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DUANE GROVENBURG ET AL. v. RUSTLE
MEADOW ASSOCIATES, LLC, ET AL.
(AC 37719)
DiPentima, C. J., and Prescott and Gold, Js.
Argued January 18—officially released June 20, 2017
(Appeal from Superior Court, judicial district of
Hartford, Hon. Richard M. Rittenband, judge trial
referee.)
Barbara M. Schellenberg, with whom was Ari J. Hoff-
man, for the appellants (defendants).
Jared M. Alfin, for the appellees (plaintiffs).
Opinion
DiPENTIMA, C. J. In this appeal, we address the
contours of judicial review in cases in which a discre-
tionary 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 sub-
stance of their counterclaim, that it improperly invali-
dated a special assessment levied by the association,
and that it abused its discretion in awarding the plain-
tiffs $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 memo-
randum of decision and the undisputed evidence in the
record before us. Rustle Meadow is a planned commu-
nity1 created pursuant to the Common Interest Owner-
ship Act (act), General Statutes § 47-200 et seq.2
Consistent with the strictures of that act, the Declara-
tion 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 declara-
tion (declaration survey).3
Rustle Meadow is described in the public offering
statement4 admitted into evidence as a ‘‘common inter-
est 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 Rus-
tle Meadow, and has remained the owner of five of its
seven units. Rustle Meadow is governed by the associa-
tion, upon which the declaration confers various pow-
ers 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 associa-
tion] and to abide by the Certificate of Incorporation,
Bylaws, Rules and other regulations of the [a]ssocia-
tion.’’ 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 cove-
nants 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 ease-
ment’’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 restric-
tions 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 Com-
munity without the prior written consent of the Declar-
ant . . . . No Unit Owner shall make any exterior
addition, change or alteration to a Unit or any residence
located therein . . . or substantially change the topog-
raphy of a Unit including the removal of any trees with-
out 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 commenc-
ing such construction, landscaping or making any addi-
tions, 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,’’ simi-
larly 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 pro-
posal 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 associa-
tion and requested further information on the pro-
posal.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 plain-
tiffs 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 landscaping changes
requiring approval. The green zone has been established
by the association, and was discussed with you prior
to purchasing [Unit 3] and clearing the lot. All of the
trees cut on both sides of the house . . . are those that
were outside of the green zone, all the trees and shrubs
inside the green zone were not cut. Numerous discus-
sions took place where you acknowledged the green
zone. The green zone falls within the authority of the
board in approving landscape changes after construc-
tion. The ‘green zone’ is simply a term which names a
section of the land adjacent to the wooded property
lines where the association will tightly regulate any
landscape changes to maximize the visual buffer
between adjacent lots. You have already done unap-
proved landscaping on your unit that affects this visual
buffer. Any landscaping approval by the board will
include consideration of maintaining the integrity of
the green zone.’’ In a subsequent e-mail sent ten days
later, Miller advised the plaintiffs that ‘‘[t]he pool fence
will most likely not be approved any closer than fifteen
feet to the property line. Maintaining a visual buffer
between lots in this community is a reasonable crite-
ri[on] from which to make a decision . . . . The lan-
guage in [§] 10.1 [k] says ‘consent shall not be
unreasonably withheld’. A visual buffer is a common
community practice, is seen as an asset to a community,
and is widely used by both town planning commissions
and common interest communities. The board feels this
is an entirely reasonable criteri[on] on which to base
landscaping decisions.’’
Days later, the plaintiffs submitted certain revisions
to their fence proposal that included a brochure of the
proposed fence material and a drawing with what they
termed ‘‘clear permanent points of measurement’’ for
the fence’s proposed location. That drawing indicated
that the fence would be 8.5 feet from the southeasterly
property line, which borders ‘‘Unit 2’’ of Rustle Meadow.
In their correspondence, the plaintiffs also stated that
‘‘[t]he [d]eclaration, lot purchase agreement, construc-
tion contract, all of the written agreements we have for
our home do not mention or stipulate a ‘green zone’ or
a ‘[fifteen] foot’ requirement or any other foot require-
ment. Therefore they are not relevant to the approval
of the type of fence we have requested to install. We
have a property line which is noted on the drawing.
Any requirement to a ‘green zone’ that does not exist
in the lot plans or declaration is inappropriate and
unreasonable.’’ They further indicated that the pro-
posed fence complied with town regulations. The plain-
tiffs then requested a decision on their proposal in
writing by the board.
Miller furnished the decision of the board in a July
23, 2010 e-mail to the plaintiffs. In that decision, Miller
reiterated that ‘‘a proper scale drawing is needed.’’ He
then stated that ‘‘[a]s the proposed fence appears to
fall well within the [fifteen] foot visual buffer we call
the green zone . . . the fence as drawn is not approved.
. . . The board would likely approve a black Echelon
fence that is on or adjacent to the patio edge (on the
east side), and encourages you to submit a drawing
proposing that. . . . If you prefer to locate the fence
as close to the [g]reen [z]one line as possible, the board
will require a fence maintenance plan for any section
of fence that lies within [three] feet of the green zone,
or within [eighteen] feet of the property line. . . . In
addition, if the proposed fence is within 1.5 feet of
the green zone the board will require that the line be
surveyed, as the flagging currently in use is only an
approximation. Whether or not you can find the term
‘green zone’ in the declaration does not affect the
authority of the board to determine what are acceptable
landscaping changes to take place in the community.
Authority comes from [§] 10.1 (k) of the declaration
that outlines the landscape review process. . . . The
[fifteen] foot visual buffer green zone is something that
is already in place, and was previously acknowledged
by you. The board has every intention of keeping it in
place. Continuing to state that the board’s landscaping
review criteria are inappropriate and quoting town zon-
ing [requirements are] not responsive to the board’s
request. The town’s requirements are in addition to, but
are not the only requirements in a planned community
like Rustle Meadow. Please submit a pool fence con-
struction plan and an accurate scale drawing that ade-
quately respects the [fifteen] foot visual buffer green
zone if you would like it to be considered.’’
Sixteen months later, Miller sent the plaintiffs an
e-mail dated December 2, 2011, in which he noted that
it had ‘‘been months since we heard from [you] on
submitting a suitable location for the pool fence’’ and
cautioned that ‘‘[t]he association can no longer tolerate
this safety risk, and will be writing a letter to the town
asking for enforcement.’’ Miller subsequently contacted
the Canton building department and informed it that
‘‘[t]here has been no pool fence’’ on the plaintiffs’ prop-
erty ‘‘since the pool was completed in 2008.’’ Miller also
stated that fencing previously proposed to the associa-
tion by the plaintiffs ‘‘placed the fence unnecessarily
within a [fifteen] foot visual buffer zone along the prop-
erty line. The board denied the fence location on that
basis, and encouraged a fence proposal that was outside
of the [fifteen] foot buffer. . . . The entire summer and
fall of 2011 has passed with no new proposal. . . . [A]
temporary garden wire type fence has been put up.
While this is better than nothing, the board is concerned
that this dangerous situation is not being rectified
. . . . While we understand winter weather might not
allow an immediate correction, we would hope that an
acceptable plan could be submitted to this board before
spring, and construction could begin when weather
allows.’’ The building department thereafter sent the
plaintiffs a certified letter that requested ‘‘[y]our compli-
ance in addressing this serious violation . . . .’’
In the spring of 2012, Attorney Louis N. George sub-
mitted a revised fence proposal on behalf of the plain-
tiffs. That submission states in relevant part: ‘‘Attached
are the plans for the fence and where it will be located.
Town regulations allow the fence to be placed at the
boundary line. There are no [a]ssociation regulations
limiting the location of the fence. Our clients are, how-
ever, intending to place the fence approximately eight
feet from the boundary. Hopefully you will embrace
this compromise. The fence design is one that you had
already stated would be fine. Please let us know if
this is acceptable.’’ Included in that submission was an
updated depiction of the proposed fence location,
which the plaintiffs sketched onto a copy of the ‘‘as-
built’’ survey of the pool. In the eight foot section
between the proposed fence and the southeasterly prop-
erly line, the plaintiffs indicated that ‘‘[b]amboo type
shrubs to be placed every [six-eight] feet . . . . Nurs-
ery indicated this type of shrub would grow in this wet,
shaded area. These shrubs along with existing vegeta-
tion on side yard will provide more than sufficient cov-
erage.’’ In response, the board requested ‘‘details
regarding the species and mature height of the bamboo
and a scale drawing of the plan . . . .’’ Several months
passed as discussions continued between the parties.
At the time of the association’s June 21, 2013 annual
meeting, both the plaintiffs and the association were
represented by legal counsel. The minutes of that meet-
ing state in relevant part that ‘‘[d]iscussion was held
regarding the visual buffer area between units that the
board calls the green zone. The [plaintiffs] stated that
there is no specific boundary in the documents to
restrict activity. [Miller] stated that the [plaintiffs] had
acknowledged in writing the need to maintain a visual
green zone buffer between units for privacy and to
maintain the wooded character of the community. The
board noted that the standard buffer is [twenty feet]
but that the [plaintiffs] were given a concession for
[fifteen feet] because they have the narrowest lot.’’ The
minutes reflect that the plaintiffs had submitted a
revised pool fence proposal, but had not yet responded
to the board’s request for additional information. The
minutes further indicate that the plaintiffs ‘‘agreed to
provide the details on the pool fence plantings
requested by the board and to submit a proposal for
creation of an undisturbed visual buffer area,’’ which
the board ‘‘agreed to review . . . when provided and
respond within [two] weeks.’’
By letter dated July 9, 2013, George responded to the
board’s request for further information on behalf of
the plaintiffs. With respect to the proposed plantings,
George stated that ‘‘Scabrida Clumping Bamboo’’ would
be installed ‘‘between the side yard fencing and the
property line on the [southwesterly] side of the house
with the vacant lot, as noted on the drawing.’’ He also
explained that ‘‘[t]he bamboo grows [twelve-fourteen
feet] tall by [three feet] wide for each bush’’ and that
this species ‘‘is non-invasive, vigorous and easy to grow
. . . .’’ As to the buffer area between Units 3 and 4,
George indicated that the plaintiffs ‘‘would be glad to
agree to continue adding shrubs and ground cover to
this area in the future.’’ Months passed without any
formal response or action by the board. Nevertheless,
discussions between the parties’ respective attorneys
continued in an attempt to reach an agreement. It is
undisputed that, at some point in the fall of 2013, coun-
sel for the association withdrew his representation due
to a personal matter.
The plaintiffs commenced this civil action in Decem-
ber, 2013. At that time, the association had not rendered
a decision on the plaintiffs’ pending proposal.14 The
operative complaint dated April 17, 2014, contains three
counts. The first count set forth a cause of action under
the act; see General Statutes § 47-278 (a);15 and alleged,
inter alia, that the defendants ‘‘failed to approve [the
fence proposal] even though all the requirements were
met’’ and ‘‘unreasonably’’ denied that proposal and
‘‘conditioned the Association’s approval of the fence
on . . . compliance with the fictional Green Zone.’’
The first count also alleged that the defendants improp-
erly issued certain fines against the plaintiffs ‘‘for vio-
lating a fifteen (15) foot visual buffer area between
[their] property and Miller’s home (the ‘Green Zone’).’’
The second count alleged a breach of fiduciary duty on
the part of the defendants. The third and final count
sought the appointment of a receiver for the association
pursuant to General Statutes § 52-504.16
In their prayer for relief, the plaintiffs sought ‘‘[1]
monetary damages; [2] interest; [3] costs of suit; [4]
appointment of a receiver to manage and operate the
[a]ssociation as a matter of equity pursuant to [§] 52-
504; [5] an injunction prohibiting [Miller] from assigning
his rights or powers as the owner of [the company] or
as the president of the association to his wife, heirs,
successors, assigns and/or family members [from] hold-
ing a position on the [board] or participating in any
voting concerning the association, as well as any and
all relief requested in [the plaintiffs’] application for an
injunction, which is incorporated herein by reference;17
[6] an injunction ordering the association to permit the
plaintiffs to erect a fence around their swimming pool
in accordance with the Town of Canton’s rules and/or
regulations; [7] an order that there is no ‘Green Zone’
as defined by [the defendants] at [Rustle Meadow] and/
or that applies to the plaintiffs’ property at [Rustle
Meadow]; [8] an order that all statutory liens arising
from fines and/or penalties assessed against the plain-
tiffs by the association from the beginning of time to
date are removed, discharged and declared null and
void; [9] attorney’s fees and costs pursuant to [§] 47-
278 (a); and [10] any and all other relief, legal or equita-
ble, that the court deems just and proper.’’ (Footnote
added.)
The defendants thereafter filed both an answer and
a counterclaim. In that counterclaim, the defendants
sought recourse related to (1) certain unpaid assess-
ments levied against units in Rustle Meadow; (2) fines
imposed by the association for unauthorized landscap-
ing allegedly performed by the plaintiffs; and (3) fines
imposed by the association against the plaintiffs due
to their alleged interference with a boundary marker.
In answering that counterclaim, the plaintiffs either
denied its allegations or claimed that they lacked suffi-
cient knowledge and therefore left the defendants to
their burden of proof.
During a pretrial deposition, portions of which were
admitted into evidence at trial, the plaintiffs’ counsel
asked Miller to define the ‘‘green zone.’’ Miller stated
that ‘‘[i]t’s a visual buffer that is one of the standards
that the association uses to evaluate changes to land-
scaping . . . in the conduct of its business of the subdi-
vision.’’ When counsel requested a more detailed
explanation of that ‘‘buffer,’’ Miller stated that ‘‘[i]t’s an
area where natural vegetation would be protected and
not removed, destroyed, cut, or in other ways inhibited
so as to provide a visual buffer between adjoining build-
ing lots.’’ Miller further confirmed that ‘‘[t]here are no
documents recorded at the [Canton] town hall that con-
tain the phrase, the Green Zone.’’
A court trial was held in November, 2014. One day
before trial was to begin, the plaintiffs filed a motion
in limine seeking to preclude any testimony or docu-
mentation relating to the green zone, arguing that
because the term ‘‘green zone’’ is not contained in either
the declaration or any other material recorded on the
Canton land records, it is ‘‘is clearly unenforceable’’
under the act. The trial court agreed, stating that ‘‘it
doesn’t seem . . . that it’s reasonable if it is not in
writing. . . . I’m granting the motion in limine because
I don’t think that the so-called green zone, being unwrit-
ten, is . . . sufficient notice to the prospective buyer.’’
Trial proceeded over three days, during which the
court heard testimony from the plaintiffs, Miller, and
Welles. Following the close of evidence, the court held
a hearing on the issue of attorney’s fees, at which the
plaintiffs represented that they had incurred $47,420.33
in such expenses.
In its January 14, 2015 memorandum of decision, the
court reiterated its previous finding, made while ruling
on the motion in limine, that the ‘‘green zone is not
reasonable because it was not in writing . . . . [T]here
is nothing in writing in the declaration or bylaws to
indicate to anyone, including the plaintiffs, that there
is a green zone . . . . Accordingly, this court finds that
it was illegal and inequitable for the association to deny
the applications for a fence around the pool in the [green
zone].’’ (Citation omitted.) The court then proceeded
to rule in favor of the plaintiffs on all counts of the
defendants’ counterclaim. At the same time, the court
ruled in favor of the defendants on the plaintiffs’ request
for the appointment of a receiver for the association.
The court then issued six specific orders. First, it
ordered ‘‘[a] temporary injunction . . . that the associ-
ation permit the plaintiffs to erect a fence around their
swimming pool in accordance with the town of Canton’s
rules and/or regulations, whether in the green zone or
not. Further, the defendants are prohibited from
interfering with the plaintiffs’ use of the ‘green zone,’
whether the plaintiffs remove, replace, alter or add trees
and foliage. The green zone is, after all, the plaintiffs’
property. The defendants are ordered to cooperate with
the plaintiffs in case a variance is needed or any other
action is needed by them to accomplish the erection
of the fence around the swimming pool as desired by
the plaintiffs. [Second] the defendants are ordered to
remove, immediately, any liens that have been placed
against the plaintiffs’ property for fines/assessments.
[Third] a temporary injunction is issued prohibiting
Miller from assigning his rights or powers as the owner
of the subdivision or as the president of the association
to his wife, heirs, successors, assigns and/or family
members [from] holding a position on the board of the
association as well as any and all relief requested in
[the] plaintiffs’ application for an injunction except for
arms-length sales of individual lots, and their request
for a receiver. [Fourth] the green zone as defined by
the defendants as it applies to the plaintiffs’ property
at the development is hereby declared null and void.
[Fifth] all parties are prohibited from disparaging or
criticizing each other to others, including, but not lim-
ited to, possible buyers of lots in the subdivision. [Sixth,
the defendants’] counterclaim [is] hereby rejected. The
defendants’ request for attorney’s fees is denied.’’
Last, the court rendered an award of attorney’s fees
in favor of the plaintiffs in the amount of $57,718.25.
The defendants subsequently filed a ‘‘motion to reargue
and reconsider memorandum of decision’’ and a
‘‘motion for articulation and rectification,’’ both of
which the court summarily denied. The defendants
commenced this appeal on February 23, 2015.
Days later, the defendants filed a motion requesting a
stay of the injunctive relief ordered by the court pending
resolution of this appeal. On March 27, 2015, the trial
court issued the following order: ‘‘Denied. With the
exception that, for clarification purposes, Jeffrey Miller,
Linda Welles, Pam Claywell and unit owners may serve
on the board of directors of the association. The court
finds that the balance of the equities is in favor of the
plaintiffs. Under [Practice Book §] 61-12, there is little
likelihood that the [defendants] will prevail because it
is well settled law that temporary injunctions are not
appealable.18 There is no irreparable harm to be suffered
by the defendants upon immediate implementation of
the judgment. As for the automatic stay provided during
an appeal, this court, sua sponte, hereby terminates
that stay.’’ (Footnote added.) That same day, the court
granted the plaintiffs’ application for a prejudgment
remedy in the amount of $72,718.25.19
On March 24, 2015, the plaintiffs filed in the trial
court a motion for contempt, claiming, inter alia, that
the defendants had continued to impose assessments
on the plaintiffs’ unit. In its April 6, 2015 order, the
court stated that ‘‘[t]he motion for contempt is denied
on the basis that [the defendants’ counsel] has repre-
sented that no liens have been filed . . . .’’ The court
nonetheless ordered that ‘‘[t]he association is to remove
any assessment against the plaintiffs for legal fees
related to this case and any legal fees from here on in
related to this case, which the court declares said fees
to be null and void. . . . The termination of the auto-
matic stay remains in place, except that the plaintiffs
may not execute on the prejudgment remedy or its
substitution while the appeal is pending.’’ On April 24,
2015, the defendants filed an amended appeal with this
court to encompass those additional rulings.
