice procedures as
a secondary consideration.’’ (Citations omitted; internal
quotation marks omitted.)
Twenty-Four Merrill Street
Condominium Assn., Inc Murray
, 96 Conn. App.
616, 622–23,
The court appears to have deemed the ‘‘green zone’’
visual buffer area to be a blanket restriction barring
all use of that portion of the plaintiffs’ unit. Such a
determination is problematic for a number of reasons.
First, the court’s granting of the motion in limine pre-
cluded the defendants from offering documentary and
testimonial evidence as to the nature of the green zone
and how it had been implemented by the association
over the years, such as evidence that a septic system
was permitted in that area. Second, it is contrary to
undisputed evidence in the record indicating that the
association entertained proposed intrusions into that
area. The record includes Miller’s e-mail response to
the plaintiffs’
initial fence proposal,
in which he
informed them that the proposed fence ‘‘will
most likely
not be approved any closer than [fifteen] feet to the
property line.’’ (Emphasis added.) The record also
reflects that the association never denied the plaintiffs’
revised proposal for a fence ‘‘approximately eight feet’’
from the southeasterly side yard property line. Rather,
the association requested additional information on the
nature of certain plantings that were proposed along
the property line, and their ‘‘mature height’’ specifically.
Furthermore, it is undisputed that the parties thereafter
engaged in negotiations over the course of several
months—well before the commencement of this litiga-
tion—in an attempt to work ‘‘out [the] details of a settle-
ment.’’ The association’s willingness to engage in such
*38
negotiations and to consider the revised proposal with
specific plantings cannot be reconciled with a determi-
nation that the green zone was a blanket prohibition
applied by the association. See, e.g.,
Chateau Village
North Condominium Assn
. v.
Jordan
,
As we have observed, the reasonableness of the asso-
ciation’s exercise of discretionary design control
authority involves a question of fact. Resolution of that
factual question necessarily is beyond the purview of
an appellate court, as ‘‘it is axiomatic that this appellate
body does not engage in fact-finding.’’
Hogan
v.
Lagosz
,
3
Conclusion In light of the foregoing, we agree with the defendants *39 that the court failed to properly apply the legal standard governing review of discretionary decisionmaking authority by the association. Such review is not gov- erned by the preponderance of the evidence standard generally applicable to civil proceedings. [47] Rather, Weldy directs a court reviewing the exercise of discre- tionary association action to engage in a two part analy- sis, the latter of which requires a finding as to whether the association’s determination was reasonable. Weldy v. Northbrook Condominium Assn., Inc ., supra, 279 Conn. 734. Proper application of that reasonableness standard, in turn, requires certain predicate findings that are lacking in the present case. We therefore remand the matter to the trial court for a new trial with direction to apply that legal standard.
On remand, in rendering a factual finding on the issue
of reasonableness, the trial court must objectively
weigh the relevant circumstances and factors.
Williams
Ford, Inc Hartford Courant Co
., supra, 232 Conn.
580;
Peterson
v.
Oxford
, supra,
E Alternative Ground of Affirmance In their appellate brief, the plaintiffs address an alter- native ground of affirmance—namely, that ‘‘the green zone is a rule that was required to be adopted through the association’s rule making process. . . . Because the green zone was not properly adopted by the [a]ssoci- ation, it is invalid as a matter of law.’’ We perceive multiple problems with that contention.
It is undisputed that the plaintiffs’ alternative ground
never was raised before, or decided by, the trial court.
See
Connecticut Ins. Guaranty Assn
. v.
Fontaine
, 278
Conn. 779, 784 n.4,
Furthermore, the factual predicate of the plaintiffs’
claim is lacking, as the record before us contains no
detailed findings as to the nature of the visual buffer
area referred to as the green zone and how it was
adopted and implemented in Rustle Meadow. In that
respect, we note that the court, in granting the plaintiffs’
motion in limine, severely curtailed the defendants’ abil-
ity to introduce evidence relevant to that issue. Indeed,
the defendants were precluded from presenting evi-
dence that the plaintiffs ‘‘had acknowledged in writing
the need to maintain a visual green zone buffer between
units for privacy and to maintain the wooded character
of the community,’’ as the minutes of the association’s
July 21, 2013 meeting reflect. See
New Haven Bonner
,
supra,
We note that, in resolving the principal issue in this appeal, we have concluded that a remand to the trial court for a new trial is necessary. See parts I D 2 and 3 of this opinion. On remand, the plaintiffs are free to pursue the claim underlying their alternative ground of affirmance, at which time the parties will have an opportunity to present evidence on that issue.
