Prime Locations of CT, LLC v. Rocky Hill Development, LLC ( 2020 )

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PRIME LOCATIONS OF CT, LLC, ET AL. v.
ROCKY HILL DEVELOPMENT,
LLC, ET AL.
(AC 41417)
Lavine, Keller and Devlin, Js.
Syllabus
The plaintiff lot owners sought a judgment declaring that a certain amend-
ment to a declaration of easements, covenants and restrictions, which
created a business park common ownership interest community, was
invalid, and for injunctive relief. The declaration provided that each lot
owner in the business park would be a member of an owner’s association
and would receive a vote that was proportional to its percentage owner-
ship in the business park. The plaintiffs owned four of the seven lots
in the business park, and brought the action against several defendants,
including M Co. and D. M Co. owned lot 2, R Co. owned lot 1, and O
Co. owned lot 7. M Co. proposed to sell lot 2 to D, who intended to use
the lot to build a crematorium. Believing that the plaintiffs would oppose
D’s plan to build a crematorium, M Co., O Co. and R Co., the holders
of more than 50 percent of the votes of the association, executed an
amendment to the declaration that withdrew lots 1, 2, and 7 from the
association and recorded it on the town land records. D thereafter
purchased lot 2 from M Co., and sought zoning approval for the cremato-
rium, a process in which the plaintiffs participated and confirmed that
the defendants had withdrawn from the association. The town zoning
commission denied D’s application to build the crematorium and D
appealed; D and the zoning commission reached a settlement agreement
and filed a motion for approval of their settlement. The plaintiffs filed
a motion to intervene as of right in the zoning appeal, taking the position
that the defendants were not members of the association. The trial
court denied the motion to intervene. D commenced construction of
the crematorium and the plaintiffs thereafter sought, inter alia, to enjoin
him from connecting lot 2 to the association’s drainage system and a
judgment declaring that the amendment to the declaration was void and
unenforceable. After a trial to the court, the court rendered judgment
in favor of the defendants, from which the plaintiffs appealed to this
court. Held:
1.The trial court properly concluded that the declaration did not prevent
lot owners from withdrawing their lots from the association, and, accord-
ingly, the recorded amendment withdrawing lots 1, 2 and 7 from the
association was proper, D was not required to be a member of the
association when he purchased lot 2 from M Co. and his lot was no
longer subject to the declaration’s restrictions; the plain language of
the declaration stated that it may be modified or terminated, and a
modification or termination resulting in a lot owner’s withdrawal from
the association was not prohibited by the language in the declaration,
the plaintiffs’ prior conduct in acknowledging O Co.’s withdrawal from
the association and its argument to the zoning commission that D was
not a member of the association supported the trial court’s determination
that lot owners were permitted to withdraw their lots and was contradic-
tory to the plaintiffs’ argument on appeal that D was not permitted to
withdraw his lot and was a member of the association; moreover, the
plaintiffs could not prevail on their claim that, because R Co. had been
permitted to withdraw from the association prior to the execution of
the amendment, the lots owners signing the amendment held less than
50 percent of the lots, as the association failed to record R Co.’s with-
drawal from the association on the land records, and the record reflected
that, at the time the amendment was executed, R Co. was still a member
of the association; furthermore, the plaintiffs could not prevail on their
claim that the amendment did not comply with a provision (§ 47-236
(a) (1)) of the Common Ownership Interest Act that requires that an
amendment to a declaration to be approved by at least 67 percent of
the votes in the association, as that provision is inapplicable to a situation
in which the properties that are part of an association are not used for
residential purposes.
2. The trial court did abuse its discretion in declining to grant the plaintiffs’
request for an injunction preventing D from connecting lot 2 to the
association’s drainage system, the drainage system having been created
as part of the subdivision approval, prior to the creation of the declara-
tion and the easements created therein, and, in D’s settlement with the
zoning commission in his zoning appeal, the commission incorporated
a proposal that D would utilize the drainage system.
Argued February 13—officially released August 18, 2020
Procedural History
Action for a declaratory judgment that, inter alia,
a certain amendment to a declaration of easements,
covenants and restrictions executed by the named
defendant et al. is invalid, and for other relief, brought to
the Superior Court in the judicial district of Middlesex,
where the action was withdrawn as against the named
defendant et al.; thereafter, the matter was tried to the
court, Aurigemma, J.; judgment for the defendant MPM
Enterprises, LLC, et al., from which the plaintiffs
appealed to this court. Affirmed.
