Prime Locations of CT, LLC v. Rocky Hill Dev., LLC

• Decision Date: 18 August 2020
• Docket Number: AC 41417
• Court: Connecticut Court of Appeals
• Parties: PRIME LOCATIONS OF CT, LLC, et al. v. ROCKY HILL DEVELOPMENT, LLC, et al.

199 Conn.App. 642

237 A.3d 3

PRIME LOCATIONS OF CT, LLC, et al.

v.ROCKY HILL DEVELOPMENT, LLC, et al.

AC 41417

Appellate Court of Connecticut.

Argued February 13, 2020

Officially released August 18, 2020

Kevin J. McEleney, Hartford, with whom, on the brief, were Richard D. Carella, Middletown, Christopher A. Klepps, Hartford, and Matthew K. Stiles, for the appellants (plaintiffs).

Matthew S. Carlone, Wethersfield, for the appellees (defendant MPM Enterprises, LLC, et al.).

Lavine, Keller and Devlin, Js.

KELLER, J.

This case was brought by the plaintiffs, Prime Locations of CT, LLC, Hasson Holdings, LLC, SMS Realty, LLC, and C&G Holdings, LLC, to prevent one of the defendants, Luke DiMaria, from constructing a crematorium on a lot in the Coles Brook Commerce Park in Cromwell. The plaintiffs appeal from the judgment of the trial court, rendered after a court trial, in favor of the defendants MPM Enterprises, LLC, (MPM Enterprises) and DiMaria.¹ On appeal, the plaintiffs argue that the court (1) improperly concluded that the Declaration of Easements, Covenants and Restrictions (declaration), which created a common interest community, the Coles Brook Commerce Park Owners Association, LLC (association), to govern the use of the property in the business park, did not prevent the defendants from voting to withdraw from the association a lot formerly owned by MPM Enterprises and currently owned by DiMaria, (2) improperly concluded that the defendants were entitled to connect a lot to the association's drainage system, (3) improperly concluded that the plaintiffs’ cause of action was barred by the doctrines of laches and equitable estoppel, and (4) erred in declining to grant the plaintiffs’ request for a permanent injunction prohibiting DiMaria from constructing a crematorium on his lot without approval from the association. We disagree with the plaintiffs and affirm the judgment of the trial court.

The following facts, as found by the trial court, and procedural history are relevant to this appeal. The Coles Brook Commerce Park is a business park located on Commerce Drive in Cromwell. The business park is divided into seven lots.² At the time of trial, DiMaria owned lot 2, Rocky Hill Development, LLC (Rocky Hill Development) owned lot 1, and Rescue One, LLC (Rescue One) owned lot 7. MPM Enterprises previously had owned lot 2 until it sold it to DiMaria. The plaintiffs owned lots 3, 4, 5 and 6. The association is a common interest community created by the Coles Brook Commerce Park Associates, LLC (declarant). The declarant created the association by executing the declaration. The declaration provides the following concerning its purpose: "Whereas, in order to develop the [p]roperty as a functionally integrated business park, [d]eclarant desires to establish and create certain easements, covenants, and restrictions affecting the [p]roperty and to create an ‘[a]ssociation’ ... to maintain, administer and enforce these covenants and restrictions ...."

The association is governed by the declaration and the bylaws of the association, dated September 27, 2004. Section 3.2 of the declaration provides that "[e]very owner shall be a member of the [a]ssociation." The declaration also provides: "Now therefore, [d]eclarant does hereby declare as follows: (i) no land, building, structure or portion thereof shall hereafter be used and no building, structure or portion thereof shall be constructed, reconstructed, located, extended, enlarged or substantially altered on the [p]roperty except in conformity with the standards and specifications contained in this [d]eclaration; (ii) the [p]roperty shall be conveyed, hypothecated, encumbered, leased, occupied, built upon, or otherwise used, improved or transferred in whole or in part subject to this [d]eclaration and all of the easements, covenants, conditions and restrictions as set forth herein; and (iii) this [d]eclaration and all of the easements, covenants, conditions and restrictions as set forth herein shall run with the [l]ots and the balance of the [p]roperty for all purposes and shall be binding upon and inure to the benefit of all [o]wners, and their tenants, subtenants, employees, concessionaires, licensees, customers and business invitees, and their successors in interest."

The declaration defines an "owner" in § 1.1 as "the respective owners in fee simple of the [l]ots ...." Under the terms of §§ 3.2 and 3.3 of the declaration, every owner is a member of the association and has a proportionately weighted vote in the association's affairs.

