Opinion
FSTCV166027381S
11-30-2016
57 Broad Street, LLC et al. v. Summer House Owners, LLC
UNPUBLISHED OPINION
MEMORANDUM OF DECISION AFTER TRIAL
TAGGART D. ADAMS, JUDGE
I. Background
The plaintiffs seek injunctive relief and monetary damages for the defendant's alleged violations of the plaintiffs' claimed rights under certain easements. The easements are contained in the recorded documents establishing the entity known as the Broad Summer Condominium located in downtown Stamford, Connecticut in the area south of Broad Street, west of lower Summer Street, and east of a Target store and what has been called the Target Store access road, formerly known as Winthrop Place (Condominium). Tr., 7-20-16, 114. The Condominium is described as an " air rights condominium, " and consists of six units. Unit 1 contains what is described as an almost forty-year-old, 30, 000-square-foot three-story building with full basement fronting on Broad Street, formerly the location of a dining establishment known as Il Falco. The building has been vacant for several years. Unit 1 is jointly owned by the plaintiffs: 57 Broad Street, Stamford, LLC and 59 Broad Street, Stamford, LLC. Unit 2, located south of Unit 1, is the beneficiary of most of the air rights and the present site of a recently constructed 21-story residential apartment building that includes four parking levels, owned by the defendant and known as Summer House. Units 3 and 4 are older buildings fronting the west side of lower Summer Street and housing several restaurants and the offices of F.D. Rich Co. Unit 5 is the location of the Majestic Theater at 118 Summer Street. Unit 6 is a roadway. The locations of the Condominium units are depicted on a property survey that is in evidence as Exhibit 3.
References to " Tr." are to the trial transcript followed by its date and the page number.
The area of Unit 2, which has an undivided interest in the Condominium of 25.97 percent, includes an easement area known as Easement A for the benefit of Units 1, 3 and 4. The area just north of Easement A and immediately south of Unit 1, also part of Unit 2, is burdened by a light and air easement for the benefit of Unit 1. The Easement A area consists of a little less than 6, 900 square feet. The area burdened by the air and light easement is approximately 20 feet (north-south) by 60 feet (east-west) or 1, 200 square feet. Ex. 15. These easements are depicted on Exhibit 3 as well. The major issues in this case involve Easement A.
Plaintiffs also allege that the defendant has violated the light and air easement for their benefit contained in Section 12.3 of the Declaration (found in both Exhibits 1 and 2). The evidence offered on this claim is discussed infra .
The Declarant of the Condominium is Tolari, LLC. Thomas Rich, the chief executive officer of F.D.Rich Co., a long time real estate developer in Stamford, is Tolari's managing member, and also an owner of Summer House. F.D. Rich Co. is described as the primary developer of Summer House. Tr., 7-20-16, 79. Tolati and the principals of the plaintiffs, Kostas Alafoyiannis (principal of 57 Broad) and Alexander Todorovic (principal of 59 Broad) signed a contract, dated June 19, 2012 for purchase of Unit 1. Ex. A. Because the Condominium Declaration and the plans for the apartment building were not complete at that time, the contract contained an " out" clause allowing the Unit 1 purchasers a period of time to rescind the purchase for " any reason or no reason." Ex. A, Sec. 26(b). There followed negotiations between attorneys for the Unit 1 purchasers (Attorneys Lippman and Goldman) and the attorney for the seller-Declarant (Attorney Cohen) concerning provisions of the Declaration relating to parking accommodations for Unit 1 that were initially planned to be located on the ground in the Easement A area and in the light and air easement area. See numbered spaces depicted on Exhibit 3, and testimony of Todorvoic, Tr., 7-20-16, 12.
On August 2012 Mr. Todorovic, in an email to Gene Pride, the real estate broker involved (copy to Mr. Rich) expressed a concern that the area immediately behind Unit 1 and in Easement A:
may be too busy/trafficked with too many crammed parking spaces, and that the plan is not finalized for this area, and therefore cannot be precisely described and written into a contract.