Kevin J. McEleney, with whom, on the brief, were
Richard D. Carella, Christopher A. Klepps and Matthew
K. Stiles, for the appellants (plaintiffs).
Matthew S. Carlone for the appellees (defendant
MPM Enterprises, LLC, et al.).
Opinion
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 judg-
ment 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 com-
munity, the Coles Brook Commerce Park Owners Asso-
ciation, LLC (association), to govern the use of the
property in the business park, did not prevent the defen-
dants 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 associa-
tion’s drainage system, (3) improperly concluded that
the plaintiffs’ cause of action was barred by the doc-
trines of laches and equitable estoppel, and (4) erred in
declining to grant the plaintiffs’ request for a permanent
injunction prohibiting DiMaria from constructing a cre-
matorium on his lot without approval from the associa-
tion. We disagree with the plaintiffs and affirm the judg-
ment 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 (Res-
cue 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 Com-
merce 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, cove-
nants, 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 specifica-
tions 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]eclara-
tion and all of the easements, covenants, conditions
and restrictions as set forth herein; and (iii) this [d]ecla-
ration 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: ‘‘Modifica-
tion 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, Connecti-
cut, of an instrument modifying or terminating this
[d]eclaration, signed by [o]wners and/or owners of por-
tions 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 appli-
cable 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 decla-
ration] dated July 26, 2012 ([amendment]). The amend-
ment 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 Develop-
ment, the owner of [l]ot 1.5 The [a]mendment contained
the following language: ‘WHEREAS, the original [d]ecla-
ration to Coles Brook Commerce Park (the ‘‘[a]ssocia-
tion’’) 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 enti-
tled 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]ssocia-
tion 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 pro-
vided. 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 consid-
ered ‘‘[o]wners’’ and shall no longer have any percent-
age 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]sso-
ciation and never participated in its meetings. More-
over, 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 cre-
matorium in the spring of 2012 when the defendants6
submitted an application for site plan approval to Crom-
well’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 cre-
matorium is a permitted use. The plaintiffs participated
in the application process and were represented by
Attorney Richard Carella. In connection with the appli-
cation 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
[Enterprises] appealed the denial. On July 25, 2013, the
defendants and the [c]ommission reached a settlement
agreement and on October 7, 2013, the [c]ommission
filed a motion for approval of the settlement agreement.
On October 11, 2013, the plaintiffs filed a motion to
intervene as of right to be made party defendants in
the zoning appeal. In the motion to intervene, the plain-
tiffs took the position that the defendants were not
members of the [a]ssociation. The Superior Court for
the judicial district of Hartford, Wahla, J., denied the
motion to intervene . . . .
‘‘DiMaria commenced construction [of the cremato-
rium] in August, 2014. DiMaria has never paid dues to
the [a]ssociation, but has connected to the [a]ssocia-
tion’s drainage easement.’’ (Citation omitted; emphasis
in original; footnotes added.)
On August 6, 2014, the plaintiffs initiated this action
seeking (1) a declaratory judgment that the amendment
was void and unenforceable, (2) a permanent injunction
preventing the defendants from connecting lot 2 to the
association’s drainage system, and (3) a permanent
injunction preventing the defendants from building any
structure on lot 2 without approval from the associa-
tion.7 A trial was held on October 2 and December 19,
2014. The trial court, Domnarski, J., issued a memoran-
dum of decision rendering judgment in favor of the
plaintiffs on the basis that the amendment was invalid
because the declaration did not permit lot owners to
withdraw a lot from the association. See Prime Loca-
tions of CT, LLC v. Rocky Hill Development, LLC, Supe-
rior Court, judicial district of Middlesex, Docket No.
CV-XX-XXXXXXX-S (December 19, 2014) (59 Conn. L. Rptr.
494). The defendants appealed to this court claiming
that the trial court decided the case on the basis of an
argument that was not raised or briefed by the parties,
specifically, that the court’s conclusion that the declara-
tion did not permit a lot owner to withdraw from the
association or permit the removal of a lot from the
business park was not pleaded, briefed, or argued
before the trial court. On appeal, this court reversed the
2014 judgment rendered by the trial court and remanded
this case for a new trial. See Prime Locations of CT,
LLC v. Rocky Hill Development, LLC, 167 Conn. App.