On May 13, 2015, this court granted a motion for
review filed by the defendants with respect to the trial
court’s denial of a stay of injunctive relief and sua
sponte termination of the automatic stay. This court
vacated those orders, specifically determining that the
trial court’s judgment awarding injunctive relief was
permanent in nature and, thus, appealable. This court
therefore remanded the matter to the trial court with
direction to (1) consider whether a stay of such relief
should be imposed in this case under General Statutes
§ 52-47720 and (2) to reconsider whether the automatic
stay should be terminated pursuant to Practice Book
§ 61-11.
On June 25, 2015, the trial court issued an order in
response thereto. In that order, the court reiterated that
the ‘‘green zone’’ was not in writing. It then found that
‘‘the due administration of justice requires an order that
the stay be terminated because it is unlikely that the
[defendants] will prevail in view of the fact that the
‘green zone’ is illegal.’’ The court thus terminated the
stay ‘‘to the extent that the plaintiffs may install a perma-
nent fence surrounding the swimming pool within the
‘green zone,’ but shall use their best efforts not to inter-
fere with shrubbery and trees. . . . For the same rea-
sons, the ‘green zone’ being illegal, the stay is terminated
as to the fines imposed by the defendants because of
alleged violation of said ‘green zone.’ The court granted
a prejudgment remedy on behalf of the plaintiffs, but
no attachment or garnishment should be made because
the parties have agreed to a certificate of deposit to
be held in escrow, which will cover the prejudgment
remedy.’’ The defendants then filed a further motion
for review with this court regarding that order. This
court granted review of that motion, but denied the
relief requested.
I
The principal issue in this appeal is whether the trial
court applied the proper legal standard governing judi-
cial review of the discretionary determinations of an
association in a common interest community, or
whether, as the defendants contend, its decision consti-
tuted a ‘‘gross departure’’ from that standard. In answer-
ing that question, we note that this is an emerging area
of the law that has received relatively little treatment
by the appellate courts of this state. We begin, therefore,
with an overview of the development of common inter-
est community jurisprudence.
A
Background
‘‘Although common-interest communities date back
into the 19th century, they have become a widely avail-
able form of housing only since the 1960s.’’ 2
Restatement (Third), Property, Servitudes § 6.13, com-
ment (b), p. 239 (2000); accord Cape May Harbor Vil-
lage & Yacht Club Assn., Inc. v. Sbraga, 421 N.J. Super.
56, 69, 22 A.3d 158 (App. 2011) (‘‘[c]ommon interest
developments are a relatively recent phenomenon, but
. . . have rapidly grown in the United States’’). As noted
by many commentators, ‘‘[a] large and growing portion
of the housing stock of America is located in common
interest communities governed by owner associations.’’
(Footnote omitted.) S. French, ‘‘Making Common Inter-
est Communities Work: The Next Step,’’ 37 Urb. Law.
359, 359 (2005); see also E. Lombardo, ‘‘A Better Twin
Rivers: A Revised Approach to State Action by Com-
mon-Interest Communities,’’ 57 Cath. U. L. Rev. 1151,
1151 (2008) (‘‘[n]early fifty-nine million Americans live
in private common-interest communities, governed by
member-elected governing boards or associations’’); A.
Arabian, ‘‘Condos, Cats, and CC&Rs: Invasion of the
Castle Common,’’ 23 Pepp. L. Rev. 1, 24 (1995) (‘‘[c]om-
mon interest developments are the fastest growing form
of housing in the United States’’).
As our Supreme Court has explained, the act ‘‘con-
templates the voluntary participation of the owners’’
within a common interest community. Wilcox v. Willard
Shopping Center Associates, 208 Conn. 318, 326, 544
A.2d 1207 (1988). In purchasing units in a common
interest community, owners forfeit certain liberties
with respect to the use of their property by voluntarily
consenting to restrictions imposed thereon, as specified
in the declaration of the community. See, e.g., Weldy
v. Northbrook Condominium Assn., Inc., supra, 279
Conn. 738 (unit owners in common interest community
give up degree of freedom they otherwise would enjoy
in separate privately owned property); Villas West II
of Willowridge Homeowners Assn., Inc. v. McGlothin,
885 N.E.2d 1274, 1278–79 (Ind. 2008) (‘‘Restrictive cove-
nants are used to maintain or enhance the value of
land by reciprocal undertakings that restrain or regulate
groups of properties. . . . Property owners who pur-
chase their properties subject to such restrictions give
up a certain degree of individual freedom in exchange
for the protections from living in a community of recip-
rocal undertakings.’’ [Citation omitted.]), cert. denied
sub nom. Ashcraft v. Villas West II of Willowridge
Homeowners Assn., Inc., 555 U.S. 1213, 129 S. Ct. 1527,
173 L. Ed. 2d 657 (2009); Levandusky v. One Fifth
Avenue Apartment Corp., 75 N.Y.2d 530, 536, 553 N.E.2d
1317, 554 N.Y.S.2d 807 (1990) (purchase of unit in com-
mon interest community ‘‘represents a voluntary choice
to cede certain of the privileges of single ownership to
a governing body’’); 1 Restatement (Third), Property,
Servitudes § 3.1, comment (i), p. 364 (2000) (‘‘policies
favoring freedom of contract, freedom to dispose of
one’s property, and protection of legitimate-expectation
interests nearly always weigh in favor of the validity of
voluntarily created servitudes’’).
‘‘Historically, restrictive covenants have been used
to assure uniformity of development and use of a resi-
dential area to give the owners of lots within such an
area some degree of environmental stability.’’ Montoya
v. Barreras, 81 N.M. 749, 751, 473 P.2d 363 (1970). As
the Supreme Court of California noted, ‘‘[u]se restric-
tions are an inherent part of any common interest devel-
opment and are crucial to the stable, planned
environment of any shared ownership arrangement.
. . . [S]ubordination of individual property rights to the
collective judgment of the owners association together
with restrictions on the use of real property comprise
the chief attributes of owning property in a common
interest development.’’ (Citations omitted.) Nahrstedt
v. Lakeside Village Condominium Assn., 8 Cal. 4th 361,
372–74, 878 P.2d 1275, 33 Cal. Rptr. 2d 63 (1994).
Owners of units in a common interest community,
in turn, secure the right to enforce those restrictions
against others.21 See General Statutes § 47-278; Bella
Vista Condominium Assn., Inc. v. Byars, 102 Conn.
App. 245, 254, 925 A.2d 365 (2007) (owner has ‘‘a cause
of action against the declarant or others who are subject
to the provisions of the act when such parties violate
the terms of either the act or the particular association’s
declaration or bylaws’’); cf. Mannweiler v. LaFlamme,
46 Conn. App. 525, 535–36, 700 A.2d 57 (discussing right
of owners to enforce restrictions in light of presumption
that ‘‘each purchaser has paid a premium for the prop-
erty in reliance on the uniform development plan being
carried out’’), cert. denied, 243 Conn. 934, 702 A.2d 641
(1997); Rhue v. Cheyenne Homes, Inc., 168 Colo. 6, 8,
449 P.2d 361 (1969) (‘‘[i]t is no secret that housing today
is developed by subdividers who, through the use of
restrictive covenants, guarantee to the purchaser that
his house will be protected against adjacent construc-
tion which will impair its value, and that a general plan
of construction will be followed’’); Lake at Twelve Oaks
Homes Assn., Inc. v. Hausman, 488 S.W.3d 190, 198
(Mo. App. 2016) (restrictions in ‘‘the [a]ssociation’s
[d]eclarations were adopted for the purposes of enhanc-
ing and protecting the value, desirability, and attrac-
tiveness of the subdivision’’).
At first blush, the inherently restrictive nature of a
common interest community may appear to conflict
with public policy favoring the free and unrestricted
use of real property, which ‘‘was dominant in the United
States throughout the nineteenth century . . . .’’
Pertzsch v. Upper Oconomowoc Lake Assn., 248 Wis.
2d 219, 232, 635 N.W.2d 829 (App. 2001) (Anderson, J.,
concurring); cf. Easterbrook v. Hebrew Ladies Orphan
Society, 85 Conn. 289, 296, 82 A. 561 (1912) (restrictive
covenants narrowly construed ‘‘being in derogation of
the common-law right to use land for all lawful pur-
poses’’). Nevertheless, the proliferation of common
interest communities in the past half century has led
courts to reconsider certain presumptions regarding
covenants utilized therein. As the Supreme Court of
New Hampshire noted four decades ago, ‘‘[t]he former
prejudice against restrictive covenants which led courts
to strictly construe them is yielding to a gradual recogni-
tion that they are valuable land use planning devices.’’
Joslin v. Pine River Development Corp., 116 N.H. 814,
816, 367 A.2d 599 (1976). That court further stated that
‘‘private land use restrictions have been particularly
important in the twentieth century when the value of
property often depends in large measure upon main-
taining the character of the neighborhood in which it
is situated.’’ (Internal quotation marks omitted.) Id.,
817. As the Supreme Court of Washington put it, ‘‘[t]he
premise that protective covenants restrict the alienation
of land and, therefore, should be strictly construed may
not be correct. Subdivision covenants tend to enhance,
not inhibit, the efficient use of land. . . . In the subdivi-
sion context, the premise [that covenants prevent land
from moving to its most efficient use] generally is not
valid.’’ (Emphasis omitted; internal quotation marks
omitted.) Riss v. Angel, 131 Wn. 2d 612, 622, 934 P.2d
669 (1997). That court thus concluded that, in cases
involving a dispute ‘‘among homeowners in a [common
interest community] governed by the restrictive cove-
nants, rules of strict construction against the grantor
or in favor of the free use of land are inapplicable.’’ Id.,
623; see also Lake at Twelve Oaks Homes Assn., Inc.
v. Hausman, supra, 488 S.W.3d 195 (‘‘the right of one
property owner to the protection of a restrictive cove-
nant is a property right just as inviolable as is the right
of others to the free use of their property when
unrestricted’’). Likewise, the Restatement (Third) of
Property, Servitudes, promulgated in 1998, expressly
eschews the public policy favoring the free use of land
in this context.22
In reviewing the determinations of an association in
a common interest community, Connecticut, like most
jurisdictions, draws a crucial distinction between the
authority to exercise the rights and responsibilities
delineated in a declaration; see Cantonbury Heights
Condominium Assn., Inc. v. Local Land Development,
LLC, 273 Conn. 724, 734, 873 A.2d 898 (2005); and the
propriety of an association’s exercise thereof. See
Weldy v. Northbrook Condominium Assn., Inc., supra,
279 Conn. 734; accord Tierra Ranchos Homeowners
Assn. v. Kitchukov, 216 Ariz. 195, 199, 165 P.3d 173
(App. 2007) (distinguishing between ‘‘a case involving
the interpretation of restrictive covenants’’ and ‘‘a case
involving a challenge to [a] discretionary decision’’
[emphasis omitted]); Felix Felicis, LLC v. Riva Ridge
Owners Assn., 375 P.3d 769, 775 (Wyo. 2016) (distin-
guishing between questions ‘‘about the meaning of the
covenants’’ and ‘‘the question [of] whether the associa-
tions reasonably applied them’’ [emphasis omitted]).
With respect to the former, principles of contract
interpretation control. It is well established that the
declaration is the constitution of a community orga-
nized pursuant to the act. Weldy v. Northbrook Condo-
minium Assn., Inc., supra, 279 Conn. 737; see also 2
Restatement (Third), Property, Servitudes § 6.12, com-
ment (a), p. 226 (2000) (declaration is ‘‘the foundational
document setting the parameters of the community’s
authority’’); 8 Powell on Real Property (M. Wolf ed.,
2000) § 54A.01 [11] [a], p. 47 (‘‘[t]he declaration is the
constitution for the community’’). A declaration ‘‘oper-
ates in the nature of a contract, in that it establishes
the parties’ rights and obligations . . . .’’ Cantonbury
Heights Condominium Assn., Inc. v. Local Land Devel-
opment, LLC, supra, 273 Conn. 734; see also Harbour
Pointe, LLC v. Harbour Landing Condominium Assn.,
Inc., 300 Conn. 254, 259, 14 A.3d 284 (2011). Accord-
ingly, rules of contract construction govern the interpre-
tation of declaration provisions. Cantonbury Heights
Condominium Assn., Inc. v. Local Land Development,
LLC, supra, 734–35. No deference to the association,
therefore, is warranted on the issue of association
authority under a declaration. See Southeastern Con-
necticut Regional Resources Recovery Authority v.
Dept. of Public Utility Control, 244 Conn. 280, 289–90,
709 A.2d 549 (1998).
On the other hand, as to the exercise of an associa-
tion’s discretionary authority under a declaration,
courts across the country agree that a degree of defer-
ence is warranted. As the Supreme Court of California
recognized decades ago, ‘‘[g]enerally, courts will uphold
decisions made by the governing board of an owners
association so long as they represent good faith efforts
to further the purposes of the common interest develop-
ment, are consistent with the development’s governing
documents, and comply with public policy.’’ Nahrstedt
v. Lakeside Village Condominium Assn., supra, 8 Cal.
4th 374; see also McNamee v. Bishop Trust Co., Ltd.,
62 Haw. 397, 407, 616 P.2d 205 (1980) (‘‘[a]s long as the
[association’s] decision was reasonable and in good
faith it will be upheld’’); Melson v. Guilfoy, 595 S.W.2d
404, 407 (Mo. App. 1980) (finding ‘‘no abuse of discre-
tion’’ in discretionary determination to ‘‘approve or dis-
approve a fence’’); Levandusky v. One Fifth Avenue
Apartment Corp., supra, 75 N.Y.2d 538 (‘‘[s]o long as
the board acts for the purposes of the [common interest
community], within the scope of its authority and in
good faith, courts will not substitute their judgment for
the board’s’’); 2 Restatement (Third), Property, Servi-
tudes § 6.9, comment (d), pp. 173–74 (2000) (‘‘[a]s the
legitimacy and utility of design controls have become
more widely accepted, courts have tended to increase
the amount of deference they give to decisions reached
by architectural-control committees or other design
control authorities’’).
There are innumerable cases like the one now before
us, in which a dispute arose over restrictive covenants
that required association approval prior to construction
on, or the alteration of, a unit in a common interest
community. As the Supreme Court of Hawaii observed,
‘‘[c]ovenants requiring submission of plans and prior
consent before construction . . . are commonly found
in leases and deeds around the country. Most courts
have found these approval clauses to be valid and
enforceable as long as the authority to consent or
approve is exercised reasonably and in good faith.’’
McNamee v. Bishop Trust Co., Ltd., supra, 62 Haw.
402–403; see also Gleneagle Civic Assn. v. Hardin, 205
P.3d 462, 469 (Colo. App. 2008) (‘‘[t]he majority view
with respect to covenants requiring submission of plans
and prior consent to construction by the developer . . .
is that such clauses, even if vesting the approving
authority with broad discretionary powers, are valid
and enforceable so long as the authority to consent is
exercised reasonably and in good faith’’ [internal quota-
tion marks omitted]).23
More specifically, ‘‘[m]ost jurisdictions . . . recog-
nize the validity and, in a proper case, the enforceability
of covenants requiring consent to construction or
approval of plans even if those covenants do not contain
explicit standards for approval.’’ Cypress Gardens, Ltd.
v. Platt, 124 N.M. 472, 477, 952 P.2d 467 (App. 1997);
accord Dodge v. Carauna, 127 Wis. 2d 62, 66, 377 N.W.2d
208 (App. 1985) (‘‘[t]he result in jurisdictions that have
considered covenants lacking objective standards of
approval is generally consistent’’). An association’s
exercise of its ‘‘broad latitude in making aesthetic deci-
sions with respect to every type of improvement on the
property’’; Buick v. Highland Meadow Estates at Castle
Peak Ranch, Inc., 21 P.3d 860, 863 (Colo. 2001) (en
banc); nevertheless remains subject to a general stan-
dard of reasonableness. See, e.g., Rhue v. Cheyenne
Homes, Inc., supra, 168 Colo. 9 (‘‘a refusal to approve
plans must be reasonable and made in good faith and
must not be arbitrary or capricious’’); Kirkley v. Seipelt,
212 Md. 127, 133, 128 A.2d 430 (App. 1957) (‘‘any refusal
to approve the external design or location . . . would
have to be . . . a reasonable determination made in
good faith, and not high-handed, whimsical or captious
in manner’’); LeBlanc v. Webster, 483 S.W.2d 647, 650
(Mo. App. 1972) (‘‘we accept the validity of restrictions
requiring prior approval or consent . . . but . . . such
restrictions must be reasonably exercised’’); Cypress
Gardens, Ltd. v. Platt, supra, 124 N.M. 478 (plaintiff may
‘‘exercise its reserved authority to approve or reject’’
mobile homes ‘‘as long as it does so reasonably which
includes in good faith’’).
The Restatement (Third) of Property, Servitudes,
adopts such an approach. As the reporter’s note states,
it ‘‘follows the trend of modern statutes in taking an
expansive view of the powers of a property-owners
association with respect to . . . protection of property
values in the community through covenant enforcement
and other actions to advance the collective interests of
the common-interest community.’’ 2 Restatement
(Third), Property, Servitudes § 6.4, reporter’s note, p.
92 (2000). Although it disavows the existence of an
implied design control power; see id., § 6.9 and com-
ment (b), p. 171; the Restatement recognizes that the
exercise of an explicit design control power is ‘‘likely
to increase property values by preventing aesthetic nui-
sances’’; id., § 6.9, comment (d), p. 173; as such power
is ‘‘intended to protect the legitimate expectations of
members of common-interest communities.’’ Id., § 6.13,
comment (a), p. 234; accord Nahrstedt v. Lakeside Vil-
lage Condominium Assn., supra, 8 Cal. 4th 381
(‘‘[w]hen landowners express the intention to limit land
use, that intention should be carried out’’ [internal quo-
tation marks omitted]).
With respect to design control powers that vest dis-
cretion in an association to approve a proposed activity,
the Restatement notes ‘‘two kinds of risks for property
owners. [First, owners] may not be able to develop in
accordance with their expectations because they can-
not predict how [that discretion] will be applied. Sec-
ond, property owners may be subject to arbitrary or
discriminatory treatment because there are no stan-
dards against which the appropriateness of the power’s
exercise can be measured.’’ 2 Restatement (Third),
Property, Servitudes § 6.9, comment (d), p. 173 (2000).
