Opinion
No. CV05-4008453S
March 8, 2006
MEMORANDUM
This action is an application by the plaintiffs for a temporary and permanent injunction to enforce a restriction found in the deeds of all parties limiting the use of the defendant's real property to residential use only. The parties reside in a residential subdivision known as Hillcrest Acres located in Woodbury, Ct. The plaintiffs own thirteen of the fifteen lots, one lot owner is not a party and the defendant owns lot number ten. The plaintiffs seek to enjoin the defendant from operating a physical therapy center known as "Healing Arts" out of the basement of her home. The basis of the plaintiffs' argument is that in one form or another all the deeds to the lots in this subdivision restrict the use of the properties to residential use only.
The defendant argues this restriction is not enforceable against her because, 1) the Town of Woodbury issued her a permit to operate a home business and, 2) the plaintiffs are not suffering immediate and irreparable harm and cannot show any injury from this enterprise.
HISTORY
The parties live in a fifteen-lot subdivision known as Hillcrest Acres. This property consisted of 26.1 acres and was subdivided into 15 building lots numbered one through sixteen, (the number 13 was omitted). The property was owned and developed by Joseph Maciulis and Aldona Volage. The Town of Woodbury Planning Commission approved this subdivision in August 1958. The map which is entitled "SUBDIVISION PLAN OF HILLCREST ACRES LOCATED ON PARK ROAD WOODBURY CONNECTICUT OWNED AND DEVELOPED BY JOSEPH MACIULIS AND ALDONA VOLAGE TOTAL ACRES 26.1 SCALE 1" = 60' "dated May 23, 1958 certified substantially correct by Robert H. Ladd registered Land Surveyor, New Milford, Conn. contains no restrictions on its face other than calling for individual wells, septic tanks and a minimum setback line of 50 feet. The developers commenced selling the lots in 1958 and all the lots were sold by 1965. The first lot sold was number three on August 11, 1958. The deed to this lot was recorded in Volume 85 at page 503 of the Woodbury Land Records on August 12, 1958. In this deed under the restrictions is found the following language: "3. Neither the grantee, nor his heirs and assigns shall ever use the above premises for anything other than residential purposes, and said premises shall never be subdivided."
Plaintiff's Exhibit One, a certified copy of the subdivision map, as approved by the planning commission. The map is dated May 13, 1958. It was filed on June 27, 1959.
Plaintiff's Exhibit Two.
This same wording. is found in the developer's deeds to lots, 8, 11, 12, 14, and 16. In the developers deeds to lots 2, 4, 5 and seven, the following wording is found, "Said premises are subject to the building restrictions etc., as are set forth in a Warranty Deed from Joseph Maciulis and Aldona Volage to Francis Volage, Jr. Dated August 11, 1958 and recorded in Vol. 85, Page 503 of the Woodbury Land Records." (The deed to lot 3.) In the developer's deed to lot one, the following language is found. "In most of the deeds of sales of lots on the above map certain building lines and restrictions were imposed which may be considered as affecting the above lot, so may be considered as restrictions thereon." In the deed to lots 6, 9, 10 and 15 the following language is found "(5) Such restrictions if any as may affect the above lots as were imposed on the sales of lots on the above map." All of the deeds for all 15 lots reference the original developer's map, plaintiff's Exhibit One. The Warranty Deed to the defendant's property dated April 24, 2005 and filed in Vol. 332 at page 122 of the Woodbury Land Records states the property is subject to: Restrictions set forth in a Deed dated February 4, 1959 and recorded in Vol. 85 at Page 541 of the Woodbury Land Records, which is the original deed to lot 14, which contains the specific restrictive language.
Plaintiff's Exhibits 3, 4, 6, 8 9.
Plaintiff's Exhibits 5, 7, 10, 11.
Plaintiff's Exhibit 12.
