12 Havemeyer Place Co., LLC v. Gordon

• Decision Date: 29 April 2003
• Docket Number: (AC 22376).
• Court: Connecticut Court of Appeals
• Parties: 12 HAVEMEYER PLACE COMPANY, LLC v. ALLAN S. GORDON.

76 Conn. App. 377

820 A.2d 299

12 HAVEMEYER PLACE COMPANY, LLC v. ALLAN S. GORDON.

(AC 22376).

Appellate Court of Connecticut.

Argued November 19, 2002.

Officially released April 29, 2003.

Lavery, C. J., and Mihalakos and Dupont, Js.

Eric D. Grayson, with whom, on the brief, was Juris V. Zauls, for the appellant (plaintiff).

David W. Rubin, for the appellee (defendant).

Gail Sassos, assistant town attorney, filed a brief for the town of Greenwich as amicus curiae.

Opinion

DUPONT, J.

The plaintiff lessor, 12 Havemeyer Place Company, LLC, appeals from the judgment of the trial court rendered in favor of the defendant lessee, Allan S. Gordon, in this summary process action in which the plaintiff sought eviction of the defendant lessee on the ground that their lease was illegal and, therefore, that the tenancy was void or voidable.¹ The basis for the court's judgment was that the plaintiff was not entitled to evict the defendant from sixteen leased parking spaces because the lease of those spaces was legal and because "equity abhors forfeiture."² The plaintiff claims on appeal that (1) the lease in question was illegal ab initio and, therefore, unenforceable, and (2) the court improperly based its decision on relief from forfeiture because that was not pleaded as a special defense or argued at trial. We conclude that the lease was legal and, therefore, affirm the judgment of the trial court.³

This dispute relates to the parties' interests in sixteen parking spaces located in an underground parking garage, which currently is owned by the plaintiff, at 60 Arch Street in the town of Greenwich.⁴ The basic facts underlying the issues of this appeal are not disputed, and we are presented with questions of law for which our review is plenary. Feldmann v. Sebastian, 261 Conn. 721, 725, 805 A.2d 713 (2002).

The defendant leases the sixteen parking spaces from the plaintiff for the benefit of a building owned by the defendant at 71 Arch Street. The following transactional history is relevant to our discussion of this appeal. In 1980, John Jay Ginter Development and Construction, Inc., the then owner of both 60 Arch Street and 71 Arch Street, filed a site plan for 60 Arch Street with the town of Greenwich planning and zoning commission (commission). The commission approved the site plan, which showed a three story office retail building with a total of fifty-eight parking spaces. The preliminary site plan approval application, dated November 12, 1980, designated forty-eight of the spaces for 60 Arch Street and ten for 71 Arch Street. This designation, however, was deleted from the application for final site plan approval, dated December 8, 1980, which merely proposed fifty-eight spaces without any reference to 71 Arch Street. In a subsequent site plan, dated December 10, 1980, the designation of forty-eight spaces required for 60 Arch Street and the ten spaces for 71 Arch Street reappeared.

By 1988, Greenwich Cove Associates (Greenwich Cove), a predecessor of both the plaintiff and the defendant, had acquired both 60 Arch Street and 71 Arch Street. In August, 1988, Greenwich Cove negotiated the sale of 60 Arch Street to Skanska, Inc. As a final negotiated term of the sale, Skanska, Inc., the new owner of 60 Arch Street, leased sixteen of 60 Arch Street's fifty-eight parking spaces to Greenwich Cove for use by 71 Arch Street, thereby increasing the number of spaces for 71 Arch Street as described in the site plan by six spaces.⁵ This left 60 Arch Street's tenants with the use of only forty-two parking spaces, six fewer than required by the site plan. The lease had a term of fifty years, was renewable thereafter in five year increments and was recorded in the town of Greenwich land records. It is this lease, to which neither the defendant nor the plaintiff originally were parties, which is the subject of this appeal.

In 1989, the defendant purchased 71 Arch Street from Greenwich Cove, thus obtaining the benefit of the lease, as a successor lessee. The defendant testified that the lease, which provided him with sixteen parking spaces in the 60 Arch Street garage, for his tenants at 71 Arch Street, was a major factor for the purchase. In 2000, the plaintiff, which was fully aware of the recorded lease, purchased 60 Arch Street from Skanska, Inc., and became the successor lessor. The purchase price paid by the plaintiff was less than it would have been had there been forty-eight parking spaces allocated to 60 Arch Street instead of forty-two spaces.

