Opinion
CVX08106006978S.
10-31-2012
Lee S. WEINSTEIN v. CONYERS FARM CORPORATION.
UNPUBLISHED OPINION
BRAZZEL-MASSARO, J.
I. INTRODUCTION
This action was originally filed on October 8, 2010 and dated September 10, 2010 by Lee Weinstein as the owner of property in Conyers Farm at 1 Cawdary Park Drive in Greenwich, Connecticut. The defendant, Conyers Farm is a private, planned community and Conyers Farm Corporation is an association of the property owners which manages the community. The action involves the construction of a residence by Mr. Weinstein within the community of Conyers Farm. Presently before the court are motions for summary judgment which have been filed by the plaintiff addressing counts One and Four of the Complaint and the defendant's motion for summary judgment as to the counterclaim. Count One is a claim for Declaratory Judgment and Count Four is for Reformation of a Bond. The Counterclaim seeks Injunctive Relief. In particular, the defendant seeks an order from the court that the 24-month provision to complete construction is valid and to establish a date for completion of the construction. The Plaintiff filed a Motion dated March 16, 2012 and the Defendant filed its Motion dated March 16, 2012. On April 13, 2012, the plaintiff and the defendant each filed an objection to the opposing parties' motions for summary judgment. Thereafter, the defendant filed a reply dated April 25, 2012.
The plaintiff argues in his summary judgment that there is no legal basis to permit the imposition of a 24-month restriction on construction. The plaintiff contends that the 24-month restriction is based upon a rule that was not properly enacted as part of the Declaration of the planned community and violates the Common Interest Ownership Act (" CIOA"). The defendant alleges that the plaintiff has failed to comply with the obligations set forth in the Declaration of the community and in particular that he has failed to comply with conditions that were a part of the approval by the Conyers Farm Planning and Architectural Review Committee (" PARC") for the construction. The defendant also contends that the plaintiff has failed to satisfy his administrative remedies before filing this action and that he has violated the conditions and regulations of the Greenwich Planning and Zoning Commission.
The defendant has filed a motion for summary judgment on its counterclaim alleging that the condition requiring the completion of the construction of his residence is valid and that the plaintiff failed to satisfy administrative remedies by appealing to the Greenwich Planning and Zoning Commission and thus he has untimely challenged the condition of approval by Conyers Farm.
II. BACKGROUND
The plaintiff Lee S. Weinstein (" Weinstein") purchased property at 1 Cowdary Park Drive in Greenwich, Connecticut on or about October 2006. The property is located in a planned community called Conyers Farm. Upon purchase of the property the plaintiff received and recorded on the land records the Declaration of Covenants, Easements and Restrictions which have become the focus of the legal action. The Conyers Farm community has a committee which oversees the activities within the community including construction or renovation. This committee is entitled the Conyers Farm Planning and Architectural Review Committee (" PARC"). The plaintiff after purchase of the property decided that instead of renovating the existing residence he would demolish it and build a new structure on the property. In accordance with the Declaration, the plaintiff submitted an application to PARC for approval of plans for construction of a new residence on the property. After review, the plans were approved on April 10, 2008. The approval consisted of nineteen separate conditions, two of which involved a completion time for construction. The approval letter stated in part: " All work on this project must be completed within 24 months of commencement of construction. The PARC must be notified in writing when construction is to begin." After the approval by PARC, the plaintiff sought and received approval of the site plan by the Greenwich Planning and Zoning Commission. This approval was granted on September 23, 2009. It contained conditions for the Building permit that: " [T]he development of this site is subject to the conditions set by the Planning and Zoning Commission, the Island (sic) Wetlands and Watercourses Agency, and the Conyers Farm Planning & Architectural Review Committee."
There are also references to this committee by the parties as " ARC."
The plaintiff notified PARC after he received the land use approvals and began construction in October or November of 2009. The parties dispute the actual date when construction was begun on the property, however, this disagreement is not important for purposes of the two-year time period that is at issue in the instant action. For purposes of the present motion the court will accept the date for beginning construction as October 29, 2009.
III. DISCUSSION
LEGAL STANDARD
A. General Standard
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Provencher v. Enfield, 284 Conn. 772, 790-91, 936 A.2d 625 (2007).
