Miriam v. Summit Saugatuck, LLC

221 Conn.App. 409

301 A.3d 1154

Selma MIRIAM et al. v. SUMMIT SAUGATUCK, LLC

AC 45645

Appellate Court of Connecticut.

Argued May 8, 2023

Officially Released August 29, 2023

Joel Z. Green, Bridgeport, with whom was Linda Pesce Laske, for the appellants (named plaintiff et al.).

Timothy S. Hollister, Hartford, with whom were David A. DeBassio, Hartford, and, on the brief, Joette Katz, Stamford, for the appellee (defendant).

Prescott, Suarez and Seeley, Js.

SUAREZ, J.

In this action to enforce a restrictive covenant, the plaintiffs Selma Miriam and Leslie Ogilvy ¹ appeal from the judgment rendered by the trial court following its granting of a motion for summary judgment filed by the defendant, Summit Saugatuck, LLC, and denial of their motion ² for summary judgment. On appeal, the plaintiffs claim that the court improperly determined, as a matter of law, that a common plan of development does not exist for certain lots of real property located within the historic Saugatuck neighborhood area of Westport, where both plaintiffs reside. We disagree and affirm the judgment of the court.

The following undisputed facts and procedural history are relevant to this appeal. The plaintiffs each own real property in Westport: Miriam's property is located at 29 Hiawatha Lane Extension, and Ogilvy's property is located at 27 Hiawatha Lane Extension. The plaintiffs alleged in their verified complaint (complaint) that their properties "comprise[d] part of a plan for a residential development shown upon a map entitled, ‘Map of Property Prepared for the Estate of E. Louise Bradley, Gershom [B.] Bradley, [Administrator], Jeanette [Bradley] Hughes, [Administrator], Westport & Norwalk, Conn., Dec. 6, 1954 ....’ " On December 17, 1954, that map was recorded in the Westport land records as map number 3802 (map 3802). ³ Map 3802 purports to subdivide real property originally owned by E. Louise Bradley into twenty-two lots. The lots are located in both Westport and Norwalk, with lots 1 through 10 and 20 through 22 being situated wholly or substantially in Westport (Westport lots) and lots 11 through 19 being situated in Norwalk (Norwalk lots). Map 3802, as recorded, contains no restrictions with respect to the lots shown thereon. Currently, Miriam owns lot 2, and lot 1 is owned by Ogilvy.

In 1955, Gershom Bradley and Jeanette Bradley Hughes, as administrators of the estate of E. Louise Bradley, ⁴ conveyed lots 6, 8, 9, 10, 20, 21 and 22 to various individuals. ⁵ Each deed of conveyance was recorded in the Westport land records and included a restriction allowing only a single-family house to be erected on each lot (single-family house restriction). Thereafter, on April 9, 1956, as reflected in a certificate of devise that was recorded in the Westport land records, Gershom Bradley and William B. Bradley, brothers and heirs of E. Louise Bradley, each became owners of an undivided one-half interest in the remaining lots owned by E. Louise Bradley, which included lots 1 through 5, lot 7, and the Norwalk lots. At the time when the certificate of devise was recorded, there was nothing in the land records showing any restrictions on these remaining lots.

Subsequently, on various dates in 1956, Edmond P. Bradley, as executor of the estate of William Bradley, and Gershom Bradley conveyed lots 1, 2, 5 and 7. ⁶ Each deed of conveyance for those lots was recorded in the Westport land records and contained the single-family house restriction.

In a single conveyance and by warranty deed dated September 30, 1959, the Norwalk lots were conveyed by Julia S. Bradley, Jeanette H. B. Hughes, and Conrad Ulmer ⁷ to United Aircraft Corporation. These lots were not conveyed subject to the single-family house restriction.

Of the twenty-two lots originally shown on map 3802, the final two lots to be conveyed were lots 3 and 4. By a deed dated September 30, 1959, and recorded in the Westport land records, lot 3 was conveyed by the conservator of the estate of Gershom Bradley and the executor of the estate of William Bradley. This conveyance was not made subject to the single-family house restriction, nor was the conveyance of lot 4, ⁸ which was conveyed in 1962 by the executors of the estate of Gershom Bradley and the trustees under the will of William Bradley.

