Castonguay v. Plourde

• Decision Date: 09 October 1997
• Docket Number: No. 16227,16227
• Citation: 699 A.2d 226,46 Conn.App. 251
• Court: Connecticut Court of Appeals
• Parties: Charles CASTONGUAY et al. v. Todd PLOURDE et al.

Page 226

699 A.2d 226

46 Conn.App. 251

Charles CASTONGUAY et al. v. Todd PLOURDE et al.

No. 16227.

Appellate Court of Connecticut.

Argued March 20, 1997.

Decided Aug. 19, 1997.

Certification Denied Oct. 9, 1997.

John Rose, Jr., Farmington, with whom was Scott A. Bennett, Philadelphia, PA, for appellants (named defendant et al.).

Dean B. Kilbourne, Bristol, for appellees (plaintiffs).

Before EDWARD Y. O'CONNELL, SPEAR and MULCAHY, JJ.

MULCAHY, Judge.

The defendants appeal from the granting of an injunction prohibiting the continued construction of a house on land that abuts that of the plaintiffs. The trial court found that the design and location of the structure violated the provisions of a declaration of restrictions and covenants (declaration) recorded on the Bristol land records.

The defendants claim the trial court improperly concluded that (1) the plaintiffs were entitled to bring this action to enforce the terms and restrictions of the declaration, (2) the terms of the declaration protect the plaintiffs' panoramic view, (3) the plaintiffs' action for equitable relief is not barred by laches, and (4) the injury to the defendants resulting from the injunction is not greatly disproportionate to the injury complained of by the plaintiffs. The defendants also maintain that the trial court's order does not adequately delineate the rights and obligations of the parties. We affirm the judgment of the trial court.

The following facts are germane to this appeal. The parties are owners of residential properties in Cider Mill Estates, a thirty-four lot subdivision located in Bristol. Lornik, Inc. (Lornik), the original owner and developer of Cider Mill Estates, acting through its president, Robert J. Tabacco, executed and recorded the declaration on June 24, 1986. ¹ The declaration refers to lots enumerated on a recorded subdivision map dated February 28, 1986.

The subdivision is located on an expansive hillside affording property owners a commanding easterly view of the Hartford skyline and the surrounding countryside. Within the subdivision, Old Cider Mill Road is to the east of Hill Street, the latter running in a generally north-south direction. The plaintiffs, Charles Castonguay and Susan Castonguay are the owners of lot twenty-seven, and the plaintiffs Peter Howard and Lois Howard are the owners of lot twenty-eight. Both properties front on the east side of Hill Street. At all relevant times, the plaintiffs have resided in homes constructed on their respective lots. The defendants, Todd Plourde and Cheri LeClair, are the owners of lot nine, which is located directly east of, and abutting, lots twenty-seven and twenty-eight. ² The plaintiffs' lots drop off to the east, with their rear boundaries being approximately seventeen feet below the frontage on Hill Street.

The Castonguay house was constructed on lot twenty-seven by Charles Castonguay's father, Louis Castonguay, in 1987. Charles Castonguay purchased the property from his father in 1993. The Howards purchased lot twenty-eight from Lornik in 1987 and constructed their home on the lot shortly thereafter. The deeds through which the plaintiffs obtained title recite that the conveyed premises are "subject to a Declaration of Restrictions and Covenants from Lornik, Inc., dated June 24, 1986 and recorded in the Bristol Land Records." The defendants purchased lot nine, as unimproved land, on November 8, 1995, from Bristol Financial Service, which had obtained title via a bank foreclosure. It is undisputed that all properties involved in this appeal are subject to the terms of the declaration and that the defendants had notice of the restrictions.

The declaration contains a number of restrictions and requirements. Paragraph twenty of the declaration provides: "Location of dwelling house, garage and any other buildings or additions to buildings to be erected on any lot shall be subject to written approval of Lornik, Inc., or its successors or assigns, in order to preserve the view of other lot owners." The plaintiffs allege that the defendants are building on lot nine a "very high" two story structure that obstructs their view in violation of the declaration.

The trial court's conclusions were based on the evidence presented and after an on-site viewing of the entire area. It found that the general layout of the subdivision and the location of the houses on Hill Street and Cider Mill Road were intended to take full advantage of the "grand panoramic view." Further, the court found that the houses on Old Cider Mill Road were all built far enough below those on Hill Street to preserve for Hill Street residents a view from their first and second floors over the roofs of the houses below and to the east.

