LYME LAND CONSERVATION TRUST, INC. v. BEVERLY PLATNER ET AL.
(SC 19797)
Supreme Court of Connecticut
May 23, 2017
Rogers, C. J., and Palmer, Eveleigh, McDonald, Espinosa, Robinson and Vertefeuille, Js.
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Argued February 21—officially released May 23, 2017
Brendon P. Levesque, with whom was Karen L. Dowd, for the appellant (named defendant).
John F. Pritchard, pro hac vice, with whom were Tracy M. Collins and, on the brief, Edward B. O‘Connell, for the appellee (plaintiff).
Gary W. Hawes, assistant attorney general, with whom, on the brief, were George Jepsen, attorney general, and Jane R. Rosenberg, assistant attorney general, for the appellee (intervening plaintiff).
Opinion
The following facts, which either were found by the trial court or are not disputed, and procedural history are relevant to the appeal. The defendant is the owner of 66 Selden Road in Lyme (property). She purchased the property in May, 2007. By virtue of a “Declaration of Restrictive Covenants” (declaration) executed in 1981 by a former owner of the property and recorded in the Lyme land records, substantial portions of the property are protected by a conservation restriction, as defined by
The property, which borders on the Connecticut River, Selden Creek and Selden Cove, measures approximately 18.7 acres. It is comprised of a protected area of about 14.3 acres, which is subject to the conservation restriction, and an unprotected area of about 4.4 acres, which is not subject to the conservation restriction. The defendant‘s house is located on the unprotected area of the property. The protected area of the property includes a large open space to the north and west of the house (meadow) and a smaller forested area to the south of the house (woodlands).
Fleur Hahne Lawrence, who sold the property to the defendant and, before that, had owned it since 1997, had maintained the meadow by mowing it twice a year, once at the end of July when birds had finished nesting and again around Thanksgiving. A previous owner had agreed to a similar mowing regimen. Lawrence also had four or five trees removed from the woodlands after they had been damaged by beavers, but otherwise did not cut or mow there. Lawrence had employed Novak Brothers Landscaping (Novak) to do landscaping work, but only in the unprotected area around the house. Lawrence‘s limited activities in the protected area were consistent with the plaintiff‘s view of the declaration.
After purchasing the property, the defendant also employed Novak for landscaping work, but she did not contain that work to the unprotected area. Beginning in 2007, and continuing over the next few years, the defendant began mowing the entire meadow area frequently, sometimes twice a week. She also installed an irrigation system in the meadow. The defendant added topsoil to the meadow, aerated it, and hydroseeded and slice seeded it with grass seed typically used for residential lawns. She retained a plant health care contractor who applied lime, fertilizers, fungicides, herbicides and pesticides to the meadow. Ultimately, the grasses previously existing in the meadow were eliminated and replaced with the new grasses planted by the defendant.
The defendant also planted many ornamental shrubs, plants and flowers throughout the meadow. She created “tree rings” to house some of these plantings by removing truckloads of grass and soil from around trees in the meadow. In the woodlands,
The plaintiff was aware of the foregoing activities and, for a time, attempted to persuade the defendant that they were not permitted by the declaration. Those efforts were not successful. On October 14, 2009, the plaintiff filed this action, initially seeking a declaratory judgment as to the parties’ rights under the declaration. It subsequently amended its complaint to allege actual or intended violations of the declaration. Specifically, in its second amended complaint dated January 15, 2013, the plaintiff averred that the defendant, contrary to the terms of the declaration, had: constructed a driveway in the protected area; cut and thinned the woodlands understory; destroyed existing native grasses and vegetation in the protected area and replaced them with lawn and ornamental landscaping; installed an irrigation system in the protected area; and dumped truckloads of dirt in the protected area. The plaintiff alleged further that those activities constituted a wilful violation of
Following a bench trial, the trial court, Hon. Joseph Q. Koletsky, judge trial referee, held that the defendant deliberately had violated the restrictions set forth in the declaration, which were unambiguous, and, further, that she had violated