" In ruling on a motion for summary judgment the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). " In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law." (Internal quotation marks omitted.) Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
" The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact ... As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ... When documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue ... Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue." (Internal quotation marks omitted.) Id., at 11.
" A motion for summary judgment shall be supported by such documents as may be appropriate, including but not limited to affidavits, certified transcripts of testimony under oath, disclosures, written admissions and the like." Practice Book § 17-45. " [B]efore a document may be considered by the court in support of a motion for summary judgment, ‘ there must be a preliminary showing of [the document's] genuineness, i.e., that the proffered item of evidence is what its proponent claims it to be. The requirement of authentication applies to all types of evidence, including writings ...’ Conn.Code of Evid. § 9-1(a), commentary. Documents in support of or in opposition to a motion for summary judgment may be authenticated in a variety of ways, including, but not limited to, a certified copy of a document or the addition of an affidavit by a person with personal knowledge that the offered evidence is a true and accurate representation of what its proponent claims it to be." New Haven v. Pantani, 89 Conn.App. 675, 679, 874 A.2d 849 (2005).
The plaintiff has argued that some of the documents are not authenticated for purposes of this motion and the court has referred to this standard.
B. THE APPLICATION OF THE DECLARATION
The parties have divergent opinions as to whether the 24-month provision is a condition as stated in the approval or a rule as argued by the plaintiff. The decision as to whether the 24-month deadline for completing the construction is a rule or a condition is essential to the argument of both parties and as such the court will first address this issue. When a court is called upon to assess the validity of [an action taken] by a board of directors it first determines whether the board acted within its scope of authority and second, whether the [action] reflects reasoned or arbitrary and capricious decision making. Weldy v. Northbrook Condominium Association, 279 Conn. 728, 734, 904 A.2d 188 (2006), citing Beechwood Villas Condominium v. Poor, 448 So.2d 1143, 1144 (Fla.App.1984).
The language of the approval letter of April 10, 2008 does not refer to rules of PARC that must be followed. The approval indicates that there are conditions to approval. The initial approval application to PARC is specifically required within the Declaration, Section 2 of Article IX and is the crux of the arguments.
Upon purchasing property at Conyers Farms, the purchaser is provided with the Declaration of Covenants, Easements and Restrictions dated January 13, 1983 (" Declaration") which regulates activities within the community including construction or renovation on the property. The plaintiff, Lee Weinstein, does not deny that there are Declarations and By-Laws which were recorded in the land records at the time of his purchase of the property at 1 Cowdary Park Drive which apply to his ownership of property in this planned community. The parties have conflicting positions as to what authority Conyers Farm has in relation to the permit and approval process within the Declaration. The motions and argument of the parties center mainly on two sections within the Declaration although they refer to others for assistance in interpretation.
The plaintiff does not disagree that in accordance with the Declaration he was obligated to submit a request for approval of the residence he proposed to construct at 1 Cowdary Park Drive. Article VI, Section states in part: " Prior to constructing, clearing, improving, excavating, digging, removing, reducing ... full and complete plans and specifications showing the nature, kind, shape, height, materials and location of the same shall first be submitted to and approved, in writing, including harmony of external design and location in relation to surrounding structures and topography, by the board of Directors of the Association, or by the Architectural Control Committee ..." and " [PARC] may promulgate rules governing the form and content of plans and specifications on Lots, including without limitation, minimum square footage of improvements, front, rear and side setbacks, exterior lighting, materials and landscaping."
Thereafter, Article IX, Section 2 provides in part: " The Declarant, the Association and the [PARC] to the extent specifically provided herein, may adopt and promulgate reasonable rules and regulations regarding the administration, interpretation, and enforcement of the provisions of this Declaration. In so adopting and promulgating such rules and regulations, and in making any findings, determination, ruling or order or in carrying out any directive contained herein relating to the issuance of permits, authorizations, approval, rules or regulations, the Declarant, the Association and the [PARC] shall take into consideration the best interest of the Owners and the Property, to the end that the Property shall be preserved and maintained as a high quality community. In granting any permit, authorization or approval, as herein provided, the Declarant, the Association and the [PARC] may impose any condition or limitation thereon as they shall deem advisable under the circumstances in each case in light of the considerations set forth in the immediately preceding paragraph hereof."
