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JudIcial District of New Haven SUPERIOR COURT ill'H r.: ....

.. '.' '.'

AUG·13 lUlU

No. CY ·08-4032766

CHIEF CLERK'S OFFICE

SUPERIOR COURT

DONNA R. CRISCENZO~ et al.

JUDICIAL DISTRICT

VS.

OF NEW HAVEN

CHABAD-LUBA VITCI-I OF THE SHORELINE, INC.

AUGUST 13,2010

MEMORANDUM OF DECISION

This case concerns property located in the town of Guilford. upon which the defendant

seeks to erect two buildings: a place ofworship/community Center and a home for a rabbi and his

family. The plaintiffs are three property owners located to the north of the defendant's property.

They have brought this action to enforce the language contained in a 1947 deed that is in the

defendant's chain of title. That language states that "the premises shall be used only for

residential 01' farming purposes." This case requires the court to determine the validity and

enforceability of that language. In addition to disputing the Validity and enforceability, the

defendant has raised special defenses, alleging change of circumstances, inequitable enforcement

and abandonment.

The court heard evidence on the matter over the course of four days, and upon the joint

motion of the parties, conducted a site visit of the four properties, as well as the area of Goose

Lane where the properties are located. I The parties filed responsive briefs with the court

containing their arguments on the matter, the last brief having been filed on May 27t 2010 ..

II "A view of the subjecl Inaner in dispute may be taken by the court, in the exercise ofa sound discretion, whenever it is necessary or lmportnm to a clearer understandlng of the issues. ... Informarion obtained through a visual observation of the locus in quo is just 3S much evidence as any other evidence in the case." (Citation omitted; inte11ltll quotutlon marks ornirted.) Castonguay v. Plourde, 46 Conn. App. 251,262,699 A.2d 226, cert, denied, 243 Conn. 9j J, 701 A.2d 660 (1997).

Judgment entered Jl! 1:3 '" 20~/~O __ Counlllll(llalf.rep, Ind. noMed -:-~V?:: 20 i 0 _ By 0 JCNj) r9-e0J)Y or memo crolher

t9"Cgpv to Reporter of JudIcial Oeclsla:nJ

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•

2

The court finds the following facts based on the credible testimony, the parties! joint

statement of undisputed facts (joint statement) dated April 5, 2010 and exhibits introduced at

trial. In addition to this general statement of facts, other findings will be made when specific

claims are addressed.

The plaintiff Donna R, Criscenzo is the owner of 199 Goose Lane, which she purchased

in 1999. The plaintiff Sherrye D. McDonald has owned 209 Goose Lane since 1997. The

plaintiff James N. Colebrook is the owner of221 Goose Lane, and he purchased his property in

1976. The defendant, Chabad-Lubavitch of the Shoreline, Inc. (the Chabad), is a registered non-

profit organization, whose director is Rabbi Yoseph Yaffe. In 2006, Rabbi Yaffe purchased 181

Goose Lane on behalf of the Chabad.

Attorney David Royston credibly testified as to his title search of these four properties.

All four properties, in part or in whole, were once part of a large tract of land owned by Charles

O. and Amy C. Dudley on the cast side of Goose .Lane in Guilford. In 1947, the Dudleys

conveyed a portion of their land to Marcius D. and Myrtle C, Scott. That deed was recorded on

the Guilford land records on October 30, 1947 in volume 98, page 467. The land conveyed in

that deed constitutes the western portion of the property now owned by the defendant. It is this

deed, and the language therein, that is the subject of this controversy, While this portion is not

the entire parcel of land currently owned by the defendant. the existing residence at 181 Goose!

Lane is located here.

The 1947 deed from the Dudlcys to the Scotts stated that "[tjhe Grantees, for themselves,

their heirs and assigns, agree that the above described premises shall be used only for residenrie)

01' farming purposes."

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This was not the first lime that this type of language appeared in deeds conveying

property on the east side of Goose Lane. In a deed conveying land from Byron H. and Harriet B.

Clark to the Dudleys, recorded on July 18, 1944, in volume 93, page 302 of the Guilford land

records, the Clarks extracted an agreement from the Dudleys that the land conveyed would be used for residential or farming purposes.' Property owned and conveyed by the Dudleys, other

than that at issue here, was transferred with the same provision. These conveyances were made

prior to the conveyance to the Scotts. On July 19, 1947, the Dudleys conveyed to Eleanor B.

Skelly a parcel of land that is now 171 Goose Lane and a portion of what is now 161 Goose

Lane. See defendant's exhibit E·1. That warranty deed contained language stating that "the

grantee, for herself and her heirs and assigns, agrees that the . , . premises shall be used for

residential or farming pumoses.' The deed was recorded in volume 98, page 374 of the Guilford

land records. A similar restriction appeared in the deed conveying a second parcel of property to

Eleanor B. Skelly. See defendant's exhibit E-3. That deed, recorded 011 September 29,1947 in

volume 98, page 436, transferred property that is now the rear portion of 161 Goose Lane, Once

again, the deed contained language that stated the grantee, her heirs and assigns would use the

premises for residential OT farming purposes.

At the time the Dudleys conveyed the first parcel of property to Skelly in 1947, they

owned what is 110W known as 161, 171, 181, and 199 Goose Lane, as well as most of 209 and

221 Goose Lane. Their home was located on 199 Goose Lane. At the time of the conveyance to

the Scotts, the Dudleys had already conveyed the two properties to Skelly, SUbject to the

"residential and farming use" language. The land conveyed to the Scotts, which is the western

2 Reference to defendant's exhibits C and E·1, -2 and ·3 is particularly helpful in shc;Jlvjng the lands affected by the transfers discussed.

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part of tile defendant's property today, is located directly to the south of 199 Goose Lane and

north of the Skelly properties. See defendant's exhibit E-2.

The agreement in the 1947 deed from Dudley to Scott did not appeal' in any deed within

the defendant's chain of title until 2006 when Randall Scott, son of Marcius and Myrtle Scott, sold the property to Premier Home Builders, Inc.' Between t 947 and 2006, the title search

shows that with one exception that affected only part of the property, the volume 98/page 467 property remained in the Scott family." See defendant's exhibit 0-2.

In 2006, the defendant purchased the property known as 181 Goose Lane. As previously

mentioned, only a part of the purchased property is claimed to be encumbered by the language

from the 1947 deed. See defendant's exhibit N (map showing current ownership of subject

properties and effect of subject encumbrance upon them). On December 17, 2008, the town of

Guilford Planning and Zoning Commission approved the defendant's application for a special

.'

pcnnit. The approved nature of the special permit and description of the premises identifies a

«place of worship and public assembly, when not conducted as a business or for profit including

a day care facility." See defendant's exhibit P,

TIle plaintiffs testified that at the time of the defendant's purchase of 181 Goose Lane,

each was unaware of the language in the 1947 Dudley-Scott deed. Aftel' the defendant's 2000 purchase of the property, and the defendant's first application in 2006 for a special permit from

the planning and zoning commission of Guilford. the plaintiffs learned of the deed language

3 In 2002, Randall Scott quit-claimed the property from himself to a limited li<lbility corporation, Goose Lane Properties; said deed was recorded in 2003 ill volume 645, page 650 of the Guilford land records. Randall Scott was the duly authorized member of Goose Lane Properties that signed the warranty deed transferring the property to Premier Home Builders.

4 In 1950 the Dudleys and Scotts "swapped" a portion of their lands. A more detailed factual statement regarding. this issue with be discussed inji'o, in the section on merger.