II The defendants next contend that the court improp- erly ruled in favor of the plaintiffs on the defendants’ counterclaim, in which they sought to recover unpaid fines issued against the plaintiffs. The defendants main- tain that the court (1) improperly set aside fines imposed by the association for (a) certain landscaping violations by the plaintiffs and (b) the removal of a metal boundary marker from the corner of the plaintiffs’ unit, and (2) improperly declined to render an award of attorney’s fees in their favor. We address each claim in turn.
A We first consider the propriety of the fines levied by the association against the plaintiffs. Pursuant to General Statutes § 47-244 (a) (11), a common interest association ‘‘[m]ay impose charges or interest or both for late payment of assessments and, after notice and an opportunity to be heard, levy reasonable fines for violations of the declaration, bylaws, rules and regula- tions of the association . . . .’’ Section 25.2 (m) of Arti- cle XXV of the declaration likewise provides that the board may ‘‘[i]mpose charges or interest or both for late payment of assessments and, after [n]otice and [h]earing, levy reasonable fines for violations of this [d]eclaration, and the [b]ylaws, [r]ules and regulations of the [a]ssociation.’’ Section 2.2 (m) of the association bylaws repeats verbatim that provision of the declara- tion. Section 5.2 of the bylaws further provides that ‘‘following [n]otice and [h]earing, the [board] may levy a fine of up to $50 for a violation of the [d]ocuments or [r]ules and $10 per day thereafter for each day that a violation . . . persists after such [n]otice and [h]ear- ing, but such amount shall not exceed the amount nec- essary to insure compliance with the rule or order of the [board].’’
‘‘To protect the financial integrity of common interest
communities’’;
Coach Run Condominium, Inc Fur-
niss
,
1 Landscaping Fines In their counterclaim, the defendants alleged that the plaintiffs violated the declaration ‘‘by removing or cutting trees, plants and shrubs, installing weed fabric and grass in the green zone and applying defoliant in that area . . . without permission of the association.’’ The association thus assessed fines ‘‘in the amount of $10 per day,’’ which totaled $15,530 at the time that the counterclaim was filed. In its memorandum of decision, the court analyzed the propriety of those fines as fol- lows: ‘‘The court finds that there was no green zone by which the plaintiffs were bound and, therefore, [those] fines were illegal and inequitable.’’ The court also found that approval for such activities ‘‘was unreasonably withheld’’ by the association.
Contrary to that latter finding, it is undisputed that the plaintiffs never requested permission from the asso- ciation to conduct landscaping activity on their unit, as required by §§ 10.1 (k) and 13.1 (a) of the declaration. There thus is no evidence in the record to support a finding that the association withheld approval therefor.
The court predicated its decision on the notion that the green zone was illegal, which we dispelled in part I D 1 of this opinion. The court also remarked, in a one sentence footnote to its analysis, that ‘‘[m]oreover, there is insufficient evidence that it is the plaintiffs who cut trees, altered or removed foliage’’ on their unit. Yet the plaintiffs at trial did not disavow their involvement in that landscaping activity, [51] nor have they done so on appeal. Furthermore, in accordance with its ruling on the motion in limine, the court precluded the defendants from cross-examining the plaintiffs on landscaping con- ducted within the green zone, stating in relevant part that ‘‘[i]f it’s in the green zone, then it is irrelevant, as far as I’m concerned. . . . If you want to get into land- scaping outside that fifteen foot buffer, you’re free to do so, but not within the fifteen foot buffer.’’
The court’s focus on the identity of the actors who performed the landscaping work on the plaintiffs’ unit also obscures the more elemental factual issue of whether such unauthorized activity took place. Section 10.1 (k) declaration expressly requires the written con- sent of the association prior to the commencement of such landscaping activity on units within Rustle *43 Meadow. The record contains testimonial and docu- mentary evidence depicting specific landscaping activ- ity on the plaintiffs’ unit, including photographs thereof. Consideration of that evidence is essential to a proper determination of whether the association’s exercise of its authority to impose fines was warranted. Yet the court made no findings as to whether such landscaping activity transpired on the plaintiffs’ unit or whether the association’s decision to take enforcement action against the plaintiffs was arbitrary. See General Statutes § 47-244 (h). The court likewise did not determine whether the fines imposed by the association exceeded ‘‘the amount necessary to insure compliance with’’ the rules at issue, in contravention of § 5.2 of the associa- tion’s bylaws. We therefore conclude that the court improperly set aside the fines assessed against the plain- tiffs for unauthorized landscaping activity. The case, therefore, must be remanded for a new trial, at which the trial court shall properly consider the fines imposed by the association for any unauthorized landscaping activity in accordance with the foregoing.
