Niantic Real Estate Limited Liability Company v. Kevin J. Hricko et al. (2010)

MEMORANDUM OF DECISION

This is an action for a mandatory injunction brought by plaintiff, Niantic Real Estate Limited Liability Company, against defendants, Kevin J. Hricko and Justine Hricko, to require the defendants to comply with the provisions of a Declaration of Covenants and Restrictions of Niantic Real Estate Limited Liability Company, dated May 1, 2003, and recorded in East Lyme Land Records on May 1, 2003, in Volume 614 at page 424, as amended on July 29, 2004, and recorded in East Lyme Land Records on July 29, 2004.

In the first part of this bifurcated trial, the court held that defendants' property located at 4 Kensington Court, East Lyme, Connecticut, is subject to the declaration.   In the second part of this bifurcated trial, the defendants claim that they do not have to comply with a demand by the plaintiff that in accordance with the declaration they must plant a double line of trees along a portion of the perimeter of their property.

The court heard testimony in this second part of this trial and took a view of the defendants' property with counsel for the parties.

The provisions of the declaration relevant to the second part of this trial are as follows:

B. APPROVALS

No dwelling house or other structure shall be erected on any lot until the plans and specifications with the proposed site plan have been submitted to and approved by the Declarant as to the exterior appearance, design and location of structure(s) on such lot, and a written permit issued by Declarant.   The Declarant shall issue a notice of approval which shall identify the lot number, and a brief description of the dwelling so approved, which notice shall be recorded on the land records by the owner.   Design shall be required to be in harmony with existing neighborhood structures and the natural terrain of the lot as graded in accordance with the subdivision plan.   In addition to all other requirements set forth herein, no log buildings or raised ranch style homes shall be approved on any lot.   Each building erected on a lot shall have an exterior facade of cedar clapboard, cedar shingle, clay brick, natural stone or high-grade vinyl siding.   All roofs to be architectural shingles.

C. TIME OF CONSTRUCTION

When any dwelling shall be constructed on any lot, such construction shall be completed within one (1) year after construction was begun, and thereafter within 120 days of completion, all finished grading and landscaping shall be completed, weather permitting.   Landscaping shall consist at minimum of four (4”) inches of screened loam in areas of lawn and sufficient plantings in the front yard to screen foundation areas.

In conformity with paragraph B of the declaration, the defendants submitted a plan prepared by J. Robert Pfanner & Associates, P.C. Civil Engineers and Land Surveyors entitled “Plot Plan Prepared for Brom Builders, Inc. Location:  Developers Lot # 48 Kensington Drive.”   The plot plan shows twenty-four trees, six to seven feet in height, in a double row along the southwesterly perimeter of the defendants' property.   The plot plan was prepared by the plaintiff's surveyor at the plaintiff's suggestion.   The defendants did not see the plot plan until after it was approved by the plaintiff.   No trees have been planted by the defendants on the property.

I.

The plaintiff claims that the declaration clearly provides for proposed site plan approval.   This claim is not disputed.   The issue is whether, in view of the absence of any mention of trees in the declaration and the inclusion of trees in the plot plan which was submitted to and approved by the plaintiff, the defendants are required to plant the trees indicated on the plot plan.

Paragraph C of the declaration provides:

C. TIME OF CONSTRUCTION

When any dwelling shall be constructed on any lot, such construction shall be completed within one (1) year after construction was begun, and thereafter within 120 days of completion, all finished grading and landscaping shall be completed, weather permitting.   Landscaping shall consist at minimum of four (4”) inches of screened loam in areas of lawn and sufficient plantings in the front yard to screen foundation areas.  (Emphasis supplied.)

Although Paragraph C refers to landscaping and plantings to screen foundation areas, nowhere in Paragraph C nor in any other provision of the declaration is there a mention of trees.

It has long been established that restrictive covenants are strictly construed against the covenant.   In Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 296 (1912), the Supreme Court said:

[I]f the language of a restrictive covenant, when read in the light which the context and surrounding circumstances throw upon it, remains of doubtful meaning, it will be construed against rather than in favor of the covenant.   Such covenants being in derogation of the common-law right to use land for all lawful purposes that go with title and possession, they are not to be extended by implication.  (Citations omitted.)

The Appellate Court said in 5011 Community Organization v. Harris, 16 Conn.App. 537, 541 (1988), “a restrictive covenant must be narrowly construed and ought not to be extended by implication.   Moreover, if the covenant's language is ambiguous, it should be construed against rather than in favor of the covenant.”  (Citations omitted.)   The court held that the language of a restrictive covenant which limited the quality and type of dwellings that may be erected on the property in question did not prohibit the use of the property for a parking lot.

In Gallo v. Parke, 35 Conn. L. Rptr. 570 (Sept. 30, 2003, Shapiro, J.), the court noted that a restrictive covenant must be narrowly construed and ought not to be extended by implication and must be construed against rather than in favor of the covenant.   The court held that a restrictive covenant which provided for “a single community of buildings maintaining a unified and unitary aspect” did not limit the size of an addition to the building in issue.   The court said, at page 575 “[i]f the Declaration had intended to limit the size of an addition to a home in Coppermine Village to less than that afforded by the Town's setback requirements it explicitly could have so provided.   The absence of such language from the Declaration is significant.”

In the present case, the declaration refers to landscaping and sufficient planting to screen foundations, but makes no reference to trees.   If the declarant has wished to require the planting of a double row of trees on properties in the development, the declaration could have so provided.

Under the rule of strict construction of restrictive covenants, the court finds that the declaration does not require the defendants to plant a double row of trees on their property.

II.

The plaintiff claims that the defendants are contractually obligated to plant the trees in issue because they offered to perform landscaping in accordance with the plot plan they submitted to the plaintiff in exchange for the plaintiff's discretionary approval for construction of their residence.

Suffice it to say, that under basic contract law there must be an offer and an acceptance to form a contract.   In this case, there was no evidence that the defendants authorized the placement of the double row of trees on the plot plan submitted to the plaintiff.

Accordingly, the court finds that the defendants are not contractually bound to plant the double row of trees on their property.

III.

The plaintiff further claims that by submitting the plot plan to the plaintiff, the defendants are estopped from claiming that the landscaping shown on the plot plan is beyond the scope of the declaration and obligated themselves to perform as promised.

The law of promissory estoppel is well-established.   In Katz Realty, Inc. v. Norwalk Fabricators, Inc., 14 Conn.App. 391, 401 (1988), the Appellate Court said:

[T]here are two elements which must be established in order to find an estoppel:  one party must do or say something that is intended or calculated to induce another into believing in the existence of certain facts and to act upon that belief and the other party must thereby actually change his position or do some act to his injury which he would otherwise not have done.  (Quotation marks omitted.)

In the present case, there was no statement with reference to the two lines of trees made by the defendants to the plaintiff nor did the defendants do anything with reference to the trees to induce the plaintiff to change its position or do some act to its injury.

The court, therefore, finds that the defendants are not bound by promissory estoppel to plant the double row of trees on their property.

IV.

For the reasons stated above, the court enters judgment for the defendants without costs.

V.

Each of the attorneys in this case seeks attorneys fees.

The plaintiff prevailed in the first part of this trial and the defendants prevailed in this second part of the trial.

Accordingly, the court will award no attorneys fees to either attorney.

Seymour L. Hendel, J.T.R.

Hendel, Seymour L., J.T.R.