786, 145 A.3d 317, cert. denied, 323 Conn. 935, 150 A.3d
686 (2016). On November 14, 2016, the plaintiffs filed
a request for leave to file an amended complaint, to
which the defendants objected.8
The first count of the plaintiffs’ amended complaint
dated November 14, 2016, alleged that the amendment
is void ab initio for three reasons: first, the plaintiffs
alleged that the amendment is precluded by the declara-
tion; second, they alleged that the amendment is void
per se because the parties that executed the amendment
did not hold sufficient voting interest in the association;
and finally, they alleged that the amendment failed to
comply with the Connecticut Common Interest Owner-
ship Act (COIA), General Statutes § 47-200 et seq. The
second count of the complaint sought a permanent
injunction prohibiting the defendants from utilizing a
drainage system that the plaintiffs alleged can be used
only by association members. The third count sought
a permanent injunction preventing the defendants from
constructing any structure on lot 2 without prior
approval from the association.
A second court trial was held on August 16, 2017.
The court, Aurigemma, J., issued a memorandum of
decision on February 1, 2018, rendering judgment in
favor of the defendants. After setting forth the facts
previously noted in this opinion, the court found that
‘‘[t]he gravamen of this action is that the [a]mendment
is invalid. However, from the time the [a]mendment
was filed until the time DiMaria started construction,
the plaintiffs opposed DiMaria’s plans on the ground
that the [a]mendment was valid and DiMaria was not
a member of the [a]ssociation. The delay in attacking
the [a]mendment was inexcusable and [DiMaria] was
prejudiced by the delay.’’
The court then found that ‘‘the [d]eclaration did per-
mit the [a]mendment. However, even if it did not, the
plaintiffs are estopped by the doctrine of equitable
estoppel and laches from claiming that the [a]mend-
ment is invalid. Judgment enters on the first count in
favor of the defendants. The third count seeks an injunc-
tion prohibiting the defendants from constructing any
structure on the DiMaria lot without approval of the
[a]ssociation. As the plaintiffs are estopped from claim-
ing that the defendants are still in the [a]ssociation,
judgment enters in favor of the defendants on the third
count insofar as that count seeks an injunction prohib-
iting construction.
‘‘The plaintiffs argue that the [d]eclaration created
the drainage easement for the benefit of the [a]ssocia-
tion and its [o]wners. The defendants voluntarily with-
drew from the [a]ssociation and, therefore, DiMaria’s
predecessor in interest, MPM Enterprises, voluntarily
relinquished its right to use the drainage easement.
‘‘The defendants argue that the drainage system was
created as part of the subdivision approval and DiMa-
ria’s rights to use the drainage system arise from the
[s]ubdivision [a]pproval, which occurred on August 3,
2004, prior to the filing of the [d]eclaration. The town
of Cromwell has determined that DiMaria may tie into
the storm water drainage system and has charged DiMa-
ria a fee to tie into the system, which he has paid.
‘‘The [d]eclaration states that easements, covenants,
and restrictions run with the [l]ots and are binding on
[l]ot owners and their successors in interest. In the
settlement of the site plan appeal, DiMaria proposed to
the [commission] that pavement runoff would discharge
into a ‘bay saver’ structure and then to a detention
water infiltration system with overflow directed to the
road drainage system. That proposal was incorporated
into the settlement with the [c]ommission.’’ See DiMa-
ria v. Cromwell Planning and Zoning Commission,
Superior Court, judicial district of Hartford, Docket No.
CV-126036891-S (December 23, 2013).
‘‘Based on the foregoing, the court finds that the
defendants have a right to tie into the storm water
drainage system regardless of whether they belong to
the [a]ssociation. Judgment enters in favor of the defen-
dants on the second count of the complaint. The third
count of the complaint also seeks an injunction prohib-
iting the defendants from utilizing the drainage ease-
ment. Judgment enters in favor of the defendants on
the third count insofar as it seeks to prohibit their use
of the drainage easement.’’
This appeal followed.
I
First, the plaintiffs claim that the court improperly
concluded that the declaration does not prevent lot
owners from withdrawing a lot from the association.