Section 9.10 of the declaration provides: "Modification or Termination. This [d]eclaration may only be modified in part or terminated in its entirety by the recording in the [l]and [r]ecords of Cromwell, Connecticut, of an instrument modifying or terminating this [d]eclaration, signed by [o]wners and/or owners of portions of the [p]roperty that are not [l]ots having more than 50 [percent] of the votes of the [a]ssociation.³ No modification may modify or terminate any easement created hereunder, including those referenced in Exhibit B attached hereto, that benefits or burdens any [o]wner's [l]ot without approval of that [o]wner. ... Further, [d]eclarant (with respect to any [l]ots that [d]eclarant owns) and/or any other [o]wner or [o]wners (with respect to the [l]ot or [l]ots owned by them) shall have the right to add onto, resubdivide (which may result in more or less [l]ots existing), and/or reconfigure any [l]ot, at any time, in its and/or their sole discretion, subject to the provisions of this [d]eclaration and applicable land use regulations." (Footnote added.)

In its memorandum of decision, the court found the following facts: "On June 12, 2012, the [a]ssociation voted to remove [l]ot 1 from the [a]ssociation. It did not record an amendment or any other evidence of this vote on the Cromwell [l]and [r]ecords. Since June, 2012, the owner of [l]ot 1 did not participate in [a]ssociation meetings and did not pay dues.⁴

"Attorney Glenn Terk represented DiMaria with respect to his efforts to construct a crematorium on [l]ot 2 of the [p]roperty. Believing, apparently with good reason, that the members of the [a]ssociation would not approve of the building of a crematorium, Attorney Terk took steps to attempt to remove [l]ot 2 from the [a]ssociation. He drafted an [a]mendment to [the declaration] dated July 26, 2012 ( [amendment] ). The amendment was signed by Matthew Holcomb, a member of MPM Enterprises, the proposed seller of [l]ot 2, Henry Vasel, a member of Rescue One, the owner of [l]ot 7, and Roger Tabshay, a member of Rocky Hill Development, the owner of [l]ot 1.⁵ The [a]mendment contained the following language: ‘WHEREAS, the original [d]eclaration to Coles Brook Commerce Park (the "[a]ssociation") is dated as of September 27, 2004 and recorded in Volume 1046 at Page 256 of the Cromwell [l]and [r]ecords; and WHEREAS, Rocky Hill Development, LLC is the owner of [lot] 1, Coles Brook Commerce Park and by virtue of such ownership is entitled to a 27.84 percentage interest in the [a]ssociation and entitled to a vote of 27.84 percent; and WHEREAS, MPM Enterprises, LLC is the owner of [lot] 2, Coles Brook Commerce Park and by virtue of such ownership is entitled to a 11.01 percentage interest in the [a]ssociation and entitled to a vote of 11.01 percent; and WHEREAS, Rescue One, LLC is the owner of [lot] 7, Coles Brook Commerce Park and by virtue of such ownership is entitled to a 15.30 percentage interest in the [a]ssociation and entitled to a vote of 15.30 percent; and WHEREAS, the above owners of [lots] 1, 2 and 7 are the holders of more than fifty (50) percent of the votes of the [a]ssociation; and WHEREAS, the parties desire to amend the [d]eclaration as hereinafter provided. NOW THEREFORE, in consideration of the mutual covenants and restrictions contained herein, the parties hereby agree as follows; 1. [Lots] 1, 2 and 7 are hereby withdrawn from the [a]ssociation. The owners of [lots] 1, 2 and 7 shall hereinafter no longer be considered "[o]wners" and shall no longer have any percentage ownership in common elements of Coles Brook Commerce Park, shall have no liability for common expenses for Coles Brook Commerce Park and shall hereafter no longer be entitled to a vote in connection with the activities of Coles Brook Commerce Park.

"As required by § 9.10 of the [d]eclaration, Rocky Hill Development, LLC, MPM Enterprises, LLC, and Rescue One, LLC recorded the [a]mendment on the Cromwell land records [on July 26, 2012]. [DiMaria] purchased lot 2 from MPM Enterprises on September 27, 2012, for the purposes of building a crematorium.

"In June, 2013, almost a year after the [a]mendment was drafted, the [a]ssociation's treasurer wrote a letter to Rescue One, [the owner of lot 7] which accepted Rescue One's withdrawal from the [a]ssociation. Although the [a]ssociation never sent a similar letter to DiMaria, he never paid any fees or dues to the [a]ssociation and never participated in its meetings. Moreover, throughout the lengthy zoning approval process, the [a]ssociation took the position that DiMaria was not a part of the [a ]ssociation .

"[DiMaria] began to seek zoning approval for his crematorium in the spring of 2012 when the defendants⁶ submitted an application for site plan approval to Cromwell's Planning and Zoning Commission ( [commission] ) for approval to construct a crematorium. Lot 2 as well as [the rest of the Coles Brook Commerce Park] is situated in Cromwell's industrial zone, in which a crematorium is a permitted use. The plaintiffs participated in the application process and were represented by Attorney Richard Carella. In connection with the application for site approval, Attorney Carella sent a letter to Stuart Popper, Cromwell's [t]own [p]lanner, in which he confirmed that the defendants had withdrawn from the [a]ssociation.

"On October 16, 2012, the [c]ommission denied the application to build the crematorium. DiMaria and MPM ...