Grovenburg v. Rustle Meadow Assocs., LLC

174 Conn.App. 18

165 A.3d 193

Duane GROVENBURG, et al.

v.RUSTLE MEADOW ASSOCIATES, LLC, et al.

AC 37719

Appellate Court of Connecticut.

Argued January 18, 2017

Officially released June 20, 2017

Barbara M. Schellenberg, with whom was Ari J. Hoffman, for the appellants (defendants).

Jared M. Alfin, for the appellees (plaintiffs).

DiPentima, C.J., and Prescott and Gold, Js.

DiPENTIMA, C.J.

In this appeal, we address the contours of judicial review in cases in which a discretionary determination of a common interest ownership association is challenged. The defendants, Rustle Meadow Associates, LLC (company), Rustle Meadow Homeowners Association, Inc. (association), and its president, Jeffrey D. Miller, appeal from the judgment of the trial court in favor of the plaintiffs, Duane Grovenburg and Kristine Grovenburg. The defendants' principal contention is that the court improperly set aside the association's discretionary determination regarding the plaintiffs' request to erect a fence on their property. Specifically, they claim that the court failed to apply the proper legal standard governing review of such determinations, as established by our Supreme Court in Weldy v. Northbrook Condominium Assn., Inc ., 279 Conn. 728, 904 A.2d 188 (2006). The defendants also claim that the court improperly rejected the substance of their counterclaim, that it improperly invalidated a special assessment levied by the association, and that it abused its discretion in awarding the plaintiffs $72,718.25 in attorney's fees. We affirm in part and reverse in part the judgment of the trial court.

The relevant facts are gleaned from the court's memorandum of decision and the undisputed evidence in the record before us. Rustle Meadow is a planned community¹ created pursuant to the Common Interest Ownership Act (act), General Statutes § 47-200 et seq.²

Consistent with the strictures of that act, the Declaration of Rustle Meadow (declaration) was recorded on the Canton land records in January, 2006. See General Statutes § 47-220(a) (common interest community may be created "only by recording a declaration executed in the same manner as a deed"); Peck v. Milford Hunt Homeowners Assn., Inc ., 110 Conn.App. 88, 95, 953 A.2d 951 (2008) ("a common interest community does not come into existence until the declaration is filed in the land records"). The company is identified as the declarant in that document.

Approval of the development of Rustle Meadow by the Canton Planning Commission was conditioned on, inter alia, the dedication of an eight acre portion of the property to "open space." In accordance therewith, the company granted "a perpetual conservation restriction and easement" (conservation easement) to the town of Canton. Among the covenants agreed to by the company were that "the [c]onservation [a]rea shall be maintained in its present condition, and no topographic changes shall be made," and that "there shall be no removal, destruction or cutting of trees, shrubs or plants" in the conservation area. That conservation easement is memorialized in both the "Description of Land Being Declared" and an A-2 survey appended to the declaration (declaration survey).³

Rustle Meadow is described in the public offering statement⁴ admitted into evidence as a "common interest equestrian community" that features "the use of a premier barn, outdoor arena, indoor arena (if built), acres of pasture, acres of open space, a gorgeous stream, and walking and riding trails ...." Miller is the sole member of the company, which developed Rustle Meadow, and has remained the owner of five of its seven units. Rustle Meadow is governed by the association, upon which the declaration confers various powers and responsibilities.⁵ The association, in turn, acts through its executive board (board), as recognized in both the declaration and the association's bylaws. At all relevant times, the board was comprised of Miller, his wife, Linda Welles, and his sister, Pam Claywell.⁶

Welles owns one unit in Rustle Meadow, known as "Unit 4," where she and Miller reside. On August 11, 2006, the plaintiffs purchased an abutting property, which the statutory warranty deed (deed) describes as "Unit No. 3 of Rustle Meadow." That deed provides in relevant part that "[s]aid real property is conveyed together with and subject to the terms, conditions, agreements, obligations and easements contained in the [d]eclaration .... The [g]rantee, by acceptance of this deed, agrees to become a member of [the association] and to abide by the Certificate of Incorporation, Bylaws, Rules and other regulations of the [a]ssociation." Section 21.1 of Article XXI of the declaration likewise provides that "[t]he acceptance of a deed or the exercise of any incident of ownership ... of a Unit constitutes agreement that the provisions of the Documents are accepted and ratified by such Unit Owner ... and all such provisions recorded on the Land Records of the Town of Canton are covenants running with the land and shall bind any Persons having at any time any interest or estate in such Unit." At trial, the plaintiffs testified that they reviewed the declaration individually and with their attorney prior to purchasing the property, and were aware of the restrictive covenants contained therein.⁷