2 Boundary Marker Fines The defendants also imposed fines in the amount of $9180 for the plaintiffs’ alleged removal of a metal boundary marker from a corner of their unit. In its decision, the court concluded that the defendants failed to prove that the plaintiffs removed or altered the boundary marker. It therefore concluded that those fines were improper.
The record before us substantiates that determina-
tion. At an association hearing convened to address the
matter, the plaintiffs denied any involvement in the
removal of
the marker in question. As Duane
Grovenburg testified at trial, they indicated at that hear-
ing ‘‘that we were never aware that there was a metal
stake.’’ Kristine Grovenburg similarly was asked
whether she agreed with the accusation that they had
removed the stake in question. She testified: ‘‘No, I do
not agree with that. I—we don’t even know what he’s
talking about. We’ve never seen a stake in [that] location
.
.
.
.’’ The court, as arbiter of credibility, was free
to credit that testimony. See
Brett Stone Painting &
Maintenance, LLC New England Bank
, 143 Conn.
App. 671, 683,
In addition, Miller acknowledged in his testimony that the association had no video, electronic, or photo- graphic evidence of the plaintiffs interfering with or removing the marker in question. He further conceded that there was no eyewitness evidence thereof. In light of the foregoing, we agree with the trial court that the defendants failed to meet their burden of demonstrating that the fines for removing the metal boundary marker were properly imposed.
B We next address the court’s denial of the defendants’ claim for attorney’s fees on the counterclaim. The defendants contend that, to the extent that they prevail on their counterclaim, such an award is warranted pur- suant to General Statutes § 47-278 (a).
Section 47-278 (a) provides that ‘‘[a] declarant, associ-
ation, unit owner or any other person subject to this
chapter may bring an action to enforce a right granted
or obligation imposed by this chapter, the declaration or
the bylaws. The court may award reasonable attorney’s
fees and costs.’’ Whether to award attorney’s fees is a
quintessential example of a matter entrusted to the
sound discretion of the trial court. See, e.g.,
Fairchild
Heights Residents Assn., Inc Fairchild Heights, Inc
.,
In part II A 2 of this opinion, we concluded that the trial court properly determined that the defendants did not meet their burden to establish the validity of fines related to the boundary marker. They therefore cannot recover attorney’s fees on that portion of the counter- claim. In part II A 1, however, we concluded that a new trial is necessary on the issue of the imposition of fines by the association for the allegedly unauthorized land- scaping activity. On remand, the trial court shall first determine the propriety of those landscaping fines. Should the court rule in the defendants’ favor, it then shall determine whether an award of attorney’s fees on that count of the counterclaim is appropriate.
III The defendants also maintain that the court improp- erly invalidated a special assessment of the association. The following additional facts are relevant to that claim. After retaining legal counsel, the association levied a special assessment against all unit owners beginning in January, 2013. Miller testified that the special assess- *45 ment was issued ‘‘[t]o cover the association’s legal expenses’’ stemming from the present controversy with the plaintiffs. At trial, the court opined that the associa- tion’s decision to retain counsel at that time was ‘‘pru- dent.’’ In addition, the plaintiffs introduced into evidence a document detailing their monthly payments to the association for the special assessment.
In its memorandum of decision, the court did not mention that special assessment. Although the court ruled in favor of the plaintiffs in several respects, the only relief that related to assessments of any kind was the order requiring the defendants to remove ‘‘any liens’’ that had been filed against the plaintiffs’ unit.
Following the commencement of this appeal, the plaintiffs filed a motion for contempt with the trial court, claiming, inter alia, that the defendants had ‘‘con- tinu[ed] to impose an assessment (i.e., a lien) on the [plaintiffs’ unit] . . . .’’ In response, the defendants filed an objection, in which they averred that ‘‘[n]o liens had been filed. There was no evidence of any liens on [the] plaintiffs’ property. No action was required by the association to comply with this directive: there was no lien to remove.’’ In its April 6, 2015 order, the court denied the plaintiffs’ motion for contempt, specifically crediting the representation of the defendants’ counsel that no liens have been filed against the plaintiffs’ unit. The court nonetheless ordered that ‘‘[t]he association is to remove any assessment against the plaintiffs for legal fees related to this case and any legal fees from here on in related to this case, which the court declares said fees to be null and void.’’ The defendants thereafter filed an amended appeal with this court to encompass that additional ruling.