To alleviate those risks, the Restatement imposes a
reasonableness standard on the exercise of discretion-
ary design control powers. Section 6.13 (1) provides in
relevant part that an association has the duty ‘‘to act
reasonably in the exercise of its discretionary powers
including rulemaking, enforcement, and design-control
powers . . . .’’24 Id., § 6.13 (1) (c), p. 233. The reason-
ableness standard ‘‘at its core, allows for an adjudicative
posture that honors the fundamental underpinnings of
association functioning and structure, is responsive to
association aims, takes into account investment-backed
owner expectations, and appreciates the potential for
abuse.’’ P. Franzese, ‘‘Common Interest Communities:
Standards of Review and Review of Standards,’’ 3 Wash.
U. J.L. & Policy 663, 669 (2000).
B
Weldy
In Weldy, our Supreme Court, in accordance with
courts throughout the country, recognized that a degree
of deference is warranted to an association exercising
its powers under a declaration. Relying on the
Restatement (Third) of Property, Servitudes, the court
observed that ‘‘declarations and other governing docu-
ments contain broad statements of general policy with
due notice that the board of directors is empowered to
implement these policies and address day-to-day prob-
lems in the [association’s] operation. . . . Thus, the
declaration should not be so narrowly construed so
as to eviscerate the association’s intended role as the
governing body of the community. Rather, a broad view
of the powers delegated to the association is justified
by the important role these communities play in main-
taining property values and providing municipal-like
services.’’ (Internal quotation marks omitted.) Weldy v.
Northbrook Condominium Assn., Inc., supra, 279
Conn. 737. The court continued: ‘‘Because an associa-
tion’s power should be interpreted broadly, the associa-
tion, through its appropriate governing body, is entitled
to exercise all powers of the community except those
reserved to the members. . . . This broad view of the
powers delegated to the [common interest communi-
ty’s] board of directors is consistent with the principle
inherent in the [common interest ownership] concept
. . . that to promote the health, happiness, and peace
of mind of the majority of the unit owners since they
are living in such close proximity and using facilities
in common, each unit owner must give up a certain
degree of freedom of choice which he might otherwise
enjoy in separate, privately owned property. . . .
[U]nit owners comprise a little democratic sub society
of necessity more restrictive as it pertains to [the] use
of [common interest] property than may be existent
outside’’ the common interest community. (Citations
omitted; internal quotation marks omitted.) Id., 738.
In so noting, our Supreme Court expressly relied on
Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d
180 (Fla. App. 1975), an early case that employed a
reasonableness standard of review to discretionary
association action. In that case, the court held that
‘‘the association is not at liberty to adopt arbitrary or
capricious rules bearing no relationship to the health,
happiness and enjoyment of life of the various unit
owners. On the contrary, we believe the test is reason-
ableness.’’ Id., 182. In another early decision addressing
the exercise of such discretion, the Court of Appeals
of Maryland similarly reasoned that ‘‘[t]he language
used in the covenants . . . makes plain the desire to
regulate the construction of the dwellings in such a
manner as to create an attractive and desirable neigh-
borhood. We think the parties had a right voluntarily
to make this kind of a contract between themselves;
and the covenant does not create any interference with
the fee of the property that would require it to be
stricken down as against public policy. It does not pre-
vent the owner from conveying the property or impose
any unlawful restraint of trade, but affects only its
method of use. We hold that any refusal to approve the
[proposed alterations] would have to be based upon a
reason that bears some relation to the other buildings
or the general plan of development; and this refusal
would have to be a reasonable determination made in
good faith, and not high-handed, whimsical or captious
in manner.’’ Kirkley v. Seipelt, supra, 212 Md. 133.
In Weldy, our Supreme Court instructed that review
of an association’s discretionary determinations
requires a two part inquiry. ‘‘When a court is called
upon to assess the validity of [an action taken] by [an
association], it first determines whether the [associa-
tion] acted within its scope of authority and, second,
whether the [action] reflects reasoned or arbitrary and
capricious decision making.’’ (Emphasis added; internal
quotation marks omitted.) Weldy v. Northbrook Condo-
minium Assn., Inc., supra, 279 Conn. 734. The first
part of that inquiry is consonant with prior precedent
indicating that the question of an association’s authority
to exercise certain rights under a declaration is gov-
erned by principles of contract interpretation. See Can-
tonbury Heights Condominium Assn., Inc. v. Local
Land Development, LLC, supra, 273 Conn. 734. The
second part of that inquiry entails application of a rea-
sonableness standard. Indeed, in its very next sentence,
the court in Weldy noted that only the first part of the
two part inquiry was at issue ‘‘[b]ecause the plaintiffs
do not contend that the [association’s discretionary
determination] is unreasonable . . . .’’25 Weldy v.
Northbrook Condominium Assn., Inc., supra, 734.
Weldy was decided by our Supreme Court in 2006.
The two part test articulated therein has therefore gov-
erned review of determinations by common interest
community associations in Connecticut for more than
one decade. See, e.g., Gugliemi v. Willowbrook Condo-
minium Assn., Inc., Superior Court, judicial district of
Hartford, Docket No. CV-11-6018687, 2013 Conn. Super.
LEXIS 700 (March 28, 2013) (applying Weldy’s two part
test), aff’d, 151 Conn. App. 806, 96 A.3d 634 (2014);
Weinstein v. Conyers Farm Corp., Superior Court, judi-
cial district of Stamford-Norwalk, Docket No. CV-X08-
106006978-S, 2012 Conn. Super. LEXIS 2683, *19 (Octo-
ber 31, 2012) (reciting Weldy’s two part test and con-
cluding that association’s imposition of condition on
construction approval was ‘‘reasonable’’); Bosco v.
Arrowhead by the Lake Assn., Inc., Superior Court,
judicial district of Waterbury, Docket No. CV-05-
4007579-S, 2008 Conn. Super. LEXIS 1106 (May 8, 2008)
(applying Weldy’s two part test).
C
Reasonableness
As courts across this state have recognized, Weldy
articulated a two part test that governs review of discre-
tionary association determinations. At the same time,
that case involved no claim as to whether the associa-
tion’s determination was reasonable, a distinction
underscored by our Supreme Court. Rather, ‘‘the only
issue before the court’’ was the authority of the associa-
tion. Weldy v. Northbrook Condominium Assn., Inc.,
supra, 279 Conn. 734. The present case, by contrast,
plainly involves a matter—specifically, the erection of
fencing on the plaintiffs’ unit—over which the associa-
tion is vested with discretionary design control author-
ity under the declaration. See Declaration of Rustle
Meadow, §§ 10.1 (k) and 13.1 (a) (ii).26 The plaintiffs
recognized that authority in submitting written propos-
als that invoked those provisions of the declaration and
requested the approval of the association thereunder.27
Furthermore, we note that the declaration provisions
in question themselves impart a reasonableness stan-
dard on the conduct of the association in exercising its
design control powers. See footnote 26 of this opinion.
Unlike Weldy, then, the issue before the court in this
case is the reasonableness of the association’s discre-
tionary determination.
A criticism of some decisions that apply a reasonable-
ness standard in this context is that they do so ‘‘without
defining what reasonable means.’’ W. Hyatt, ‘‘Common
Interest Communities: Evolution and Reinvention,’’ 31
J. Marshall L. Rev. 303, 354 (1998). For example, in
Hidden Harbour Estates, Inc. v. Norman, supra, 309
So. 2d 182, the court stated simply that ‘‘we believe
the test is reasonableness. If a rule is reasonable the
association can adopt it; if not, it cannot.’’ Given the
near universal recognition that a degree of deference
to discretionary association determinations is appro-
priate, courts in recent years have noted the need for
‘‘a more objective ‘reasonableness’ standard by which
to judge the discretionary actions of community associ-
ations.’’ Tierra Ranchos Homeowners Assn. v. Kitchu-
kov, supra, 216 Ariz. 200. An objective standard serves
to minimize the potential that trial judges will substitute
their subjective judgment for that of the entity explicitly
and contractually entrusted with discretionary author-
ity under the declaration.28 As the Restatement notes,
the proper application of the reasonableness standard
must ‘‘protect the collective decisionmaking processes
of common-interest communities from second-guessing
by the judiciary . . . .’’ 2 Restatement (Third), Prop-
erty, Servitudes § 6.13, comment (a), p. 235 (2000). A
standard that is objective in nature and deferential to
the exercise of association discretion nonetheless
affords meaningful review. See Lamden v. La Jolla
Shores Clubdominium Homeowners Assn., 21 Cal. 4th
249, 269, 980 P.2d 940, 87 Cal. Rptr. 2d 237 (1999)
(rejecting claim that ‘‘a rule of judicial deference will
insulate community association boards’ decisions from
judicial review’’ and stating that the ‘‘judicial oversight’’
provided under deferential standard ‘‘affords significant
protection against overreaching by such boards’’).
No Connecticut appellate court has addressed the
contours of the reasonableness metric in the context
of common interest ownership communities. It is appro-
priate, therefore, to look to other jurisdictions for guid-
ance. Weldy v. Northbrook Condominium Assn., Inc.,
supra, 279 Conn. 737.
Mindful of the deference accorded to associations
vested with discretionary authority, many courts have
held that a reasonableness analysis properly begins with
consideration of the rationale and stated bases for the
association’s determination. See Laguna Royale Own-
ers Assn. v. Darger, 119 Cal. App. 3d 670, 684, 174 Cal.
Rptr. 136 (1981) (‘‘[t]o determine whether or not [an]
[a]ssociation’s disapproval of [the proposed activity]
was reasonable it is necessary to isolate the reason or
reasons approval was withheld’’); McNamee v. Bishop
Trust Co., Ltd., supra, 62 Haw. 406 (reasonableness
analysis focuses on association’s ‘‘reasons for disap-
proving the [plaintiffs’] application’’); Cypress Gardens,
Ltd. v. Platt, supra, 124 N.M. 478 (‘‘[i]n determining
what is reasonable in such cases, the trial court should
consider the facts and circumstances surrounding’’ the
exercise of discretionary authority). In considering the
rationale underlying the association’s exercise of dis-
cretionary authority, a reviewing court should make
‘‘findings as to [the association’s] intent and objectives
[and] what substantial and reasonable interests would
be protected by enforcing the restriction,’’ as well as
‘‘findings as to the relation of the [proposed activity]
to its surroundings and other buildings and structures
in the subdivision.’’ Dodge v. Carauna, supra, 127 Wis.
2d 67. Such findings are ‘‘crucial to a determination of
the reasonableness’’ of an association’s discretionary
determination. Id.
Courts also give considerable weight to the purposes
underlying a common interest community. As one
stated, ‘‘[w]e hold that in exercising its [discretionary]
power . . . [the] [a]ssociation must act reasonably,
exercising its power in a fair and nondiscriminatory
manner and withholding approval only for a reason or
reasons rationally related to the protection, preserva-
tion and proper operation of the property and the pur-
poses of [the] [a]ssociation as set forth in its governing
instruments.’’ Laguna Royale Owners Assn. v. Darger,
supra, 119 Cal. App. 3d 680; see also Perry v. Bridge-
town Community Assn., Inc., 486 So. 2d 1230, 1234
(Miss. 1986) (‘‘[r]eview by the court must be guided by
the intent stated in the declaration’’); Lake at Twelve
Oaks Homes Assn., Inc. v. Hausman, supra, 488 S.W.3d
197 (focusing on ‘‘[t]he plain and obvious intent of the
[d]eclarations’’ and its ‘‘purposes’’ in reviewing associa-
tion exercise of design control discretion). Several com-
mentators have suggested that this is an integral, if not
predominant, consideration in evaluating the reason-
ableness of discretionary association action. See, e.g.,
P. Franzese, supra, 3 Wash. U. J.L. & Policy 687 (‘‘courts
ought to apply a reasonableness standard rooted in
consideration of the association’s legitimate objectives
and an assessment of the rational relationship of the
given action to those objectives’’); R. Ellickson, ‘‘Cities
and Homeowners Associations,’’ 130 U. Pa. L. Rev. 1519,
1530 (1982) (‘‘respect for private ordering requires a
court applying the reasonableness standard to comb
the association’s original documents to find the associa-
tion’s collective purposes, and then to determine
whether the association’s actions have been consonant
with those purposes’’). We agree that consideration of
the collective purposes of an association, as reflected
in its governing instruments, is essential to the proper
application of the reasonableness standard.
Accordingly, application of the reasonableness stan-
dard in the context of a challenge to discretionary asso-
ciation action cannot focus exclusively on the interests
of the disgruntled unit owner or the executive board
of an association. Rather, courts must remain cognizant
of the larger interest of the common interest commu-
nity. See Nahrstedt v. Lakeside Village Condominium
Assn., supra, 8 Cal. 4th 386 (reasonableness ‘‘to be deter-
mined not by reference to facts that are specific to the
objecting homeowner, but by reference to the common
interest development as a whole’’ [emphasis omitted]);
P. Franzese, supra, 3 Wash. U. J.L. & Policy 684 (noting
cases that ‘‘nicely advance a fact-specific approach
rooted not in the circumstances peculiar to the individ-
ual unit owner but instead in consideration of the given
community’s unique character and purposes when
viewed as a whole’’). As the Restatement recognizes,
restrictive covenants that vest discretionary authority
in an association are ‘‘intended to protect the legitimate
expectations of members of common-interest commu-
nities.’’ 2 Restatement (Third), Property, Servitudes
§ 6.13, comment (a), p. 234 (2000); see also Nahrstedt
v. Lakeside Village Condominium Assn., supra, 372
(‘‘[u]se restrictions are an inherent part of any common
interest development and are crucial to the stable,
planned environment of any shared ownership arrange-
ment’’); Rhue v. Cheyenne Homes, Inc., supra, 168 Colo.
8 (‘‘restrictive covenants . . . guarantee to the pur-
chaser that his house will be protected against adjacent
construction which will impair its value, and that a
general plan of construction will be followed’’); Riss
v. Angel, supra, 131 Wn. 2d 623–24 (urging ‘‘special
emphasis on [protecting] the homeowners’ collective
interests’’ [internal quotation marks omitted]). The
interests of that constituency must be considered in
applying the reasonableness standard.
At the same time, an association cannot exercise its
discretionary authority in an arbitrary or capricious
manner. Weldy v. Northbrook Condominium Assn.,
Inc., supra, 279 Conn. 734; see also Worthinglen Condo-
minium Unit Owners’ Assn. v. Brown, 57 Ohio App.
3d 73, 76, 566 N.E.2d 1275 (1989) (determination of
‘‘whether the decision or rule was arbitrary or capri-
cious’’ entails consideration of whether ‘‘there be some
rational relationship of the decision or rule to the safety
and enjoyment of the [common interest community]’’
[emphasis omitted]). That authority must be exercised
in good faith and not in a discriminatory manner. See
Worthinglen Condominium Unit Owners’ Assn. v.
Brown, supra, 76. Examples of conduct that substanti-
ated a finding that an association’s determination was
unreasonable include a case in which ‘‘there is no evi-
dence that the [association’s executive board] reason-
ably assessed the impact of’’ the proposed activity or
that it ‘‘visited the site, much less with an eye to neigh-
bors’ views or privacy’’; Riss v. Angel, supra, 131 Wn.
2d 628; and one in which the architectural control com-
mittee failed to ‘‘undertake . . . a minimum effort’’ to
visit ‘‘the proposed construction site’’ and failed to
ascertain ‘‘its impact on [neighboring] properties.’’ Leo-
nard v. Stoebling, 102 Nev. 543, 549, 728 P.2d 1358
(1986). The selective enforcement of a restriction
against a unit owner likewise has been deemed arbitrary
and unreasonable in certain circumstances. See White
Egret Condominium, Inc. v. Franklin, 379 So. 2d 346,
352 (Fla. 1979) (holding that use restriction in declara-
tion ‘‘was reasonably related to a lawful objective’’ but
association nonetheless ‘‘is estopped from selectively
enforcing [that] restriction’’). An association’s discre-
tionary design control determination also was deemed
arbitrary when ‘‘the record is devoid of an objective
showing that [the proposed activity is] aesthetically
disharmonious with the character of, or that [it]
detract[s] from, the quality of the neighborhood.’’ Kies
v. Hollub, 450 So. 2d 251, 256 (Fla. App. 1984). Similarly,
an association’s denial of permission for a unit owner
‘‘to proceed with [a] heating and air conditioning
upgrade’’; Billig v. Buckingham Towers Condominium
Assn. I, Inc., 287 N.J. Super. 551, 555, 671 A.2d 623
(App. 1996); was ‘‘not reasonable because the change
did not materially or appreciably affect the [common
interest community] property, the common elements,
the limited common elements, the collective interests
of the unit owners, or the interests of any individual
unit owner.’’ Id., 564. In all such cases, the specific
nature of the proposed activity was weighed against
the interests of the common interest community.
Before turning our attention to the decision of the
trial court, two additional aspects of the reasonableness
standard merit discussion. The first pertains to the allo-
cation of the burden of proof in an action in which a
unit owner in a common interest community challenges
an association’s discretionary decisionmaking.
Although our appellate courts have not addressed this
issue, we note that our Supreme Court in Weldy
expressly relied on the Restatement (Third) of Property,
Servitudes, in recognizing a broad view of the powers
delegated to the association and the corresponding def-
erence accorded thereto. See Weldy v. Northbrook Con-
dominium Assn., Inc., supra, 279 Conn. 737–38.
Addressing the duty of an association to act reasonably
in exercising discretionary powers, the Restatement
places the ‘‘burden of proving a breach of duty by the
association’’ on a unit owner ‘‘challenging an action of
the association under this section . . . .’’29 2
Restatement (Third), Property, Servitudes § 6.13 (2), p.
233 (2000). As the commentary explains, ‘‘the purpose
of this subsection is to protect the collective deci-
sionmaking processes of common-interest communi-
ties from second-guessing by the judiciary and to
protect the community from the expenses of too-ready
resort to litigation by disgruntled community members,
while at the same time protecting individual members
from improper management and imposition by those
in control of the association.’’ Id., § 6.13, comment (a),
p. 235. We believe that this allocation best comports
with the presumption, reflected in the act, of voluntary
participation of owners within a common interest own-
ership community; Wilcox v. Willard Shopping Center
Associates, supra, 208 Conn. 326; and the community’s
substantial interest in safeguarding the rights of all unit
owners; Weldy v. Northbrook Condominium Assn.,
Inc., supra, 738; who rely on the plan of development set
forth in the declaration being carried out. Mannweiler v.