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through a title search, Rabbi Yaffe testified that he was unaware of the Dudley-Scott deed

language, despite the fact that the warranty deed to the Chabad property provided that the

warranty was subject to the agreement contained in the Dudley-Scott deed, with reference to the

volume and page of the recordation, The Dudley-Scott deed language was similarly referenced

in the mortgage deed securing the Chabad property. See plaintiffs'exhibits 6-Q; 13, On June 18,

2007, the plaintiffs, through their attorney. sent a letter to the defendant's attorney, identifying

the deed and the language therein ostensibly maintaining the land for residential or farming

purposes only. The plaintiffs filed their action on August 7,2008,

Practice Book §§ 17-54 and 17-55 provide the standards for a party that is seeking a

declaratory judgment and for a court that is deciding whether to render one. Section 17·54

provides: "The judicial authority will, in cases not herein excepted, render declaratory judgments

as to the existence or nonexistence (1) of any right; power, privilege or immunity; or (2) of any

fact upon which the existence or nonexistence of such right, power, privilege or immunity does

or may depend, whether such right, power, privilege or immunity now exists or will arise in the

future." See also General Statutes § 52-29. "[Tjhe Practice Book [thUS] allows the trial court

wide discretion to render a declaratory judgment unless another form of action clearly affords a

speedy remedy as effective, convenient, appropriate and complete." England v. Covel11JY, 183

COlU1. 362,365,439 A.2d 372 (1981).

Section 17-55 in tum provides: "A declaratory judgment action may be maintained if all

of the following conditions have been met: (1) The! party seeking the declaratory judgment has

an interest, legal or equitable, by reason of danger of loss or of uncertainty as to the party' S rights

or other jural relations; (2) There is an actual bona fide and SUbstantial question 01' issue in

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dispute or substantial uncertainty of legal relations which requires settlement between the parties;

and (3) In the event that there is another form of proceeding that can provide the party seeking

the declaratory judgment immediate redress. the court is of the opinion that such party should be

allowed to proceed with the claim for declaratory judgment despite the existence of such

alternate procedure." "The prerequisite determination of whether there is a substantial

controversy or a sufficient uncertainty of legal relations that requires settlement between the

Bombero v. Planning & Zoning Commission, 40 C01U1. App. 75, 85, 669 A.2d 598 (1996).

The standard that governs actions for injunctive relief provides: "The issuance of an

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injunction is the exercise of an extraordinary power which rests within the sound discretion of

the court, and the justiciable interest which entitles one to seek redress in an action for iniunctive

relief is at least one founded on the imminence of substantial and irreparable injury. . .. The

plaintiffs must allege facts which, if proven, would establish irreparable injury and assume the

burden of proving facts which will establish substantial and irreparable damage jf they are 10

prevail in their request for injunctive relief," (Citations ornitted.) Scoville v, Rona/tel', 162

Conn. 67,74,291 A.2d 222 (1971).

"111e standard for a temporary and permanent injunction requires that the moving party

must establish: '(1) the plaintiff ha[s] no adequate legal remedy; (2) the plaintiff would suffer

irreparable injury absent (the injunction); (3) the plaintiff [is) likely to prevail ... and (4) the

balance of the equities favors the [issuance of the injunction].' Waterbury Teachers Ass'n. v.

Freedom of Information Commission, 230 Conn. 441. 446. 645 A,2d 978 (1994). In ordering a

permanent injunction, "the relief granted must be compatible with the equities of the case."

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Castonguay v . Plourde, 46 Conn. App. 251,267, 699 A.2d 226, cert. denied, 243 Conn. 931, 701

A.2d 660 (1997) .... 'In exercising its discretion, the court, in a proper case, may consider and

balance the injury complained of with that which will result from interference by injunction.'

Tomasso Bros., Inc. v. October Twenty-Four, Inc., 230 Corm. 641. 648, 646 A.2d 133 (1994),"

Opticare. P.e. v, Zimmerman, Superior Court, judicial district of Waterbury, Docket No. CV 07

5003365 (March 27, 2008, Eveleigh, J.).

"The determination of what equity requires in a particular case, the balancing of the

equities, is [also] a matter for the discretion of the trial court." Kakalik v. Bernardo, 184 Conn.

386, 395, 439 A.2d 1016 (1981), This is because "[t]he principles of equity evolved as II

necessity in order to obtain justice because the law by reason of its universality was deficient.

Equity in its true and genuine meaning is the soul and spirit of all law, and positive law is

construed by it and rational law is made by it. In this, equity is synonymous with justice, Equity

depends essentially upon the particular circumstances of each individual case. That being so,

there can be no established rules and fixed principles laid down for its application, without

destroying its very existence, and reducing it to positive law. The nature of equity is to amplify,

enlarge, and add to the letter of the law and every particular ease stands upon its own

circumstances." (Internal quotation marks ornitted.) Natural Harmony, Inc. v, Normand, 211

Conn. 145, 150, 558 A.2d 231 (1989),

With these principles in mind, the court will first determine if the language in the deed

constitutes an enforceable restrictive covenant and if so, whether any defense prevents its

enforceability.

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Does the Language Constitute a Restrictive Covenant?

The plaintiffs maintain that the Dudley-Scott language contained in the defendant's deed

is a restrictive covenant. As such, they argue the defendant is prohibited from building a

community center on its property because its purpose is neither residential nor fanning.

The court looks to the recently decided Appellate Court case of Alligood v. LaSaracina,

122 Conn. App. 479, 482, _ A.2d _ (2010), for guidance in interpreting the restrictive

covenant in the present case: "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,

considering all its relevant provisions and reading it in the light of the surrounding

circumstances. , .. The primary rule of interpretation of such (restrictive) covenants 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 meaning is doubtful, by considering such

surrounding circumstances as they arc 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 covenant's language is ambiguous, it should be construed against rather than

in favor of the covenant." (Citation omitted; internal quotation marks ornitted.) "[Tjhe words in

a restrictive covenant are to be interpreted in their ordinary and popular sense" unless they "have

acquired a particular or special meaning in the particular relationship in which they appear ... ."

Southbury Land Trust v, Andricovich, 59 Conn. App. 785; 789, 757 A.2d 1263 (2000).

"In general, restrictive covenants fall into three classes: (J) mutual covenants in deeds

exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the

owner of property who is dividing his property into building lots under a general development

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scheme; and (3) covenants exacted by a grantor from his grantee 'presumptively or actually for

the benefit and protection of his adjoining land which he retains.' Stamford v, Vuono, 108 Conn.

359, 364, 143 A. 245 (1928)." Grady v. Schmitz, 16 Conn. App. 292, 296, 547 A.2d 563, cert,

denied, 209 Corm. 822,551 A.2d 755 (1988). See also Shippen Point Assn, Inc. v. Mcidanus,

34 Conn. App. 209,212-13,641 A.2d 144, cert. denied, 229 Conn. 923,642 A,2d 1215 (1994)

(recognizing same three classes of restrictive covenants). The restrictive covenant at issue is not

part of mutual covenants in deeds exchanged by adjoining landowners, nor is it part of uniform

covenants contained in deeds executed by the owner of the properly who was dividing his

property into building lots under a general development scheme. For this reason. as well as the

reasons stated infra, it is clear tllat the restrictive covenant at issue therefore falls into the third

class.

Arc the Plaintiffs Entitled to Enforce the Restrictive Covenant?

The plaintiffs argue that they are entitled to enforce the restrictive covenant and prohibit

the defendant from building the place of worship/community center. The defendant argues that

the plaintiffs cannot, as the language of the restrictive covenant does not appear in the deeds that

went from the common grantor to the plaintiffs.

