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*********************************************** 
PRIME LOCATIONS OF CT, LLC, ET AL. v.

ROCKY HILL DEVELOPMENT,

LLC, ET AL.

(AC 41417)

Lavine, Keller and Devlin, Js.

Syllabus

The plaintiff lot owners sought a judgment declaring that a certain amendment to a declaration of easements, covenants and restrictions, which

created a business park common ownership interest community, was

invalid, and for injunctive relief. The declaration provided that each lot

owner in the business park would be a member of an owner’s association

and would receive a vote that was proportional to its percentage ownership in the business park. The plaintiffs owned four of the seven lots

in the business park, and brought the action against several defendants,

including M Co. and D. M Co. owned lot 2, R Co. owned lot 1, and O

Co. owned lot 7. M Co. proposed to sell lot 2 to D, who intended to use

the lot to build a crematorium. Believing that the plaintiffs would oppose

D’s plan to build a crematorium, M Co., O Co. and R Co., the holders

of more than 50 percent of the votes of the association, executed an

amendment to the declaration that withdrew lots 1, 2, and 7 from the

association and recorded it on the town land records. D thereafter

purchased lot 2 from M Co., and sought zoning approval for the crematorium, a process in which the plaintiffs participated and confirmed that

the defendants had withdrawn from the association. The town zoning

commission denied D’s application to build the crematorium and D

appealed; D and the zoning commission reached a settlement agreement

and filed a motion for approval of their settlement. The plaintiffs filed

a motion to intervene as of right in the zoning appeal, taking the position

that the defendants were not members of the association. The trial

court denied the motion to intervene. D commenced construction of

the crematorium and the plaintiffs thereafter sought, inter alia, to enjoin

him from connecting lot 2 to the association’s drainage system and a

judgment declaring that the amendment to the declaration was void and

unenforceable. After a trial to the court, the court rendered judgment

in favor of the defendants, from which the plaintiffs appealed to this

court. Held:

1.The trial court properly concluded that the declaration did not prevent

lot owners from withdrawing their lots from the association, and, accordingly, the recorded amendment withdrawing lots 1, 2 and 7 from the

association was proper, D was not required to be a member of the

association when he purchased lot 2 from M Co. and his lot was no

longer subject to the declaration’s restrictions; the plain language of

the declaration stated that it may be modified or terminated, and a

modification or termination resulting in a lot owner’s withdrawal from

the association was not prohibited by the language in the declaration,

the plaintiffs’ prior conduct in acknowledging O Co.’s withdrawal from

the association and its argument to the zoning commission that D was

not a member of the association supported the trial court’s determination

that lot owners were permitted to withdraw their lots and was contradictory to the plaintiffs’ argument on appeal that D was not permitted to

withdraw his lot and was a member of the association; moreover, the

plaintiffs could not prevail on their claim that, because R Co. had been

permitted to withdraw from the association prior to the execution of

the amendment, the lots owners signing the amendment held less than

50 percent of the lots, as the association failed to record R Co.’s withdrawal from the association on the land records, and the record reflected

that, at the time the amendment was executed, R Co. was still a member

of the association; furthermore, the plaintiffs could not prevail on their

claim that the amendment did not comply with a provision (§ 47-236

(a) (1)) of the Common Ownership Interest Act that requires that an

amendment to a declaration to be approved by at least 67 percent of

the votes in the association, as that provision is inapplicable to a situation
in which the properties that are part of an association are not used for

residential purposes.

2. The trial court did abuse its discretion in declining to grant the plaintiffs’

request for an injunction preventing D from connecting lot 2 to the

association’s drainage system, the drainage system having been created

as part of the subdivision approval, prior to the creation of the declaration and the easements created therein, and, in D’s settlement with the

zoning commission in his zoning appeal, the commission incorporated

a proposal that D would utilize the drainage system.

Argued February 13—officially released August 18, 2020

Procedural History

Action for a declaratory judgment that, inter alia,

a certain amendment to a declaration of easements,

covenants and restrictions executed by the named

defendant et al. is invalid, and for other relief, brought to

the Superior Court in the judicial district of Middlesex,

where the action was withdrawn as against the named

defendant et al.; thereafter, the matter was tried to the

court, Aurigemma, J.; judgment for the defendant MPM

Enterprises, LLC, et al., from which the plaintiffs

appealed to this court. Affirmed.