LaFlamme, supra, 46 Conn. App. 536 (noting unit own-
ers’ interest in ‘‘the uniform development plan being
carried out’’).
Furthermore, a contrary result strikes us as illogical
in light of the deference accorded to associations in
matters involving discretionary determinations under a
declaration, as well as our Supreme Court’s ‘‘broad view
of the powers’’ delegated to an association in a common
interest community. Weldy v. Northbrook Condomin-
ium Assn., Inc., supra, 279 Conn. 738. It would be truly
bizarre if—in a civil action commenced by a unit owner
contesting an association’s discretionary decision-mak-
ing—the association, and not the party challenging the
determination, bore the burden to demonstrate that it
properly exercised that discretion.30 We concur with
the approach avowed in the Restatement and other
jurisdictions that places the burden on the challenging
party to demonstrate that an association or its executive
board improperly exercised the discretionary deci-
sionmaking authority accorded to it by the declaration
of a common interest community.
A second noteworthy aspect of the reasonableness
standard pertains to its inherent nature. As many courts
have recognized, the determination of whether an asso-
ciation reasonably exercised its discretion is a question
of fact.31 Connecticut law likewise recognizes that the
question of reasonableness presents an issue of fact.
See, e.g., Deming v. Nationwide Mutual Ins. Co., 279
Conn. 745, 759 n.15, 905 A.2d 623 (2006) (‘‘whether a
covenant is reasonable is a question of fact’’); Williams
Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 580,
657 A.2d 212 (1995) (‘‘[w]e have consistently held that
reasonableness is a question of fact for the trier to
determine based on all of the circumstances’’); National
Groups, LLC v. Nardi, 145 Conn. App. 189, 199, 75 A.3d
68 (2013) (reasonableness a question of fact for trier
to determine).
In Peterson v. Oxford, 189 Conn. 740, 745–46, 459
A.2d 100 (1983), our Supreme Court described the appli-
cation of a reasonableness standard as ‘‘a weighing
analysis’’ that entails consideration of ‘‘all the relevant
circumstances’’ and factors. Cf. Cypress Gardens, Ltd.
v. Platt, supra, 124 N.M. 478 (‘‘[i]n determining what is
reasonable . . . the trial court should consider the
facts and circumstances surrounding’’ the exercise of
discretionary design control authority); Shipler v. Van
Raden, 41 Or. App. 425, 429, 599 P.2d 1141 (1979)
(‘‘[r]estrictive covenants are to be construed in the light
of reasonableness under the circumstances’’). The pre-
sent case likewise calls for such a weighing analysis by
the trier of fact. With that standard in mind, we turn
to the decision of the trial court.
D
Trial Court Decision
On January 14, 2015, the court issued its memoran-
dum of decision. In that decision, the court specifically
addressed the propriety of the green zone and the asso-
ciation’s failure to approve the plaintiffs’ fence pro-
posal. It stated: ‘‘Is there a green zone? The short answer
is no. At the start of this trial, this court granted the
plaintiffs’ motion in limine prohibiting the defendants
from introducing any unrecorded maps or unrecorded
documents that show a green zone. The court found
that the green zone is not reasonable because it was
not in writing, that the green zone, being unwritten, is
not sufficient notice to a prospective buyer. . . . The
green zone as hereinbefore described is in the mind of
Miller, and there is nothing in writing in the declaration
or bylaws to indicate to anyone, including the plaintiffs,
that there is a green zone, namely, a fifteen foot wide
piece of land claimed by Miller from the boundary of
the plaintiffs’ in toward the rest of their property, a
distance of fifteen feet, surrounding the entire property
of the plaintiffs. Accordingly, this court finds that it
was illegal and inequitable for the association to deny
the applications for a fence around the pool in the green
zone hereinbefore described.’’ (Citation omitted.) In a
later portion of the decision concerning ‘‘the defen-
dants’ actions in restricting landscaping by the plain-
tiffs,’’ the court likewise noted that the conduct of the
association in ‘‘withholding . . . the approval for a
fence’’ was unreasonable because the ‘‘green zone . . .
did not exist in writing . . . .’’ On appeal, the defen-
dants contest the propriety of those determinations.
1
Motion in Limine
We begin with the defendants’ contention that the
court improperly granted the motion in limine to pre-
clude evidence relating to the green zone. The following
additional facts are relevant to that issue. One day prior
to trial, the plaintiffs filed a motion in limine seeking
to preclude any testimony or documentation ‘‘that
relates to the green zone.’’ The plaintiffs emphasized
that all restrictions on the use of property within a
common interest community are required to be
included in the declaration thereof. Because Miller
admitted in his deposition testimony that the term
‘‘green zone’’ is not contained in either the declaration
or any other material recorded on the Canton land
records, the plaintiffs argued that ‘‘the green zone is
clearly unenforceable’’ under the act.
When the court heard argument on the motion on
the first day of trial, the defendants’ counsel responded
by stating, ‘‘Your Honor, this motion in limine is a won-
derful way to start this case because it identifies where
the issues are, where the conflicts are’’ between the
parties. He emphasized that the declaration expressly
vests discretionary authority in the association to
approve or deny all exterior development and landscap-
ing within Rustle Meadow.32 At that time, counsel
brought Weldy to the court’s attention, which he
described as ‘‘the only . . . Supreme Court case on
point,’’ and furnished a copy of that decision to the
court. He stated that, in Weldy, ‘‘the [Supreme Court]
was called upon for the first time . . . to decide how
[to] deal with’’ the discretion of an association in a
common interest community. Noting the two part test
articulated therein, counsel explained that ‘‘the second
part of the test [asks whether] the homeowners’ associa-
tion acted reasonably or did it act arbitrarily and capri-
ciously.’’ The ultimate issue before the court, he
continued, was the determination of whether the associ-
ation reasonably exercised its discretionary authority.
Accordingly, he argued that evidence of the ‘‘green
zone’’ was both relevant and necessary to resolving
that issue.
The trial court did not agree with the defendants. It
stated: ‘‘The motion in limine is granted. . . . Appar-
ently [Miller] decided what the green zone is, and . . .
it doesn’t seem to me that it’s reasonable if it is not in
writing. If he wants to testify as to why he did what he
did, I don’t have a problem with that. I’ll evaluate that
as I will any other witness, but I’m . . . granting the
motion in limine because I don’t think that the so-called
green zone, being unwritten, is . . . sufficient notice
to the prospective buyer. I mean, [Miller] says in his
deposition that if you want to know what the green
zone is, ask me. I don’t think that’s sufficient. . . . [I]f
we’re talking about discretion, at this point I think that
is . . . beyond discretion.’’
The court thereafter excluded or redacted certain
evidence and testimony throughout the course of trial.
For example, the court redacted Miller’s statement that
‘‘[t]he [fifteen] foot green zone needs to be respected’’
from his July 22, 2008 e-mail to the plaintiffs, which
was sent prior to the construction of the swimming
pool. The court likewise redacted the plaintiffs’ July 23,
2008 response to that communication, in which they
stated that they were ‘‘confident that when the pool
and grading is done, the green zone will be at least the
[fifteen] feet. Looking at the [southeasterly] side yard,
it looks like the only area the dirt is encroaching is by
the side of the deck. Once [the] patio is in and we do
landscaping I am sure you will be pleased with the
amount of green we add or maintain.’’
On appeal, the defendants claim that the court
improperly excluded such evidence regarding the green
zone. ‘‘The scope of our appellate review depends upon
the proper characterization of the rulings made by the
trial court.’’ (Internal quotation marks omitted.) Olson
v. Accessory Controls & Equipment Corp., 254 Conn.
145, 156, 757 A.2d 14 (2000). Evidentiary claims ordi-
narily are governed by the abuse of discretion standard.
See, e.g., Klein v. Norwalk Hospital, 299 Conn. 241,
250 n.9, 9 A.3d 364 (2010). That deferential standard,
however, does not apply when ‘‘the trial court’s ruling
on the motion in limine . . . was based on [a] legal
determination . . . .’’ Duffy v. Flagg, 279 Conn. 682,
688–89, 905 A.2d 15 (2006). As the court indicated in
its memorandum of decision, its ruling on the motion
in limine was based on its legal determination that the
green zone needed to be in writing.33 Accordingly, the
applicable standard of review requires this court to
determine ‘‘whether the trial court was legally and logi-
cally correct when it decided, under the facts of the
case, to exclude evidence’’ of the green zone. Id., 689.
Our review, therefore, is plenary. See Robinson v.
Cianfarani, 314 Conn. 521, 525, 107 A.3d 375 (2014)
(when trial court draws conclusions of law, review is
plenary as to whether conclusions are legally and logi-
cally correct and find support in facts that appear in
record).
On appeal, the plaintiffs submit that the court prop-
erly determined that the green zone had to be in writing.
In so doing, however, they rely on decisional law arising
outside the context of common interest communities.
See, e.g., Wykeham Rise, LLC v. Federer, 305 Conn.
448, 52 A.3d 702 (2012); Katsoff v. Lucertini, 141 Conn.
74, 103 A.2d 812 (1954); Hooker v. Alexander, 129 Conn.
433, 29 A.2d 308 (1942); Kepple v. Dohrmann, 141 Conn.
App. 238, 60 A.3d 1031 (2013); DaSilva v. Barone, 83
Conn. App. 365, 849 A.2d 902, cert. denied, 271 Conn.
908, 859 A.2d 560 (2004); Grady v. Schmitz, 16 Conn.
App. 292, 547 A.2d 563, cert. denied, 209 Conn. 822, 551
A.2d 755 (1988); Marion Road Assn. v. Harlow, 1 Conn.
App. 329, 472 A.2d 785 (1984); Thompson v. Fairfield
Country Day School Corp., Superior Court, judicial dis-
trict of Fairfield, Docket No. CV-02-0396513 (November
20, 2003) (36 Conn. L. Rptr. 45); Witter v. Taggart, 78
N.Y.2d 234, 577 N.E.2d 338, 573 N.Y.S.2d 146 (1991);
Nature Conservancy v. Congel, 296 App. Div. 2d 840,
744 N.Y.S.2d 281, leave to appeal denied, 99 N.Y.2d 502,
782 N.E.2d 567, 752 N.Y.S.2d 589 (2002). There is no
indication in any of those cases that the restriction at
issue pertained to a common interest community or
involved a declaration of restrictive covenants that con-
ferred discretionary design control authority on an asso-
ciation thereof. Those decisions, therefore, are
inapposite to the present case.
The plaintiffs’ reliance on the statute of frauds like-
wise is untenable. Under Connecticut law, the statute
of frauds operates as a special defense to a civil action.
See, e.g., Suffield Development Associates Ltd. Partner-
ship v. Society for Savings, 243 Conn. 832, 835 n.5, 708
A.2d 1361 (1998) (noting that defendant raised ‘‘the
special defense of the statute of frauds’’); Levesque
Builders, Inc. v. Hoerle, 49 Conn. App. 751, 754, 717
A.2d 252 (1998) (‘‘[t]he defendant filed a special defense,
claiming that the contract was unenforceable because
it failed to comply with . . . the statute of frauds’’).
The statute of frauds provides in relevant part that ‘‘[n]o
civil action may be maintained in the following cases
unless the agreement, or a memorandum of the
agreement, is made in writing and signed by the party,
or the agent of the party, to be charged . . . (4) upon
any agreement for the sale of real property or any inter-
est in or concerning real property . . . .’’ (Emphasis
added.) General Statutes § 52-550 (a). In this case, how-
ever, it is the plaintiffs who have maintained the civil
action challenging the discretionary determination of
the association. Because ‘‘a special defense operates
as a shield, to defeat a cause of action, and not as a
sword, to seek a judicial remedy for a wrong’’; Bank
of America, N.A. v. Aubut, 167 Conn. App. 347, 374,
143 A.3d 638 (2016); the plaintiffs’ resort to the statute
of frauds in this case is unavailing.
More significantly, this is not a case that lacks a
written agreement. Under Connecticut law, restrictive
covenants in a common interest community must be
included in the declaration thereof; General Statutes
§ 47-224 (a) (12); which, in turn, must be filed on the
land records. General Statutes § 47-220 (a). Consistent
with that statutory imperative, the Declaration of Rustle
Meadow was recorded on the Canton land records prior
to the plaintiffs’ purchase of their unit in the common
interest community. That declaration contains numer-
ous restrictive covenants. At trial, the plaintiffs testified
that they reviewed the declaration prior to purchasing
their unit and were aware of the restrictive covenants
contained therein. See Dolan-King v. Rancho Santa Fe
Assn., 81 Cal. App. 4th 965, 971, 97 Cal. Rptr. 2d 280
(plaintiff ‘‘was aware of the [c]ovenant’s existence and
had ‘read over it’ before she agreed to purchase the
house’’), review denied, 2000 Cal. LEXIS 7972 (Cal.
October 3, 2000).
The declaration contains reciprocal provisions
regarding the association’s discretionary authority over
design control matters. See footnote 26 of this opinion.
Section 10.1 (k) of Article X vests sweeping design
control powers in the association, which, like those at
issue in Buick v. Highland Meadow Estates at Castle
Peak Ranch, Inc., supra, 21 P.3d 863, ‘‘grant the [associa-
tion] broad latitude in making aesthetic decisions with
respect to every type of improvement on the property
. . . .’’ The exercise of that broad discretion, however,
remains subject to a reasonableness standard, as § 10.1
(k) provides that approval thereunder ‘‘shall not be
unreasonably withheld.’’ Section 13.1 (a) (ii) of Article
XIII, in turn, expressly prohibits unit owners from mak-
ing ‘‘any changes, additions, alterations, or improve-
ments . . . in or on any Unit’’ without prior written
approval from the association in accordance with § 10.1
(k). At trial, Kristine Grovenburg acknowledged that
the association had discretion to approve all exterior
changes to her unit pursuant to the declaration and
that she was required to obtain its permission prior to
making any such alterations or improvements.
The record before us contains ample documentary
evidence indicating that the so-called ‘‘green zone’’ was
a criterion considered by the association in the exercise
of its discretionary design control authority under
§§ 10.1 (k) and 13.1 (a) of the declaration.34 In a portion
of deposition testimony that was admitted into evi-
dence, the plaintiffs’ counsel inquired as to Miller’s use
of the term ‘‘green zone’’ in communications with the
plaintiffs. The following colloquy transpired:
‘‘[The Plaintiffs’ Attorney]: Why did you use the word
Green Zone in your e-mail? . . .
‘‘[Miller]: Because—I used the phrase, fifteen foot
Green Zone, because I had discussed with the [plain-
tiffs] previously the fifteen foot Green Zone, and that’s
why I said it needed to be respected.
‘‘[The Plaintiffs’ Attorney]: Can you define the fifteen
foot Green Zone, please?
‘‘[Miller]: It’s a visual buffer that is one of the stan-
dards that the association uses to evaluate changes to
landscaping and—evaluate changes to landscaping and
the—in the conduct of its business of the subdivision.
‘‘[The Plaintiffs’ Attorney]: And it is sort of unclear.
When you were describing the Green Zone as a buffer,
can you just articulate what, in your definition, a fifteen
foot Green Zone is as it relates to the plaintiffs’
property?
‘‘[Miller]: ‘‘It’s an area where natural vegetation would
be protected and not removed, destroyed, cut, or in
other ways inhibited so as to provide a visual buffer
between adjoining building lots.’’
In his July 2, 2010 e-mail to the plaintiffs, Miller simi-
larly stated that ‘‘[t]he green zone falls within the author-
ity of the board in approving landscape changes after
construction. The ‘green zone’ is simply a term which
names a section of the land adjacent to the wooded
property lines where the association will tightly regulate
any landscape changes to maximize the visual buffer
between adjacent lots.’’ In a subsequent e-mail sent days
later, Miller informed the plaintiffs that ‘‘[m]aintaining
a visual buffer between lots in this community is a . . .
criteri[on] from which to make a decision . . . .’’ The
minutes of the association’s June 21, 2013 annual meet-
ing likewise reflect that discussion transpired on ‘‘the
need to maintain a visual green zone buffer between
units for privacy and to maintain the wooded character
of the community.’’ Similarly, when Miller contacted
the Canton building department in 2011, he made no
mention of any ‘‘green zone,’’ but rather indicated that
the plaintiffs had proposed a fence within a ‘‘visual
buffer zone.’’ That correspondence further indicated
that the plaintiffs’ proposal had been denied because
it ‘‘placed the fence unnecessarily within’’ that visual
buffer zone. (Emphasis added.)
Throughout this litigation, the defendants have con-
ceded that there is no reference to either the ‘‘green
zone’’ or that visual buffer area in the declaration or
other documents of Rustle Meadow. Courts across the
country nevertheless have rejected similar claims
regarding the lack of written, objective standards to
guide the exercise of broadly drawn design control pow-
ers.35 At the same time, the exercise of discretionary
design control powers that do not contain explicit stan-
dards remains subject to a reasonableness standard.36
The Restatement (Third) of Property, Servitudes, like-
wise provides that a common interest associations has
a duty ‘‘to act reasonably in the exercise of its discre-
tionary powers including rulemaking, enforcement, and
design-control powers . . . .’’ 2 Restatement (Third),
Property, Servitudes § 6.13 (1), p. 233 (2000). That stan-
dard is consistent with the broad view of powers dele-
gated to common interest associations espoused by our
Supreme Court in Weldy, as well as the precept that
restrictive covenants vesting broad discretionary
authority in an association are ‘‘intended to protect
the legitimate expectations of members of common-
interest communities.’’ Id., § 6.13, comment (a), p. 234.
Furthermore, we perceive a practical problem with
the position urged by the plaintiffs. If the discretionary
criteria to be considered by an association in exercising
its design control powers must be specifically enumer-
ated and explicated in writing, the size and complexity
of such covenants increases exponentially. Section 10.1
(k) of the declaration plainly confers on the association
the authority to evaluate aesthetic considerations. Yet,
as one court aptly observed, ‘‘[t]he covenant, by making
no attempt to set forth objective ‘aesthetic considera-
tions,’ implicitly recognizes, as do we, that it is impossi-
ble to establish absolute standards to guide a judgment
of taste.’’ Palmetto Dunes Resort v. Brown, 287 S.C.