"With respect to this third class of covenants) the original grantor, who is the owner of

the property benefitted, and his assigns may enforce [the covenant] against subsequent

purchasers of the property burdened. If the restrictive covenant is for the benefit of the

remaining land of the grantor, it is an easement funning with the land and may be enforced by a

subsequent purchaser of the remaining land against the prior grantee and his successors in title ..

.. (Emphasis added; internal quotation marks omitted.) Grady v. Schmitz, supra, 16 Conn.

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App. 296. The plaintiffs cite to this language for the proposition that they may enforce the

restrictive covenant as assignees of the common grantor with tile defendant. In Grady, the

restrictive covenant "was exacted by [the grantor] from his grantee ... presumptively or actually

for the benefit of the remaining, adjoining land retained by [the .grantor]. As such, it [was]

enforceable by the plaintiffs) who [were] the assigns of .. , the owner of the retained property

benefitted, against the defendants, who [were] the subsequent purchasers of the property

burdened." Id.

The Appellate Court found that the restrictive covenant "must be viewed as

presumptively ... for the benefit and protection of [the grantor's] adjoining land which he

retainjed]" because of the fact that the grantor "extracted from [the grantee] such a covenant."

(Internal quotation marks omitted.) Id., 297. While it is true that in Grady, the deed contained

language indicating the restriction was to "run with the land;" Id.; our courts have nonetheless

recognized that despite the absence of such language, the circumstances surrounding a grant of

land may indicate that a restrictive covenant is intended to run with the land and be enforceable

by the assignees of the grantor.

In Bauby v. Krasow, 107 Conn. 109, 139 A. 508 (1927), the grantor conveyed a wan-amy

deed containing a restrictive covenant reading: "Grantee agrees that in the event she shall erect a

house on said property that same will be a single family house." The court stated that whether

the successor to the grantor could enforce the restrictive covenant against an assignee of the

original grantee "dependjed] upon whether it was made for the benefit ofthe land retained by the

grantor in the deed containing the covenant, and the answer to that question (was] to be sought in

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the intention of t11C parties to the covenant as expressed therein, read, in light of the circumstances

attending the transaction and the object of the grant." Id .• 112~13.

"[I]t is said that a right to enforce a restriction of this kind will not be inferred to be

personal when it cal) fairly be construed to be appurtenant to the land, and that it will generally

be construed to have been intended for the benefit of the land. since in most cases it could

obviously have no other purpose, the benefit to the grantor being usually a benefit to him as

owner of the land, and that, if the adjoining land retained by the grantor is manifestly benefitted

by the restriction, it will be presumed that it was so intended, .. , In the absence of an express

statement in the covenant itself, the intention of the parties must ordinarily be determined as a

matter of fair inference from the language of the covenant, the nature of the restriction granted or

reserved and all the circumstances surrounding the transaction," (Citations ornitted.) Id. 113·

J4. The court notes that "where a restrictive covenant contains words of succession, i.e., 'heirs

and assigns,' a presumption is created that the parties intended the restrictive covenant to run

with the land." Weeks v. Kramer, 45 Conn. App. 319, 323. 696 A.2d 361, cert, granted. 243

C01Ul. 9l7t 701 A.2d 339 (1997). appeal dismissed as improvidently granted, 244 Conn. 203,

707 A,2d 30 (J 998).

Like the language of the restrictive covenant in the present case, the language of the

restrictive covenant in Bauby did not indicate whether the restriction was intended to benefit the

retained land, except that "the character of the restriction itself would indicate that its

enforcement would be of benefit to the retained land," Bauby v. Krasow, supra, 107 Conn. 115.

"The nature of the restriction indicate[d] that it was intended for the benefit of the house lot, to

prevent such depreciation in its value as might result from the erection of a three-family house

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upon the adjoining lot. ... There [was) nothing to indicate that the parties intended that the

agreement should terminate upon the death of the covenantee. It was manifestly intended to

benefit her property and the benefit inures to her successor in title." Id. See also, e.g., Wood v,

Amer, 54 Conn. App. 601. 736 A.2d 162 (1999), aff'd, 253 Conn. 514,755 A.2d 175 (holding

that plaintiff had right to enforce restrictive covenant that ran' with defendant's land, although

covenant did not refer to plaintiff or her predecessors in interest as intended beneficiaries).

Similarly, for the reasons stated below, the character of the restrictive covenant in the present

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case indicates that it is meant to benefit the land that was retained by the Dudlcys and is now

owned by the plaintiffs, despite the fact that the restrictive covenant does not reference the

grantors, their heirs and assigns or any other intended beneficiaries. Furthermore, there is

nothing in the restrictive covenant or its surrounding circumstances to indicate that the Dudleys

and the Scotts intended that the agreement terminate upon the DudJeys' deaths.

In the present case, the plaintiffs are all owners of property that was retained by Charles

and Amy Dudley as grantors when they conveyed adjoining property to Marcius and Myrtle

Scott as grantees in 1947. Joint Statement -U~ 11-13. TIley' arc therefore assigns of the retained

land. As assigns of the retained land, they arc entitled to enforce the restrictive covenant because

it was manifestly intended to benefit the retained land. This is evident in the fact that Charles

and Amy Dudley maintained their residence on the retained land from 1946 until their respective

deaths in 1976 and 1991. Trial Transcript, January n, 20 10, p. 103-105; 145. The Appellate

Court in Marion Road Assn. v, Harrow, 1 Conn. App. 329, 335, 472 A.2d 785 (1984).

determined that a grantor intended to maintain the residential character of the burdened property

at issue with a "retained land" restrictive covenant that prohibited buildings constructed for

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business or commercial purposes, because the grantor maintained his residence on the retained

land. See also Contegni v. Payne, supra, 18 Conn. App. 64 (liThe deed further explicitly states

that the conveyed parcel may be used only for residential purposes, This 'indicated an intent to

preserve the residential character and value of the land retained .... '").

The court in the present case likewise concludes that the plaintiffs' land, as adjoining

property retained by the grantors when they conveyed the property burdened by the restrictive

covenant to the grantees, may be construed as manifestly benefited by the restrictive covenant,

which therefore runs with the land. The plaintiffs' properties are benefitted by retaining the

residential character of the east side of Goose Lane, from the Colebrook and McDonald

properties southerly to the Chabad property.

This conclusion is supported by "[t]he other principal cases [that) are to the same effect.

See, e,g., Harris v. Pease, 135 Conn, 535, 539,66 A.2d 590 (1949) (covenant restricting erection

of buildings was 'in the nature of an easement inuring to the benefit of the land [the grantor]

retained'); Stamford v. VU0I10, [l08 Conn. 359, 364, 143 A. 245 (1928)] (covenant extracted

from grantee is 'presumptively or actually for the benefit and protection of [grantor's] adjoining

land which he retains'); Baker v. Lunde, 96 Conn, 530, 537, ) ) 4 A. 673 (1921) (restriction

intended to 'benefit another tract of land adjoining the land on which the restriction is imposed'

constitutes Q perpetual casement attached to. 'the adjoining tract owned by the grantor')." Grady

v. Schmitz, supra 16 Conn. App. 298.