LAW
The law dealing with the enforcement of restrictive covenants is set forth in Dasilva v. Barone, 83, Conn.App. 365, 849 A.2d 902, (2004). Restrictive covenants generally fall into one of three categories: "(1) mutual covenants in deeds exchanged by adjoining land owners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee `presumptively or actually for the benefit and protection of his adjoining land which he retains.'" Dasilva, supra at 371, 372. This case falls into the second category. Thus, the court must determine if the developers intended to provide a uniform plan of development. When making a finding as a matter of law that a common development scheme exists, the court must look to four factors: (1) the common grantor's intent to sell all of the subdivided plots; (2) the existence of a map of the subdivision; (3) actual development of the subdivision in accordance with the general scheme; and (4) substantially uniform restrictions contained in the deeds of the subdivided plots. Dasilva, supra, at 372, Contengi v. Payne, 18 Conn.App. 53, 557 A.2d 122, (1989). The court finds that all four factors have been proven by the plaintiffs. The common grantor's intent was to sell all the lots, a map of the subdivision exists, the development did occur and substantially the same restrictive covenant that the property is to be used for residential use only exists in all the deeds.
The next question is who may enforce restrictive covenants and when should they be enforced. Restrictive covenants should be enforced when they are reflective of a common plan of development. Marion Road Ass'n. v. Harlow, 1 Conn.App. 329, 472 A.2d 785 (1984). As to who may enforce restrictive covenants, Connecticut case law has long acknowledged that, "When, under a general development scheme, the owner of property divides it into building lots to be sold by deeds containing substantially uniform restrictions, any grantee may enforce the restrictions against any other grantee." Dasilva, supra, at page 373, Hooker v. Alexander, 129 Conn. 433, 436, 29 A.2 308 (1942). Thus, the plaintiffs as lot owners have standing to enforce the restrictions.
The relief sought by the plaintiffs is a temporary and permanent injunction seeking to enforce the restriction. The purpose of a temporary injunction is to preserve the status quo until final determination of the parties' rights after a hearing on the merits. Clinton v. Middlesex Mutual Assurance Co., 37 Conn.App. 269, 270 (1995). The court, when considering a temporary injunction, must consider the following factors: a) irreparable and imminent injury, b) lack of an adequate remedy at law, c) likelihood of success on the merits, and d) the balancing of the equities favors granting the injunction. Waterbury Teachers Ass'n v. Freedom of Information Commission, 230 Conn. 441, 446, 645 A.2d 978 (1994). The general rule as to the first requirement is that the plaintiff is able to show the threat of substantial and irreparable injury. Though the plaintiffs in this case could not point out any specific injury that has occurred the courts have carved out an exception to the general rule when a party is seeking to enforce a restrictive covenant. In Hartford Electric Light Co. v. Levitz, 173 Conn. 15, 20, 376 A.2d 381 (1977), the court restated the rule found in Armstrong v. Leverone, 105 Conn. 464, 472, 136 A. 71 (1927), that "in the granting of an injunction against a violation of a restrictive covenant against the business use of certain property, [p]roof of special damage is not necessary, if the act of the defendant transgresses the restriction it is a violation of the rights of the plaintiffs which is not dependent upon the existence or amount of damage." Thus the question of damage is immaterial as far as the right of the plaintiffs to enforce the restriction is concerned. Armstrong, supra.
As to the second requirement, the lack of an adequate remedy at law, the court finds there is not an adequate remedy at law in that since we are dealing with the use of land, money damages would not suffice. On the likelihood of success on the merits, as previously found there is no real doubt that it was the intent of the developer to restrict the land to residential use only. Though the language used was not entirely uniform, the intent is clear.
The last requirement, that is, the balancing of the equities causes the court the most concern. As argued by the defendant what real harm is taking place here, the defendant is only seeing four to six patients a week, they park off the street, her sign is barely visible and the plaintiff cannot point to any specific damages they have suffered. Since the Town of Woodbury does allow this type of home business, a more neighborly response would have been to discuss the situation with the defendant and come to some sort of accommodation. Such as a limitation of three patients a day, spaced throughout the day, the removal of the sign and no on street parking.
Though the court sympathizes with the defendant, the court is bound by the law. The court having found there is a valid deed restriction, that the plaintiffs do have the right to enforce the restriction and the exception does exist that the plaintiffs do not have to show any specific damages, the court finds it has no alternative but to issue the permanent injunction as requested by the plaintiffs. The defendant Ellen Richards is enjoined from operating a massage therapy business out of her home located at 40 Barbara Lane Woodbury, Connecticut.