1, 6–7, 336 S.E.2d 15 (App. 1985). ‘‘Great minds have
struggled for centuries to define aesthetic considera-
tions. . . . The law, in all its majesty, cannot compel
the definition of the indefinable.’’ (Citations omitted;
internal quotation marks omitted.) Id., 7 n.2; accord
Dolan-King v. Rancho Santa Fe Assn., supra, 81 Cal.
App. 4th 976 (restrictive covenant conferring discretion-
ary design control authority ‘‘expressly grants the
[a]ssociation . . . broad authority to apply standards
that are inherently subjective and by their nature cannot
be measured or quantified’’). As our precedent instructs,
determining what is reasonable necessarily entails con-
sideration of the specific circumstances and factors at
play in a given instance.37 Williams Ford, Inc. v. Hart-
ford Courant Co., supra, 232 Conn. 580; Peterson v.
Oxford, supra, 189 Conn. 745. The task of preparing a
compendium of all potentially relevant considerations
would be Sisyphean.
In Weldy, our Supreme Court adopted a ‘‘broad view’’
of the discretionary authority contractually accorded
to associations in common interest communities; Weldy
v. Northbrook Condominium Assn., Inc., supra, 279
Conn. 738; and set forth a reasonableness standard to
govern review thereof. In accordance with that prece-
dent, as well as the authority of sibling jurisdictions
discussed in this opinion and the Restatement (Third)
of Property, Servitudes, we conclude that a restrictive
covenant in a declaration of a common interest commu-
nity that confers broad design control authority on an
association need not specifically state the criteria to
be considered in the exercise of that authority. That
authority must be exercised reasonably, and not in an
arbitrary or capricious manner. Id., 734.
Whether termed a ‘‘green zone,’’ a ‘‘visual buffer,’’ or
a ‘‘visual green zone buffer,’’ evidence regarding that
criterion was highly relevant to the question of whether
the association reasonably exercised its discretionary
design control authority. In granting the motion in
limine, the court prohibited the defendants from intro-
ducing, inter alia, evidence (1) of the rationale for that
criterion, which impaired the court’s ability to deter-
mine whether the association’s exercise of discretion-
ary authority was based on legitimate interests of the
common interest community, (2) that the plaintiffs had
actual notice of that criterion prior to the construction
of their swimming pool, and (3) that the association
previously had permitted activity in the green zone area
of the plaintiffs’ unit when a septic system was installed.
The preclusion of such evidence was harmful, as it
likely affected the result in the present case. See Danko
v. Redway Enterprises, Inc., 254 Conn. 369, 383, 757
A.2d 1064 (2000). We, therefore, conclude that the court
improperly granted the motion in limine to preclude
evidence regarding the green zone.
2
Application of Reasonableness Standard
We next consider the defendants’ contention that
the trial court applied an improper legal standard in
evaluating the association’s exercise of its discretionary
design control authority regarding the plaintiffs’ fence
proposal. The defendants claim that the court’s analysis
departed from the mandate of Weldy, which espoused a
deferential view of discretionary association authority,
the exercise of which is governed by a standard of
reasonableness. At its essence, their claim is that the
court departed from that deferential posture and failed
to engage in a proper reasonableness analysis in the
context of common interest communities. We agree.
The court’s decision contains no reference to the act,
Weldy,38 or any authority from Connecticut or elsewhere
pertaining to common interest communities. Its sole
legal citation is to Busker v. United Illuminating Co.,
156 Conn. 456, 458, 242 A.2d 708 (1968), a case regarding
a real estate commission a half century ago that recites
the preponderance of the evidence standard generally
applicable to civil proceedings. Nothing in the court’s
decision acknowledges the considerable discretion
accorded the association under the applicable provi-
sions of the declaration; see footnote 26 of this opinion;
and the precedent of this state’s highest court, which
recognizes a ‘‘broad view of the powers delegated to’’
common interest associations under a declaration.
Weldy v. Northbrook Condominium Assn., Inc., supra,
279 Conn. 738; accord Dolan-King v. Rancho Santa Fe
Assn., supra, 81 Cal. App. 4th 978–79 (holding that trial
court ‘‘failed to apply the proper deferential standard
to test the [b]oard’s exercise of discretion’’ and instead
substituted ‘‘its own judgment based upon its own eval-
uation of [the plaintiff’s] applications’’).
The legal basis articulated in the court’s memoran-
dum of decision was its determination that the visual
buffer area known as the green zone was illegal and
unreasonable because it was not in writing. In part I D
1 of this opinion, we have explained why that determina-
tion is untenable. The critical inquiry, then, is whether
the association’s exercise of its design control authority
‘‘reflects reasoned or arbitrary and capricious decision
making.’’ (Internal quotation marks omitted.) Weldy v.
Northbrook Condominium Assn., Inc., supra, 279
Conn. 734.
Application of the reasonableness standard properly
begins with consideration of the association’s discre-
tionary determination and the reasons therefor. Regret-
tably, the court’s decision contains no discussion of
that essential component of a reasonableness analysis.
The record indicates that the association’s exercise of
its design control authority over the proposed fencing
on the plaintiffs’ unit was animated by two related inter-
ests—the desire to maintain a visual buffer to preserve
privacy within the common interest community, and
the desire to maintain the wooded character of that
community. In various correspondence with the plain-
tiffs, Miller, on behalf of the association, stated that
‘‘[t]he ‘green zone’ is simply a term which names a
section of the land adjacent to the wooded property
lines where the association will tightly regulate any
landscape changes to maximize the visual buffer
between adjacent lots.’’ The minutes of the association’s
June 21, 2013 annual meeting likewise reflect that ‘‘[d]is-
cussion was held regarding the visual buffer area
between units that the board calls the green zone,’’ and,
specifically, ‘‘the need to maintain a visual green zone
buffer between units for privacy and to maintain the
wooded character of the community.’’39 The trial court,
however, furnished no findings as to whether main-
taining privacy between units and preserving the
wooded character of the community were legitimate
interests of the common interest community.
There also is no indication that the trial court exam-
ined the governing instruments of the community to
ascertain the collective purposes of the association. We
note in this respect that although §§ 10.1 (k) and 13.1
(a) confer broad design control authority on the associa-
tion; see footnote 26 of this opinion; one aspect of
that authority is identified with particular specificity.
Section 13.1 (a) (ii) 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 to the Common Elements or make any
substantial change to the topography of a Unit or to
the Common Elements including the removal of trees,
without the prior written approval’’ of the association.
(Emphasis added.) Section 10.1 (k) likewise proscribes
the ‘‘removal of any trees without the prior written
consent’’ of the association. The court’s factual determi-
nation as to whether the association’s discretionary
action was reasonable must weigh the intent and pur-
pose of those explicit contractual provisions set forth
in the declaration. Lake at Twelve Oaks Homes Assn.,
Inc. v. Hausman, supra, 488 S.W.3d 197; see also
Laguna Royale Owners Assn. v. Darger, supra, 119 Cal.
App. 3d 680 (courts must consider ‘‘the purposes of [the]
[a]ssociation as set forth in its governing instruments’’);
Perry v. Bridgetown Community Assn., Inc., supra,
486 So. 2d 1234 (‘‘[r]eview by the court must be guided
by the intent stated in the declaration’’).
Had the court found that the interests proffered by
the association were legitimate ones, it next would have
to determine whether the association’s exercise of its
discretionary design control authority was rationally
related thereto. See, e.g., Laguna Royale Owners Assn.
v. Darger, supra, 119 Cal. App. 3d 680 (exercise of
discretionary authority must be ‘‘rationally related to
the protection, preservation and proper operation of
the property and the purposes of [the] [a]ssociation
as set forth in its governing instruments’’); Kirkley v.
Seipelt, supra, 212 Md. 133 (exercise of discretion must
be ‘‘based upon a reason that bears some relation to
the other [units] or the general plan of development’’);
Worthinglen Condominium Unit Owners’ Assn. v.
Brown, supra, 57 Ohio App. 3d 76 (determination of
‘‘whether the decision or rule was arbitrary or capri-
cious’’ entails consideration of whether ‘‘there be some
rational relationship of the decision or rule to the safety
and enjoyment of the [common interest community]’’
[emphasis omitted]).
The record is hampered by the fact that the court
did not make any findings as to the substance of the
proposal that the plaintiffs submitted to the associa-
tion.40 The undisputed documentary evidence in the
record indicates that, under the plaintiffs’ revised pro-
posal, fencing would be erected approximately eight
feet from the southeasterly properly line, with ‘‘Sca-
brida Clumping Bamboo’’ to be planted ‘‘every [six-
eight] feet’’ between the fence and the property line.
At the behest of the association, the plaintiffs also sub-
mitted written documentation indicating that ‘‘[t]he
bamboo grows [twelve-fourteen feet] tall by [three feet]
wide for each bush’’ and that this species ‘‘is non-inva-
sive, vigorous and easy to grow . . . .’’ Essential to any
determination of whether the association’s exercise of
its discretionary authority was reasonable are factual
findings as to the specifics of the plaintiffs’ proposal and
their relationship to the association’s stated interests in
maintaining privacy between units and preserving the
wooded character of the community.41 No such findings
are present in the court’s decision. Absent such factual
findings, a court reviewing the discretionary determina-
tion of an association cannot properly ascertain
whether any legitimate interests of the common interest
community justify the denial of a proposed activity.
See, e.g., Dodge v. Carauna, supra, 127 Wis. 2d 67 (find-
ings as to ‘‘what substantial and reasonable interests
would be protected by enforcing the restriction’’ are
‘‘crucial to a determination of the reasonableness’’
standard).
The record is further impaired by the court’s errone-
ous granting of the motion in limine, which we dis-
cussed in part I D 1 of this opinion. As a result, the
defendants were precluded from presenting relevant
and probative evidence regarding the visual buffer area
known as the green zone. For example, the defendants
at trial attempted to introduce into evidence documen-
tation of the location of a septic system that was
installed on the plaintiffs’ property. When the court
inquired as to ‘‘the purpose’’ of such evidence, their
counsel noted that the septic system was shown on
that document to be ‘‘well within’’ the green zone area.
Counsel thus argued that the document undermined
any claim ‘‘of the green zone being this absolute, incon-
trovertible thing . . . .’’ After Miller confirmed that the
document was on file with the town health department,
the defendants’ counsel stated that ‘‘what it goes to is
the idea that there’s this inviolate green zone that cannot
be touched, and . . . this simply shows the location
of the septic system within that area . . . much closer
to the lot line.’’ The plaintiffs’ attorney objected on the
basis of the court’s prior ruling on the motion in limine.
The court sustained that objection, stating, ‘‘I don’t see
the relevance of this at all,’’ and thus precluded evidence
of that intrusion into the green zone.42
In granting the motion in limine, the court also fore-
closed the introduction of evidence as to whether the
plaintiffs had actual notice of the green zone, as the
defendants steadfastly maintained. As this court has
observed, ‘‘[t]he concept of notice concerns notions of
fundamental fairness, affording parties the opportunity
to be apprised when their interests are implicated in a
given matter. . . . [T]he modern approach to notice-
giving attaches primary importance to actual notice and
treats technical compliance with notice procedures as
a secondary consideration.’’ (Citations omitted; internal
quotation marks omitted.) Twenty-Four Merrill Street
Condominium Assn., Inc. v. Murray, 96 Conn. App.
616, 622–23, 902 A.2d 24 (2006); cf. O’Connor v. Lar-
ocque, 302 Conn. 562, 611 n.5, 31 A.3d 1 (2011) (notice
is question of fact to be resolved by trier of fact). At
trial, the defendants attempted to admit into evidence
multiple written correspondences in which the plain-
tiffs affirmatively discussed the green zone. For exam-
ple, the court declined to admit the plaintiffs’ statement
in their July 27, 2008 e-mail to Miller—sent prior to the
construction of the swimming pool—that the plaintiffs
were ‘‘confident that when the pool and grading is done,
the green zone will be at least the [fifteen] feet. . . .
Once [the] patio is in and we do landscaping I am sure
you will be pleased with the amount of green we add
or maintain.’’43 The issue of the plaintiffs’ notice of the
green zone is yet another unresolved factual matter that
a reviewing court must consider in weighing ‘‘all the
relevant circumstances’’; Peterson v. Oxford, supra, 189
Conn. 745; to determine whether the association’s exer-
cise of discretionary authority was reasonable in the
present case.
The court appears to have deemed the ‘‘green zone’’
visual buffer area to be a blanket restriction barring
all use of that portion of the plaintiffs’ unit. Such a
determination is problematic for a number of reasons.
First, the court’s granting of the motion in limine pre-
cluded the defendants from offering documentary and
testimonial evidence as to the nature of the green zone
and how it had been implemented by the association
over the years, such as evidence that a septic system
was permitted in that area. Second, it is contrary to
undisputed evidence in the record indicating that the
association entertained proposed intrusions into that
area. The record includes Miller’s e-mail response to
the plaintiffs’ initial fence proposal, in which he
informed them that the proposed fence ‘‘will most likely
not be approved any closer than [fifteen] feet to the
property line.’’ (Emphasis added.) The record also
reflects that the association never denied the plaintiffs’
revised proposal for a fence ‘‘approximately eight feet’’
from the southeasterly side yard property line. Rather,
the association requested additional information on the
nature of certain plantings that were proposed along
the property line, and their ‘‘mature height’’ specifically.
Furthermore, it is undisputed that the parties thereafter
engaged in negotiations over the course of several
months—well before the commencement of this litiga-
tion—in an attempt to work ‘‘out [the] details of a settle-
ment.’’44 The association’s willingness to engage in such
negotiations and to consider the revised proposal with
specific plantings cannot be reconciled with a determi-
nation that the green zone was a blanket prohibition
applied by the association. See, e.g., Chateau Village
North Condominium Assn. v. Jordan, 643 P.2d 791,
792–93 (Colo. App. 1982) (association board improperly
applied blanket policy against unit owner by failing to
even consider ‘‘the facts of [the owner’s] individual
application’’). Here, the record plainly indicates that
the association did not summarily deny the plaintiffs’
proposal, as that proposal remained pending at the time
that the plaintiffs commenced this action.45 The manner
and extent to which the association considered the
particular facts of the plaintiffs’ proposal is but another
unresolved factual issue relevant to the court’s
weighing analysis.
As we have observed, the reasonableness of the asso-
ciation’s exercise of discretionary design control
authority involves a question of fact. Resolution of that
factual question necessarily is beyond the purview of
an appellate court, as ‘‘it is axiomatic that this appellate
body does not engage in fact-finding.’’46 Hogan v.
Lagosz, 124 Conn. App. 602, 618, 6 A.3d 112 (2010), cert.
denied, 299 Conn. 923, 11 A.3d 151 (2011). Connecticut’s
appellate courts ‘‘cannot find facts; that function is,
according to our constitution, our statute, and our
cases, exclusively assigned to the trial courts.’’ Weil v.
Miller, 185 Conn. 495, 502, 441 A.2d 142 (1981). Accord-
ingly, a remand to the trial court for a new trial is
necessary. As the Colorado Court of Appeals noted
in a similar appeal, ‘‘[t]he determination of whether a
homeowners association has acted reasonably or arbi-
trarily is a question of fact. . . . Therefore, we con-
clude that . . . we must remand this case to the trial
court for a determination . . . of the question of fact
of whether the association acted reasonably when it
denied the homeowners’ plan.’’ (Citation omitted.)
Gleneagle Civic Assn. v. Hardin, supra, 205 P.3d 470;
accord Cypress Gardens, Ltd. v. Platt, supra, 124 N.M.
478 (remanding to trial court for factual determination
and noting that ‘‘[i]n determining what is reasonable in
such cases, the trial court should consider the facts
and circumstances surrounding the application of’’ dis-
cretionary design control authority); Worthinglen Con-
dominium Unit Owners’ Assn. v. Brown, supra, 57
Ohio App. 3d 78 (remanding to trial court ‘‘for consider-
ation of the reasonableness’’ of association’s discretion-
ary determination); Dodge v. Carauna, supra, 127 Wis.
2d 67 (noting that ‘‘[a] number of findings crucial to a
determination of the reasonableness’’ of discretionary
determination ‘‘are missing’’ and remanding matter to
trial court for further proceedings).
3
Conclusion
In light of the foregoing, we agree with the defendants
that the court failed to properly apply the legal standard
governing review of discretionary decisionmaking
authority by the association. Such review is not gov-
erned by the preponderance of the evidence standard
generally applicable to civil proceedings.47 Rather,
Weldy directs a court reviewing the exercise of discre-
tionary association action to engage in a two part analy-
sis, the latter of which requires a finding as to whether
the association’s determination was reasonable. Weldy
v. Northbrook Condominium Assn., Inc., supra, 279
Conn. 734. Proper application of that reasonableness
standard, in turn, requires certain predicate findings
that are lacking in the present case. We therefore
remand the matter to the trial court for a new trial with
direction to apply that legal standard.
On remand, in rendering a factual finding on the issue
of reasonableness, the trial court must objectively
weigh the relevant circumstances and factors. Williams
Ford, Inc. v. Hartford Courant Co., supra, 232 Conn.
580; Peterson v. Oxford, supra, 189 Conn. 745–46.
Included among those are the rationales proffered by
the association for its exercise of discretionary author-
ity; the specific nature of the activity proposed by the
plaintiffs; the relationship between any legitimate inter-
ests of the association and its exercise of discretionary
authority; the purposes of the association and the gen-
eral plan of development for the common interest com-
munity, as reflected in its governing instruments; and
the extent to which discretionary authority was exer-
cised in good faith or in an arbitrary manner.48 In so
doing, the trial court must heed our Supreme Court’s
‘‘broad view of the powers delegated’’ to the association
of a common interest community; Weldy v. Northbrook
Condominium Assn., Inc., supra, 279 Conn. 738; and
remain ever cognizant of the collective interest of the
common interest community. See Dolan-King v. Ran-
cho Santa Fe Assn., supra, 81 Cal. App. 4th 975 (‘‘courts
do not conduct a case-by-case analysis of the restric-
tions to determine the effect on an individual home-
owner [but rather] must consider the reasonableness
of the restrictions by looking at the goals and concerns
of the entire development’’). The court should ‘‘carefully
and overtly balance the competing interests at stake,
being sensitive to the purposes and fabric of the given
community when taken as a whole.’’ P. Franzese, supra,
3 Wash. U. J.L. & Policy 671.
E
Alternative Ground of Affirmance
In their appellate brief, the plaintiffs address an alter-
native ground of affirmance—namely, that ‘‘the green
zone is a rule that was required to be adopted through
the association’s rule making process. . . . Because
the green zone was not properly adopted by the [a]ssoci-
ation, it is invalid as a matter of law.’’49 We perceive
multiple problems with that contention.