The court also ordered injunctive relief, specifically, that the defendant restore the property to the condition that had existed prior to her taking ownership of it. After holding an additional hearing at which various experts testified, the court outlined the particulars of that restoration, which included: cessation of frequent mowing in the meadow and replanting it with small plant “plugs” or similar devices to restore it to a natural state not requiring chemical fertilizers; removal of the heads from the irrigation system in the meadow to render it nonfunctional; removal of the tree rings; discontinuation of mowing in the woodlands to return them to their earlier, natural condition; and remediation of the artificial beach created by the defendant. After a further hearing at which the parties submitted more specific planting plans, the court ordered the defendant to comply with the plan that had been submitted by the plaintiff. The court also accepted the parties’ stipulation regarding a “land swap” as a remedy for the encroachment on the protected area by the defendant‘s relocated driveway, the impropriety of which the court had deemed unquestionable.8 This appeal followed.9
I
The defendant claims first that the trial court improperly concluded that she had violated
We begin with the standard of review and applicable legal principles. To determine whether the defendant‘s activities constituted a violation of the conservation restriction and, by extension, a violation of
At the same time, however, when a restrictive covenant is expressed without ambiguity, it will be given effect according to its terms. Morgenbesser v. Aquarion Water Co. of Connecticut, 276 Conn. 825, 829, 888 A.2d 1078 (2006). “[C]ontractual terms are to be given their ordinary meaning and when the intention conveyed is clear and unambiguous, there is no room for construction.” (Internal quotation marks omitted.) Gino‘s Pizza of East Hartford, Inc. v. Kaplan, 193 Conn. 135, 138, 475 A.2d 305 (1984).
The declaration is comprised of an introductory section, which indicates that the declaration is in favor of, and enforceable by, the plaintiff as the grantee, and four enumerated articles. Article I is captioned, “Restrictions,” and lists a number of things that are not permitted in the protected area.10 Article II is captioned, “Reservations,” and lists a number of rights that, “[a]nything in ARTICLE I above to the contrary notwithstanding, the [g]rantor reserves to himself and his heirs and assigns . . . .”11 (Emphasis added.) Article III contains miscellaneous provisions that, aside from the general purpose of the restriction previously stated; see footnote
The defendant argues that the preliminary language to the reservations in the declaration, emphasized in the foregoing paragraph, makes clear that those reservations take precedence over the restrictions; in other words, if an owner of the property is engaged in one of the activities listed in the reservations, it is of no moment that such activity violates one or more of the restrictions. The plaintiff does not dispute this construction, and we agree that the language used and structure of the declaration plainly and unambiguously support it.12 Additionally, nothing expressly stated in the trial court‘s memoranda of decision indicates that the trial court reasoned otherwise. Accordingly, to establish that the court improperly allowed the restrictions in the declaration to trump the reservations, the defendant must show that the activities that the court found to be violations, although contrary to the restrictions, nevertheless were encompassed by the reservations. This she has not done.
To reiterate, the trial court found that the defendant improperly had placed tons of topsoil in the meadow to facilitate the growing of grass and tons of sand in an area along the riverfront to create an artificial beach, and that she improperly had created tree rings in the meadow. These activities clearly violated, respectively, the restriction set forth in § 1.2 of the declaration, which provides in relevant part that “[n]o soil, loam, peat, sand, gravel, rock or other mineral substance . . . will be placed, stored or permitted to remain” upon the protected area, and that set forth in § 1.3 of the declaration, which provides that “[n]o soil, loam, peat, sand, gravel, rock, mineral substance or other earth product or material shall be excavated or removed” from the protected area. (Emphasis added.) The court found further that the defendant had engaged in extensive mowing and seeding in the meadow, accompanied by the installation of an irrigation system and application of huge amounts of fertilizer, in order to eliminate the existing meadow grasses and replace them with a residential type lawn similar to that in the unprotected area.13 These activities clearly violated the restriction set forth in § 1.4 of the declaration, which provides that “[n]o trees, grasses or other vegetation thereon shall be cleared or otherwise destroyed.” (Emphasis added.) As to the woodlands, the court concluded that the defendant had destroyed considerable and diverse vegetation in the understory.14