The defendant, a developer, owns or has options to acquire lots 6, 7, 8, 9, 10, 20, 21 and 22 as shown on map 3802 and seeks to build a multifamily housing development on the property that will have 157 residential dwelling units that qualify as affordable housing under General Statutes § 8-30g. Following extensive administrative and judicial proceedings ⁹ involving the defendant, the town of Westport, and the Planning and Zoning Commission of the Town of Westport, an agreement for a reduced development plan was reached. As a result, the pending sewer and zoning cases were resolved by a stipulated judgment that ultimately was approved by the court on July 19, 2021. ¹⁰

The plaintiffs did not intervene in the prior litigation and, instead, commenced the present action seeking to enjoin the defendant from moving forward with the affordable housing development and constructing anything other than a single-family house on each of its lots. In their complaint, the plaintiffs, owners of lots 1 and 2, alleged that the Westport lots, which include all of the lots on which the defendant intends to build its development, were conveyed subject to the single-family house restriction. The basis for this assertion is their claim that a common plan of development exists by virtue of the single-family house restriction in the deeds to the Westport lots. In response, the defendant filed an answer and five special defenses. ¹¹

Thereafter, the defendant filed a motion for summary judgment with an attached affidavit and a November 8, 2021 report (report) of Andrew R. Sherriff, Jr. Sherriff is the owner of Sound Title, LLC, a title company that, at the request of the defendant, investigated and drafted the report concerning the twenty-two lots depicted on map 3802. In its memorandum of law in support of its motion for summary judgment, the defendant argued, inter alia, that the title search records demonstrate that no enforceable common plan of development exists that restricts the lots to single-family houses only. ¹² The plaintiffs subsequently filed a memorandum in opposition to the defendant's motion for summary judgment, which the court, upon agreement of the parties, treated as a motion for summary judgment.

On January 18, 2022, the parties entered into a stipulation regarding the motions for summary judgment. Pursuant to that stipulation, the parties agreed that the court first would consider the threshold issue of whether the plaintiffs have the right to enforce the single-family house restriction against the defendant's lots 6 through 10 and 20 through 22 before considering other arguments raised by the defendant in support of its motion for summary judgment.

The stipulation further provides: "This threshold issue can be adjudicated based on the facts presented in the November, 2021 report prepared by Sound Title, LLC, and attached to [the defendant's] summary judgment motion, along with other related facts presented in the relevant pleadings; that is, the parties agree that there are no issues of material fact with respect to the threshold issue ; the relevant pleadings along with the pleadings already filed by the parties contain all facts necessary [to] resolve this issue; and an evidentiary hearing on the issue is not required. ... If this court determines that the facts do not demonstrate the existence of a uniform common plan and a right of any of the plaintiffs to enforce [the single-family house] restriction as against [the defendant's] lots, then the plaintiffs have no other basis to challenge or prevent [the defendant] from acting on the land use approvals granted through the stipulated judgment ...." (Emphasis added.)

On February 9, 2022, the court heard arguments on the motions for summary judgment limited to the issue of the existence of a common plan of development. In a memorandum of decision dated May 31, 2022, the court granted the defendant's motion for summary judgment on the basis of its conclusion that no common plan exists with respect to the twenty-two lots shown on map 3802. In making that determination, the court referred to the parties’ stipulation that the material facts were not contested and that the court could decide the threshold issue as a matter of law on the basis of the facts set forth in the report prepared by Sherriff. In that report, Sherriff concluded: "The estate of E. Louise Bradley aka Emma Bradley was the only entity that held title to all of the lots as shown on [map 3802]. Of the original [twenty-two] lots, such [e]state conveyed [seven] lots subject to the [r]estriction, while the [r]estriction was not imposed by the estate [on] the remaining [fifteen] lots. The [e]state and [four subsequent] owners of the lots owned by the [e]state, imposed the [r]estriction on a total of [twelve] of the [twenty-two] lots, while [ten] of the lots shown on [map 3802] were not made subject to the [r]estriction."

In concluding that no common plan exists, the court stated: "There is no question of fact that E. Louise Bradley was not a common grantor and that she did not create a common plan. Map 3802 was prepared for her estate and, significantly, the map contained no restrictions. In fact, there were several sets of grantors of the lots of the original parcel and some lots were subject to the [single-family house] restriction and some were not.

* * *

"[T]here is no common grantor or evidence of a grantor's intent to convey all of the lots subject to the plan. Indeed, the original twenty-two lots were not all conveyed by the original grantor, E. Louise Bradley's estate, nor were they all conveyed subject to any recorded declaration of restrictions applicable to all...