The plaintiffs argue that 111e defendant's proposed use of its property. violates the

restrictive covenant because it will serve neither residential nor farming purposes. The defendant

argues in tum that the plaintiffs have failed to prove that its proposed use of the property violates

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the "residential" language of the 1947 Dudley-Scott deed, Specifically, the defendant argues that

the property will continued to be used for residential purposes because Rabbi Yaffe and his

family will maintain their residence on it.5 The defendant also argues that the proposed use is

consistent with what the town of Guilford, through its zoning regulations, has determined to be

an acceptable use of property in a residential neighborhood, The court rejects this argument.

First, the part of the defendant's properly where they intend to build a home is upon land that is

not burdened by the restriction. From the site plans presented as evidence. there is no residence

intended to be built upon the burdened land, Second, the zoning regulations of the town do not

factor into the court's consideration of the enforceability of the restrictive covenant. "The law is

well established that restrictive covenants in a deed as to use of property are distinct from the

provisions of II zoning law and have no influence or part in the administration of a zoning law.'

Whiling v. Seavey, 159 Me. 61, 68, 188 A.2d 276 (1963); see Johnson v, Guarino, 22 Conn, Sup,

235,238, 168 A.2d 171 (1960); Suess v. Vogelgesang, 151 Ind. App. 631, 281 N.E,2d 536, 541-

j The defendant further argues to this end that Its proposed use of its property is similar to-Crlsccnzc's allowed use other property as both her residence and her heme office for her medical practice. This argument repeats the defendant's fifth special defense, in which it alleges: "Plaintiff Donna R, Criscenzo operates her full medical practice with three slOff members and her patients in her residential property next to the Property and ~djatcnllo the remaining Plilintiffs, and she is barred by the doctrine of unclean hands (Tom enforcing 11 covenant," "The doctrine or unclean hands expresses the principle that where a plaintiff seeks equitable relief, he must show that his conduct has been fair, equitable and honest as to the particular controversy in issue. , , , Unless the plaintiffs conduct is of such a character as to be condemned and pronounced wrongful by honest and fair-minded people, lhe doctrine of unclean hands docs not apply." (Internal quotation marks omined.) Thompson v, Orcutt, 257 Conn. 301, 3 [0. 777 A.2d 670 (ZOOI). Maganin! v, Hodgson, 138 Conn, 188,82 A.2d 80 I (1951), gives context to the court's analysis, In Maganini, the defendant argued [hat the plaintiffs should be barred from enforcing one restrictive covenant in a general phm of development because the plaintiffs had unclean hands for violating a different restriction. The court stated the rule as such: "[T[he fact lhat the complainant has himself committed a minor breach of the agreement will not disentitle bim to an injunction against n breach by another of considerable magnitude. Nor will his own violation of one restriction estop him to compel the observance of another restriction beneficial to his property." Id., 195. The court finds that the plaintiffs small scale operation of a medical practice within her home does not mean rhat she has come to court with unclean hands, While it is true that she sought and obtained her variance after the defendant purchased 1 S 1 Goose Lane, the court finds that the traffic (0 her property is minimal compared to the anticipated traffic to the defendant's property, The cOUI1 th1JS finds that the defendant has failod [0 prove the: doctrine of'unclcan hands.

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544 (1972); In re Michener's Appeal, 382 Pa. 401, 115 A.2d 367 (1955); Friends of

Shawangunk, Inc. v, Knowlton, 64 N,Y,2d 387,487 N.Y.S.2d 543,476 N,E.2d 988 (1985); 5

Rathkopf's The Law of Zoning and Planning (4th Ed. Ziegler) ~ 51.02 [1, 2]; 3 Anderson,

American Law of Zoning 3d § 20.77, p. 612, lOlA C.J.S., Zoning & Land Planning, § 239, p.

693; 83 ArnJur.2d, op. cit." Mimms v. Planning & Zoning Commission, Superior Court, judicial

district of Fairfield, Docket No. CV 0289405 (June 11, 1993, Levin .. 1.) (9 Conn. L. Rptr. t 59~

168). Therefore, the. court will not consider the town of Guilford's applicable zoning regulations

in deciding whether the defendant's proposed use of its property violates the restrictive covenant.

The question thus becomes, do the defendant's proposed uses of the property violate the

restrictive covenant? An examination of the evidence presented answers that question,

Plaintiff's exhibit 29 is the proposed site plan for the Chabad center and the Rabbi's home. The

Chabad center is planned to be erected on the portion of 181 Goose Lane that is encumbered by

the restrictive covenant. As to the proposed uses of the Chabad center, Rabbi Yaffe testified that

the planned activities included a place of assembly, classrooms for adult education, preschool

activities and Hebrew school, and the center would have a social hall, a library and an office, In

addition to these activities, plaintiffs exhibit #29, a floor plan for the proposed Chabad center, indicates the presence of a kitchen and a mikvah." A parking lot for approximately 70 cars is

also included in the site plan. Rabbi Yaffe testified that he expected the center to be a place of

prayer, study and good deeds. He acknowledged that the reason for purchasing the property was

to use the land as a synagogue, school and activity center.

G A mikvah is a room used for a ritual purification bath,

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Despite Ole value the proposed center could provide' to tlie community, the court's

decision does not tum on the worthiness of the defendant'S endeavor. It instead tUl11S on whether

the defendant's proposed use qualifies as a "residential" or "farming" use. Here, it does not.

In Johnson v. Guarino, supra, 22 Conn. Sup. 237, a superior court held that the words

"residential purpose" as used in a zoning ordinance had not acquired any special meaning.

Rathel', the court looked to the definition contained in Webster's New International Dictionary

(2d Ed.): "[rjesidential is defined ... as used, serving or designed as a residence," Id: This court

also looks to Webster's and finds that farming is defined as "the practice of agriculture or

aquaculture." None of the defendant's proposed uses fall within the definition of "residential" 01'

"farming" purposes. Accordingly, the proposed uses are prohibited by the restriction,

Does the Merger Doctrine Prevent the Plaintiffs from Enforcing the Restrictive Covenant?

The defendant argues that the restrictive covenant is no longer enforceable under the

retained land theory because the plaintiffs do not own any of the land abutting the portion of the

defendant's property that is subject to the 1947 Dudley-Scott deed, Additional facts arc

necessary to the resolution of this issue. In 1950, the Dudleys and the Scotts exchanged parts of

their property. The Dudleys conveyed to the Scotts a 27' by 225' rectangular parcel that was

situated in the southwestern portion of the property, along the property line of the Scotts and

along Goose Lane. The conveyance to the Dudleys included a right of way for them to travel

over this 27' by 225' piece now owned by the Scotts. See defendant'S exhibltGvl. Said deed

was recorded in volume 104 at page 435 of the Guilford land records. The Scotts, on the same

date, conveyed to the Dudleys the eastern portion of their property, a rectangular area

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approximately 150' by 216' on one side and 232' on the opposite side. See defendant's exhibits

G-2. That deed was recorded in volume 104 at page 436 of said land records.

The warranty deed for the conveyance of the 225' by 27' piece did not include any

language restricting the uses of that land. Nor did the Scotts include any use restrictions on the

property that was conveyed back to the Dudleys, which property had been part of the original

conveyance to the Scotts in volume 98 nt page 467.

In 1951 the Dudleys conveyed a substantial part of their property to the Scotts. See defendant's exhibit G-2; CC. Said deed was recorded on the Guilford land records in volume

114 at page 392. The deed conveyed the land that was the easternmost parcel of the Dudleys,

along with the land conveyed in the prior year (i.e., the eastern portion of what is now known as

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181 Goose Lane), as well as the approximately 280' by 27' strip of land between the Scott's

property and the Dudley's properly. This strip is adjacent, on the 27' side, to the strip measuring

225' by 27' conveyed the year prior.