Kevin J. McEleney, with whom, on the brief, were

Richard D. Carella, Christopher A. Klepps and Matthew

K. Stiles, for the appellants (plaintiffs).

Matthew S. Carlone for the appellees (defendant

MPM Enterprises, LLC, et al.).
Opinion

KELLER, J. This case was brought by the plaintiffs,

Prime Locations of CT, LLC, Hasson Holdings, LLC,

SMS Realty, LLC, and C&G Holdings, LLC, to prevent

one of the defendants, Luke DiMaria, from constructing

a crematorium on a lot in the Coles Brook Commerce

Park in Cromwell. The plaintiffs appeal from the judgment of the trial court, rendered after a court trial, in

favor of the defendants MPM Enterprises, LLC, (MPM

Enterprises) and DiMaria.1 On appeal, the plaintiffs

argue that the court (1) improperly concluded that the

Declaration of Easements, Covenants and Restrictions

(declaration), which created a common interest community, the Coles Brook Commerce Park Owners Association, LLC (association), to govern the use of the

property in the business park, did not prevent the defendants from voting to withdraw from the association a

lot formerly owned by MPM Enterprises and currently

owned by DiMaria, (2) improperly concluded that the

defendants were entitled to connect a lot to the association’s drainage system, (3) improperly concluded that

the plaintiffs’ cause of action was barred by the doctrines of laches and equitable estoppel, and (4) erred in

declining to grant the plaintiffs’ request for a permanent

injunction prohibiting DiMaria from constructing a crematorium on his lot without approval from the association. We disagree with the plaintiffs and affirm the judgment of the trial court.

The following facts, as found by the trial court, and

procedural history are relevant to this appeal. The Coles

Brook Commerce Park is a business park located on

Commerce Drive in Cromwell. The business park is

divided into seven lots.2 At the time of trial, DiMaria

owned lot 2, Rocky Hill Development, LLC (Rocky Hill

Development) owned lot 1, and Rescue One, LLC (Rescue One) owned lot 7. MPM Enterprises previously had

owned lot 2 until it sold it to DiMaria. The plaintiffs

owned lots 3, 4, 5 and 6. The association is a common

interest community created by the Coles Brook Commerce Park Associates, LLC (declarant). The declarant

created the association by executing the declaration.

The declaration provides the following concerning its

purpose: ‘‘Whereas, in order to develop the [p]roperty

as a functionally integrated business park, [d]eclarant

desires to establish and create certain easements, covenants, and restrictions affecting the [p]roperty and to

create an ‘[a]ssociation’ . . . to maintain, administer

and enforce these covenants and restrictions . . . .’’

The association is governed by the declaration and

the bylaws of the association, dated September 27, 2004.

Section 3.2 of the declaration provides that ‘‘[e]very

owner shall be a member of the [a]ssociation.’’ The

declaration also provides: ‘‘Now therefore, [d]eclarant

does hereby declare as follows: (i) no land, building,

structure or portion thereof shall hereafter be used
and no building, structure or portion thereof shall be

constructed, reconstructed, located, extended,

enlarged or substantially altered on the [p]roperty

except in conformity with the standards and specifications contained in this [d]eclaration; (ii) the [p]roperty

shall be conveyed, hypothecated, encumbered, leased,

occupied, built upon, or otherwise used, improved or

transferred in whole or in part subject to this [d]eclaration and all of the easements, covenants, conditions

and restrictions as set forth herein; and (iii) this [d]eclaration and all of the easements, covenants, conditions

and restrictions as set forth herein shall run with the

[l]ots and the balance of the [p]roperty for all purposes

and shall be binding upon and inure to the benefit of

all [o]wners, and their tenants, subtenants, employees,

concessionaires, licensees, customers and business

invitees, and their successors in interest.’’

The declaration defines an ‘‘owner’’ in § 1.1 as ‘‘the

respective owners in fee simple of the [l]ots . . . .’’

Under the terms of §§ 3.2 and 3.3 of the declaration,

every owner is a member of the association and has a

proportionately weighted vote in the association’s

affairs.