As a preliminary matter, we note that the act specifi- cally addresses the allocation of common expenses [54] within a common interest community. General Statutes § 47-226 (b) requires a declaration thereof to ‘‘state the formulas used to establish allocations of interests. . . .’’ General Statutes § 47-257 (b), in turn, provides, with limited exceptions not germane to this appeal, that ‘‘all common expenses shall be assessed against all the units in accordance with the allocations set forth in the declaration . . . .’’ (Emphasis added.)
Article XIX of the declaration concerns the assess- ment and collection of common expenses. Reflecting the rather unique nature of Rustle Meadow as a common interest equine community, § 19.2 divides such expenses into three categories: (1) equestrian facility common expenses; (2) horse stall common expenses; and (3) general association common expenses. The third category is relevant to this appeal, as it includes ‘‘[a]ll other Common Expenses which are not Eques- trian Facility Commоn Expenses or Horse Stall Com- mon Expenses.’’ The special assessment for legal expenses falls under that third category.
Mirroring the language of General Statutes § 47-257
(b), § 19.3 of the declaration provides that common
expenses ‘‘shall be assessed against all Units in accor-
dance with their percentage interest in such Common
Expenses as shown on Schedule A-2 to this [d]eclara-
tion.’’ Under both the declaration and the act, then,
assessments for common expenses must be appor-
tioned equally among unit owners in accordance with
their respective allocations. Furthermore, § 25.2 (c) of
the declaration and § 2.2 (c) of the bylaws confer on
the board the authority to ‘‘[c]ollect assessments for
Common Expenses from Unit Owners . . . .’’ We reit-
erate that, in
Weldy
, our Supreme Court adopted a
‘‘broad view of the powers delegated’’ to a common
interest association under a declaration.
Weldy North-
brook Condominium Assn., Inc
., supra,
Significantly, the plaintiffs never have claimed that the association improperly imposed the special assess- ment or that it was apportioned in a manner contrary to the dictates of the act or the declaration. It also is undisputed that the plaintiffs paid their portion of that special assessment on a monthly basis for approxi- mately two years, as documented in the written accounting that they introduced into evidence at trial. Moreover, the plaintiffs raised no claim regarding that special assessment in their operative complaint. Although their prayer for relief sought ‘‘[a]n order that all statutory liens arising from fines and/or penalties assessed against the plaintiffs by the association from the beginning of time to date are removed, discharged and declared null and void,’’ the special assessment arose neither from a fine nor a penalty assessed against the plaintiffs, but rather was a common expense assessed against all unit owners in accordance with the requirements of the declaration and the act. There also is no evidence in the record before us that the associa- tion filed a statutory lien against the plaintiffs regarding that special assessment.
In its order on the plaintiffs’ postjudgment motion
for contempt, the court declared the special assessment
‘‘null and void’’ with respect to the plaintiffs. The court
provided no authority to support that ruling. The plain-
tiffs on appeal likewise have provided this court with
no authority for that action, apart from reciting the
general proposition that our courts are vested with
broad latitude in fashioning equitable relief. See, e.g.,
Broadnax New Haven
,
When a court grants equitable relief, its ‘‘ruling can be reviewed only for the purpose of determining whether the decision was based on an erroneous state- ment of law or an abuse of discretion.’’ (Internal quota- tion marks omitted.) Id. We conclude that the court’s declaration that the special assessment was ‘‘null and *47 void’’ was based on an erroneous statement of law— specifically, its determination that the visual buffer zone was ‘‘illegal’’ because it was not memorialized in writ- ing. See part I D 1 of this opinion. We further have concluded that the cоurt failed to apply the proper legal standard to review the discretionary design control determinations of a common interest association, which necessitates a remand to the trial court for the proper application of that standard. See parts I D 2 and 3 of this opinion. The predicate to the court’s exercise of equitable relief, therefore, is lacking. Accordingly, we agree with the defendants that the court improperly declared the special assessment null and void in this case.
IV
In light of our remand for a new trial, the court’s
award of $72,718.25 in attorney’s fees to the plaintiffs
also cannot stand. As with the prior claim, the factual
predicate to that award is lacking in light of our resolu-
tion of the principal issue in this appeal. See, e.g.,
Abso-
lute Plumbing & Heating, LLC
v.
Edelman
, 146 Conn.