We disagree.
We begin by setting forth the applicable standard of
review. ‘‘When . . . the trial court draws conclusions
of law, our review is plenary and we must decide
whether its conclusions are legally and logically correct
and find support in the facts that appear in the record.
. . . [W]here there is definitive contract language, the
determination of what the parties intended by their
contractual commitments is a question of law.’’ (Cita-
tions omitted; internal quotation marks omitted.) Gate-
way Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342
(1995).
‘‘In ascertaining the contractual rights and obligations
of the parties, we seek to effectuate their intent, which
is derived from the language employed in the contract,
taking into consideration the circumstances of the par-
ties and the transaction. . . . We accord the language
employed in the contract a rational construction based
on its common, natural and ordinary meaning and usage
as applied to the subject matter of the contract. . . .
Where the language is unambiguous, we must give the
contract effect according to its terms. . . . A contract
is unambiguous when its language is clear and conveys
a definite and precise intent. . . . The court will not
torture words to impart ambiguity where ordinary
meaning leaves no room for ambiguity. . . . Moreover,
the mere fact that the parties advance different interpre-
tations of the language in question does not necessitate
a conclusion that the language is ambiguous. . . . In
contrast, a contract is ambiguous if the intent of the
parties is not clear and certain from the language of
the contract itself. . . . [A]ny ambiguity in a contract
must emanate from the language used by the parties.
. . . The contract must be viewed in its entirety, with
each provision read in light of the other provisions . . .
and every provision must be given effect if it is possible
to do so.’’ (Citations omitted; internal quotation marks
omitted.) Cantonbury Heights Condominium Assn.,
Inc. v. Local Land Development, LLC, 273 Conn. 724,
734–35, 873 A.2d 898 (2005).
‘‘The meaning and effect of the [restrictive covenant]
are to be determined, not by the actual intent of the
parties, but by the intent expressed in the deed, consid-
ering all its relevant provisions and reading it in the
light of the surrounding circumstances . . . . The pri-
mary rule of interpretation of such [restrictive] cove-
nants is to gather the intention of the parties from their
words, by reading, not simply a single clause of the
agreement but the entire context, and, where the mean-
ing is doubtful, by considering such surrounding cir-
cumstances as they are presumed to have considered
when their minds met. . . . A restrictive covenant
must be narrowly construed and ought not to be
extended by implication. . . . Moreover, if the cove-
nant’s language is ambiguous, it should be construed
against rather than in favor of the covenant.’’ (Citations
omitted; internal quotation marks omitted.) Alligood v.
LaSaracina, 122 Conn. App. 479, 482, 999 A.2d 833
(2010).
Accordingly, to determine whether the amendment
was valid and, therefore, lot owners were permitted to
withdraw from the association, we must review the
contested portion of the declaration in terms of the
declaration as a whole as well as in the context of the
surrounding circumstances. Section 9.10 of the declara-
tion provides: ‘‘Modification or Termination. This [d]ec-
laration 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.9 No modification may modify or termi-
nate any easement created hereunder, including those
referenced in [e]xhibit B attached hereto, that benefits
or burdens any [o]wner’s [l]ot without the approval of
that [o]wner. Notwithstanding the foregoing, [d]eclar-
ant shall have the right, in its sole discretion, to modify
the street lines of, extend the length of, or shorten, the
[p]ublic [r]oadways (whether such [p]ublic [r]oadways
are conceptual as depicted on the [m]ap or actually
construed and installed) and/or install new or additional
[p]ublic [r]oadways, provided that the same shall not
materially and adversely affect the access to, or street
frontage of, any [l]ot not owned by the [d]eclarant.
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 appli-
cable land use regulations.’’ (Footnote added.)
We agree with the trial court’s determination that the
declaration did not prevent the 2012 amendment and,
therefore, the defendant lot owners in July, 2012, were
permitted to withdraw lots from the association. The
plain language of the declaration states that it may be
modified or terminated. Section 9.10 continues by stat-
ing that, in accordance with the declaration, the modifi-
cation or termination must be recorded in the Cromwell
land records and must be signed by a majority of the
voting land owners. The declaration also prohibits and
restricts certain types of modifications and termina-
tions.10 Nowhere in these requirements and restrictions,
however, does the declaration state that a lot owner is
not permitted to withdraw a lot from the association.