Section 9.10 of the declaration provides: ‘‘Modification or Termination. This [d]eclaration may only be

modified in part or terminated in its entirety by the

recording in the [l]and [r]ecords of Cromwell, Connecticut, of an instrument modifying or terminating this

[d]eclaration, signed by [o]wners and/or owners of portions of the [p]roperty that are not [l]ots having more

than 50 [percent] of the votes of the [a]ssociation.3 No

modification may modify or terminate any easement

created hereunder, including those referenced in

Exhibit B attached hereto, that benefits or burdens any

[o]wner’s [l]ot without approval of that [o]wner. . . .

Further, [d]eclarant (with respect to any [l]ots that

[d]eclarant owns) and/or any other [o]wner or [o]wners

(with respect to the [l]ot or [l]ots owned by them) shall

have the right to add onto, resubdivide (which may

result in more or less [l]ots existing), and/or reconfigure

any [l]ot, at any time, in its and/or their sole discretion,

subject to the provisions of this [d]eclaration and applicable land use regulations.’’ (Footnote added.)

In its memorandum of decision, the court found the

following facts: ‘‘On June 12, 2012, the [a]ssociation

voted to remove [l]ot 1 from the [a]ssociation. It did

not record an amendment or any other evidence of this

vote on the Cromwell [l]and [r]ecords. Since June, 2012,

the owner of [l]ot 1 did not participate in [a]ssociation

meetings and did not pay dues.4

‘‘Attorney Glenn Terk represented DiMaria with

respect to his efforts to construct a crematorium on

[l]ot 2 of the [p]roperty. Believing, apparently with good

reason, that the members of the [a]ssociation would

not approve of the building of a crematorium, Attorney
Terk took steps to attempt to remove [l]ot 2 from the

[a]ssociation. He drafted an [a]mendment to [the declaration] dated July 26, 2012 ([amendment]). The amendment was signed by Matthew Holcomb, a member of

MPM Enterprises, the proposed seller of [l]ot 2, Henry

Vasel, a member of Rescue One, the owner of [l]ot 7,

and Roger Tabshay, a member of Rocky Hill Development, the owner of [l]ot 1.5 The [a]mendment contained

the following language: ‘WHEREAS, the original [d]eclaration to Coles Brook Commerce Park (the ‘‘[a]ssociation’’) is dated as of September 27, 2004 and recorded

in Volume 1046 at Page 256 of the Cromwell [l]and

[r]ecords; and WHEREAS, Rocky Hill Development,

LLC is the owner of [lot] 1, Coles Brook Commerce

Park and by virtue of such ownership is entitled to a

27.84 percentage interest in the [a]ssociation and entitled to a vote of 27.84 percent; and WHEREAS, MPM

Enterprises, LLC is the owner of [lot] 2, Coles Brook

Commerce Park and by virtue of such ownership is

entitled to a 11.01 percentage interest in the [a]ssociation and entitled to a vote of 11.01 percent; and

WHEREAS, Rescue One, LLC is the owner of [lot] 7,

Coles Brook Commerce Park and by virtue of such

ownership is entitled to a 15.30 percentage interest in

the [a]ssociation and entitled to a vote of 15.30 percent;

and WHEREAS, the above owners of [lots] 1, 2 and 7

are the holders of more than fifty (50) percent of the

votes of the [a]ssociation; and WHEREAS, the parties

desire to amend the [d]eclaration as hereinafter provided. NOW THEREFORE, in consideration of the

mutual covenants and restrictions contained herein, the

parties hereby agree as follows; 1. [Lots] 1, 2 and 7 are

hereby withdrawn from the [a]ssociation. The owners

of [lots] 1, 2 and 7 shall hereinafter no longer be considered ‘‘[o]wners’’ and shall no longer have any percentage ownership in common elements of Coles Brook

Commerce Park, shall have no liability for common

expenses for Coles Brook Commerce Park and shall

hereafter no longer be entitled to a vote in connection

with the activities of Coles Brook Commerce Park.

‘‘As required by § 9.10 of the [d]eclaration, Rocky Hill

Development, LLC, MPM Enterprises, LLC, and Rescue

One, LLC recorded the [a]mendment on the Cromwell

land records [on July 26, 2012]. [DiMaria] purchased

lot 2 from MPM Enterprises on September 27, 2012, for

the purposes of building a crematorium.