It is undisputed that the plaintiffs’ alternative ground
never was raised before, or decided by, the trial court.
See Connecticut Ins. Guaranty Assn. v. Fontaine, 278
Conn. 779, 784 n.4, 900 A.2d 18 (2006) (alternative
grounds for affirmance must be raised before trial
court); New Haven v. Bonner, 272 Conn. 489, 497–99,
863 A.2d 680 (2005) (declining to consider alternative
ground for affirmance that was not raised before trial
court). ‘‘It is fundamental that claims of error must be
distinctly raised and decided in the trial court.’’ State
v. Faison, 112 Conn. App. 373, 379, 962 A.2d 860, cert.
denied, 291 Conn. 903, 967 A.2d 507 (2009). Our rules
of practice require a party, as a prerequisite to appellate
review, to distinctly raise such claims before the trial
court. See Practice Book § 5-2 (‘‘[a]ny party intending
to raise any question of law which may be the subject
of an appeal must . . . state the question distinctly to
the judicial authority’’); see also Remillard v. Remil-
lard, 297 Conn. 345, 351, 999 A.2d 713 (2010) (raised
distinctly means party must bring to attention of trial
court precise matter on which decision is being asked).
As our Supreme Court has explained, ‘‘[t]he reason for
the rule is obvious: to permit a party to raise a claim
on appeal that has not been raised at trial—after it is
too late for the trial court or the opposing party to
address the claim—would encourage trial by ambus-
cade, which is unfair to both the trial court and the
opposing party.’’ (Internal quotation marks omitted.)
Travelers Casualty & Surety Co. of America v. Nether-
lands Ins. Co., 312 Conn. 714, 761–62, 95 A.3d 1031
(2014). For that reason, Connecticut appellate courts
generally ‘‘will not address issues not decided by the
trial court.’’ Willow Springs Condominium Assn., Inc.
v. Seventh BRT Development Corp., 245 Conn. 1, 52,
717 A.2d 77 (1998); see also Crest Pontiac Cadillac,
Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670
(1996) (claims ‘‘neither addressed nor decided’’ by trial
court are not properly before appellate tribunal).
Furthermore, the factual predicate of the plaintiffs’
claim is lacking, as the record before us contains no
detailed findings as to the nature of the visual buffer
area referred to as the green zone and how it was
adopted and implemented in Rustle Meadow. In that
respect, we note that the court, in granting the plaintiffs’
motion in limine, severely curtailed the defendants’ abil-
ity to introduce evidence relevant to that issue. Indeed,
the defendants were precluded from presenting evi-
dence that the plaintiffs ‘‘had acknowledged in writing
the need to maintain a visual green zone buffer between
units for privacy and to maintain the wooded character
of the community,’’ as the minutes of the association’s
July 21, 2013 meeting reflect. See New Haven v. Bonner,
supra, 272 Conn. 499 (declining to review alternative
ground of affirmance because ‘‘factual predicate’’ of
whether defendant received notice ‘‘is not part of this
record’’); cf. McNamee v. Bishop Trust Co., Ltd., supra,
62 Haw. 407 (plaintiff unit owners ‘‘had actual notice’’
of association’s unwritten design control criteria). With-
out the requisite factual findings, this court cannot
engage in a meaningful review of the plaintiffs’ con-
tention. See New Haven v. Bonner, supra, 499.
We note that, in resolving the principal issue in this
appeal, we have concluded that a remand to the trial
court for a new trial is necessary. See parts I D 2 and
3 of this opinion. On remand, the plaintiffs are free to
pursue the claim underlying their alternative ground
of affirmance, at which time the parties will have an
opportunity to present evidence on that issue.
II
The defendants next contend that the court improp-
erly ruled in favor of the plaintiffs on the defendants’
counterclaim, in which they sought to recover unpaid
fines issued against the plaintiffs. The defendants main-
tain that the court (1) improperly set aside fines
imposed by the association for (a) certain landscaping
violations by the plaintiffs and (b) the removal of a
metal boundary marker from the corner of the plaintiffs’
unit, and (2) improperly declined to render an award
of attorney’s fees in their favor. We address each claim
in turn.
A
We first consider the propriety of the fines levied
by the association against the plaintiffs. Pursuant to
General Statutes § 47-244 (a) (11), a common interest
association ‘‘[m]ay impose charges or interest or both
for late payment of assessments and, after notice and
an opportunity to be heard, levy reasonable fines for
violations of the declaration, bylaws, rules and regula-
tions of the association . . . .’’ Section 25.2 (m) of Arti-
cle XXV of the declaration likewise provides that the
board may ‘‘[i]mpose charges or interest or both for
late payment of assessments and, after [n]otice and
[h]earing, levy reasonable fines for violations of this
[d]eclaration, and the [b]ylaws, [r]ules and regulations
of the [a]ssociation.’’50 Section 2.2 (m) of the association
bylaws repeats verbatim that provision of the declara-
tion. Section 5.2 of the bylaws further provides that
‘‘following [n]otice and [h]earing, the [board] may levy
a fine of up to $50 for a violation of the [d]ocuments
or [r]ules and $10 per day thereafter for each day that
a violation . . . persists after such [n]otice and [h]ear-
ing, but such amount shall not exceed the amount nec-
essary to insure compliance with the rule or order of
the [board].’’
‘‘To protect the financial integrity of common interest
communities’’; Coach Run Condominium, Inc. v. Fur-
niss, 136 Conn. App. 698, 704, 47 A.3d 413 (2012); the
act provides that an ‘‘association has a statutory lien
on a unit for any assessment attributable to that unit
or fines imposed against its unit owner . . . .’’ General
Statutes § 47-258 (a). As one Connecticut court has
noted, in an action maintained by a common interest
association to recover fines imposed on a unit owner,
‘‘the plaintiff has the burden of proving that the fines
. . . were validly imposed . . . .’’ Brookside Condo-
minium Assn., Inc. v. Hargrove, Superior Court, judi-
cial district of Stamford-Norwalk, Docket No. CV-13-
6017151-S, 2013 Conn. Super. LEXIS 2706, *16 (Novem-
ber 26, 2013).
1
Landscaping Fines
In their counterclaim, the defendants alleged that
the plaintiffs violated the declaration ‘‘by removing or
cutting trees, plants and shrubs, installing weed fabric
and grass in the green zone and applying defoliant in
that area . . . without permission of the association.’’
The association thus assessed fines ‘‘in the amount of
$10 per day,’’ which totaled $15,530 at the time that the
counterclaim was filed. In its memorandum of decision,
the court analyzed the propriety of those fines as fol-
lows: ‘‘The court finds that there was no green zone by
which the plaintiffs were bound and, therefore, [those]
fines were illegal and inequitable.’’ The court also found
that approval for such activities ‘‘was unreasonably
withheld’’ by the association.
Contrary to that latter finding, it is undisputed that
the plaintiffs never requested permission from the asso-
ciation to conduct landscaping activity on their unit, as
required by §§ 10.1 (k) and 13.1 (a) of the declaration.
There thus is no evidence in the record to support a
finding that the association withheld approval therefor.
The court predicated its decision on the notion that
the green zone was illegal, which we dispelled in part
I D 1 of this opinion. The court also remarked, in a
one sentence footnote to its analysis, that ‘‘[m]oreover,
there is insufficient evidence that it is the plaintiffs who
cut trees, altered or removed foliage’’ on their unit. Yet
the plaintiffs at trial did not disavow their involvement
in that landscaping activity,51 nor have they done so on
appeal.52 Furthermore, in accordance with its ruling on
the motion in limine, the court precluded the defendants
from cross-examining the plaintiffs on landscaping con-
ducted within the green zone, stating in relevant part
that ‘‘[i]f it’s in the green zone, then it is irrelevant, as
far as I’m concerned. . . . If you want to get into land-
scaping outside that fifteen foot buffer, you’re free to
do so, but not within the fifteen foot buffer.’’
The court’s focus on the identity of the actors who
performed the landscaping work on the plaintiffs’ unit
also obscures the more elemental factual issue of
whether such unauthorized activity took place. Section
10.1 (k) declaration expressly requires the written con-
sent of the association prior to the commencement of
such landscaping activity on units within Rustle
Meadow. The record contains testimonial and docu-
mentary evidence depicting specific landscaping activ-
ity on the plaintiffs’ unit, including photographs thereof.
Consideration of that evidence is essential to a proper
determination of whether the association’s exercise of
its authority to impose fines was warranted. Yet the
court made no findings as to whether such landscaping
activity transpired on the plaintiffs’ unit or whether
the association’s decision to take enforcement action
against the plaintiffs was arbitrary. See General Statutes
§ 47-244 (h). The court likewise did not determine
whether the fines imposed by the association exceeded
‘‘the amount necessary to insure compliance with’’ the
rules at issue, in contravention of § 5.2 of the associa-
tion’s bylaws. We therefore conclude that the court
improperly set aside the fines assessed against the plain-
tiffs for unauthorized landscaping activity. The case,
therefore, must be remanded for a new trial, at which
the trial court shall properly consider the fines imposed
by the association for any unauthorized landscaping
activity in accordance with the foregoing.
2
Boundary Marker Fines
The defendants also imposed fines in the amount
of $9180 for the plaintiffs’ alleged removal of a metal
boundary marker from a corner of their unit. In its
decision, the court concluded that the defendants failed
to prove that the plaintiffs removed or altered the
boundary marker. It therefore concluded that those
fines were improper.
The record before us substantiates that determina-
tion. At an association hearing convened to address the
matter, the plaintiffs denied any involvement in the
removal of the marker in question. As Duane
Grovenburg testified at trial, they indicated at that hear-
ing ‘‘that we were never aware that there was a metal
stake.’’53 Kristine Grovenburg similarly was asked
whether she agreed with the accusation that they had
removed the stake in question. She testified: ‘‘No, I do
not agree with that. I—we don’t even know what he’s
talking about. We’ve never seen a stake in [that] location
. . . .’’ The court, as arbiter of credibility, was free
to credit that testimony. See Brett Stone Painting &
Maintenance, LLC v. New England Bank, 143 Conn.
App. 671, 683, 72 A.3d 1121 (2013).
In addition, Miller acknowledged in his testimony
that the association had no video, electronic, or photo-
graphic evidence of the plaintiffs interfering with or
removing the marker in question. He further conceded
that there was no eyewitness evidence thereof. In light
of the foregoing, we agree with the trial court that the
defendants failed to meet their burden of demonstrating
that the fines for removing the metal boundary marker
were properly imposed.
B
We next address the court’s denial of the defendants’
claim for attorney’s fees on the counterclaim. The
defendants contend that, to the extent that they prevail
on their counterclaim, such an award is warranted pur-
suant to General Statutes § 47-278 (a).
Section 47-278 (a) provides that ‘‘[a] declarant, associ-
ation, unit owner or any other person subject to this
chapter may bring an action to enforce a right granted
or obligation imposed by this chapter, the declaration or
the bylaws. The court may award reasonable attorney’s
fees and costs.’’ Whether to award attorney’s fees is a
quintessential example of a matter entrusted to the
sound discretion of the trial court. See, e.g., Fairchild
Heights Residents Assn., Inc. v. Fairchild Heights, Inc.,
310 Conn. 797, 825, 82 A.3d 602 (2014) (‘‘attorney’s fees
. . . are awarded at the discretion of the court’’);
Grimm v. Grimm, 276 Conn. 377, 397, 886 A.2d 391
(2005) (‘‘[w]hether to allow counsel fees . . . and if
so in what amount, calls for the exercise of judicial
discretion’’ [internal quotation marks omitted]), cert.
denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815
(2006); Unkelbach v. McNary, 244 Conn. 350, 374, 710
A.2d 717 (1998) (‘‘[a]n abuse of discretion in granting
counsel fees will be found only if [an appellate court]
determines that the trial court could not reasonably
have concluded as it did’’ [internal quotation marks
omitted]); McHugh v. Niantic Dockominium Assn.,
Inc., Superior Court, judicial district of New London,
Docket No. CV-04-0568170, 2005 Conn. Super. LEXIS
958, *5 (April 4, 2005) (‘‘it is entirely within the court’s
discretion to award [attorney’s] fees or costs’’ under
§ 47-278 [a]). The defendants in this appeal have not
suggested otherwise.
In part II A 2 of this opinion, we concluded that the
trial court properly determined that the defendants did
not meet their burden to establish the validity of fines
related to the boundary marker. They therefore cannot
recover attorney’s fees on that portion of the counter-
claim. In part II A 1, however, we concluded that a new
trial is necessary on the issue of the imposition of fines
by the association for the allegedly unauthorized land-
scaping activity. On remand, the trial court shall first
determine the propriety of those landscaping fines.
Should the court rule in the defendants’ favor, it then
shall determine whether an award of attorney’s fees on
that count of the counterclaim is appropriate.
III
The defendants also maintain that the court improp-
erly invalidated a special assessment of the association.
The following additional facts are relevant to that claim.
After retaining legal counsel, the association levied a
special assessment against all unit owners beginning in
January, 2013. Miller testified that the special assess-
ment was issued ‘‘[t]o cover the association’s legal
expenses’’ stemming from the present controversy with
the plaintiffs. At trial, the court opined that the associa-
tion’s decision to retain counsel at that time was ‘‘pru-
dent.’’ In addition, the plaintiffs introduced into
evidence a document detailing their monthly payments
to the association for the special assessment.
In its memorandum of decision, the court did not
mention that special assessment. Although the court
ruled in favor of the plaintiffs in several respects, the
only relief that related to assessments of any kind was
the order requiring the defendants to remove ‘‘any liens’’
that had been filed against the plaintiffs’ unit.
Following the commencement of this appeal, the
plaintiffs filed a motion for contempt with the trial
court, claiming, inter alia, that the defendants had ‘‘con-
tinu[ed] to impose an assessment (i.e., a lien) on the
[plaintiffs’ unit] . . . .’’ In response, the defendants
filed an objection, in which they averred that ‘‘[n]o liens
had been filed. There was no evidence of any liens on
[the] plaintiffs’ property. No action was required by the
association to comply with this directive: there was no
lien to remove.’’ In its April 6, 2015 order, the court
denied the plaintiffs’ motion for contempt, specifically
crediting the representation of the defendants’ counsel
that no liens have been filed against the plaintiffs’ unit.
The court nonetheless ordered that ‘‘[t]he association
is to remove any assessment against the plaintiffs for
legal fees related to this case and any legal fees from
here on in related to this case, which the court declares
said fees to be null and void.’’ The defendants thereafter
filed an amended appeal with this court to encompass
that additional ruling.
As a preliminary matter, we note that the act specifi-
cally addresses the allocation of common expenses54
within a common interest community. General Statutes
§ 47-226 (b) requires a declaration thereof to ‘‘state the
formulas used to establish allocations of interests.
. . .’’ General Statutes § 47-257 (b), in turn, provides,
with limited exceptions not germane to this appeal, that
‘‘all common expenses shall be assessed against all the
units in accordance with the allocations set forth in
the declaration . . . .’’ (Emphasis added.)
Article XIX of the declaration concerns the assess-
ment and collection of common expenses. Reflecting
the rather unique nature of Rustle Meadow as a common
interest equine community, § 19.2 divides such
expenses into three categories: (1) equestrian facility
common expenses; (2) horse stall common expenses;
and (3) general association common expenses. The
third category is relevant to this appeal, as it includes
‘‘[a]ll other Common Expenses which are not Eques-
trian Facility Common Expenses or Horse Stall Com-
mon Expenses.’’ The special assessment for legal
expenses falls under that third category.
Mirroring the language of General Statutes § 47-257
(b), § 19.3 of the declaration provides that common
expenses ‘‘shall be assessed against all Units in accor-
dance with their percentage interest in such Common
Expenses as shown on Schedule A-2 to this [d]eclara-
tion.’’ Under both the declaration and the act, then,
assessments for common expenses must be appor-
tioned equally among unit owners in accordance with
their respective allocations. Furthermore, § 25.2 (c) of
the declaration and § 2.2 (c) of the bylaws confer on
the board the authority to ‘‘[c]ollect assessments for
Common Expenses from Unit Owners . . . .’’ We reit-
erate that, in Weldy, our Supreme Court adopted a
‘‘broad view of the powers delegated’’ to a common
interest association under a declaration. Weldy v. North-
brook Condominium Assn., Inc., supra, 279 Conn. 738.
Significantly, the plaintiffs never have claimed that
the association improperly imposed the special assess-
ment or that it was apportioned in a manner contrary
to the dictates of the act or the declaration. It also is
undisputed that the plaintiffs paid their portion of that
special assessment on a monthly basis for approxi-
mately two years, as documented in the written
accounting that they introduced into evidence at trial.
Moreover, the plaintiffs raised no claim regarding that
special assessment in their operative complaint.
Although their prayer for relief sought ‘‘[a]n order that
all statutory liens arising from fines and/or penalties
assessed against the plaintiffs by the association from
the beginning of time to date are removed, discharged
and declared null and void,’’ the special assessment
arose neither from a fine nor a penalty assessed against
the plaintiffs, but rather was a common expense
assessed against all unit owners in accordance with the
requirements of the declaration and the act. There also
is no evidence in the record before us that the associa-
tion filed a statutory lien against the plaintiffs regarding
that special assessment.
In its order on the plaintiffs’ postjudgment motion
for contempt, the court declared the special assessment
‘‘null and void’’ with respect to the plaintiffs. The court
provided no authority to support that ruling. The plain-
tiffs on appeal likewise have provided this court with
no authority for that action, apart from reciting the
general proposition that our courts are vested with
broad latitude in fashioning equitable relief. See, e.g.,
Broadnax v. New Haven, 270 Conn. 133, 170, 851 A.2d
1113 (2004). Even under that liberal standard, the ruling
of the court cannot stand.
When a court grants equitable relief, its ‘‘ruling can
be reviewed only for the purpose of determining
whether the decision was based on an erroneous state-
ment of law or an abuse of discretion.’’ (Internal quota-
tion marks omitted.) Id. We conclude that the court’s
declaration that the special assessment was ‘‘null and
void’’ was based on an erroneous statement of law—
specifically, its determination that the visual buffer zone
was ‘‘illegal’’ because it was not memorialized in writ-
ing. See part I D 1 of this opinion. We further have
concluded that the court failed to apply the proper legal
standard to review the discretionary design control
determinations of a common interest association,
which necessitates a remand to the trial court for the
proper application of that standard.55 See parts I D 2 and
3 of this opinion. The predicate to the court’s exercise of
equitable relief, therefore, is lacking. Accordingly, we
agree with the defendants that the court improperly
declared the special assessment null and void in this
case.