Various exhibits admitted into evidence, including the declaration survey, indicate that the plaintiffs' unit is 1.76 acres in size and narrow in shape.⁸ Their unit is bordered to the west by land designated as "Open Space" and subject to the conservation easement. Those exhibits also indicate that a northeasterly portion of the plaintiffs' parcel is subject to a "pasture easement"⁹ for which development rights to create common elements of Rustle Meadow were reserved by the company.¹⁰

Article X of the declaration sets forth various restrictions on the units in Rustle Meadow. Pertinent to this appeal is § 10.1 (k). Titled "Approval of Building and Landscaping Plans," it provides in relevant part: "No building, shed, swimming pool, pavement, fence, wall or other structure or improvement of any nature shall be erected upon any Unit in the Common Interest Community without the prior written consent of the Declarant .... No Unit Owner shall make any exterior addition, change or alteration to a Unit or any residence located therein ... or substantially change the topography of a Unit including the removal of any trees without the prior written consent of the Declarant which consent shall not be unreasonably withheld. Detailed plans of any such construction or landscaping or any addition, change or alteration thereto shall be submitted to the Declarant .... The Unit Owner must receive written approval from the Declarant prior to commencing such construction, landscaping or making any additions, changes or alterations. Any unauthorized construction or changes must be restored to its previous condition at such Unit Owner's expense." Section 13.1 (a) (ii) of Article XIII, which addresses "Additions, Alterations and Improvements by Unit Owners," similarly provides in relevant part that a unit owner "[m]ay not make any changes, additions, alterations, or improvements to any structure in or on any Unit ... or make any substantial change to the topography of a Unit ... including the removal of trees, without the prior written approval ... as provided in Section 10.1 (k) of this Declaration .... Such approval by ... the [a]ssociation shall not be unreasonably withheld."

During construction of their residence, the plaintiffs requested approval to install an in-ground swimming pool on their property.¹¹ The declarant granted that request, and the pool was completed in the fall of 2008. An "as-built" survey, which was admitted into evidence, indicates that the pool is located behind the plaintiffs' residence to the south. At its closest point, the pool measures 24.2 feet from the southeasterly side yard property line.

In December, 2009, the plaintiffs received written notice from the Canton building official that "[t]he pool is in violation because it is not properly fenced as required by [the] Connecticut State Building Code." The plaintiffs thereafter submitted to Miller a written proposal to install a fence around the pool.¹² The fencing proposed by the plaintiffs would border "Unit 2" to the southeast, and not Welles' "Unit 4" property to the northwest. In that June 23, 2010 e-mail, the plaintiffs invoked §§ 10.1 (k) and 13.1 (a) (ii), stating that "[a]pproval is expected as soon as possible and per the [declaration] ‘shall not be unreasonably withheld.’ " They further advised that "any problems, issues, etc. should be submitted to our attorney with a copy to us. He will then contact your legal counsel to resolve." Miller responded two days later on behalf of the association and requested further information on the proposal.¹³ Hours later, the plaintiffs sent Miller another e-mail, in which they largely disagreed with the need for further information. In that communication, the plaintiffs also asked Miller to "provide us with the appropriate sections in the declaration, [association] rules, or our lot purchase agreement [and] the exact sections that define the green zone." See footnote 13 of this opinion.

On July 2, 2010, Miller again responded to the plaintiffs via e-mail and elaborated on his request for further information. In particular, he stated that "[t]he reason for the scale drawing is to ascertain where the fence is on the property, most importantly in relation to the green zone. Markings on the ground are not sufficient as they can be erased or damaged in the construction process. Then there is no way to agree post construction on where the fence should have been installed. Accurate measurements from known immovable points are needed, and then the approved location is well known and reproducible." With respect to the plaintiffs' query about the "green zone," Miller stated that "[§] 10.1 (k) of the declaration is very clear on...