These two sections of the Declaration establish that there is an overview process for any construction within the planned community. There is no question but that the plaintiff, Weinstein, engaged in the application process and the plans were approved by PARC. A letter was issued dated April 10, 2009 which substantially approved the plans. Also, in following the language of Article IX Section 2 the defendant included conditions as part of the approval process. There is no evidence that upon receiving the approval of PARC, the plaintiff challenged, questioned or framed any objections or concerns to the condition that the construction was to be completed within 24 months. Following the PARC approval, the plaintiff proceeded to obtain the municipal land use approvals for the construction and received an approval with conditions for a site plan, one of which was a condition that the applicant, Lee Weinstein, was to satisfy the conditions of PARC. Likewise, the plaintiff did not challenge any of the conditions included in the approval from the Town of Greenwich Planning and Zoning Commission.
The plaintiff began construction on the residence at some time on or around October 2009. Shortly after the construction began there were complaints about the manner and timeliness of the construction. For a period of time the parties corresponded as to the conditions and timing of the construction. It was during these discussions, over a year later, that the plaintiff raised for the first time that the 24-month limit for completion was invalid because it required the adoption of a rule by PARC and the plaintiff through discovery determined that the Association never amended the Declaration to adopt such a rule.
The plaintiff argues as to each of the cited sections of the Declarations that either the provision does not include a specific 24-month restriction adopted as a rule or the section does not extend to the interpretation argued by the defendant. The defendant's argument is two-fold, that is, the restriction is a permitted condition, not a rule, pursuant to the Declaration and bylaws and the plaintiff's legal action cannot stand because he failed to timely appeal the decision of the Greenwich Planning & Zoning Commission approving the site plan which contained the condition that the construction was subject to the conditions, including the 24-month restriction, set by the Conyers Farm Planning and Architectural Review Committee.
The plaintiff argues that the Court should not consider the Greenwich approval because it was not properly authenticated but the defendant argues that the approval was part of the Fain Affidavit as personal knowledge and attesting to the document. The Court accepts the defendant's position as to the documents and thus refuses to ignore them in its analysis.
The plaintiff devotes a great deal of time and argument to the premise that the 24-month restriction is an illegal rule that was never properly enacted by Conyers Farm Corporation and relies upon Section 1, Article VI as the basis of his argument. This provision states in part that: " The Architectural Control Committee may promulgate rules governing the form and content of plans and specifications on Lots, including without limitation, minimum square footage of improvements, front, rear, and side setbacks, exterior lighting, materials, and landscaping." There is nothing in this provision that requires rules to be in place and prohibit discretionary actions of establishing reasonable conditions for a permit. To interpret this section as requiring a specific rule for each condition would give precedence to this section above the language in Article IX, Section 2 that recognizes the need to establish conditions based upon the circumstances of the particular permit or application for approval. Conditions of approval would necessarily follow the intent of the Declarations as enunciated in the Preamble which provides in part: " B. Declarant desires to provide for the preservation and enhancement of the values and amenities in the Property and, to this end, desires to subject the real property described in Schedule A to the covenants, restrictions, easements, charges and liens, herein set forth, each and all of which is and are for the benefit of the property and each owner thereof; the Declarant has deemed it desirable, for the efficient preservation of the values and amenities of said community ..." The efficient preservation of the values and amenities as set forth in the preamble relates specifically to events that would impact the quality of the community. The construction of a new residence with all of the disruption of the peace and quiet of a residential area certainly is the type of activity to be reviewed by the Board and thus to be subject to conditions which would lessen the impact. The conditions permitted in the Declaration Article IX, Section 2 recognize that for each permit there are limitations that " are deemed advisable under the circumstances of each case." To argue that in order to establish a set time for completion of construction pursuant to this section ignores the variables of the many permits that would require approval. For instance, an addition to the residence or the inclusion of an outdoor recreation area would be different than the reconstruction of a residence such as in the instant action and may require different conditions or a different time table for completion than a new residence. The defendant relies upon the decision in Weldy v. Northbrook Condominium Association, 279 Conn. 728, 904 A.2d 188 (2006), for its position that conditions may be included to enforce or clarify a rule or regulation. In