A modification or termination resulting in a lot owner’s
withdrawal of a lot from the association, although
impactful, is not prohibited by the language in § 9.10
of the declaration. Further, because the declaration
includes language limiting certain types of modifica-
tions or terminations (i.e., the termination of certain
easements), we can infer that, if the declaration also
intended to limit the ability of lot owners to withdraw
a lot from the association, the declaration would have
included express language limiting that action as well.
‘‘[I]t is well settled that we will not import terms into
[an] agreement . . . that are not reflected in the con-
tract.’’ (Internal quotation marks omitted.) Ramirez v.
Health Net of the Northeast, Inc., 285 Conn. 1, 16, 938
A.2d 576 (2008). ‘‘A court simply cannot disregard the
words used by the parties or revise, add to, or create
a new agreement. . . . A term not expressly included
will not be read into a contract unless it arises by neces-
sary implication from the provisions of the instrument.’’
(Citation omitted; internal quotation marks omitted.)
Greenburg v. Greenburg, 26 Conn. App. 591, 598, 602
A.2d 1056 (1992).
In addition to the express language of the declaration,
the trial court’s determination that lot owners were
permitted to withdraw lots from the association is also
supported by the plaintiffs’ previous conduct. Specifi-
cally, prior to commencing the present action, in June,
2013, the association, which includes the plaintiffs, sent
a letter to Rescue One acknowledging its withdrawal
from the association. The plaintiffs’ prior acceptance
of a withdrawal of a lot from the association is counter
to its present argument that lot owners were not permit-
ted to withdraw lots from the association. To the con-
trary, such acceptance suggests that withdrawal was
permissible. Moreover, with regard to DiMaria’s Decem-
ber 23, 2013 settlement agreement with the commission,
the plaintiffs took the position that DiMaria was not a
member of the association. Here, the plaintiffs attempt
to take a contradictory position by arguing that DiMaria
was not permitted to withdraw his lot from the associa-
tion and is an existing member.
The plaintiffs also argue that the owners of the lots
are required to be members of the association because
§ 3.2 of the declaration provides that ‘‘[e]very owner
shall be a member of the [a]ssociation.’’ The defendants
argue that the plaintiffs’ interpretation incorrectly links
ownership of the lots with membership in the associa-
tion and that § 3.2 would have to read ‘‘[e]very owner
shall always be a member of the [a]ssociation’’ in order
to import the meaning suggested by the plaintiffs. We
agree with the defendants that the language of § 3.2
does not support the plaintiffs’ position that lot owners
are never able to withdraw their lots from the associa-
tion. In addition, this portion of § 3.2 can be interpreted
as simply conferring on owners the status as a member
of the association rather than requiring that they must
always remain a member.
The plaintiffs advance two other legal theories in
support of their claim that the court improperly con-
cluded that the declaration permits lot owners to with-
draw lots from the association, neither of which we
find availing. One of the plaintiffs’ arguments is that
the amendment to the declaration was invalid because
the lot owners signing the amendment held less than
50 percent of the lots because Rocky Hill Development
was no longer a member of the association. In response
to this argument, the trial court determined that,
‘‘[a]lthough the [a]ssociation allowed Rocky Hill Devel-
opment to withdraw from the [a]ssociation, it never
recorded any amendment to that effect. That failure
contravened the policies of [§] 9.10 of the [d]eclaration,
which requires that in order to be valid, an amendment
must be filed on the land records. The defendants cor-
rectly argue that at the time the [a]mendment was exe-
cuted, all three signatories, MPM Enterprises, Rescue
One, and Rocky Hill Development, were still part of the
[a]ssociation. Those three parties held more than 50
[percent] voting interest in the [a]ssociation at the time
of the [a]mendment.’’ We agree with the trial court’s
determination that there is no evidence in the record,
namely, the document required to be filed in the land
records, to support the plaintiffs’ position that Rocky
Hill Development was no longer part of the association
at the time the amendment was signed. Therefore, the
record reflects that, at the time the amendment was
signed, Rocky Hill Development was entitled to 27.84
percent of the voting interest, and the three signing
owner entities comprised more than 50 percent11 of the
total voting interest, and thus the parties effectuated a
valid amendment.