The question remains whether the foregoing activities were, nevertheless, permitted by an article II reservation. The trial court acknowledged the only arguably applicable one, set forth in § 2.2 of the declaration, and opined, in short, that the defendant had focused myopically, and unjustifiably, on one phrase therein to defend the bulk of her activities in the protected area. Section 2.2 provides that, notwithstanding the restrictions of article I, the defendant retains the right “[t]o conduct and engage in the cultivation and harvesting of crops, flowers and hay; the planting of trees and shrubs and the mowing of grass; the grazing of livestock; and the construction and maintenance of fences necessary in connection therewith.” (Emphasis added.) As indicated, the phrase on which the defendant had focused, and continues to focus, is “mowing of grass.” As should be obvious, and as the trial court concluded, the defendant‘s activities in the protected area went well beyond the “mowing of grass.” Had the defendant simply mowed grass, there might be, as the trial court allowed, a valid claim that she had not knowingly violated the declaration. Instead, however, the defendant‘s mowing in the meadow was incidental to another activity that most assuredly was not permitted by § 2.2 or any other reservation, namely, the installation of a residential lawn. And, as the trial court found, her mowing in the woodlands was not limited to grass, as permitted by the reservations, but rather, extended to the larger plant life existing in the understory. As to the defendant‘s other activities that clearly violated the restrictions—the encroaching driveway and the placement of sand and topsoil—the defendant does not even attempt to explain how they are saved by the reservations.15
The defendant contends additionally that the trial court improperly added restrictions that were not stated expressly in the declaration. In the defendant‘s view, because the declaration did not explicitly disallow fertilizing, planting new grass or irrigation, she did not violate it by engaging in those activities. This argument is meritless. First, all of the cited activities were improper because they were intended to destroy, and in fact did destroy, the grasses and other vegetation in the protected area in violation of § 1.4 of the restrictions. See footnote 10 of this opinion. It is irrelevant that the methods of destruction were not described with particularity in the declaration, as the destruction itself clearly was prohibited. Second, none of those activities are allowed, nevertheless, due to their inclusion in §§ 2.1 through 2.4 of the reservations, which detail particular rights that are retained for the property‘s owner. See footnote 11 of this opinion. Finally, as to additional rights
II
The defendant claims next that the trial court lacked authority to order a restoration plan as part of its award of relief. According to the defendant, neither the declaration nor
As previously explained, our review of the trial court‘s construction of the declaration is plenary; see Wykeham Rise, LLC v. Federer, supra, 305 Conn. 457; as is our review of the court‘s interpretation of a statute. Santorso v. Bristol Hospital, 308 Conn. 338, 355, 63 A.3d 940 (2013). In interpreting a statute, we are guided by the strictures of
There are three potential sources for the court‘s authority to order the relief that it did. Section 3.5 of the declaration provides in relevant part “that a breach of this covenant in respect of any restriction herein set forth may be enforced by the [plaintiff] by injunctive relief . . . .” (Emphasis added.) Similarly,
By broadly allowing for injunctive and equitable relief, the declaration and the two statutes clearly and unambiguously support the propriety of the trial court‘s order. An injunction is an order for a party to do “some specified act or . . . to undo some wrong or injury“; Black‘s Law Dictionary (6th Ed. 1990); and is an equitable remedy whose issuance depends on a balancing of the equities between the parties. Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 21, 376 A.2d 381 (1977). Similarly, a court‘s power to order equitable relief is broad and flexible. “[C]ourts exercising their equitable powers are charged with formulating fair and practical remedies appropriate to the specific dispute. . . . In doing equity, [a] court has the power to adapt equitable remedies to the
The defendant ignores these broad grants of power to fashion appropriate relief and instead focuses on other language in
III
The defendant claims additionally that aspects of the restoration plan ordered by the trial court lacked sufficient evidentiary support. Specifically, she contends that there was no evidence of the condition of the property in 2007 to provide a benchmark for the remediation, nor was there adequate proof that she had placed sand in the beach area, so as to justify the order that that area be remediated. We disagree.