Weldy, the condominium association had a declaration that all household pets be restrained properly and controlled by their owners. This declaration can be compared to the general declaration in the instant action which requires an application for construction on the property. Thereafter, in Weldy, the Association passed a resolution that required the leash that was used by the pet owner be no more than twenty (20) feet in length. The plaintiffs challenged the restriction of 20 feet as an illegal amendment of the declaration. The Board in Weldy contended that the 20-foot restriction was a clarification and not an amendment. The Supreme Court found that the requirement of a 20-foot leash was not a rule requiring an amendment. The analysis in Weldy offers support for the defendant's position that the Board has the authority to exercise a degree of discretion in accomplishing the tasks, which it is charged, here, reviewing permit applications for construction. Like the leash restriction which gave guidelines that aided in clarifying how the owner was to control their pet, the time limitation for the completion of a residence established a condition that protected the quality of the community in preventing the existence of a construction site that would inevitably affect the residents with noise and emissions but would have some control as to the duration of the inconvenience and impact upon the quality of life. Therefore, the establishment of a 24-month time frame is akin to the twenty-foot leash found to be a permissible restriction in Weldy. The 24-month condition is not a rule as the plaintiff had argued but instead is a condition which accomplishes the intent of the declaration to attend to the quality of life and is based upon the circumstances of each permit.
The plaintiff also argues that the defendant could not include such a regulation because it would impact private property and not the common areas which is the only area for which they have rulemaking authority. However, this argument is not supported by the declaration which is to protect all of the property owner's enjoyment of their property and prevent the annoyance and disturbance of various circumstances by creating rules that specifically apply to the individual property. If the court were to follow the plaintiff's position, the declaration which allows the establishment of conditions would be superfluous because it would have no meaning. PARC would include conditions but have no enforcement. Such a finding would ignore the intent of the declaration as well as the basis for establishment of a planned community.
The argument of the plaintiff also ignores other sections within the Declaration that provide the type of protection to all of the members of the planned community such as Article VIII, Section 1 which contains an obligation to complete construction within two years after the Owner acquired title to the property. This section refers to the purchase of a " residential lot" which is obviously not within the common property but equally affects the property owners who are subjected to the annoyance and disturbance that accompanies any construction. The intent of that section as well as the condition here to keep it to a reasonable timetable is consistent with minimally impacting the interests of the community.
After review of the declarations, the application, case law and relying upon the argument of counsel, this court does not find that the inclusion of a 24-month period for completion of the construction is a rule that the defendant failed to legally adopt. The Declaration clearly distinguishes the authority of the PARC to establish conditions which are particular to the permit applications by owners of property in Conyers Farm. Article IX which applies to the conditions for permits and applications is distinct from Article VI which refers to the rule making authority. Each Article has separate application but must be read as a whole so as to apply the Declarations and by-laws consistently.
The determination that the time restriction is a permissible condition does not end the inquiry as to whether the 24-month condition for completion of the construction is an enforceable condition. In viewing the declaration, there appears to be a broad scope of authority in determining the conditions which they " deem advisable under the circumstances in each case ..." The only criteria that applies to the condition is that " it be in the best interest of the owners and the Property, to the end that the Property shall be preserved and maintained as a high quality community." Establishing a condition of completion of the construction within 24 months is a reasonable condition given the circumstances at the time of the approval. What lends support to this finding is that the plaintiff had notice of this condition at the time of approval and never challenged it, never asked PARC to reconsider the time restriction nor presented any information that would lead any of the members to find that at the time of the approval such a condition was incapable of being satisfied. Additionally, the 24-month condition has some flexibility in that the owner can seek an extension if there is a demonstrated basis.
Contrary to the plaintiff's argument that the defendant is attempting to stop his construction, the intent and relief requested by the defendant is to have him complete the construction but do so in a manner which satisfies the condition and to prevent the extended construction with its inherent inconveniences and annoyance to other members of the community. The court addresses this claim in the defendant's argument for the granting of injunctive relief.