The dispute involved in this appeal arose when the plaintiff, as the new owner of 60 Arch Street, inquired of the town of Greenwich about the recorded lease, which left 60 Arch Street with forty-two parking spaces, and about the possible conflict of the lease with the site plan, which required forty-eight spaces for 60 Arch Street.⁶ In the preceding twelve years, no tenant, neighbor or predecessor in title of either building had complained to any zoning authority of any site plan violation as it related to parking.⁷ The town's zoning enforcement officer responded to the plaintiff's inquiry by stating that he believed there was a violation of a zoning regulation.

Thereafter, in January, 2001, the plaintiff rejected the defendant's tender of rent and informed the defendant by letter that it was of the opinion that the lease was void or voidable because it violated the site plan. In February, 2001, in a separate action, the defendant in this case instituted an action against the plaintiff in this case seeking a declaratory judgment as to the enforceability of the lease, injunctive relief and damages. The plaintiff also claimed damages for tortious interference with his leases with his tenants, which leases granted the tenants the right to use the parking spaces at 60 Arch Street.⁸ The defendant lessee, the plaintiff in that case, on the record, withdrew his application for a temporary restraining order against his lessor in exchange for the plaintiff's agreement to seek a variance of the site plan.⁹ The zoning board of appeals denied the application for a variance because a hardship was not demonstrated, but the lessor, the plaintiff in this case, did not appeal to the Superior Court from the denial.¹⁰

After the variance was denied, the zoning enforcement officer cited the plaintiff for the reduction of on-site parking as a violation of § 6-16 of the municipal building code regulations and directed the plaintiff to restore the forty-eight parking spaces as provided in the site plan.

Subsequently, the plaintiff served the defendant with a notice to quit and then brought the summary process action for immediate possession of the sixteen parking spaces, which is the subject of this appeal.¹¹ The defendant asserted three special defenses to the summary process action. He alleged that the lease was not illegal or void, that equity barred the plaintiff's claim "by virtue of, among other things, the facts set forth at length in its Complaint dated February 14, 2001, in the action [Gordon v. 12 Havemeyer Place Co., LLC, Docket No. CV 01-0184544S] and the doctrines of equitable estoppel, laches, unclean hands and unjust enrichment," and that the plaintiff failed to state a claim on which relief could be granted. The court rendered judgment in favor of the defendant.

The precise question we must answer, for which we could find no appellate decisional authority in Connecticut or elsewhere, is whether a lessor, on the ground of illegality, may gain possession of leased premises from a lessee solely on the ground that the recorded lease varied the requirements of a site plan, when the lessee has not breached any covenant of the lease and the town has not cited the lessee for a violation or ordered the lessee to take any corrective action.

The plaintiff claims that the lease was illegal ab initio. Specifically, it argues that the terms of the lease expressly and illegally violated the site plan and, therefore, the lease is unenforceable. We disagree.

The following are the relevant portions of the subject lease of the parties: "WHEREAS, pursuant to requirements of the Planning and Zoning Commission of Greenwich, Connecticut, ten (10) parking spaces at the [60 Arch Street] Premises must be set aside for the use and benefit of tenants of 71 Arch Street;¹² and WHEREAS, the parties hereto wish to execute this Lease and provide six additional parking spaces upon the Premises for the tenants of 71 Arch Street. . . .

"NOW, THEREFORE, the parties hereto agree as follows:

"1. Lease of Parking Spaces. Lessor [formerly Swanska, now the plaintiff] hereby leases to Lessee [formerly Greenwich Cove, now the defendant] the sixteen (16) parking spaces at the Premises . . . on the terms and conditions set forth herein.

* * *

"4. Use. Lessee shall use and occupy the Parking Spaces, and have the rights provided for herein with respect to the Parking Spaces and the Premises, for no purpose other than parking for the tenants of 71 Arch Street. Lessee, the tenants of 71 Arch Street and their agents, employees, or invitees shall comply with all reasonable rules and regulations provided in writing by Lessor to Lessee regarding the use of the Parking Spaces.

"5. Requirements of Law. The manner of use of the Parking Spaces by Lessee, the tenants of 71 Arch Street and their agents, employees, or invitees shall comply with, and Lessor, in other respects, shall comply with, all statutes, ordinances, rules, orders, regulations and requirements of the federal, state and city government and of any and all other departments and bureaus applicable to the Parking Spaces.¹³ * * *

"16. This lease may not be terminated without the written consent of both Lessor and Lessee."

The lease, thus, does not facially provide that any parking spaces in excess of ten violates the Greenwich zoning regulations. It provides that the lessor is responsible for compliance with regulations of government and it provides...