‘‘In June, 2013, almost a year after the [a]mendment

was drafted, the [a]ssociation’s treasurer wrote a letter

to Rescue One, [the owner of lot 7] which accepted

Rescue One’s withdrawal from the [a]ssociation.

Although the [a]ssociation never sent a similar letter

to DiMaria, he never paid any fees or dues to the [a]ssociation and never participated in its meetings. Moreover, throughout the lengthy zoning approval process,

the [a]ssociation took the position that DiMaria was

not a part of the [a]ssociation.
‘‘[DiMaria] began to seek zoning approval for his crematorium in the spring of 2012 when the defendants6

submitted an application for site plan approval to Cromwell’s Planning and Zoning Commission ([commission])

for approval to construct a crematorium. Lot 2 as well

as [the rest of the Coles Brook Commerce Park] is

situated in Cromwell’s industrial zone, in which a crematorium is a permitted use. The plaintiffs participated

in the application process and were represented by

Attorney Richard Carella. In connection with the application for site approval, Attorney Carella sent a letter

to Stuart Popper, Cromwell’s [t]own [p]lanner, in which

he confirmed that the defendants had withdrawn from

the [a]ssociation.

‘‘On October 16, 2012, the [c]ommission denied the

application to build the crematorium. DiMaria and MPM

[Enterprises] appealed the denial. On July 25, 2013, the

defendants and the [c]ommission reached a settlement

agreement and on October 7, 2013, the [c]ommission

filed a motion for approval of the settlement agreement.

On October 11, 2013, the plaintiffs filed a motion to

intervene as of right to be made party defendants in

the zoning appeal. In the motion to intervene, the plaintiffs took the position that the defendants were not

members of the [a]ssociation. The Superior Court for

the judicial district of Hartford, Wahla, J., denied the

motion to intervene . . . .

‘‘DiMaria commenced construction [of the crematorium] in August, 2014. DiMaria has never paid dues to

the [a]ssociation, but has connected to the [a]ssociation’s drainage easement.’’ (Citation omitted; emphasis

in original; footnotes added.)

On August 6, 2014, the plaintiffs initiated this action

seeking (1) a declaratory judgment that the amendment

was void and unenforceable, (2) a permanent injunction

preventing the defendants from connecting lot 2 to the

association’s drainage system, and (3) a permanent

injunction preventing the defendants from building any

structure on lot 2 without approval from the association.7 A trial was held on October 2 and December 19,

2014. The trial court, Domnarski, J., issued a memorandum of decision rendering judgment in favor of the

plaintiffs on the basis that the amendment was invalid

because the declaration did not permit lot owners to

withdraw a lot from the association. See Prime Locations of CT, LLC v. Rocky Hill Development, LLC, Superior Court, judicial district of Middlesex, Docket No.

CV-14-6012319-S (December 19, 2014) (59 Conn. L. Rptr.

494). The defendants appealed to this court claiming

that the trial court decided the case on the basis of an

argument that was not raised or briefed by the parties,

specifically, that the court’s conclusion that the declaration did not permit a lot owner to withdraw from the

association or permit the removal of a lot from the

business park was not pleaded, briefed, or argued
before the trial court. On appeal, this court reversed the

2014 judgment rendered by the trial court and remanded

this case for a new trial. See Prime Locations of CT,

LLC v. Rocky Hill Development, LLC, 167 Conn. App.

786, 145 A.3d 317, cert. denied, 323 Conn. 935, 150 A.3d

686 (2016). On November 14, 2016, the plaintiffs filed

a request for leave to file an amended complaint, to

which the defendants objected.8

The first count of the plaintiffs’ amended complaint

dated November 14, 2016, alleged that the amendment

is void ab initio for three reasons: first, the plaintiffs

alleged that the amendment is precluded by the declaration; second, they alleged that the amendment is void

per se because the parties that executed the amendment

did not hold sufficient voting interest in the association;

and finally, they alleged that the amendment failed to

comply with the Connecticut Common Interest Ownership Act (COIA), General Statutes § 47-200 et seq. The

second count of the complaint sought a permanent

injunction prohibiting the defendants from utilizing a

drainage system that the plaintiffs alleged can be used

only by association members. The third count sought

a permanent injunction preventing the defendants from

constructing any structure on lot 2 without prior

approval from the association.