IV
In light of our remand for a new trial, the court’s
award of $72,718.25 in attorney’s fees to the plaintiffs
also cannot stand. As with the prior claim, the factual
predicate to that award is lacking in light of our resolu-
tion of the principal issue in this appeal. See, e.g., Abso-
lute Plumbing & Heating, LLC v. Edelman, 146 Conn.
App. 383, 405, 77 A.3d 889 (noting that award of attor-
ney’s fees ‘‘must be based on findings made by the
trial court’’ and remanding for further proceedings ‘‘to
determine whether attorney’s fees should be awarded
and, if so, the amount of those fees’’), cert. denied, 310
Conn. 960, 82 A.3d 628 (2013); O’Brien v. O’Brien, 138
Conn. App. 544, 557, 53 A.3d 1039 (2012) (award of
attorney’s fees ‘‘must also be remanded for reconsidera-
tion’’ in light of reversal and remand of underlying
issues), cert. denied, 308 Conn. 937, 66 A.3d 500 (2013);
Dolan-King v. Rancho Santa Fe Assn., supra, 81 Cal.
App. 4th 983–84 (concluding that association’s exercise
of design control power was reasonable and remanding
to trial court to ‘‘determine entitlement to attorney
fees’’); Gleneagle Civic Assn. v. Hardin, supra, 205 P.3d
471 (remanding to trial court for determination of rea-
sonableness of association’s exercise of discretionary
design control authority and holding that ‘‘the trial
court’s decision to award the homeowners attorney fees
must also be reversed’’). On remand, the trial court,
in its discretion, shall determine whether an award of
attorney’s fees to either party is warranted following its
resolution of the underlying issues. See Total Recycling
Services of Connecticut, Inc. v. Connecticut Oil Recycl-
ing Services, LLC, 308 Conn. 312, 333, 63 A.3d 896
(2013) (remanding to trial court to ‘‘determine the
appropriate award of attorney’s fees to which the defen-
dant is entitled’’); Woronecki v. Trappe, 228 Conn. 574,
582, 637 A.2d 783 (1994) (‘‘[a] remand . . . is necessary
in order to allow the trial court the opportunity properly
to exercise its discretion regarding the award of . . .
attorney’s fees’’).
The judgment is affirmed only with respect to the
portion of the counterclaim pertaining to the imposition
of boundary marker fines. The judgment is otherwise
reversed and the case is remanded for a new trial on
the remaining issues consistent with this opinion.
In this opinion the other judges concurred.
1
General Statutes § 47-202 (25) defines a ‘‘planned community’’ as ‘‘a
common interest community that is not a condominium or a cooperative.
A condominium or cooperative may be part of a planned community.’’
Section 47-202 (9) defines a ‘‘common interest community’’ in relevant
part as ‘‘real property described in a declaration with respect to which a
person, by virtue of his ownership of a unit, is obligated to pay for a share
of (A) real property taxes on, (B) insurance premiums on, (C) maintenance
of, (D) improvement of, or (E) services or other expenses related to, common
elements, other units or any other real property other than that unit described
in the declaration. . . .’’
Section 2.1 of Article II of the Declaration of Rustle Meadow states that
‘‘Rustle Meadow is a planned community.’’
2
‘‘The act is a comprehensive legislative scheme regulating all forms of
common interest ownership that is largely modeled on the Uniform Common
Interest Ownership Act. . . . The act addresses the creation, organization
and management of common interest communities and contemplates the
voluntary participation of the owners. It entails the drafting and filing of a
declaration describing the location and configuration of the real property,
development rights, and restrictions on its use, occupancy and alienation
. . . the enactment of bylaws . . . the establishment of a unit owners’
association . . . and an executive board to act on . . . behalf [of the asso-
ciation]. . . . It anticipates group decision-making relating to the develop-
ment of a budget, the maintenance and repair of the common elements,
the placement of insurance, and the provision for common expenses and
common liabilities.’’ (Citations omitted; internal quotation marks omitted.)
Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 735. As
one commentator observed, ‘‘[t]he common interest community closely
approximates in many ways a small municipal government as it maintains
private streets and parks, provides homeowner security, and collects home-
owner assessments for the purpose of financing the aforesaid activities.’’
D. Callies, ‘‘Common Interest Communities: An Introduction,’’ 37 Urb. Law.
325, 326 (2005).
3
The declaration survey was admitted into evidence as exhibit TTT. A
copy of that document is included in the declaration as Schedule A-1 (i).
4
See General Statutes § 47-264 et seq.
5
Pursuant to § 8.10 of Article VIII of the declaration, the company was
vested with exclusive control of the association for a preliminary period of
Rustle Meadow’s existence. Section 8.10 (a) provides in relevant part that
‘‘[t]he period of Declarant control shall terminate no later than the earlier
of: (i) Sixty (60) days after conveyance of sixty percent (60%) of the Units
that may be created to Unit Owners other than a Declarant; (ii) Two (2)
years after all Declarants have ceased to offer Units for sale in the ordinary
course of business; or (iii) Two (2) years after any right to add new Units
was last exercised.’’
The first criterion was not satisfied, as the court found that only two of
the seven units had been conveyed at the time of trial. At trial, the court
made no findings with respect to the latter two criteria, though it did note
that ‘‘[t]he remaining lots of the development have not yet been sold or
transferred . . . .’’ Precisely when the company’s control of the association
under § 8.10 terminated is a factual issue that was not resolved by the trier
of fact. Nonetheless, the court in its memorandum of decision found that
it was the association that denied the plaintiffs’ fence proposal and imposed
fines on the plaintiffs for certain activities. Neither party disputes that deter-
mination in this appeal.
6
Article VI of the association’s bylaws provides for the indemnification
of its directors and officers.
7
‘‘A restrictive covenant is a servitude, commonly referred to as a negative
easement . . . .’’ (Citations omitted.) Hawthorne v. Realty Syndicate, Inc.,
43 N.C. App. 436, 440, 259 S.E.2d 591 (1979), aff’d, 300 N.C. 660, 268 S.E.2d
494 (1980). ‘‘A servitude is a legal device that creates a right or an obligation
that runs with the land or an interest in land.’’ 1 Restatement (Third),
Property, Servitudes § 1.1 (1), p. 8 (2000).
8
The plaintiffs’ parcel measures 134.92 feet in width at its westerly border;
its northeasterly border contains approximately 150 feet of frontage on
Rustle Meadow Lane. The parcel’s northwesterly side border is 500.81 feet,
while its southeasterly side border is 665.42 feet. That parcel is the narrowest
one in Rustle Meadow.
9
The declaration survey indicates that approximately one-third of the
plaintiffs’ parcel is subject to the pasture easement. At trial, Miller described
the pasture easement as ‘‘an area . . . to pasture horses.’’
10
The reservation of such developmental rights is recognized in § 8.1 of
Article VIII of the declaration. Pursuant to § 8.1 (a), the company reserved
‘‘[t]he right to create Units . . . Common Elements, and Limited Common
Elements within the Common Interest Community . . . . Any real property
within which the Declarant may create Units, Common Elements and Limited
Common Elements shall be designated ‘Development Rights Reserved in
this Area’ on the Survey.’’ The area on the declaration survey depicting the
pasture easement bears that designation. The deed expressly indicates that
the plaintiffs acquired Unit 3 subject to ‘‘[t]hose matters shown on Schedule
A-1’’ of the declaration.
11
There is no indication in the record that the plaintiffs requested permis-
sion to install a fence at that time. Rather, Kristine Grovenburg testified at
trial that they did so sometime after the pool was constructed.
12
That proposal stated in relevant part: ‘‘Details are as follows: [1] Installed
by Cape Code Fence Company . . . [2] Color for three sides of the fence
is black aluminum . . . [3] The side of the fence along the woods [adjacent
to the southeasterly property line] is to be wood post and black pool wire
required for code. The wood post[s] are natural wood. This is done so that
this side of the fence blends in more naturally with the landscaping and
existing trees . . . [4] A sample section of the Echelon fence product can
be seen at Cape Code Fence.’’
13
Miller’s June 25, 2010 e-mail to the plaintiffs stated: ‘‘The board received
your request for approval of a pool fence, and needs the following materials
to render an approval: [1] Photographs or brochures of the proposed materi-
als for review. [2] A drawing that is to scale. This drawing should show the
patio, fence, green zone and property lines, [and] distance of the proposed
fence from the patio and from the [fifteen] foot green zone line. [3] A
description of the equipment used to install the posts, and a construction
plan describing how all equipment will be used to access the site and where
materials will be stored, and all workmen be kept out of the green zone.
The area between the green zone and the [e]ast side of the pool is narrow
and has many obstructions, consequently careful planning is important. [4]
A post construction review to determine that construction was as approved.
Thank you for submitting the request. I have copied your attorney on this
as you requested. There is no need or authorization at this time to engage
any of our attorneys on this matter, or any other matter of the [association].
This is a normal function of the association, and our attorneys have been
directed to forward any such communications back to the association.’’
14
Although § 13.1 (b) of Article XIII of the declaration directs the board
to act on requests for approval made pursuant to §§ 10.1 (k) and 13.1 (a)
(ii) within sixty days, it further provides that the ‘‘[f]ailure to do [so] within
such time shall not constitute consent by the [board] to the proposed action.’’
15
General Statutes § 47-278 (a) provides: ‘‘A declarant, association, unit
owner or any other person subject to this chapter may bring an action to
enforce a right granted or obligation imposed by this chapter, the declaration
or the bylaws. The court may award reasonable attorney’s fees and costs.’’
16
General Statutes § 52-504 provides: ‘‘When any action is brought to
or pending in the superior court in which an application is made for the
appointment of a receiver, any judge of the superior court, when such court
is not in session, after due notice given, may make such order in the action
as the exigencies of the case may require, and may, from time to time,
rescind and modify any such order. The judge shall cause his proceedings
to be certified to the court in which the action may be pending, at its
next session.’’
17
When the plaintiffs commenced this action in 2013, they also filed an
application for a temporary injunction, which largely mirrors the prayer for
relief contained in their complaint. There is no indication in the record that
this application was acted upon, nor is there any mention of that application
by the parties in their respective appellate briefs.
18
Although the court repeatedly branded the injunction as ‘‘temporary’’
in nature, this court has held that ‘‘[m]erely calling an order a temporary
injunction, however, does not determine its appealability. Our function is
to examine the trial court’s order and determine whether, because of its
form or content, it is in fact a permanent injunction and thus appealable.’’
Stamford v. Kovac, 29 Conn. App. 105, 109, 612 A.2d 1229 (1992), rev’d on
other grounds, 228 Conn. 95, 634 A.2d 897 (1993).
19
The $72,718.25 figure represented the $57,718.25 award of attorney’s
fees to the plaintiffs, which the court augmented by an additional $15,000
at the behest of the plaintiffs for costs that they anticipated incurring in
this appeal.
20
General Statutes § 52-477 provides: ‘‘When judgment has been rendered
for a permanent injunction ordering either party to perform any act, the
court, upon an application similar to that mentioned in section 52-476, shall
stay the operation of such injunction until a final decision in the court
having jurisdiction, unless the court is of the opinion that great and irrepara-
ble injury will be done by such stay or that such application was made only
for delay and not in good faith.’’
21
Owners, of course, also obtain the benefit of the community’s common
elements. Wilcox v. Willard Shopping Center Associates, supra, 208
Conn. 326.
22
That treatise states in relevant part: ‘‘The general principles governing
servitude interpretation . . . adopt the model of interpretation used in con-
tract law and displace the older interpretive model used in servitudes law
that emphasized the free use of land, sometimes at the expense of frustrating
intent. In adopting this model, this Restatement follows the lead of courts
that have recognized the important and useful role servitudes play in modern
real-estate development. To the extent that the old canon favoring free use
of land remains useful, its function is served in cautioning against finding
that a servitude has been created where the parties’ intent is unclear . . .
and in construing servitudes to avoid violating public policy . . . . It also
may play a role in limiting the creation of servitudes that burden fundamental
rights . . . and limiting the rulemaking powers of community associations
. . . . Aside from those situations, construing in favor of free use of land
should play no role in interpreting modern servitudes.’’ 1 Restatement
(Third), Property, Servitudes c. 4, introductory note, pp. 494–95 (2000).
23
A minority of jurisdictions have adopted the business judgment rule
with respect to the exercise of discretionary association determinations.
See footnote 24 of this opinion.
24
A minority of jurisdictions have adopted the business judgment rule to
govern review of discretionary association action. See, e.g., Reiner v. Ehr-
lich, 212 Md. App. 142, 155, 66 A.3d 1132, cert. denied, 433 Md. 514, 72 A.3d
173 (2013); Levandusky v. One Fifth Avenue Apartment Corp., supra, 75
N.Y.2d 537; Lyman v. Boonin, 535 Pa. 397, 402–404, 635 A.2d 1029 (1993).
The business judgment rule is even more deferential to association action
than the reasonableness standard, which itself is a deferential one; see Cape
May Harbor Village & Yacht Club Assn., Inc. v. Sbraga, supra, 421 N.J.
Super. 65 (contrasting business judgment rule with ‘‘the less deferential
reasonableness standard’’); as the business judgment rule requires proof of
‘‘the presence of fraud or lack of good faith in the conduct of a corporation’s
internal affairs before the decisions of a board of directors can be ques-
tioned.’’ Papalexiou v. Tower West Condominium, 167 N.J. Super. 516, 527,
401 A.2d 280 (1979). For that reason, the Restatement declined to adopt
that lax standard. The commentary to § 6.13 explains that ‘‘[t]he business-
judgment rule [was] not adopted because the fit between community associa-
tions and other types of corporations is not very close, and it provides
too little protection against careless or risky management of community
property and financial affairs.’’ 2 Restatement (Third), Property, Servitudes
§ 6.13, comment (b), pp. 236–37 (2000).
We note that, under the act, association rule making in Connecticut
expressly is governed by a reasonableness standard. See General Statutes
§ 47-261b (h). In addition, our Supreme Court in Weldy, as discussed in part
I B of this opinion, set forth a two part test that entails consideration
of whether an association’s exercise of discretionary authority under a
declaration was reasonable. Weldy v. Northbrook Condominium Assn., Inc.,
supra, 279 Conn. 734. In light of the foregoing, we agree with the Restatement
that the business judgment rule is not the preferable standard to govern
judicial review of discretionary association decisionmaking in common inter-
est communities in Connecticut. Rather, for the reasons discussed through-
out part I of this opinion, we conclude that the reasonableness standard
better protects the interests of both the unit owner and the common inter-
est community.
25
On many occasions, our Supreme Court has distinguished matters that
are ‘‘ ‘reasonable, rather than arbitrary or capricious’ ’’; State v. Jason B.,
248 Conn. 543, 560, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406,
145 L. Ed. 2d 316 (1999); State v. Matos, 240 Conn. 743, 749, 694 A.2d 775
(1997); cf. State v. Hodge, 153 Conn. 564, 570, 219 A.2d 367 (1966) (contrasting
‘‘reasonable’’ delays in right to speedy trial with ones that are arbitrary or
capricious); Barr v. First Taxing District, 151 Conn. 53, 59, 192 A.2d 872
(1963) (contrasting ‘‘reasonable’’ exercise of discretion from that which is
‘‘arbitrary’’); accord Leonard v. Stoebling, 102 Nev. 543, 549, 728 P.2d 1358
(1986) (determinations of architectural control committee ‘‘not arbitrary if
they were reasonable and were in good faith’’).
We also note that the two part test memorialized in Weldy was applied
in our Superior Court one decade earlier. In Townhouse III Condominium
Assn., Inc. v. Mulligan, Superior Court, judicial district of Tolland, Docket
No. CV-92-50183-S (March 13, 1995) (Klaczak, J.) (14 Conn. L. Rptr. 112,
113), the court noted that ‘‘[i]n determining the validity of condominium
rules and regulations, courts have developed a ‘reasonableness’ test. The
first prong of the test is whether the board acted within the scope of its
authority. The second prong is whether the rule reflects reasoned or arbitrary
and capricious decision making.’’
26
Section 10.1 (k) of Article X of the declaration 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 addi-
tions, changes or alterations. Any unauthorized construction or changes
must be restored to its previous condition at such Unit Owner’s expense.’’
(Emphasis added.)
Section 13.1 (a) (ii) of Article XIII of the declaration similarly provides
that a unit owner ‘‘[m]ay not make any changes, additions, alterations, or
improvements to any structure in or on any Unit or to the Common Elements
or make any substantial change to the topography of a Unit or the Common
Elements including the removal of trees, without the prior written approval
of the Declarant as provided in Section 10.1 (k) of this Declaration or of
the [a]ssociation as provided therein, as well as receiving all necessary
governmental permits and approvals. Such approval by the Declarant or the
[a]ssociation shall not be unreasonably withheld.’’
27
At trial, Kristine Grovenburg acknowledged that the association had
discretion to approve all exterior changes to her unit pursuant to the declara-
tion and that she was required to obtain its permission prior to making any
such alterations or improvements.
28
See, e.g., Rymer v. Polo Golf & Country Club Homeowners Assn., Inc.,
335 Ga. App. 167, 175, 780 S.E.2d 95 (2015) (trial court cannot substitute
own judgment for that of association when restrictive covenants confer
discretion on association); Noble v. Murphy, 34 Mass. App. 452, 456, 612
N.E.2d 266 (1993) (‘‘[c]lose judicial scrutiny and possible invalidation or
limitation of fundamentally proper but broadly drawn use restrictions . . .
would deny to developers and unit owners the ‘planning flexibility’ inherent
in’’ statutory scheme); Griffin v. Tall Timbers Development, Inc., 681 So.
2d 546, 553–54 (Miss. 1996) (trial court may not substitute own judgment
for association in applying reasonableness standard); Preserve Homeowners’
Assn., Inc. v. Zhan, 117 App. Div. 3d 1398, 1399, 984 N.Y.S.2d 743 (courts
will not substitute judgment so long as association board acts for purpose
of common interest community, within scope of its authority and in good
faith), appeal dismissed, 24 N.Y.3d 932, 17 N.E.3d 1140, 993 N.Y.S.2d 543
(2014); Palmetto Dunes Resort v. Brown, 287 S.C. 1, 7, 336 S.E.2d 15 (App.