The trial court also found that an important consideration of the plaintiffs in the purchase of their properties was enjoyment of the view to the east, and that, in reliance on the terms of the declaration, they went to considerable expense in the design and construction of their homes so as to maximize enjoyment of that view. The Castonguay house has large glass doors opening on two levels of decks, providing an easterly view from various rooms, as well as from their decks. Louis Castonguay, when building his house, was aware of the restrictions and discussed with Tabacco the need for a low roof on any future lot nine house. The Howard home is a contemporary design with angles specially built into the structure to allow full advantage of the easterly view. Peter Howard, before purchasing lot twenty-eight, discussed lot nine with Tabacco, receiving assurances that whatever was built would not substantially impede the view. The Howards, aware of the restrictions, would not have purchased lot twenty-eight if they believed their view could be obstructed.

Prior to commencing construction, the defendants met with Tabacco on two occasions, once in April and again in May, 1996. At the first meeting, Plourde had the plans for the house, but not the plot plan. On the second occasion, Tabacco was shown a plot plan dated March 6, 1996; Lornik, through Tabacco, approved in writing the plan, specifications and location of the defendants' house. ³

At one point, Charles Castonguay, noticing activity on lot nine, went over to visit the defendants for the purpose of meeting them. The defendants were roughly staking out their prospective house. The meeting was cordial and brief, without any discussion of the design or height of the future structure. At a second visit to lot nine, on March 24, 1996, Charles Castonguay briefly looked at one or two pages of the defendants' building plans while the parties engaged in light conversation.

Construction of the defendants' home began in May, 1996. It advanced to the framing of the full house, including its "bowed roof." The trial court's memorandum of decision describes the house as a "very high" structure, the peak of its "bowed roof" approximately thirty and one-half feet above the level of the land, having an attached garage, which is a full two stories, approximately twenty-five and one-half feet in height.

On June 12, 1996, when the initial roof rafters were being placed, and the unusual height of the roof became apparent, the plaintiffs filed this action for equitable relief. The trial court enjoined the defendants "from continuing to build the house on lot nine which is now under construction, and from building any house on said lot which will unduly restrict the panoramic view of the plaintiffs." ⁴

I

The defendants first contend that the restrictions contained in the declaration are not appurtenant. The defendants do not contest the existence of the general development scheme. Instead, they argue that because a third party's approval was required, the restrictions were not enforceable as to them but, if against anyone, only against the third party. Their claim is that the covenant is personal to Lornik and cannot be enforced by other grantees because it does not run with the land. We disagree.

Established principles guide our determination of the appropriate scope of review of this claim. To determine whether the restrictions contained in the declaration are appurtenant, we must interpret the language of the creating instrument. The meaning and effect of the language are to be determined by the intent of the parties as expressed in the deed. See Kelly v. Ivler, 187 Conn. 31, 39, 450 A.2d 817 (1982); Taylor v. Dennehy, 136 Conn. 398, 402, 71 A.2d 596 (1950). The determination of the intent behind language in an instrument of conveyance, "considered in the light of all the surrounding circumstances, presents a question of law on which our scope of review is plenary.... We are thus unconstrained by the trial court's legal conclusion as to intent...." (Citations omitted; internal quotation marks omitted.) Dean v. Riley, 31 Conn.App. 87, 92, 623 A.2d 521 (1993); see Lago v. Guerrette, 219 Conn. 262, 267-68, 592 A.2d 939 (1991); see also Hare v. McClellan, 234 Conn. 581, 593-94, 662 A.2d 1242 (1995); Carbone v. Vigliotti, 222 Conn. 216, 222, 610 A.2d 565 (1992); Kelly v. Ivler, supra, at 39, 450 A.2d 817; Contegni v. Payne, 18 Conn.App. 47, 51, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989); Marion Road Assn. v. Harlow, 1 Conn.App. 329, 332, 472 A.2d 785 (1984).

"For a determination of the character and extent of an easement created by deed we must look to the language of the deed, the situation of the property and the surrounding circumstances in order to ascertain the intention of the parties.... The language of the grant will be given its ordinary import in the absence of anything in the situation or surrounding circumstances which indicates a contrary intent.... The meaning and effect of the reservation are to be determined, not by the actual intent of the parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the light of the...