The defendant argues that, because the plaintiffs' predecessor in title (Dudleys) conveyed

land that abutted the land subject to the restrictive covenant to the defendant's predecessor in

title (Scotts), the plaintiffs are not entitled to enforce the restrictive covenant. The defendant

argues that the merger of the land affected by the restriction with land unaffected by the

restriction works to extinguish the restriction.

The deficiency in the defendant's argument, however, is its lack of legal support for the

facts of the present casco "The retained land theory requires that the grantor exact covenants

from his grantee ... for the benefit and protection of his adjoining land which he retains."

Contegnt v. Payne, 1 S Conn. App. 47, 64, 557 A.2d 122, celt. denied, 211 Corm. 806,559 A.2d

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1140 (1989). The defendant has not cited, nor is the court aware of. any precedent that requires

benefited and burdened lands that are "adjoining" at the time of the conveyance to be

"adjoining" when the grantor's successor in title seeks to enforce the covenant. The Restatement

provides that "a servitude is terminated when all the benefits and burdens come into single

ownership" 2 Restatement (Third), Property. Servitudes §7.S. p. 365 (2000) (emphasis added). That has not occurred. Similarly, Blanchard v. Maxson, 84 Conn. 429.434, 80 A. 206 (1911),

provides with respect to the merger doctrine: "It is true ... that an easement of way may become

extinguished by the union in the same person of a title in fee to both the dominant and servient

estates, or by such union of lesser estates of inheritance in both, which are coextensive. equal in

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validity, quality and other circumstances of right. ... If one is held in severalty and the other as

to a fracnonal part thereof by the sam I:. person, there will, however, be no extinguishment of (he

easement." (Emphasis added.) It is true that some of the properly benefitted by the restriction

carne into the chain of title of the property conveyed to the Chabad. Sec defendant's exhibit 0-2,

showing the present 27! by 717' strip between 181 Goose Lane and 199 and 209 Goose Lane.

However. all of 199 Goose Lane, and parts of 209 and 221 Goose Lane, are still benefitted by the

restriction, and those properties have not come into ownership by the Chabad, Therefore, merger

cannot be said to have occurred.

Furthermore, the three Superior Court cases cited by the defendant are all factually

distinguishable from the present case. Driscoll v, CL & P Co., Inc., Superior Court. judicial

district of Danbury, Docket No. CV 07 5002501 (November 26, 2007, Shaban, ,I.), is factually

distinguishable because the grantor had no interest in the properties of the plaintiffs'

predecessors in interest when he conveyed the property burdened by the restrictive covenant,

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which adjoined the properties of the plaintiffs' predecessors in interest. Williams v, Almquist, ,

Superior COU11, judicial district of Litchfield, Docket No. CV 06 5000595 (October 30, 2007,

Marano, J.), is also factually distinguishable because whether the defendant grantors' retained

land adjoined the burdened property at the time of the conveyance is unclear. Finally, Shlppan

Point Assn. v. McMamlJ, Superior Court, judicial district of Stamford-Norwalk at Stamford,

Docket No. CV 91 0119682 (March 23, 1993, Lewis, 1.), aff'd, 34 Conn. App. 209, 641 A.2d

144, cert. denied, 229 COlID. 923,642 A.2d 1215 (1994), is factually distinguishable because the

plaintiffs' "predecessors in title did not own land adjacent to the subject premises.",

The defendant's reliance on Hartford National Bank and Trust Co. v, Redevelopment

Agency of Bristol, 164 Conn. 337, 321 A.2d 469 (1973), is likewise misplaced. The defendant

cites Hartford National Bank and Trust Co. for the proposition that 11 restrictive covenant is

personal in nature rather than appurtenant to land when there is "no specific identification of a

benefited parcel and the parry seeking to enforce the restriction [does] not own lund that [is]

adjoining." The restrictive covenant in Hartford National Bank and Trust Co, was created,

however, by a will authorizing the use of trust funds to purchase properties on the condition that

they be used for certain purposes only, not by a grantor who retained property adjacent to

property that he or she burdened and then conveyed.

Does the Marketable Record Title Act Prevent the Plaintiffs from Enforcing the Restrictive Covenant?

The defendant argues that any entitlement that the plaintiffs may have to enforce tile

restrictive covenant has been extinguished by the Marketable Record Title Act (hereinafter

MRTA), General Statutes § 47-33b et seq. The plaintiffs argue in. turn that neither the restrictive

covenant nor the plaintiffs' entitlement to enforce it has been extinguished by the MRTA.

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"Pursuant to the [MRTA], any person who has an unbroken record chain of title to an

interest in land for a period of forty years, plus any additional period of time necessary to trace

the title back to the latest connecting title instrument of earlier record (which is the root of title

under the act) has a marketable record title subject only to those pre-root of title matters that are

excepted under the statute or are caused to reappear in the latest forty year record chain of title ..

.. The act declares null and void any interest in real property not specifically described in the

deed to the property which it PU1POrts to affect) unless within a forty year period, a notice

specifically reciting the claimed interest is placed on the land records in the affected land's chain

of title .. " A [mjarketable [rJecord [tJitle is SUbject to any interest or defect arising out of any

transaction which has been recorded in the record chain of title of the subject property

subsequent to the date of the recording of the root of title; provided however, the recording Of

such a transaction cannot revive or give validity to any pre-root of title defect or interest which

has been extinguished by the provisions of [General Statutes §] 47-33e. , . . The act does not

extinguish benefits appurtenant to the dominant estate; it extinguishes burdens appurtenant to the

servient estate." (Citations omitted; internal quotation marks omitted.) Irving v, Firehouse

Associates, LLC. 95 Conn. App. 713, 724-26, 898 A,2d 270, cert. denied, 280 Conn. 903, 907

A.2d 90 (2006), "[TJhe ultimate purpose of all [mJarketable [tJitlc [a)cts is to simplify land title

transactions through making it possible to determine marketability by limited title searches over

some reasonable period of the immediate past and thus avoid the necessity of examining the

record back into distant lime for each new transaction." (Internal quotation marks omitted.)

Mizla v. Depalo, 183 Conn. 59, 64 n.9, 438 A.2d 820 (1981).

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The defendant argues that "none of the plaintiffs [have] marketable record title to any

property interest under the 1947 Dudley-Scott Agreement . , . because the 1947 Dudley-Scott

Agreement does not appeal' in any of their chains of title; nor is it even referenced in any of their

chains of title." As stated in Irving v. Firehouse Associates, LLC, supra, 95 Conn. App. 726,

however, "[tjhe act declares null and void any interest in real property not specifically described

in the deed to the property which it purports to affect .... " (Emphasis in original; internal

quotation marks omitted.) It therefore is the defendant's deed and chain of title that must contain

the plaintiffs' interest to prevent it from being extinguished by the MRTA; the plaintiffs' chains

of title are not at issue in this analysis. The defendant nonetheless argues in the alternative [hat

the plaintiffs' interest in enforcing the restrictive covenant has been extinguished by the MRTA,

because the 1947 Dudley-Scott deed, although part of the defendant's chain of title by virtue of

being the defendant's root of title, does not specifically reference the plaintiffs' interest,

In Irving v. Firehouse Associates, LLe, the defendant's root of title contained the

language: "The condition being that a right of way shall be left open to the property of Albert w.