Ex. L, Bates Nos. 1858-59. Rich responded the same day, conceding the area would be crowded when the apartment building was built, and stating:
We have given this some thought and they [Todorvoic and Alafoyianis] are right . . . the ground floor is not going to work. The area is going to have to be redesigned to take into account a variety of things like accommodating loading, expansion of the refuse area, possible location of the transformer vault for the new building, etc. so in the end we just want to follow the language of the contract to give them 18 contiguous spaces in the new garage . . .Id. These negotiations resulted in eliminating all proposed parking in Easement A and the air and light easement area and locating the spaces in the garage area of the about to be built Summer House. Presently, there is no issue regarding Unit 1's parking spaces. They are located in the Summer House garage as pictured in Exhibit R. Todorovic testified that the effect of moving all proposed parking off of Easement A and into the garage freed up a " very crammed" area for other purposes. Tr., 7-20-16, 21-22. Moving all the Unit 1 parking spaces into the Summer House garage was seen by Rich as a significant concession. " 18 spaces were moved out of that area into our parking garage; precious spaces that we did not want to give up, but we did because both purchasers realized that they didn't want to be down there. They wanted to be in the garage, and they wanted to better their position." Tr., 7-21-16, 8.
Subsequently, Section 12.2 of the Declaration was drafted concerning Easement A and reads in part:
Section 12.2-- Easements for Benefit of Unit No. 1. (i) A perpetual right and easement is granted to Unit No. 1 and to the Association to pass and repass over those portions of Unit No. 2 shown as 'Easement A' on the Survey including all walkways, drives, roads and parking areas shown on the Survey, for the purposes of: (a) accessing the building and Improvements now or hereafter located upon Unit No. 1; (b) accessing the recycling and refuse area located on Unit No. 2; and (c) accessing eighteen (18) parking spaces located within Unit No. 2 in the area shown on the Survey, and parking vehicles within said parking spaces (" Parking Area").
Ex. 2. As evidenced by the above language, and the trial evidence, the negotiations in 2012 focused in part, on the number and location of parking spaces. However, in the pending litigation before this court, the focus is on the issue whether the defendant has violated Unit 1's right to " pass and repass" over Easement A for the purpose of accessing the building and improvements on Unit 1. Similar rights to pass and repass over Easement A were granted to the owners of Units 3 and 4. See Ex. 2, § § 12.4 and 12.5.
Specifically, in their verified complaint, the plaintiffs allege that the defendant beginning in 2013 has, in the course of constructing and renting the new apartment building and related structures on Unit 2, violated the easement benefitting Unit 1 set forth in Section 12.2 of the Declaration by obstructing the access to Unit 1. Verified Complaint, ¶ ¶ 10-12; Dkt. Entry 100.31. The major obstruction is the defendant's structure now located on Easement A that has been referred to as the " service access structure, " and which apparently contains electrical apparatus, transformers and switch gear related to operations of Summer House. The location of this structure, shown on a site plan that is Exhibit 15, is south of plaintiffs' building on Unit 1, and south of the area burdened by the light and air easement.
The defendant has answered the Verified Complaint; Dkt Entry 103.00; admitting many of plaintiffs' allegations, but denying that it has violated Section 12.2 of the Declaration and claiming, in a special defense, that plaintiffs' delay in instituting this action was " unnecessary, inexcusable" and prejudicial to the defendant. The pleadings are closed; the matter was claimed to the trial list, and heard by this court over five days between June 15 and July 21, 2016. The court suggested, and the parties readily agreed, to the consolidation of an injunction hearing and a full trial on the merits. At the parties' suggestion, the first issue before the court is whether any violation of the easement has occurred and then, if necessary, determining the appropriate remedy with the possibility of taking further evidence on that point.
The parties were extremely well represented by their attorneys, and the court was well served by the effective, efficient and cooperative work of counsel during trial, and by the well written and argued briefs submitted thereafter in the months of August and September.
II. Discussion
The Connecticut Supreme Court has described the " well settled" legal principles governing easements as follows.
