Weldy v. Northbrook Condominium Ass'n, No. CV03 040 47 38 S (CT 5/5/2004)

• Decision Date: 05 May 2004
• Docket Number: No. CV03 040 47 38 S,CV03 040 47 38 S
• Parties: Thomas Weldy et al. v. Northbrook Condominium Association et al.
• Court: Connecticut Supreme Court

Page 1

Unpublished Opinion

Thomas Weldy et al. v. Northbrook Condominium Association et al.

No. CV03 040 47 38 S

Superior Court of Connecticut

Judicial District of Fairfield at Bridgeport

May 4, 2004

May 5, 2004

MEMORANDUM OF DECISION DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

DEWEY, JUDGE.

The named plaintiff is a unit owner in the named defendant, the Northbrook Condominium Association. He brought this action challenging the defendant's rule that dog leashes shall not exceed 20 feet in length. The plaintiff asserts that the 20-foot limitation is an invalid condominium declaration amendment that cannot be enforced. The defendant has filed a motion for summary judgment wherein it alleges that the leash restriction is merely a clarification of the defendant's long standing pet policy. The plaintiff filed a responsive motion for summary judgment wherein he argued that the defendant's Board of Directors illegally amended the condominium association declaration.

At issue is Article 9 of the condominium association bylaws. That provision governs property use and restrictions. Article 9(e) of the declarations provides in part:

[D]ogs, cats or other household pets not to exceed one per unit may be kept in the units subject to the rules and regulations to be adopted by the Board of Directors . . . All such dogs, cats or household pets shall be restrained by leash or other comparable means and shall be accompanied by an owner at all times.

In the past the plaintiff exercised his pet in "secluded" space within the condominium confines. On June 27, 2003, after multiple dog-related incidents, the defendant's Board of Directors voted to adopt a clarification of Article 9(e), the above association pet policy. The clarification provided "[leashes] or comparable restraints for dogs, cats or other household pets shall not exceed 20 feet in length." Thereafter the unit owners, including the plaintiff, were notified by letter of the clarification. As a result of the clarification, the plaintiff is no longer allowed to use a seventy-five foot leash while exercising and playing with his dog. This action followed.

The matter has come before the court in the form of a motion for summary judgment. Connecticut Practice Book §17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any 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. Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact, a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact, together with the evidence disclosing the existence of such an issue. Connecticut Practice Book §§17-45, 17-46; Burns v. Hartford Hospital, 192 Conn. 451, 455, 472 A.2d 1257 (1984). In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).

The defendant argues that it merely clarified an existing rule. The plaintiff counters that the Board of Directors are attempting to enforce an invalid amendment. This central issue has been before the court once, in the form of an application for temporary injunction [35 Conn. L. Rptr. 664]. At that time the trial, court, Rush, J., noted:

In Meadow Bridge Condominium v. Bosca, 187 Mich.App. 280, 466 N.W.2d 303 (1990), the court noted, at page 281," that a rule or regulation is a tool to implement or manage existing structural law, while an amendment presumptebly changes existing structural law." In Beechwood Villas Condominium v. Poor, 448 So.2d 143 (Fla.App.), the court adopted, at p. 1144, the following test "provided that a board enacted rule does not contravene either an express provision of the declaration or a right reasonably inferable therefrom, it will be found valid, within the board's authority."

In the present case the condominium bylaws do not define the words "restrained" and "leash." Consequently, the defendant utilized Article 9(1) of the association declaration which provides:

The Board of Directors shall have the power to make such regulations as may be necessary to carry out the intent of...