Keiss in the rear." (Internal quotation marks ornitted.) Id., 727. A preroot deed in the

defendant's chain of title contained similar language: "[Tjhe condition being that a right of way

shall be left open to the property of William P. Gladwin in the rear." (Internal quotation marks

ornitted.) Id. Importantly, the Irving court noted that H[t]he defendant's root of title contains the

entire description of the easement. There was no need to reference a volume and a page number

of the land records under those circumstances." Id, 727. Gladwin was Keiss's predecessor ill

title; the plaintiff was therefore both Gladwin and Keiss's successor in title. The Irving court

thus found that the MRTA did not extinguish the plaintiff's claimed interest in the right-of-way

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created by the defendant's root of title, even though the root of title did not specifically reference

the plaintiff. Since the trier of fact in Irving found that "the original intent of the parties was to

maintain the [property interest) in favor of" the particular parcel of land, the MRTA did not

extinguish the property interest. Id.

As such, Irving supports the plaintiffs' argument in the present case that the MRTA does

not extinguish their interest in enforcing the restrictive covenant. The defendant acknowledges

that its root of title for purposes of the MRTA is the 1947 Dudley-Scott deed. The 1947 DUdley.

Scott deed contains the entire description of the restrictive covenant, but it does not specifically

reference the plaintiffs themselves as parties with an interest in the restrictive covenant. Because

the court finds that tile original intent of the parries to the 1947 Dudley-Scott deed was

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establishing the restrictive covenant in favor of the grantor's retained land. not in favor of the

grantor personally. the plaintiffs have as much right to enforce the restrictive covenant as the

plaintiff in Irving had to enforce the easement at issue in that case. They own the dominant

estate, and the restrictive covenant is contained within the defendant's root of title.

The Defendant's Special Defenses

The defendant has raised special defenses to the enforcement of the restrictive covenant.

In its posttrial brief dated April 21, 2010, the defendant specifically addressed its special

defenses of "inequitable enforcement/changed circumstances" and "abandonment." The tenth

footnote in the defendant's posttrial brief provides: "The remaining Special Defenses are

duplicative of other Special Defenses or more properly relate to the plaintiffs' prima facie case

as discussed in this post-trial brief. Special Defenses not addressed in this brief may be

considered withdrawn." The court will therefore only address the defendant's special defenses

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of inequitable enforcement/changed circumstances and abandorunent. "Under our practice, when

a defendant pleads a special defense, the burden of proof on the allegations contained therein is

on the defendant." Dubose v, Carabetta, 161 Conn. 254, 262,287 A.2d 357 (1971).

A) Inequitable Enforcement/Change in Circumstances

The defendant argues that the change in circumstances In the area of Goose Lane

prevents the enforcement of the restrictive covenant. Specifically, in its fourth special defense,

the defendant alleges that 1-95, an adjacent industrial park "and similarly intensive commercial,

industrial and non-residential adjacent uses" constitute a change in circumstances that would

make enforcement of the restrictive covenant inequitable. The defendant similarly alleges in its

seventh special defense that "[cjircumstances have changed :50 that the ends to be attained by the

covenant have been frustrated by the years and it would be inequitable to enforce restrictions that

harm the Defendant where the non-enforcement thereof does not harm the Plaintiffs."

Jared Dudley testified as to the character of Goose Lane when he lived there from 1944 to

the early 1960's. Jared Dudley's mother was Amy Carter Dudley, the daughter of the Carters

who owned properly on both the east and west side of Goose Lane. Amy Dudley, along with her

husband and Jared Dudley's father, Charles Dudley, also owned property on both sides of Goose

Lane. Until 1951 t they owned most of the property on the east side of Goose Lane, living in a

home first at ] 99 Goose Lane (Criscenzo property), and then building their house at 209 Goose

Lane (McDonald property).

On January 22, 2010. the COUlt conducted a site visit of the properties of the parties: as

wen as the properties on the east and west sides of Goose Lane from Clapboard Hill Road up to

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the area of the parties' properties. All of the parties' current homes are residential houses, two

stories in height. TIle plaintiffs' properties are all landscaped, as evidenced by the photographs

introduced at trial. The court also viewed the properties svrrounding the parties' properties. The

Yale-New Haven shoreline medical center is located at the southeastern end of Goose Lane, on

the corner of Clapboard Hill Road. This is a large, three story building that is set back off of

Goose Lane. Proceeding northerly, the next property contained what appeared to the court to be

a low, long building that was perhaps a restaurant or other business, but it did not appear to be

currently operating. The next property contained two brick buildings that house medical offices.

These two buildings were two stories in height. The next property was 171 Goose Lane, and

directly behind that was 161 Goose Lane. Both of these properties have two story residential

houses.

On the western side of Goose Lane, directly across from the medical center is a

commuter parking lot. Proceeding northerly, there is a commercial building (the Pexagon

building) directly across from the Chabad and Criscenzo properties. Directly across from the

ColebrookIMcDonald driveway is Carter Drive, which separates the Pexagon building from the

next commercial building, which is located within the Innovation park, Both of these

commercial buildings have parking Jots between their building and Goose Lane. The medical

offices, former restaurant and Pexagon building are at most two story buildings. The medical

center and the industrial building arc at most four stories.

Today, "[t]he standard applicable to the [defendant's] claim of change in circumstances is

that when presented with a violation of a restrictive covenant, the court is obligated to enforce

the covenant unless the defendant C311 show that enforcement would be inequitable .... Change

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in circumstances; such as the usc of the benefited property for purposes other than those contemplated by the original covenant, may justify th~ withholding of equitable relief to enforce a covenant. ... Such a change in circumstances is decided on a case by case basis, and the test is

whether the circumstances show an abandonment of the original restriction making enforcement inequitable because of the altered condition of the property involved." (Emphasis added.)

Shippan Potm Assn., inc. v. McManus, 34 Conn. App, 209,215-16,640 A.2d ]014, cert. denied, 229 Conn. 923, 642 A.2d 1215 (1994). In Shippan Point, the plaintiffs and the defendants lived on properties that had originally been parts of a subdivided lot, and the plaintiffs sought to

enforce a restrictive covenant that prohibited the defendants from constructing more than one

dwelling on their property. The Shippan Point COUlt relied on a trial referee's findings that

"several lots within the original twenty-five lot area have been subdivided and now contain, in

violation of the covenant, two houses. Moreover ... many of the properties in the area have carriage houses that have been rented out to tenants in violation of the restrictive covenant." rd.

The court concluded: "(BJecausc of the substantial change in conditions the intent of the original covenant has now been completely frustrated and it would be inequitable to enforce it." rd.

Despite the Shippen Point court's holding that enforcement of the restrictive covenant at

issue would be inequitable, its change of circumstances standard has proven difficult to meet. See, e.g., Discala v. Arcamone, Superior Court, judicial district of Stamford-Norwalk at

Stamford, Docket No. CV 06 4007607 (1vIay 24, 2006, Tobin, J.) (examining single family'

residence restrictive covenant "after the passage of sixty years and allegations of changes in

circumstances," such as "increased traffic" on nearby road and "evidence showing that nearby

properties outside of [burdened property] hard) been developed" for non-residential purposes,

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and holding that defendants had not met Shippen Point standard where burdened properly had been "developed in strict accordance" with restrictive covenant); Revonah Woods Property Owners Assn" Inc, v, Rubino, Superior Court, judicial district of Stamford, Docket No. CV 03 0197808 (August 23, 2004, Lewis. J.) (finding that plaintiff had "not abandoned its attempt to enforce" restrictive covenant and concluding that "the fact that there are three violations out of 25 homes does not indicate a substantial change of circumstances" warranting denial of plaintiff's application for temporary injunction); Sturges v. Rissole, Superior Court, judicial district of Fairfield, Docket No. CV 01 0384369 (September 9~ 2003, Gormley, J.T.R.) (rejecting defendant's argument that change of circumstances, namely "the alleged use of other properties in the subdivision for purposes other than strictly residential use," barred plaintiff from enforcing residential restrictive covenant where argument was based only on defendant's testimony and holding that others' noncompliance with restrictive covenant did not justify defendant's noncompliance); Murphy v. Kelly, Superior Court, judicial district of Tolland, Docket No. CV 02 0077886 (November 7, 2002, Sferrazza, J.) (33 COM. L. Rptr. 424) (considering whether defendant could avoid enforcement of restrictive covenant prohibiting vinyl siding on houses within subdivision and rejecting defendant'S argument that improvement in quality of vinyl siding constituted substantial change in circumstances).