Next, the plaintiffs advance the argument that the
amendment did not comply with the CIOA. Specifically,
the plaintiffs argue that, by failing to obtain sufficient
votes required by General Statutes § 47-236,12 the defen-
dants failed to effectuate the amendment. With regard
to the plaintiffs’ argument, the trial court stated that
there was a question as to whether the CIOA applied
to the association because pursuant to § 47-236 (a) (3),13
the CIOA’s requirement of a 67 percent vote to amend
a declaration does not apply in situations in which the
properties that are part of an association are nonresi-
dential. We agree with the trial court’s determination
that the lots are to be used within a functionally inte-
grated business park and not for residential purposes.
Therefore, we conclude that, in amending the declara-
tion, the defendants did not need to comply with the
CIOA voting requirement. On the basis of the foregoing,
we conclude that the court properly concluded that the
declaration did not prevent lot owners from withdraw-
ing their lots from the association. Consequently, the
recorded amendment was proper. DiMaria was not
required to be a member of the association when he
purchased lot 2 from MPM Enterprises and his property
was no longer subject to the declaration’s restrictions.
II
Next, the plaintiffs claim that, in denying their request
for injunctive relief in the second count of their com-
plaint, the court improperly concluded that the defen-
dants were entitled to connect lot 2 to the association’s
drainage system even though the defendants expressly
had waived any right to the association’s common ele-
ments in purportedly withdrawing lot 2 from the associ-
ation. We disagree.
We begin by setting forth the applicable standard of
review. ‘‘A party seeking injunctive relief has the burden
of alleging and proving irreparable harm and lack of
an adequate remedy at law. . . . A prayer for injunctive
relief is addressed to the sound discretion of the court
and the court’s ruling can be reviewed only for the
purpose of determining whether the decision was based
on an erroneous statement of law or an abuse of discre-
tion. . . . Therefore, unless the trial court has abused
its discretion, or failed to exercise its discretion . . .
the trial court’s decision must stand. . . . The extraor-
dinary nature of injunctive relief requires that the harm
complained of is occurring or will occur if the injunction
is not granted. Although an absolute certainty is not
required, it must appear that there is a substantial prob-
ability that but for the issuance of the injunction, the
party seeking it will suffer irreparable harm. . . . We
note also that, in exercising its discretion, the court, in
a proper case, may consider and balance the injury
complained of with that which will result from interfer-
ence by injunction.’’ (Citations omitted; internal quota-
tion marks omitted.) Tighe v. Berlin, 259 Conn. 83,
87–88, 788 A.2d 40 (2002).
The plaintiffs have not demonstrated that the court
abused its discretion by ruling in favor of the defendants
and determining that DiMaria was entitled to connect
his lot to the association’s drainage system, despite the
fact that lot 2 had been withdrawn from the association.
One of the introductory clauses of the declaration states
that ‘‘this [d]eclaration and all of the easements, cove-
nants, 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, subten-
ants, employees, concessionaries, licensees, customers
and business invitees, and their successors in interest.’’
Further, § 9.10 of the declaration provides in relevant
part: ‘‘No modification may modify or terminate any
easement created hereunder, including those refer-
enced in [e]xhibit B attached hereto, that benefits or
burdens any [o]wner’s [l]ot without the approval of
that [o]wner.’’
The plaintiffs argue that, if the amendment permitted
the withdrawal of DiMaria’s lot from the association,
then DiMaria is not permitted to use the drainage ease-
ment created under exhibit B of the declaration. The
defendants alternatively argue that, on the basis of their
argument in part I of this opinion, § 9.10 of the declara-
tion permits the removal of any lot from the association,
as well as for the complete termination of the associa-
tion. Following this logic, the defendants argue that use
of the drainage easement cannot be premised upon
association membership because were the association
to be terminated, the still usable lots would have
nowhere to drain runoff water.
In determining that DiMaria was still permitted to
use the drainage easement, despite the withdrawal of
his lot from the association, the trial court stated the
following: ‘‘The [d]eclaration states that easements,
covenants, and restrictions run with the [l]ots and are
binding on [l]ot owners and their successors in interest.