The defendant‘s claim challenges the trial court‘s factual findings. “[T]he trial court‘s findings are binding upon this court unless they are clearly erroneous in light of the evidence and the pleadings in the record as a whole. . . . We cannot retry the facts or pass on the credibility of the witnesses. . . . A finding of fact is clearly erroneous when there is no evidence in the record to support it . . . or when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” (Citation omitted; internal quotation marks omitted.) CCT Communications, Inc. v. Zone Telecom, Inc., 324 Conn. 654, 673–74, 153 A.3d 1249 (2017).
Because factual findings and credibility determinations are squarely within the trial court‘s purview, we afford them great deference. Connecticut Light & Power Co. v. Proctor, 324 Conn. 245, 259, 152 A.3d 470 (2016). “In reviewing factual findings, [w]e do not examine the record to determine whether the [court] could have reached a conclusion other than the one reached. . . . Instead, we make every reasonable presumption . . . in favor of the trial court‘s ruling.” (Internal quotation marks omitted.) Id. Finally, a finding is not clearly erroneous merely because it relies on circumstantial evidence. See Rawls v. Progressive Northern Ins. Co., 310 Conn. 768, 777, 83 A.3d 576 (2014) (“there is no distinction between direct and circumstantial evidence so far as probative force is concerned” [internal quotation marks omitted]). “[T]riers of fact must often rely on circumstantial evidence and draw inferences from it. . . . Proof of a material fact by inference need not be so conclusive as to exclude every other hypothesis. It is sufficient if the evidence produces in the mind of the trier a reasonable belief in the probability of the existence of the material fact.” (Internal quotation marks omitted.) Palkimas v. Fernandez, 159 Conn. App. 129, 133, 122 A.3d 704 (2015). In short, the court, as fact finder, “may draw whatever inferences
At trial, the plaintiff presented the expert testimony of, and a report prepared by, Glen Dreyer, a botanist. Dreyer opined both as to the probable conditions on the property in 2007 and the best way to restore the property to those conditions. He disclosed the resources he had consulted to arrive at the former determination, which included: historical maps and photographs from various years preceding 2007; a report from a November, 2007 site inspection of the property by an environmental consultant hired by the plaintiff; his examination of the plant life existing on land adjacent to the defendant‘s property and his more than thirty years of experience of observing vegetation in southeastern Connecticut. Some of the material on which Dreyer relied also was in evidence, as well as photographs of the property taken by representatives of the plaintiff during a fall, 2007 site visit. Because the trial court properly could have credited Dreyer‘s testimony, his report and the other evidence, and made reasonable inferences therefrom, its findings as to the condition of the property in 2007, on which its remediation order was based, were not clearly erroneous. See In re Nevaeh W., 317 Conn. 723, 737, 120 A.3d 1177 (2015) (trial court free to believe or disbelieve expert testimony, in whole or in part, when making own independent determination of issue). To the extent the defendant contends that the plaintiff was required to provide a complete inventory of every plant species existing in the protected area in 2007, we disagree that the plaintiff‘s burden of proof in this civil action was so onerous.
As to the artificial beach that the trial court ordered remediated, an invoice from Novak in evidence indicates that, on August 3, 2007, twenty-two and one-half tons of sand was delivered to the property and, further, that Novak employees performed the following labor: “Weeded beach and spread sand, trimmed grapevine, backfilled bluestone walkway and trimmed dead wood.” (Emphasis added.) Separately authored reports of a November, 2007 site visit by a representative of the plaintiff and the plaintiff‘s environmental consultant both indicated that the preexisting natural beach had been expanded landward by twenty-five to thirty feet beyond the river‘s high tide line. A photograph taken at that visit, when compared with an aerial photograph taken earlier in 2007, appears to support this assessment. Taken together, this evidence provides adequate support for the court‘s finding that extra sand had been deposited on the beach.
The defendant attempts to undermine this evidence by quoting selectively from the testimony of the owner of Novak and that of her husband, but it is clear from a fuller examination of that testimony that neither man truly knew where the sand had been spread and, to the extent they speculated that it was elsewhere, they did not even agree on an alternative location. Accordingly, we conclude that the defendant has not met her burden of showing that the trial court‘s finding on this issue was clearly erroneous. For the foregoing reasons, the defendant‘s third claim fails.