[a]n easement creates a nonpossessory right to enter and use land in the possession of another and obligates the possessor not to interfere with the rules authorized by the easement . . . [T]he benefit of an easement . . . is considered a nonpossessory interest in land because it generally authorizes limited uses of the burdened property for a particular purpose . . . [E]asements are not ownership interests but rather privileges to use [the] land of another in [a] certain manner for [a] certain purpose . . . In determining the character and extent of an easement created by deed, the ordinary import of the language will be accepted as indicative of the intention of the parties, unless there is something in the situation of the property or the surrounding circumstances that calls for a different interpretation. The use of an easement must be reasonable and as little burdensome to the servient estate as the nature of the easement and the purpose will permit. The determination of [the] reasonableness [of the use of an easement] is for the trier of fact . . .Stefanoni v. Duncan, 282 Conn. 686, 700-01, 923 A.2d 737 (2007) (Internal citations and quotations omitted). The holder of the servient estate is entitled to make any use of the servient estate that does not unreasonably interfere with the enjoyment of the servitude. 1 Restatement (Third) Property, Servitudes § 4.9.
Easement A . The gist of the plaintiffs' claims is the effect of the construction of a building by the defendant squarely within the area of Easement A. From the site plan (Ex. 15) it appears the service access structure is approximately 75 feet long running east to west and 20 feet wide. The structure effectively leaves three means of access to the south side of the plaintiffs' building on Unit 1. These means of access are shown on Exhibit 15, and specifically, they are: (1) a 10-foot-wide passage way between the Target Store and Unit 1 extending south from Broad Street to the light and air easement area south of Unit 1; (2) a seven-foot-wide sidewalk running east-west between the service access structure" and the Target Store garage and (3) an entryway under the Summer House varying in width from 20-26 feet beginning at what is labeled " Loading Area" on Exhibit 15 and running east from the Target access way and turning north toward the back, or south side, of the plaintiffs' building on Unit 1. According to the evidence, a mezzanine structure, shown on Exhibit 15 and in photographs--Exhibits M9 and M10--limits the height of the entryway at one point. The parties disagree as to the type of vehicle able to navigate the entirety of the entryway under Summer House to the back of the plaintiffs' building. For instance, Alafoyiannis testified he attempted to drive his BMW 428 vehicle (described as " maybe 18 feet long") from the entryway shown on Exhibit 15 to the building on Unit 1, but he was unable to negotiate the 90 degree turn en route, even though he was driving backward to reduce the vehicle's turning radius. Tr. 7-14-16, 45-46. Conversely, Rich testified that he was able to drive a Range Rover, described as longer and wider than the Alafoyiannis vehicle, to the rear of the Unit 1 building, going both backward and forward without incident. Tr., 7-20-16, 123-30; Exhs. M14-M17 (pictures); Ex. T (video). However, the parties do agree that a large truck would not be able to make the 90 degree turn required to reach the " access" area and the area behind the Unit 1 building and that the mezzanine between the " loading area' and the access area shown on Exhibit 15 that would block vehicles ten feet high or more, but not a pick-up truck. See Exhs. M4, M15, M9.
Exhibit 15 indicates the " Loading Area" where Rich testified that trucks moving tenants into Summer House and making deliveries to the restaurants on the west side of Summer Street would park. Exhibits M7 and M8 are photographs of that loading area. Exhibit M4 is a photograph of the empty loading area and passageway leading toward the back entrances of the restaurant establishments on Summer Street. Exhibit M3 is a photograph of the light and air easement located immediately south of the plaintiffs' building on Unit 1. Plaintiffs' building is shown to the left with three doors accessing the area. Straight ahead is the building housing the Barcelona Restaurant and Wine Bar. The green door shown to the left is the rear entrance to that restaurant which, as Rich testified without contradiction, is where all food, produce, beverages and other restaurant supplies go in and garbage and other debris is removed. This door is about five feet away from plaintiffs' building. Tr., 7-20-16, 116. Rich testified that the loading area is designed to, and does, provide access to Barcelona and at least two other restaurants on Summer Street, in Units 3 and 4, as well as Unit 2, the defendant's building itself, and the plaintiffs' building on Unit 1. Id., 117. Rich testified these deliveries to the restaurants, and similar deliveries to Unit 1, if they occur in the future, are made from trucks in the loading area by means of a rolling cart or hand truck over a distance of 40 to 50 feet, and the restaurant owners and apartment renters are happy with the arrangement. Id., 117-18; Tr., 7-21-16, 29.
