Weinstein v. Conyers Farm Corp.

• Decision Date: 31 October 2012
• Docket Number: CVX08106006978S.
• Court: Connecticut Superior Court
• Parties: Lee S. WEINSTEIN v. CONYERS FARM CORPORATION.

Lee S. WEINSTEIN v. CONYERS FARM CORPORATION.

No. CVX08106006978S.

Superior Court of Connecticut, Judicial District of Stamford-Norwalk.

October 31, 2012

UNPUBLISHED OPINION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").^[1] 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."

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). ^[2]

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...