App. 383, 405,
The judgment is affirmed only with respect to the portion of the counterclaim pertaining to the imposition *48 of boundary marker fines. The judgment is otherwise reversed and the case is remanded for a new trial on the remaining issues consistent with this opinion.
In this opinion the other judges concurred.
[1]
General Statutes § 47-202 (25) defines a ‘‘planned community’’ as ‘‘a
common interest community that is not a condominium or a cooperative.
A condominium or cooperative may be part of a planned community.’’
Section 47-202 (9) defines a ‘‘common interest community’’ in relevant
part as ‘‘real property described in a declaration with respect to which a
person, by virtue of his ownership of a unit, is obligated to pay for a share
of (A) real property taxes on, (B) insurance premiums on, (C) maintenance
of, (D) improvement of, or (E) services or other expenses related to, common
elements, other units or any other real property other than that unit described
in the declaration. . . .’’
‘‘Rustle Meadow is a planned community.’’
Section 2.1 of Article II of the Declaration of Rustle Meadow states that
[2]
‘‘The act is a comprehensive legislative scheme regulating all forms of
common interest ownership that is largely modeled on the Uniform Common
Interest Ownership Act. . . . The act addresses the creation, organization
and management of common interest communities and contemplates the
voluntary participation of the owners. It entails the drafting and filing of a
declaration describing the location and configuration of the real property,
development rights, and restrictions on its use, occupancy and alienation
. . . the enactment of bylaws . . . the establishment of a unit owners’
association . . . and an executive board to act on . . . behalf [of the asso-
ciation]. . . . It anticipates group decision-making relating to the develop-
ment of a budget, the maintenance and repair of the common elements,
the placement of insurance, and the provision for common expenses and
common liabilities.’’ (Citations omitted; internal quotation marks omitted.)
Weldy Northbrook Condominium Assn., Inc
., supra,
[4] See General Statutes § 47-264 et seq.
[5]
Pursuant to § 8.10 of Article VIII of the declaration, the company was
vested with exclusive control of the association for a preliminary period of
Rustle Meadow’s existence. Section 8.10 (a) provides in relevant part that
‘‘[t]he period of Declarant control shall terminate no later than the earlier
of: (i) Sixty (60) days after conveyance of sixty percent (60%) of the Units
that may be created to Unit Owners other than a Declarant; (ii) Two (2)
years after all Declarants have ceased to offer Units for sale in the ordinary
course of business; or (iii) Two (2) years after any right to add new Units
was last exercised.’’
The first criterion was not satisfied, as the court found that only two of
the seven units had been conveyed at the time of trial. At trial, the court
made no findings with respect to the latter two criteria, though it did note
that ‘‘[t]he remaining lots of the development have not yet been sold or
transferred . . . .’’ Precisely when the company’s control of the association
under § 8.10 terminated is a factual issue that was not resolved by the trier
of fact. Nonetheless, the court in its memorandum of decision found that
it was the association that denied the plaintiffs’ fence proposal and imposed
fines on the plaintiffs for certain activities. Neither party disputes that deter-
mination in this appeal.
[6]
Article VI of the association’s bylaws provides for the indemnification
of its directors and officers.
easement . . . .’’ (Citations omitted.)
Hawthorne Realty Syndicate, Inc.,
[7]
‘‘A restrictive covenant is a servitude, commonly referred to as a negative
‘‘determined that the green zone was unlawful because it was not in writing,’’
the plaintiffs acknowledge that the court did not ‘‘articulate the legal basis
for the green zone having to be in writing . . . .’’
[34]
In the zoning context, our Supreme Court has observed that ‘‘[i]t must
be borne in mind . . . that we are dealing with a group of [lay people] who
may not always express themselves with the nicety of a Philadelphia lawyer.
Courts must be scrupulous not to hamper the legitimate activities of civic
administrative boards . . . .’’
Couch
v.
Zoning Commission
,
‘‘[Duane Grovenburg]: I’m saying I’m not aware of a metal stake. ‘‘[The Defendants’ Attorney]: You’re not aware of a metal stake. ‘‘[Duane Grovenburg]: No. ‘‘[The Defendants’ Attorney]: You’re not aware of a metal stake being
pulled out of the ground? ‘‘[Duane Grovenburg]: No, I’m not.’’ [54] ‘‘Common expenses’’ are defined in the act as ‘‘expenditures made by,
or financial liabilities of, the association, together with any allocations to reserves.’’ General Statutes § 47-202 (7). to approve the plaintiffs’ revised fencing proposal was reasonable and appro- On remand, the trier of fact may conclude that the association’s failure priate under the particular circumstances of this case.