Alafoyiannis testified that access by vehicles to the area in back of the Unit 1 building was " very important" for prospective commercial tenants to load and unload, and to permit the plaintiffs to maintain and possibly renovate the building, and to make any needed repairs to the heating, ventilating and air conditioning units on the roof. Tr., 7-7-16, 81; 7-14-16, 64, 69. He also testified that plaintiffs should have direct access by vehicle to allow garbage pickup and to have vehicles go right to the back door of Unit 1. Tr. 7-14-16, 65-66. He testified it is unreasonable to have a garbage man walk thirty feet from the loading area to the rear door of Unit 1 Id., 68.
The court notes that this distance is probably more than thirty feet, but the distance from the back entrance of the Barcelona Restaurant, which is fully satisfied with the refuse removal arrangement, and the back entrance on the Unit 1 building to the refuse area shown on Exhibit 15 is approximately the same.
There was evidence presented by the defendant that the rear of the Unit 1 building could be accessed. Rich testified, supported by photographic evidence, that vehicles sufficient to allow service of the HVAC equipment on the roof of the Unit 1 building and to access other exterior building repairs could reach the light and air easement in the rear of the plaintiff's building both by means of the ten-and-a-half-foot-wide alley, or " access area, " leading from Broad Street and through the entryway. Tr. 7-20-16, 142-49. See Ex. 15; Exhs. H1-H5 (boom lift), Exhs. I1-I10 (scissor lift) and Ex. M16, and M14 (dumpster at rear of Unit 1 building).
Todorovic testified that in 2013 he and Alafoyiannis were in communication with the United States Postal Service as a potential tenant for the Unit 1 building and contacted Chris Kelly, a F.D. Rich Co. employee, who was generally in charge of the Summer House building project, about plans for the Easement A area. Tr., 7-20-16, 22. Kelly sent the plaintiffs and their counsel (Attorney Goldman) an architectural drawing by Lessard Design of the planned service access area structure on March 22, 2013. Exhs. 18 and O. Todorovic testified he was in " complete shock" upon receipt of the plan. Tr. 7-20-16, 23. There were subsequent meetings between Kelly, Alafoyiannis, Todorovic and their architect, John Marinelli. It appears that the Postal Service tenancy was a non-starter. The Postal Service did not like the original Marinelli drawing (Tr., 7-14-16, 77) and a substitute plan for the area that was sent to Kelly on September 5, 2013 involved moving a column and a stair tower at a minimum--an alternative that plaintiffs were advised was unacceptable to the defendant. Ex. P; Tr., 7-20-16, 31. The Postal Service plans also called for three handicap parking spots in the light and air easement where the defendants had no parking rights. Ex. P; Ex. 20. Kelly testified that Marinelli's plans offered by the plaintiffs were much more elaborate than anything that could be considered at that point in time, a position, Kelly said, that made the plaintiffs unhappy. Tr., 7-20-16, 66. Kelly explained that the Summer House construction project had progressed; a general contractor was in place, and construction plans drawn. Id., 66-71. Without actually pricing it out, Kelly estimated the changes proposed by Marinelli's drawing would cost hundreds of thousands of dollars. Id., 75
The construction contract for Summer House was dated August 28, 2013. Ex. Q. The plaintiffs were notified that construction would commence by letter dated January 7, 2014. Ex. C. The progress of construction is shown by dated photographs, Exhibits D1 through D5, taken between February 2014 through October 2015. The principals of the plaintiffs occasionally visited their building during the construction period. Todorovic who lives and works in Greenwich visited the Unit 1 building " very rarely" during the construction period. Tr., 7-20-16, 33. Alafoyiannis visited more often and was familiar with the progress of construction as shown in Exhibits D1-D4. Tr., 7-14-16, 83-85. Certificates of Occupancy for Summer House were issued in March and May 2016. Exhs. E and F. In December 2015 Attorney Lippman, on behalf of the plaintiffs in a letter to Attorney Cohen, demanded the defendant cease and desist from building further structures located on Easement A and demolish what had been built there. Ex. 16. Cohen responded a little over a week later, noting that the plaintiffs had information for over two years of the planned construction on Easement A and in any event, the plaintiffs would have the access and parking called for in Section 12.2 of the Declaration. Ex. 17. This lawsuit was commenced the next month.
The back (or south) side of the plaintiffs' building is visible in Exhs. D1-D4, and the front of the building on Broad Street is depicted in Exhibit D5.