Professor Powell, in his treatise on property, has said that the most difficult task a court faces in resolving cases with a cbange in circumstances argument is defining the term "neighborhood." 9 Powell on Real Property, §60.10[2], p. 60-132.2 (2000). While his commentary was made within the context of a change in circumstances under a general development scheme, this court nevertheless finds the analysis to be instructive here under a

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retained land theory. Professor Powell notes iha: the majority of states have held that changes

o~tside the limits of the tract do not justify any relaxation of the enforcement of the restriction inside the tract, even though the changes impinge on the border lots. Id. One court has said that

"the fact that adjoining or surrounding property is now used for commercial purposes has no

bearing on the character of the subdivision itself; an island is not made a swamp simply because

waves lick at it shores." (Citations ornitted.) Hawthorne v. Realty Syndicate, Inc., 300 N.C. 660~

667t 268 S.E.2d 494 (1980).

The defendant asks this court to look at the surrounding properties on Goose Lane to find

change of circumstances, yet at the same time ignore the present character of the benefitted and

burdened properties, which the court finds has not substantially changed since the time the

covenant was made. "The test [for the existence of a change of circumstances] is whether the

servitude can continue to serve the purposes for which it was created." 2 Restatement (Third)

Property, Servitudes §7.1 0 comment (c) page 397. This court has previously determined that the

covenant here was made to ensure the residential nature of this cluster of homes on the former

Carter/Dudley land; a neighborhood. There is no requirement that a neighborhood be comprised

of a certain number of homes, Rather it is the proximity of those homes that defines an area as a

neighborhood. Despite the change in this area of Goose Lane, from a completely residential area.

in the late 1940s 10 one that today has surrounding commercial and industrial buildings, the court

finds that enforcement of the restriction does continue the purpose of ensuring that only

residential 01' farming uses of the land occur. The homes that were built on. the land of the

Carters and Dudleys created a neighborhood; they were, and are, located in close proximity to

each other, A common sense view of the benefit of the restriction is to ensure the peaceful

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enjoyment of the property, As one court has noted, "a 'residential purposes only' covenant

[demonstrates the intent of] a desire to preserve the residential character of the neighborhood and

to make the neighborhood more attractive for residential purposes." Metzner v, Wojdyla, 125

Wash.2d 445, 454, 886 P.2d 154 (1994). The court concludes that the restrictive covenant

continues to serve the purpose for which it was created because it protects the plaintiffs'

properties from business and commercial uses, thus preserving the residential character of their

neighborhood.

The defendant also argues that enforcement of the restrictive covenant would be

inequitable because it would seriously impair the value of its property without substantially

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benefitting the plaintiffs' properties, "The fact that the burdened property would be of more

value if the restriction were not enforced is of no consequence," (Internal quotation marks

omitted.) Grady v. Schmitz, supra, 16 Conn. App. 302; see also Bickell v, Moralo, 117 Conn,

176, 185, 167 A. 722 (1933 )("[t]he fact that a change in the use of the plaintiffs' properties from

a residential to a business one would not materially affect the value of the properties of the

defendants [who sought to enforce the restriction] would not justify a removal of the restriction,

since the right to their enforcement is not dependent upon the existence of damages as a result of

their removal"} While the defendant's property may 'have greater value if it were to be

developed in accordance with the proposed plans, the property still has value as a residence,

The law is clear that the enforceability of a restrictive covenant should not be determined

by whether nonenforcement will result in significant gain to the burdened property owner or

minimal loss to the benefited property owner. Thus, the court rejects the defendant's argument

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that continued enforcement of the restrictive covenant will harm the value of its property while

adding: little to no value to the plaintiffs' properties.

The defendant makes an additional argument on the ground of inequity, specifically that

the plaintiffs did not rely on the restrictive covenant in purchasing their properties, whereas the

defendant had no actual knowledge of the restrictive covenant when it purchased its property,

and its intent at tlle time of the purchase was building a place of worship/community center. The

court rejects this argument. First, the defendant has not cited, nor ·is th.e court aware of, any

precedent that conditions the ability of a grantor's successor in interest to enforce a restrictive

covenant upon when the successor in interest learns of the retained land restrictive covenant

when the theories of the criteria have been met. Second, the defendant's lack of actual

knowledge argument does not prevent the plaintiffs from enforcing the restrictive covenant

where the defendant had constructive notice by virtue of the fact that the 1947 Dudley-Scott deed

was referenced in both the defendant's deed and the mortgage documents signed by Rabbi Yaffe.

See Maganini v. Hodgson, 138 Conn. 188, 195,82 A.2d 801 (1951) ("Lack of actual knowledge

of the restrictions cannot aid the defendant. They were on record, and the deeds in which they

appeared were referred to in the defendant's policy of title insurance."); Johnson v, Guarino, 22

Conn.Sup. supra, 238. Neither equity nor change of circumstances provides a viable defense to

the enforcement of the restrictive covenant.

B) Abandonment

The defendant also contends that the Dudleys, the plaintiffs! predecessors in title,

abandoned their rights to enforce the restrictive covenant, thereby extinguishing the plaintiffs'

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right to enforce it. "Abandonment is a question of fact. . , , It implies a voluntary and intentional

renunciation, but the intent may be inferred as a fact from the surrounding circumstances.'

(Citation omitted.) Pizzuto v. Newington, 174 Conn. 282, 285 (1979). "Abandonment is

normally used to describe a situation ill which a servitude was terminated because all

beneficiaries have relinquished their rights to ... enforce a particular covenant., .. ~' 2 Restatement

(Third), Property, Servitudes §7.4, comment (b) p. 353 (2000). To find abandonment, the court

will generally rely on circumstantial evidence as parties will normally use a release to indicate

that the covenant has been released. Id., comment (a), p. 352. However, "if the servitude benefit

is necessary to the enjoyment of the dominant estate, or substantially enhances its value,

abandonment should never be found in the absence of unequivocal evidence that the beneficiary

intended to extinguish it permanently." Id. §7.4 comment (c), p. 354.

The following facts are relevant to the determination of whether the defendant has proven

abandonment of the restrictive covenant by the plaintiffs' predecessor in title. The evidence was

undisputed that no release of the restrictive covenant at issue was ever recorded upon the

Guilford land records. Evidence was presented that demonstrated the DudJeys did release a

similar restriction on other, nearby property they owned and Inter conveyed by way of a deed.