C. INCONSISTENCY BETWEEN STATE LAW AND CONDITION
The defendant argues that the plaintiff has failed to timely appeal the condition of a 24-month construction timetable in the Greenwich Planning and Zoning approval and thus is precluded from challenging it at this time. The plaintiff argues that there was no authority to include the condition as part of the site plan approval and the zoning authority approval contains statutory time restraints which are inconsistent and thus unenforceable. Based upon the above, the court has determined that the Declaration properly permits conditions including the 24-month construction condition. The argument by the defendant challenging the plaintiff's ability to question the validity because of the failure to timely appeal is an argument that this court need not address. This court recognizes that the condition provides a greatly reduced time limit that is inconsistent with the statutory time limit for a site plan. Conn. Gen.Stat. Section 8-3(i) provides in part that: " In the case of any site plan approved on or after October 1, 1984 ... all work in connection with such site plan shall be completed within 5 years after the approval of the plan ..." Additionally, the Town of Greenwich Zoning Regulations permit a three-year period to begin the construction. The condition of the PARC establishing two years for completion does not define what constitutes the start of construction and/or the completion other than refer to the exterior of the building. There are inconsistencies between the two time periods for completion of the work. However, there has not been a challenge to the work or a cease and desist issued by the Town of Greenwich in relation to the land use approvals based upon the passage of two years. Additionally, the zoning approval by the Town does not have the same concerns for the preservation and enhancement of the values of the Property that are paramount to Conyers Farm as a planned community. The two-year period, although adopted in the general acceptance of the conditions, has not led to any request for relief which requires the court to address its validity as part of the land use approvals. But of additional merit is the defendant's argument that the plaintiff has never challenged this condition in a timely appeal. Such an appeal is necessary to address the legal concerns. Without such a challenge, there is no issue. Upjohn Company v. Zoning Board of Appeals, 224 Conn. 96 (1992). In Upjohn the court noted that the recipient of a zoning permit that had been granted subject to a condition may not accept both the benefit of the permit and the condition attached to it, by failing to challenge the condition by way of direct appeal, and then years later, defend against enforcement of the condition by attacking its validity ab initio. Therefore, the recipient of the permit could not challenge the condition after the appeal period.
The plaintiff's argument in this regard is attempting to bootstrap the PARC approval to the Town of Greenwich Planning and Zoning Commission conditions as an illegal condition. But without a legal challenge by the Zoning Commission to enforce this two year period there is no authority for PARC to bring an action to enforce the Commission's approval. Their authority lies solely in their Declarations and by-laws which allow them to proceed to court to compel compliance. Declaration, Article IX, Section 1. This court is not presented with any evidence of harm to the plaintiff of a threat of cease and desist, or a pending action, or the defendant's authority to compel compliance with the land use board that would create an issue for review by this court.
D. EQUITABLE ESTOPPEL
The defendant contends that the plaintiff is equitably estopped from challenging the condition establishing a 24-month time period for construction.
In order to satisfy a claim of equitable estoppel the defendant must prove that: 1) the party must do or say something that is intended or calculated to induce another to believe in the existence of certain facts and to act upon that belief and, 2) the other party influenced thereby, must actually change his position or do some act to his injury which he otherwise would not have done. Levine v. Town of Sterling, 300 Conn. 521, 534-35, 16 A.3d 664 (2011).
The defendant contends that the approval for the construction was given by PARC in reliance upon the construction being completed within two years and that the plaintiff by acquiescence agreed to the 24-month condition. The defendant contends that based upon this agreement PARC permitted him to begin construction with the belief he would complete it in accordance with the restriction. This claim of equitable estoppel is not supported by any evidence. Other than the defendant's contention, there are no facts. The statements of the parties to this action are contrary to these claims. The plaintiff has denied that he agreed, promised or even knew of the condition for completion. He contends that during the course of the presentation at the hearing for his permit the issue was never discussed. He contends he did not agree to such a condition. The defendants contend that the written approval gave the plaintiff notice of the condition which was never challenged and thus they could infer his agreement. The defendant relies upon Upjohn Co. v. Zoning Board of Appeals of Town of North Haven, 224 Conn. 96, 616 A.2d 793 (1992), as support for its contention that plaintiff is estopped from challenging the condition of 24 months completion date. The facts in Upjohn differ. First of all, Upjohn was an enforcement action by the zoning agency to enforce the condition. Not so here. Secondly, Upjohn involved a series of events which demonstrated a knowing agreement to the condition, unlike the instant action where there is no evidence that the plaintiff discussed, was questioned or had any knowledge of the inclusion of a condition for completion until after the approval letter was received.