1985) (‘‘although people may reasonably differ as to [a discretionary design
control determination], the covenant is unambiguous in leaving this solitary
judgment to’’ the association).
29
Accord, e.g., Tierra Ranchos Homeowners Assn. v. Kitchukov, supra,
216 Ariz. 202 (property owner challenging association determination bears
burden of establishing ‘‘that its actions were unreasonable’’); Dolan-King
v. Rancho Santa Fe Assn., 81 Cal. App. 4th 965, 979, 97 Cal. Rptr. 2d 280
(2000) (‘‘[h]aving sought a declaration that the [association’s review board]
imposed restrictions unreasonably and arbitrarily, it was [the plaintiff prop-
erty owner’s] burden at trial to make that showing before the trial court’’),
review denied, 2000 Cal. LEXIS 7972 (Cal. October 3, 2000); Uptegraph v.
Sandalwood Civic Club, 312 S.W.3d 918, 933 (Tex. App. 2010) (property
owner had ‘‘burden at trial to prove that [the association’s] exercise of its
discretionary authority was arbitrary, capricious, or discriminatory’’).
30
See, e.g., Statewide Grievance Committee v. Ganim, 311 Conn. 430,
451, 87 A.3d 1078 (2014) (burden is on applicant in reinstatement proceeding
to establish that standing committee acted arbitrarily or in abuse of its
discretion in approving or withholding its approval); Moraski v. Connecticut
Board of Examiners of Embalmers & Funeral Directors, 291 Conn. 242,
258–60, 967 A.2d 1199 (2009) (applying abuse of discretion standard to
administrative agency’s decision to permit Department of Public Health to
amend its statement of charges filed against licensed embalmer and funeral
home and holding that plaintiff challenging agency determination bore bur-
den of proof); Conley v. Board of Education, 143 Conn. 488, 498, 123 A.2d
747 (1956) (plaintiff challenging board’s determination bears burden of proof
when ‘‘[t]he question for the court . . . is whether the board, in reaching
its conclusions and taking the action challenged, acted illegally or in abuse
of the discretion’’); Mallory v. West Hartford, 138 Conn. 497, 505, 86 A.2d
668 (1952) (‘‘[t]he burden of proof was on the plaintiffs’’ because ‘‘[t]he basic
allegation of the plaintiffs was that the council acted arbitrarily, illegally,
unreasonably, without authority and in abuse of its discretion’’); Gevers v.
Planning & Zoning Commission, 94 Conn. App. 478, 483, 892 A.2d 979
(2006) (in light of deferential standard of review, ‘‘[t]he plaintiffs shoulder
the burden of demonstrating that the commission acted improperly’’).
31
See, e.g., Tierra Ranchos Homeowners Assn. v. Kitchukov, supra, 216
Ariz. 202; Gleneagle Civic Assn. v. Hardin, supra, 205 P.3d 470; Trieweiler
v. Spicher, 254 Mont. 321, 327, 838 P.2d 382 (1992); Cypress Gardens, Ltd.
v. Platt, supra, 124 N.M. 478; 2 Restatement (Third), Property, Servitudes
§ 6.9, comment (d), p. 174 (2000) (‘‘[d]etermining whether design-control
powers have been unreasonably exercised requires a fact-specific, case-by-
case inquiry’’).
32
See footnote 26 of this opinion.
33
Although they argue in their appellate brief that the court properly
‘‘determined that the green zone was unlawful because it was not in writing,’’
the plaintiffs acknowledge that the court did not ‘‘articulate the legal basis
for the green zone having to be in writing . . . .’’
34
In the zoning context, our Supreme Court has observed that ‘‘[i]t must
be borne in mind . . . that we are dealing with a group of [lay people] who
may not always express themselves with the nicety of a Philadelphia lawyer.
Courts must be scrupulous not to hamper the legitimate activities of civic
administrative boards . . . .’’ Couch v. Zoning Commission, 141 Conn. 349,
358, 106 A.2d 173 (1954). That logic applies equally to members of common
interest associations. When considering the reasonableness of its discretion-
ary determination, the focus properly is on the action of the association
and the rationale therefor, rather than the particular nomenclature employed
by that body of lay people.
35
See, e.g., Dolan-King v. Rancho Santa Fe Assn., supra, 81 Cal. App. 4th
977 (‘‘California and many other jurisdictions have long upheld such general
covenants vesting broad discretion in homeowners associations or boards
to grant or withhold consent to construction. . . . This is so even when the
covenants contain such broad, general approval standards . . . .’’ [citations
omitted]); Rhue v. Cheyenne Homes, Inc., supra, 168 Colo. 8 (rejecting claim
that restrictive covenant ‘‘is not enforceable because no specific standards
are contained therein to guide the committee in determining the approval
or disapproval of plans when submitted’’); Donoghue v. Prynnwood Corp.,
356 Mass. 703, 707, 255 N.E.2d 326 (1970) (restriction requiring approval of
plans that lack explicit standards of approval ‘‘may be enforced if the power
to do so is exercised reasonably’’); LeBlanc v. Webster, supra, 483 S.W.2d
649 (rejecting claim that ‘‘unless an external standard for the exercise of
the right of approval is provided such a right of approval is vague, indefinite
and unenforceable’’); Syrian Antiochian Orthodox Archdiocese of New
York & All North America v. Palisades Associates, 110 N.J. Super. 34, 40–41,
264 A.2d 257 (Ch. Div. 1970) (noting that ‘‘[t]he most commonly voiced
criticism of such [a restrictive covenant] is that it is vague, fixes no standards
and hence affords the grantor an opportunity to be capricious, unfair and
arbitrary’’ and recognizing that ‘‘such covenants have been very generally
sustained’’ although subject to requirement that ‘‘any disapproval must be
reasonable and made in good faith’’); Smith v. Butler Mountain Estates
Property Owners Assn., Inc., 90 N.C. App. 40, 48, 367 S.E.2d 401 (1988)
(covenants requiring prior approval of plans valid ‘‘even if vesting the approv-
ing authority with broad discretionary power’’ and ‘‘even in the absence of
specific approval standards in the covenants . . . so long as the authority
to consent is exercised reasonably and in good faith’’), aff’d, 324 N.C. 80,
375 S.E.2d 905 (1989); Dodge v. Carauna, supra, 127 Wis. 2d 65–66 (lack of
‘‘express standards for approval’’ in restrictive covenant does not render it
unclear, ambiguous, or unenforceable).
36
See, e.g., Rhue v. Cheyenne Homes, Inc., supra, 168 Colo. 9; McNamee
v. Bishop Trust Co., Ltd., supra, 62 Haw. 407; LeBlanc v. Webster, supra,
483 S.W.2d 650; Cypress Gardens, Ltd. v. Platt, supra, 124 N.M. 478.
37
We note that, at oral argument before this court, the plaintiffs were
asked what would constitute a proper basis for the association to exercise
its discretion under § 10.1 (k) of the declaration to deny a proposed activity.
In response, the plaintiffs’ counsel stated that ‘‘safety concerns’’ could be
a proper basis. There is no mention of safety concerns in § 10.1 (k).
38
We note that, in addition to providing the court with a copy of the Weldy
decision at the outset of trial, counsel for the defendants argued that Weldy
was ‘‘the only . . . Supreme Court case on point.’’ Throughout trial, counsel
repeatedly relied on Weldy as binding authority on the ultimate issue before
the court. As but one example, during his cross-examination of Kristine
Grovenburg, counsel inquired as to ‘‘one of . . . the features along the
[southeasterly] side between . . . your house and the [abutting] neighbors
was to have a forested area that would provide some privacy between the
homes.’’ At that time, the plaintiffs’ counsel objected, and discussion ensued
as to whether that line of questioning was improper in light of the court’s
granting of the motion in limine. Counsel for the defendants argued in
relevant part that ‘‘the declaration is an agreement, Your Honor, and . . .
ultimately the Supreme Court says the [trial] court has to decide whether the
decisions are arbitrary or reasonable, and that whole issue of reasonableness
goes to the landscaping from the beginning [of the common interest commu-
nity] to the present time . . . .’’ The court sustained the plaintiffs’ objection
and precluded such testimony on the privacy provided by the wooded area
between the units, stating that ‘‘[i]f it’s in the green zone, then it is irrelevant,
as far as I’m concerned.’’
39
Cases such as Leonard v. Stoebling, supra, 102 Nev. 543, are illustrative
in this regard. In finding the exercise of discretionary design control power
unreasonable, the Supreme Court of Nevada held that the committee respon-
sible for exercising such authority ‘‘gave no heed to the impact’’ of the
proposed activity on neighboring properties. Id., 549. The Supreme Court
of Washington similarly found unreasonable the actions of a board that
failed to ‘‘reasonably assess the impact’’ of a proposed activity, ‘‘much less
with an eye to neighbors’ views or privacy.’’ Riss v. Angel, supra, 131 Wn.
2d 628; see also Dolan-King v. Rancho Santa Fe Assn., supra, 81 Cal.
App. 4th 976, 982 (noting that ‘‘[m]aintaining a consistent and harmonious
neighborhood character . . . confers a benefit on the homeowners by main-
taining the value of their properties’’ and holding that the trial court improp-
erly ‘‘made no finding as to the ‘rural character’ [of the] neighborhood’’);
McNamee v. Bishop Trust Co., Ltd., supra, 62 Haw. 408 (privacy among
unit owners ‘‘was a reasonable consideration’’ in exercising design control
discretion); Melson v. Guilfoy, supra, 595 S.W.2d 407 (finding ‘‘no abuse of
discretion’’ in discretionary determination to disapprove pool fence even
when no ‘‘ ‘external standard’ ’’ set forth in declaration and noting that
restrictive covenants in question were upheld ‘‘to maintain a park-like resi-
dential community’’); Gosnay v. Big Sky Owners Assn., 205 Mont. 221, 227,
666 P.2d 1247 (1983) (association board ‘‘did not abuse its discretion when
it refused . . . permission to build [a proposed] fence’’ because proposal ‘‘is
contrary to [the common interest community’s] overall plan for ‘openness’ ’’);
River Hills Property Owners Assn., Inc. v. Amato, 326 S.C. 255, 260, 487
S.E.2d 179 (1997) (association board acted reasonably and in good faith in
denying approval for pool fence that ‘‘would reduce the view’’ of abutting
property). At the very least, such cases shed light on the rationale proffered
by the association in the present case. Nevertheless, we repeat that the
factual issue of reasonableness involves a weighing analysis that entails
consideration of ‘‘all the relevant circumstances’’ and factors in a given case.
Peterson v. Oxford, supra, 189 Conn. 745.
40
The only reference to the plaintiffs’ proposal in the memorandum of
decision is the court’s finding that the plaintiffs sought ‘‘permission from
the association to put a fence around the swimming pool, as required by
the town of Canton . . . .’’
41
In their February 3, 2015 motion for reconsideration, the defendants
requested reargument and reconsideration due to the fact that the plaintiffs
at trial ‘‘never articulated a reason for their preferred placement of the fence
to either [the] defendants or the court, some need that the [a]ssociation
could balance against its privacy concerns. . . . The [a]ssociation could
never balance the needs of the community against the [plaintiffs’] needs
because they never specified the reasons for their plans.’’ (Citations omitted.)
The court denied that motion.
42
In the ‘‘Reply to Defendants’ Posttrial Memorandum’’ that the plaintiffs
submitted to the court, the plaintiffs appear to concede the location of that
septic system, stating in relevant part that ‘‘the fact that a septic system is
in the green zone is irrelevant . . . .’’ When questioned on this point at oral
argument before this court, the plaintiffs’ counsel likewise acknowledged
that the septic system was located in the green zone, but argued that ‘‘the
septic system is different.’’
43
In their appellate brief, the plaintiffs do not acknowledge their July 27,
2008 written statement to Miller. Rather, they argue that when the association
denied their fencing proposal in 2010, ‘‘[i]t is obvious that Miller blindsided
the plaintiffs with the green zone, in bad faith . . . because he never pre-
viously informed the plaintiffs of the restriction . . . .’’
44
The record also indicates that those settlement discussions continued
after the commencement of this appeal. Months after the defendants filed
their appeal, the plaintiffs filed a motion for an extension of time to file
their appellate brief. In that pleading, they represented to this court that
‘‘the parties are continuing substantive settlement discussion relating to the
heart of the legal and factual issues in this case . . . . [A] settlement
agreement in this case will involve the preparation of a detailed landscaping
plan, with specified plantings in designated areas of the [plaintiffs’] property,
among other things. The parties have been working together to formulate
the landscaping plan for months, with the assistance of a professional land-
scaper.’’
45
Moreover, we note that, in his December 28, 2011 letter to the Canton
building department, Miller did not state that the plaintiffs’ original fence
proposal was denied because it was located in the green zone. Rather, he
indicated that it was denied because ‘‘the plan that was submitted placed
the fence unnecessarily within a [fifteen] foot visual buffer zone,’’ suggesting
that a showing of necessity may have yielded a different result.
46
For that reason, this court cannot, as the defendants urged at oral
argument, decide the question of reasonableness and direct the trial court
to render judgment in their favor.
47
In their respective appellate briefs, neither party has suggested that the
general preponderance of the evidence standard applies in this case.
48
With respect to this last consideration, we note that the court stated,
in a subsequent part of its memorandum of decision addressing landscaping
restrictions, that ‘‘Miller trimmed trees in front of his house and removed
trees in the so-called green zone, and did not ask permission from the
association. He set one standard for himself and another standard for the
plaintiffs.’’ The court made no further findings in this regard.
Those findings are troublesome for two distinct reasons. First, there is
no evidence in the record to substantiate the court’s finding that Miller
‘‘removed trees in the so-called green zone . . . .’’ On cross-examination,
he was asked if he had ‘‘ever cut or trimmed any branches in your yard?’’
Miller answered that he ‘‘did trim some of the ash trees in the center of the
front yard.’’ No question was asked, and no testimony was elicited, on
whether those ash trees were located in the green zone. That finding, there-
fore, is clearly erroneous. See Wheelabrator Bridgeport, L.P. v. Bridgeport,
320 Conn. 332, 364, 133 A.3d 402 (2016).
Furthermore, even assuming that the ash trees were located in the green
zone, the court’s suggestion that Miller failed to follow association protocols
ignores the fact that, under the plain language of § 8.10 of Article VIII of
the declaration, the company was vested with exclusive control of the
association for a preliminary period of Rustle Meadow’s existence, which
obviated the need for Miller, the sole member of the company, to seek
approval to conduct such activity. As we already have noted, the trial court
failed to make any factual findings as to when the company’s control under
§ 8.10 terminated. See footnote 5 of this opinion. Without any findings as
to precisely where the trees in question were located, when Miller trimmed
those trees, and when the company’s control under the declaration termi-
nated, such evidence was not relevant to the reasonableness analysis.
At the same time, the trial court’s findings suggest that the court was
concerned about whether Miller and the association acted in good faith in
regulating landscaping activity within the green zone area. On remand, if
evidence is adduced at the new trial indicating that landscaping activity
was conducted within the green zone area on any other unit within Rustle
Meadow—including that belonging to Welles—the finder of fact could con-
clude that the association’s discretionary determinations with respect to
such activity on the plaintiffs’ unit were arbitrary and made in bad faith.
See, e.g., White Egret Condominium, Inc. v. Franklin, supra, 379 So. 2d 352
(finding that use restriction in common interest association ‘‘was reasonably
related to a lawful objective’’ but nonetheless ‘‘was selectively and arbi-
trarily applied’’).
49
We note that, under our rules of practice, an appellee who wants to
present an alternative ground on which to affirm a trial court’s judgment
is required to file a preliminary statement of issues intended for presentation
on appeal. Practice Book § 63-4 (a) (1) (A). Our rules further require that such
a filing must be filed ‘‘within twenty days from the filing of the appellant’s
preliminary statement of the issues.’’ Practice Book § 63-4 (a) (1) (C). The
plaintiffs have not complied with those requirements in this case.
50
There is no claim in the present case that the association failed to
comply with the notice and hearing requirements of the declaration and
General Statutes § 47-244 (d) (2). Contra Congress Street Condominium
Assn., Inc. v. Anderson, 156 Conn. App. 117, 112 A.3d 196 (2015); Stamford
Landing Condominium Assn., Inc. v. Lerman, 109 Conn. App. 261, 951
A.2d 642, cert. denied, 289 Conn. 938, 958 A.2d 1246 (2008).
51
The plaintiffs did not deny their involvement during their direct examina-
tion testimony. To the contrary, their attorney at trial maintained that the
plaintiffs had ‘‘been fined because they intruded on and they did things in
an area that they were not supposed to even touch because there’s a restric-
tion, as Mr. Miller claims, that this area, this buffer zone, can’t be touched,
can’t be used.’’ (Emphasis added.)
52
Rather than disavowing their involvement in the landscaping activity in
question, the plaintiffs in their appellate brief submit that, because the trial
court correctly determined that the green zone was invalid, it properly set
aside the association’s fines for unauthorized landscaping activity. Their
briefing of this issue states: ‘‘Miller testified that all the fines for landscaping
violations were assessed because of landscaping performed by the plaintiffs
in the green zone, without permission. However, it would have been futile
for the plaintiffs to request permission to perform landscaping activity in
the green zone as the request would have been denied since that area is
completely off limits. . . . [T]he trial court properly concluded that the
green zone was invalid, and therefore the fines cannot stand.’’ (Citation
omitted.)
53
On cross-examination, the following exchange ensued:
‘‘[The Defendants’ Attorney]: It’s just a complete mystery to you. Is that
what you’re telling the court, Mr. Grovenburg?
‘‘[Duane Grovenburg]: I’m saying I’m not aware of a metal stake.
‘‘[The Defendants’ Attorney]: You’re not aware of a metal stake.
‘‘[Duane Grovenburg]: No.
‘‘[The Defendants’ Attorney]: You’re not aware of a metal stake being
pulled out of the ground?
‘‘[Duane Grovenburg]: No, I’m not.’’
54
‘‘Common expenses’’ are defined in the act as ‘‘expenditures made by,
or financial liabilities of, the association, together with any allocations to
reserves.’’ General Statutes § 47-202 (7).
55
On remand, the trier of fact may conclude that the association’s failure
to approve the plaintiffs’ revised fencing proposal was reasonable and appro-
priate under the particular circumstances of this case.