In 1952. the Dudleys conveyed land on the west side of Goose Lane to Milton and

Dorothy Burke. This warranty deed was recorded in volume 113 at page 64 of the Guilford land

records and contained similar language to that at issue in this matter; namely, that "[tjhe

Grantees, for themselves, and their heirs and assigns, hereby covenant and agree that the above

described premises shall be used only for residential or fanning purposes." III both 1968 and

1969, the Dudleys executed quit claim deeds that released the restrictive covenant. These deeds

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were recorded in volume 171, page 55 and in volume 175 at page 276. The language in those

deeds clearly stated that [he Dudleys, for themselves, their heirs and assigns/ intended to release

a "certain residential and farming restriction," which was then referenced by volume and page.

The deed further stated that the intention was to "remove all restrictions as to the use of said

premises as set forth in the [prior] deed."

From this evidence in the two quit claim deeds, the eourt does not hesitate to say that the

Dudleys knew how to release a restriction that they had placed 011 the use of property they sold.

As previously noted, there is no release of the restriction on the properties 011 the east side of

Goose Lane. Taken together, these facts are strong evidence that the Dudleys intended that the

residential and fanning restriction continue to benefit their land on the east side of Goose Lane.

The restrictive covenant, preventing any usc of the defendant's properly for purposes other than

living or farming, can easily be inferred to ensure the enjoyment of the Dudlcys' own residence.

Until the time of their deaths in 1976 and 199 J I the Dudleys continued to live in their home on

the east side of Goose Lane. Unlike the west side of Goose Lane, the restrictive covenant on the

east side benefitted their land, and their home, by limiting the uses of the surrounding properties.

The defendant argues that the court should focus on the Dudleys' 1950/51 land

conveyances to the Scotts, where the deed contained no restriction as to use of the land, as well

as the fact that tile Dudleys conveyed the properties at ] 99 and 221 Goose Lane in deeds that did

not have any similar restrictions on use. The defendant argues that these "silent" conveyances

are evidence of the Dudleys relinquishment of any intent to enforce the 1947 restrictive

covenant. The facts in support of this argument are as follows. In 1950, the Dudleys and Scotts

had a "land swap!'. The Dudleys came back into possession of the eastern portion of the land

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they had conveyed to the Scotts in 1947, which was subject to the restrictive covenant, and the

Scotts took possession of the 225' by 27' parcel between 199 and 181 Goose Lane. In 1951, the

Dudleys conveyed a large tract of land to the Scotts, by way of a deed recorded in volume 114 at

page 392 of the Guilford land records, and as demonstrated in defendant's exhibit G-2. At 111at

time, the Dudleys still owned the property at 199 Goose Lane, as well as portions of the

properties at 209 and 221 Goose Lane. The 195] deed covered the following property: the

eastern portion of 181 Goose Lane rcconveyed to the DudJeys in 1950; a 280' by 27' strip of

land between 181 and 199/209 Goose Lane; and the easternmost portion of the Dudley land

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(approximately located east of the McDonald property, and southerly to the property line of] 6]

Goose Lane). Neither the 1950 nor the 195] deed to the Scotts contained any language

restricting the use of the property.

In 1957. the Dudleys sold a portion of their land, today known as 221 Goose Lane, to

James and Violet Dudley. Jared Dudley, the SOil of Amy and Charles, referred to James Dudley

as "Uncle Jim" during his testimony. In 1959 the Dudleys sold a portion of their property that

today constitutes 199 Goose Lane and moved to their new home on their property that is today

209 Goose Lane. Neither of these deeds contained any language restricting the use of the

Dudleys' former property.

It is the lack of any restrictive language that the defendant argues evidences (he DudJeys

abandonmentof their restriction on the use of the Scott property. They posit that, while it may

be argued that the original 19471al1guage was intended to ensure the Dudleys quiet enjoyment of

their retained land. the fact the Dudleys subsequently failed to include similar language to protect

their retained land indicates abandonment.

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"[Bjefore legal abandonment can be found. there must be proof of an intent to abandon.'!

(Citation omitted.) Friedman v, Westport, 50 Conn, App. 209,212,717 A,2d 797, cert, denied!

247 Conn. 937, 722 A,2d 1216 (1998),

It bears repenting that "if the servitude benefit is

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necessary to the enjoyment of the dominant estate, or substantially enhances its value,

abaadcnment should never be found in the absence of unequivocal evidence that the beneficiary

intended to extinguish it permanently." 2 Restatements (Third) Servitudes §7.4, comment (c), p,

354, "Affirmative acts rendering use or enjoyment of the servitude benefit extremely difficult, or

unequivocal statements of intent coupled with actions inconsistent with continued existence of

the servitude, should be required as a basis for finding abandonment," Id.

Under these legal standards, the defendant has not proven the defense of abandonment.

The court does not find that the Dudleys' failure to include restrictive use language in the deeds

of 1950, 1951, 1. 957 and 1959 is an unequivocal statement of intent. The court is unwilling to

read t11C silence of these deeds regarding restrictions on uses of the conveyed properties as a

clear, decisive expression by the Dudleys that they were abandoning their right to enforce the

restrictive covenant on the Scotts' property. Nor does the court find evidence of any actions by

the Dudleys inconsistent with the continued existence of the restriction 011 181 Goose Lane,

Jared Dudley testified regarding the reason for the 1950 conveyance of the 225' by 27' parcel.

Apparently, the Scotts built a driveway on land that they did not own, It is not surprising, then,

that the Dudleys did not include restrictive use language in that deed. The property was used for

a driveway, and the shape of the parcel would have prevented any use other than that which it

"vas being used for. As to the land conveyed in 1951, Jared Dudley testified that the land to the

east of his home was woodland and swamp. That woodland and swamp area constitutes the

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majority of the land conveyed to the Scotts in that deed." The other portion of the land was the

second strip between the properties and the part conveyed back to the Dudleys the year prior. On

this body of evidence, the court finds no basis to equate silence in the deed with an unequivocal

statement of intent to abandon the 1947 restrictive covenant. The Dudleys continued to enjoy the

benefit of the property on 181 Goose Lane remaining for residential or farming uses only. See

a/so, Grady v. Schmitz, supra, 16 Conn.App, 301 (when much of the benefited property is still

being used for the purpose contemplated by the original covenant) it cannot reasonably be said

that the circumstances show an abandonment of the original plan).

CONCLUSION

The court is satisfied that the plaintiffs have met their burden of proof as to the existence

of a valid and enforceable restrictive covenant benefitting their properties and burdening a

portion of the defendant's, The court finds that the defendant's proposed usc of the property

would violate the restrictive covenant. The court also finds that the defendant has failed to prove

any defense to enforcement of the restrictive covenant. The plaintiffs are entitled to equitable

relief to prevent any violation of the restrictive covenant. The enforcement of restrictive

covenants by injunction is appropriate even absent irreparable harm "so long as such relief is not

inequitable." Hartford Electric Lighr Co, v, Levitz, 173 COlU1. 15, 22, 376 A.2d 381 (1977). The

CQU11 concludes that it is neither inequitable nor disproportionate, under the facts of this case, to

require that the defendant comply with the restrictive covenant. Therefore, the court enters

judgmem in favor of the plaintiffs and grants a permanent injunction preventing the defendant

7ln fact, that portion ofthe property remains undeveloped today, as evidenced by the court's site visit.

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from using that portion of 188 Goose Lane (the 1.28 acre parcel) in any manner violative of the

restrictive covenant contained in volume 98, page 467 of the Guilford land records.

The court also grants declaratory relief. determining that the above referenced properly

can only be used for purposes consistent with the restrictive covenant contained in volume 98,

page 467 of the Guilford land records.

The plaintiffs have requested, in their amended complaint. costs for the suit, which the

court declines to order.

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_____ ~--~--,..='"'_J.J~. MAUREENM~

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