The positions of the parties create a genuine issue of fact. Therefore, the motion for summary judgment is denied as to this claim.
E. COUNTERCLAIM FOR INJUNCTIVE RELIEF
The defendant in its Counterclaim and in the defendant's motion for summary judgment requests that the court enter an order for Injunctive Relief. In particular, the defendant requests that the court enter an order requiring the plaintiff to complete construction on his residence within a reasonable time and by a date certain because as a matter of law the condition requiring the plaintiff to complete construction of his residence within the two years is valid. The Declaration, Article IX, Section 1 provides the authority to the Board to proceed to court to compel compliance with the terms and prevent a violation of a breach. This is also consistent with Article X, Section 2 which permits an enforcement action to be filed in the court.
The court as noted above has found that the 24-month construction timetable is a valid condition.
" [A] party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law ..." New Breed Logistics v. CT Indy NH TY, LLC, 129 Conn.App. 563, 570-71, 19 A.3d 1275 (2011). A party seeking injunctive relief is entitled to such relief only in the event that he can show the threatened conduct will cause him irreparable damages. Wambeck v. Lovetri, 141 Conn. 558, 564, 107 A.2d 395 (1954). In addition, our Supreme Court has stated that " an injunction may not issue unless to prevent substantial and irreparable injury to a complainant ... If the injury is not substantial, equity will not interfere." (Citations omitted.) Herbert v. Smyth, 155 Conn. 78, 85, 230 A.2d 235 (1967). The party seeking this relief bears the burden of proving facts which will establish irreparable harm and the lack of an adequate remedy at law. Kelo v. New London, 268 Conn. 1, 89, 843 A.2d 500 (2004), aff'd, 545 U.S. 469, 125 S.Ct. 2655 (2005).
The defendant has demonstrated that the permit approval for the plaintiff contains a valid condition for completion of the construction within a 24-month time period. However, the inquiry does not end there for purposes of the defendant's requested injunctive relief from this court. In order to grant the relief requested the court must determine that the conduct of the plaintiff presents irreparable harm and damage to the defendant. The first element of proof for injunctive relief is the irreparable harm. The defendant contends in the affidavit of James J. Mossman, who owns bordering property, that the construction activity is noisy and dusty. Mr. Mossman stated that the noise level for the rock crushing prevented his family from enjoying the pool and yard. The defendant also contends that the plaintiff improperly stores material and allows trucks or commercial machinery to remain on the property in violation of the Declaration and by-laws. However, these allegations do not present irreparable harm because the Declaration, Article VI, Sections 15 and 18 exempts this use during construction and further there is no evidence that other than being unsightly there is any harm.
Article VI, Section 15, states in part: " ... except building materials during the course of construction of any approved building ..." Article VI, Section 18 states in part: " ... provided this provision shall not apply during any construction ... of any building on any lot."
The defendant has failed to satisfy the burden of proof relating to this issue and as to whether the defendant in accordance with the Declaration will or should permit an extension of the construction because of an extenuating or unforeseen circumstance as to this permit. The evidence in this regard is scant. There are genuine issues which exist as to the defendant's requested relief. Therefore, as to the defendant's motion for summary judgment the court finds that there is a valid 24-month condition for construction but whether the failure to complete the construction should lend itself to an extension or an injunctive order for a date certain for completion requires additional evidence that has not been presented to the court. The matter is scheduled for a hearing before this court on December 19, 20, and 21, 2012. The defendant's counterclaim for injunctive relief will be heard at that time.
CONCLUSION
The plaintiff's motion for summary judgment is Denied as to Counts One and Four based upon the finding by the court that the 24-month period for construction is a valid condition. The Defendant's motion for Summary Judgment is Denied as to the claim of Equitable Estoppel.
There are genuine issues of fact as to whether the claim for Injunctive Relief should be granted and thus the motion to have the court set a date for completion is Denied without prejudice to conduct a hearing as to whether the defendant can satisfy the legal requirements for the issuance of an Injunction as well as what the parameters, if any, would be reasonable for any orders entered by the Court.
The Court will conduct a hearing on December 19, 20, and 21, 2012.