Zoning Restrictions, Restrictions, Restrictions.

The trouble began in May 1991 with approval of the Naugatuck (CT) planning and zoning commission of Charles LaFlamme's plan to re-subdivide his lot and build two more houses.





Opposing the plan were neighbors Gordon Mannweiler and William Boies, who owned other lots in the Hop Brook subdivision. Mannweiler, et al. claimed that all lots in the subdivision were subject to restrictive covenants, including the restriction that only one house could be built on each lot. Mannweiler filed suit to enjoin the re-subdivision.





In 1927 the Hop Brook subdivision was created by the recording of a subdivision map by the J.H. Whittemore Co. Hop Brook consisted of six sections divided into 52 lots of varying size.





The first deed from Whittemore to a new Hop Brook lot owner was recorded in September 1927. This deed contained the following restriction:





"The aforesaid premises shall be occupied and used by the Grantee, his heirs and assigns, for private residential purposes only and not otherwise, and there shall at no time be erected or maintained thereon anything except one private residence for the use of one family only, which private residence shall cost, exclusive of the land, not less than $15,000, together with the necessary outbuildings appurtenant thereto...."





This deed also included recitals that these restrictions would be for the mutual benefit of all grantees from the grantor of land shown by the subdivision map, would run with the land, and would be enforceable by the future grantees.





Between 1927 and 1937 Whittemore conveyed 30 of the 52 Hop Brook lots, all with the above deed restrictions.





One of the first lot buyers was Lewis Dibble, who purchased lot two of section E in 1927. Apparently deciding his lot was too small, in 1930 Dibble also purchased a portion of lot three, section E, which was adjacent to lot two. The deed into Dibble for this portion of lot three contained the usual deed restriction, and included the recital that the land being conveyed was to be used for "private residential" purposes only "in connection with and as part of" lot two. So this "re-subdivision" of lot three made lot two larger, and lot three smaller, but did not create an added lot.





Meanwhile, in December 1934--as the Great Depression dragged on--Whittemore and all prior grantees of Hop Brook lots signed and recorded a written modification of the prevailing deed restrictions, changing the minimum construction cost for a residence from $15,000 to $10,000. And, in September 1936, Whittemore and all prior grantees agreed to correction of a 1927 deed to Helen Adams. It seems that Adams purchased seven lots in section D of Hop Brook--which in her original deed had been mischaracterized as one lot.





In August 1937 Whittemore conveyed additional lots in section E to Lewis Dibble, subject to the same deed restrictions as contained in all prior deeds in the subdivision--but with an additional provision as follows:







"It is particularly agreed and understood that should the Grantee, his heirs or assigns, purchase further lands from the Grantor, or its successors, within Block `E,' as shown on said Map, the foregoing covenants and restrictions may be revoked, in whole or in part, and others substituted therefor, by an agreement entered into by and between the Grantor, or its successors, and the Grantee, or his heirs and assigns, alone, and without the consent of any other person or persons."





In September 1946 Whittemore conveyed the remaining lots in section E to Dibble. The deed conveying this land included this:





"In accordance with and to the extent that power to do so has heretofore been reserved by the Grantor, all covenants and restrictions applicable to lands within said section E heretofore purchased by the Grantee from the Grantor are hereby revoked."





The language continued, to reinstate the former minimum construction cost for a residence to $15,000, and to change the one-residence-per-lot restriction to requirements for a minimum residential lot size (15,000 square feet), a minimum street frontage (l00 feet), and setbacks.





The Dibble lots were later acquired by defendant LaFlamme.





Based on these facts, the trial court denied plaintiff Mannweiler's request for a permanent injunction. The court found that there was a common plan to develop a residential area of single-family homes, but the restriction against re-subdivision of lots did not show up in deeds in defendant LaFlamme's chain of title.





The court of appeal reversed, finding a common scheme which included the restriction against re-subdivision of lots to have affected all lots in the Hop Brook subdivision commencing with the first deed out. This finding was based on the original intent of the grantor, Whittemore, as well as conduct of all subsequent grantees. The court also found that this common scheme contemplated that its restrictions might be enforced by any lot owner, distinguishing this case from case authority relied on by the trial court. In making its decision that this common scheme should, in equity, be enforced against all lots in the subdivision, the court of appeal relied primarily on Contegni v. Payne, (1989), 18 Conn.App. 47, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140.





The case was remanded for further proceedings in connection with another issue raised by defendant, the effect in this case of Connecticut's Marketable Title Act.



By Bert Rush