The plaintiffs contend that the rights accorded to them in Easement A encompass the entirety of Easement A depicted on the Survey (Ex. 3) and these rights include the access to Unit 1 by all types of vehicles, including box trucks ten feet tall or higher. They strenuously disagree with Rich's contention in his testimony that the defendant could determine where access over Easement A to Unit 1 would be. Compare Tr., 7-21-16, 6 with plaintiffs' Preliminary Trial Brief, Dkt. Entry 109.00, 17. Plaintiffs contend they have the right to pass and repass over all parts of Easement A for the purpose of accessing Unit 1 without limitation, and that the service access structure materially and substantially interferes with their use and enjoyment of their tights because half of Easement A is permanently blocked and access to the rear of Unit 1 is limited to small trucks and requiring some deliveries to be made by hand.
The defendant counters with several arguments to the effect that plaintiffs' contentions are overly expansive and represent an unreasonable interpretation of the easement. Defendant correctly points out that plaintiffs' contention is restricted to vehicular access to Unit 1, since there is no evidence of any restriction on pedestrian access. See Ex. 15. Second, the defendant contends that access to Unit 1 is the same as the access available to Units 3 and 4 containing offices and restaurants on lower Summer Street. Rich testified, as noted earlier, that these businesses, which have the same easement rights as the plaintiffs, were operating without complaint as restaurant supplies were received and refuse removed by means of hand trucks or other such means. Third, the area immediately behind Unit 1 is owned by the defendant and is burdened only by light and air easement that does not confer any vehicular access or parking rights on Unit 1. That the plaintiffs have no parking privileges in the light and air easement area has been conceded by plaintiffs in their post-trial memorandum. Dkt. Entry 109.00, p.19. Finally, the reasons articulated by the plaintiffs underlying their need for vehicular access were the need to renovate and maintain the building on Unit 1 and for unloading. The defendant claims these needs are met as shown by evidence in the trial record that the requisite equipment, vehicles and dumpsters can be used by the plaintiffs.
This case presents both a complicated physical layout as well as some difficult factual and legal issues. After careful consideration of all the evidence, the court concludes that plaintiffs have not proved the required elements of their claim relating to the Easement A area. There is no question that the service access building on the Easement A area restricts the plaintiffs' use of that area to an extent, but the plaintiffs must show by a preponderance of the evidence, that their claim to use of the " entirety" of the Easement A area for all types of vehicles is a reasonable use of their easement rights and as " little burdensome" to the defendant " as the nature of the easement and [its] purpose will permit." Stefanoni v. Duncan, supra, 282 Conn. 701. They must also prove by that standard that they are not receiving the benefits assured by Section 12.2 of the Declaration. In this regard, some of the plaintiffs' claims are overstated. The evidence presented by the plaintiffs that a normal sized sedan could not access the back of Unit 1 was unpersuasive in light of the contrary court testimony and visual evidence offered by the defendant that a Range Rover vehicle had no trouble reaching the same area. See Exhs. M15, M17; Ex. T (video). Their claim that they are prevented from putting the necessary equipment in place to allow renovation work on their building is speculative and somewhat dubious given photographic evidence that there is access for equipment to facilitate such work, such as dumpsters and aerial platforms. See Exhs. H1-H5, I1-110. The evidence revealed the only definitive restrictions on the access to the back of the Unit 1 building affected vehicles too long to make the ninety degree turn shown on Exhibit 15 or more than ten feet in height. There was no direct evidence as to whether this was a significant restriction on the plaintiffs' enjoyment of their property, which to date, is unoccupied.
The purposes of Easement A are spelled out in its language: (1) access to the improvements on Unit 1, (2) access to the recycling and refuse area, and (3) access to eighteen parking spaces. Parking access is not an issue, having been resolved in 2012. There was unpersuasive testimony from Alafoyiannis that he was entitled to have garbage collection access closer to Unit 1, Tr. 7-14-16, 68, but, there being no controversy about, parking, the main issue is plaintiffs' claim that Summer House and its service access building have illegally diminished the access to Unit 1 available through the Easement A area.