In the settlement of the site plan appeal, DiMaria pro-
posed to the [commission] that pavement runoff would
discharge into a ‘bay saver’ structure and then to a
detention water infiltration system with overflow
directed to the road drainage system. That proposal
was incorporated into the settlement with the [c]ommis-
sion. . . . Based on the foregoing, the court finds that
the defendants have a right to tie into the stormwater
drainage system regardless of whether they belong to
the [a]ssociation.’’
We agree with the defendants that the lot owners’
use of the drainage easement is not predicated on mem-
bership in the association. Preliminarily, according to
the express language of the declaration, the easements
created by the declaration run with the land and are
binding on all lot owners. Further, although not argued
by the defendants in their appellate brief, we agree with
the trial court’s determination that the drainage system
was created as part of the subdivision approval on
August 3, 2004, prior to the filing of the declaration.
Therefore, DiMaria’s right to use the drainage system
arose before the creation of the declaration and the
easement rights created therein. Moreover, DiMaria’s
December 23, 2013 settlement with the commission
incorporated a proposal that DiMaria would utilize the
drainage system in question. On the basis of the forego-
ing, we conclude that the court did not abuse its discre-
tion in declining to grant the plaintiffs’ request for an
injunction preventing DiMaria from using the drain-
age easement.
III
Finally, we conclude that we need not address the
plaintiffs’ third claim, that the court improperly con-
cluded that the plaintiffs’ cause of action was barred
by the doctrines of laches and equitable estoppel, or
their fourth claim, that the court 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.
On the basis of our conclusion in part I of this opinion
that the amendment was valid and therefore the defen-
dants, being the current and prior owners of lot 2, were
permitted to withdraw that lot from the association,
the plaintiffs are unable to prevail with respect to either
of these claims. These claims are dependent on the
plaintiffs’ having prevailed on their first claim, that the
court improperly concluded that the declaration does
not prevent lot owners from withdrawing a lot from
the association.
The judgment is affirmed.
In this opinion the other judges concurred.
1
Rocky Hill Development, LLC, and Rescue One, LLC, were also named
as defendants but the plaintiffs withdrew the action as against them prior
to trial, and those two entities are not part of this appeal. We refer to MPM
Enterprises and DiMaria as the defendants.
2
Plaintiffs’ exhibit 2, a subdivision map of the property, depicts the seven
lots originally included in the association.
3
In this case, all votes came from owners of entire lots and none of the
votes came from owners of portions of lots.
4
On June 12, 2012, the owner of lot 1 was Rocky Hill Development.
5
At the time the amendment was signed, the plaintiffs owned lots 3, 4, 5 and
6. Those lots comprised 44.03 percent of the park property. MPM Enterprises
owned lot 2, Rocky Hill Development owned lot 1 and Rescue One owned
lot 7. Lots 1, 2 and 7 comprised 54.14 percent of the park property.
6
The application was filed by MPM Enterprises and DiMaria, in anticipa-
tion of the sale of lot 2 to DiMaria.
7
Counts two and three are alleged against both defendants, DiMaria and
MPM Enterprises, but, practically speaking, because MPM Enterprises sold
lot 2 to DiMaria, the counts really affect only DiMaria as the current owner
of the lot.
8
The court originally sustained the defendants’ objection but, at a later
date, held sua sponte that the plaintiffs’ amendment to the complaint should
be permitted.
9
As previously noted, for purposes of this appeal, all of the defendants
voting in favor of the amendment were owners of full lots, not portions of
lots. See footnote 3 of this opinion.
10
In accordance with the declaration, a modification or termination cannot
modify or terminate an easement created under the declaration that benefits
or burdens a lot owner without that lot owner’s consent.
11
As previously noted, Rocky Hill Development owned 27.84 percent,
MPM Enterprises owned 11.01 percent, and Rescue One owned 15.3 percent,
for a total of 54.15 percent.
12
General Statutes § 47-236 (a) (1) provides that a declaration may be
amended by ‘‘vote or agreement of unit owners of units to which at least
sixty-seven per cent of the votes in the association are allocated, unless the
declaration specifies either a larger percentage or a smaller percentage, but
not less than a majority, for all amendments or for specific subjects of
amendment . . . .’’
13
General Statutes § 47-236 (a) (3) provides that ‘‘[t]he declaration may
specify a smaller number [of voting percentage] only if all of the units are
restricted exclusively to nonresidential use.’’