IV
The defendant next challenges the trial court‘s award of attorney‘s fees pursuant to
The following additional procedural history is relevant. As previously stated, the plaintiff filed this action on October 14, 2009, initially seeking a declaratory judgment on certain questions pertaining to the conservation restriction and the protected area. On January 9, 2010, the defendant filed an application with the commission seeking to relocate her driveway in a manner that would encroach, in part, on the protected area. The plaintiff appeared before the commission and opposed the defendant‘s application, but on April 21, 2010, the commission granted the application. The plaintiff thereafter appealed from the commission‘s decision pursuant to
In addition to equitable relief and damages, the trial court awarded the plaintiff attorney‘s fees of $300,000, which included approximately $12,000 attributable to the proceedings before the commission and the appeal therefrom, and approximately $18,000 attributable to the present action prior to the amendment of the complaint. It cited both
On appeal, the defendant contends that the award of attorney‘s fees should have been limited to those fees attributable to the portion of the present action postdating the amendment of the complaint, during which the plaintiff sought injunctive relief and damages. We agree with the defendant to a limited degree. Specifically, we conclude that the court improperly included in its award attorney‘s fees attributable to the proceedings involving the commission, but properly included in that award fees attributable to the declaratory judgment portion of this action.
This court reviews a trial court‘s decision to award attorney‘s fees for an abuse of discretion. ACMAT Corp. v. Greater New York Mutual Ins. Co., 282 Conn. 576, 582, 923 A.2d 697 (2007). “This standard applies to the amount of fees awarded . . . and also to the trial court‘s determination of the factual predicate justifying the award. . . . Under the abuse of discretion standard of review, [w]e will make every reasonable presumption in favor of upholding the trial court‘s ruling, and only upset it for a manifest abuse of discretion. . . . [Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did.” (Internal quotation marks omitted.) Id.
When it comes to attorney‘s fees, Connecticut follows the American rule. Id. Pursuant to that rule, “attorney‘s fees and ordinary expenses and burdens of litigation are not allowed to the successful party absent a contractual or statutory exception.” (Internal quotation marks omitted.) Id.
We conclude that this provision is broad enough to encompass fees for the entire underlying action, both before and after the amendment of the complaint. Although the plaintiff initially sought to “prevent an anticipatory breach” of the declaration by obtaining a declaratory judgment, the defendant‘s increasing activities in the protected area ultimately required the plaintiff to seek “enforce[ment]” of the restrictive covenants included in the declaration via claims for equitable relief and damages. These various strategies were part and parcel of the same action, however, and the plaintiff clearly prevailed in “said action.”
We agree with the defendant, however, that the fees incurred by the plaintiff when appearing before the commission, and appealing from the decision thereof, are not recoverable under § 3.6 of the declaration. The provision provides, in short, that a party may recover attorney‘s fees when it both (1) brings an action to enforce or prevent an anticipatory breach of the declaration, and (2) obtains relief “in said action . . . .” (Emphasis added.) In common parlance, “‘[s]aid’ means ‘before-mentioned; already spoken of.‘” Trumbull Electric Mfg. Co. v. John Cooke Co., 130 Conn. 12, 15, 31 A.2d 393 (1943). Here, even assuming that the plaintiff‘s participation in, and appeal from, the commission proceedings all comprise the bringing of an action, as contemplated by the declaration, the plaintiff never obtained relief in that action, but ultimately withdrew it and chose to pursue relief in the present action instead. In short, the requirements for the recovery of fees pursuant to the declaration were unmet.
As to a possible statutory basis for the portion of the fee award attributable to the commission proceedings and the plaintiff‘s appeal therefrom,
This statute, by its plain terms and read as a whole, authorizes the holder of a conservation easement to bring an action against one who encroaches on the easement and contemplates the recovery of attorney‘s fees in that action. It cannot be fairly read to encompass fees incurred in an entirely separate administrative appeal brought pursuant to
V
The defendant‘s final claim is that the trial court improperly awarded damages
The following additional procedural history is relevant. At trial, the plaintiff‘s expert witness, Dreyer, proposed a remediation plan that would restore the meadow to its previous condition by first removing the irrigation system and the lawn that the defendant had created, the latter through use of a sod cutter, then replanting the area with various native species and returning to an infrequent mowing regimen. As to the woodlands, Dreyer recommended the cessation of mowing so that the understory could be reestablished, and the planting of native shrubs. Dreyer estimated that his plan would cost between $90,000 and $100,000.