The court does not agree with the plaintiffs' contention that the whole of the Easement A area must be available to allow access to Unit 1. This position does not comport with the structure of Stefanoni v. Duncan that the use of an easement be reasonable and as little burdensome as possible. To keep the entire Easement A area open for Unit 1 access is contrary to the circumstances existing in 2012 and the understanding of the parties at the time the easement was granted. For example on August 16, 2012 Todorovic recognized that " the plan is not finalized for this area, and therefore cannot be precisely described and written into a contract." Rich agreed and replied: " The area is going to have to be redesigned to take into account a number of things like accommodating loading, expansion of the refuse area, possible location of the transformer vault." Moreover, it would preclude the use of the area for any purpose by the defendant, not a result in accord with balancing the interests of the dominant and servient estate owners. In Gaffney v. Pesce, 144 Conn. 17, 126 A.2d 926 the Connecticut Supreme Court stated, in a case involving a claimed obstruction to a right of way, " when a grant of a right of way does not fix the exact route it is to follow, its location is established in accord with the reasonable convenience of the dominant and servient owners by the practical location and use by the grantee acquiesced in by the granter at the time." Finally, the court finds the trial evidence shows that keeping all of the Easement A area available for Unit 1 access is unnecessary to meet the legitimate needs and requirements of the plaintiffs.
In Kelly v. Ivler, 187 Conn. 31, 450 A.2d 817 (1982), the Connecticut Supreme Court upheld a lower court decision that found a fence erected by the owner of property " slightly" encroached on an easement area, but did not " materially or substantially" interfere with easement holder's use of the easement. Based on its review of all the evidence, the court concludes that the plaintiff's rights on the Easement A area have not been materially or substantially impaired by the defendant. While certain large trucks can only get within approximately one hundred feet of the area to the rear of Unit 1 building, there is no evidence this limitation has adversely affected business in Units 3 and 4 and the limit does not affect other types of access to the building by pedestrians, passenger cars, smaller trucks and construction equipment.
Having found that the defendant has not violated the plaintiffs' easement rights, court is not required to decide the merits of the defendant's special defense that the institution of this case in January 2016 constituted an unreasonable and inexcusable delay that was prejudicial to the defendant. Nevertheless, the court observes the defense has merit. As set forth above, the chronology is that Alafoyiannis, Todorovic and their counsel, Attorney Goldman received information of the planned service access structure's location in March 2013. Todorovic was " shocked." A different plan was suggested by the plaintiffs in September 2013 that was deemed unfeasible by the defendant. In the over two years from that time to December 2015 plaintiffs had made no further mention of the issue during which time the Summer House residential building, a garage, and the service access structure were built and largely completed. At very least, the plaintiffs' delay would preclude any equitable relief.
Light and Air Easement . Plaintiffs' verified complaint at Paragraph 13 alleges that the defendant has erected " structures and improvements in the Light and Air Easement" for the benefit of Unit 1, thereby preventing their enjoyment of that easement. The language of this easement in Section 12.3 of the Condominium Declaration states:
The owners of Unit No. 1 and Unit No. 2 agree that neither owner shall construct any structures, building or improvement above the surface of the Light and Air Easement area.
Plaintiffs contend that a refrigeration unit located behind the Barcelona Restaurant and on the Light and Air Easement area is a violation of the easement. The refrigeration unit and its location appear clearly in photographs in evidence such as Exhibits M3, M16 and M17 as a grey box located below the parking " violators will be towed" sign. It is also shown as a grey rectangle just west of the building known as 222 Summer Street on the survey, Exhibit 15. Plaintiffs' attorney Lippman identified the unit as the basis for alleging an easement violation. Tr., 7-7-16, 38. However, Alafoyiannis testified that the unit was at that location when plaintiffs signed the contract to purchase Unit 1 and
Q. So it's always been there?
A. That's correct.
Q. And you knew that?
A. Yes, I did.
7-14-16, 70. This testimony was corroborated by Rich. Tr., 7-20-16, 119 (unit has been there seven years) and the unit is also identified on the drawing known as Schedule C to the contract for sale of Unit 1 (labeled " chiller unit"). Ex. A (last page.)
There is no evidence to support a claim that the defendant constructed or put in place the refrigeration unit subsequent to the imposition of the light and air easement on the property immediately south of Unit 1, and that portion of the verified complaint is found not proven.
III. Conclusion
For the various reasons set forth above, the court finds in favor of the defendants, and the plaintiffs' claims are dismissed.