In its initial memorandum of decision issued shortly after the trial concluded, the trial court awarded the plaintiff damages of $350,000 pursuant to
At the subsequent hearing, Dreyer made recommendations similar to those he had made at trial, and also advocated for removal of the beach sand, while experts presented by the defendant recommended a more passive approach, basically allowing the property to revert to a natural state by ceasing all landscaping activities. Concerns were raised about Dreyer‘s plan, particularly the potential for erosion of exposed soil and the need for regulatory permits. Following the hearing, the court did not adopt either party‘s recommendations in their entirety, but rather, took a hybrid approach that differed considerably from either party‘s plan. As to the meadow, the court ordered the planting of plugs rather than the removal of the existing turf, and then requested that the parties submit specific planting plans. Following the submission of those plans, the court ordered the defendant to comply with the plan submitted by the plaintiff. That plan did not include any cost estimate. The court did not alter its earlier award of statutory damages.
Because a trial court has broad discretion to determine whether damages are appropriate, we normally review a
Section
We conclude that the trial court‘s damages award, although unconventionally fashioned, was compliant with
To summarize, the trial court properly interpreted the declaration and concluded that the defendant had violated it in multiple respects. The restoration plan ordered by the court was authorized by the declaration as well as by §§ 47-42c and 52-560a, and was predicated on factual findings having adequate evidentiary support. The attorney‘s fees awarded for the withdrawn declaratory judgment portion of this action were proper, but those awarded in connection with the separate proceedings before the commission, and the plaintiff‘s appeal therefrom, were improper. Finally, the court‘s award of statutory damages was not compliant with
The judgment is reversed as to the award of attorney‘s fees and damages pursuant to
In this opinion the other justices concurred.
Notes
“1.1. No building, sign, outdoor advertising display, mobile home, utility pole or other temporary or permanent structure will be constructed, placed or permitted to remain upon the [p]rotected [a]reas.
“1.2. No soil, loam, peat, sand, gravel, rock or other mineral substance, refuse, trash, vehicle bodies or parts, rubbish, debris, junk, or other waste material will be placed, stored or permitted to remain thereon.
“1.3. No soil, loam, peat, sand, gravel, rock, mineral substance or other earth product or material shall be excavated or removed therefrom.
“1.4. No trees, grasses or other vegetation thereon shall be cleared or otherwise destroyed.
“1.5. No activities or uses shall be conducted thereon which are detrimental to drainage, flood control, water conservation, erosion control, soil conservation, fish and wildlife or habitat preservation.
“1.6. No snowmobiles, dune buggies, motorcycles, all-terrain vehicles or other vehicles of any kind shall be operated thereon.
“1.7. Except as may otherwise be necessary or appropriate, as determined by the [g]rantee, to carry out beneficial and selective [noncommercial] forestry practices, all woodland thereon shall be kept in a state of natural wilderness.
“1.8. No hunting (as distinguished, in the opinion of the [g]rantee, from ecologically necessary or appropriate practices of animal population control) shall be carried on thereon.
“1.9. No boat centers, docks or other such landings shall be located or used thereon.”
“2.1. To create and maintain views and sight lines from residential property of the [g]rantor by the selective cutting, pruning or trimming of vegetation, provided that such action shall not have a significant adverse impact upon the [p]rotected [a]reas.
“2.2. To conduct and engage in the cultivation and harvesting of crops, flowers and hay; the planting of trees and shrubs and the mowing of grass; the grazing of livestock; and the construction and maintenance of fences necessary in connection therewith.
“2.3. The cultivation and harvesting of forest products in accordance with sound [noncommercial] forestry practices.
“2.4. To maintain, repair, reconstruct and replace any utility poles and associated appurtenances thereto located upon the [p]rotected [a]reas at the effective date hereof.
“2.5. To continue the use of the [p]rotected [a]reas for all purposes not inconsistent with the restrictions set forth in ARTICLE I above.”