A second court trial was held on August 16, 2017.

The court, Aurigemma, J., issued a memorandum of

decision on February 1, 2018, rendering judgment in

favor of the defendants. After setting forth the facts

previously noted in this opinion, the court found that

‘‘[t]he gravamen of this action is that the [a]mendment

is invalid. However, from the time the [a]mendment

was filed until the time DiMaria started construction,

the plaintiffs opposed DiMaria’s plans on the ground

that the [a]mendment was valid and DiMaria was not

a member of the [a]ssociation. The delay in attacking

the [a]mendment was inexcusable and [DiMaria] was

prejudiced by the delay.’’

The court then found that ‘‘the [d]eclaration did permit the [a]mendment. However, even if it did not, the

plaintiffs are estopped by the doctrine of equitable

estoppel and laches from claiming that the [a]mendment is invalid. Judgment enters on the first count in

favor of the defendants. The third count seeks an injunction prohibiting the defendants from constructing any

structure on the DiMaria lot without approval of the

[a]ssociation. As the plaintiffs are estopped from claiming that the defendants are still in the [a]ssociation,

judgment enters in favor of the defendants on the third

count insofar as that count seeks an injunction prohibiting construction.

‘‘The plaintiffs argue that the [d]eclaration created

the drainage easement for the benefit of the [a]ssociation and its [o]wners. The defendants voluntarily withdrew from the [a]ssociation and, therefore, DiMaria’s
predecessor in interest, MPM Enterprises, voluntarily

relinquished its right to use the drainage easement.

‘‘The defendants argue that the drainage system was

created as part of the subdivision approval and DiMaria’s rights to use the drainage system arise from the

[s]ubdivision [a]pproval, which occurred on August 3,

2004, prior to the filing of the [d]eclaration. The town

of Cromwell has determined that DiMaria may tie into

the storm water drainage system and has charged DiMaria a fee to tie into the system, which he has paid.

‘‘The [d]eclaration states that easements, covenants,

and restrictions run with the [l]ots and are binding on

[l]ot owners and their successors in interest. In the

settlement of the site plan appeal, DiMaria proposed to

the [commission] that pavement runoff would discharge

into a ‘bay saver’ structure and then to a detention

water infiltration system with overflow directed to the

road drainage system. That proposal was incorporated

into the settlement with the [c]ommission.’’ See DiMaria v. Cromwell Planning and Zoning Commission,

Superior Court, judicial district of Hartford, Docket No.

CV-126036891-S (December 23, 2013).

‘‘Based on the foregoing, the court finds that the

defendants have a right to tie into the storm water

drainage system regardless of whether they belong to

the [a]ssociation. Judgment enters in favor of the defendants on the second count of the complaint. The third

count of the complaint also seeks an injunction prohibiting the defendants from utilizing the drainage easement. Judgment enters in favor of the defendants on

the third count insofar as it seeks to prohibit their use

of the drainage easement.’’

This appeal followed.

I

First, the plaintiffs claim that the court improperly

concluded that the declaration does not prevent lot

owners from withdrawing a lot from the association.

We disagree.

We begin by setting forth the applicable standard of

review. ‘‘When . . . the trial court draws conclusions

of law, our review is plenary and we must decide

whether its conclusions are legally and logically correct

and find support in the facts that appear in the record.

. . . [W]here there is definitive contract language, the

determination of what the parties intended by their

contractual commitments is a question of law.’’ (Citations omitted; internal quotation marks omitted.) Gateway Co. v. DiNoia, 232 Conn. 223, 229, 654 A.2d 342

(1995).

‘‘In ascertaining the contractual rights and obligations

of the parties, we seek to effectuate their intent, which

is derived from the language employed in the contract,

taking into consideration the circumstances of the par-
ties and the transaction. . . . We accord the language

employed in the contract a rational construction based

on its common, natural and ordinary meaning and usage

as applied to the subject matter of the contract. . . .

Where the language is unambiguous, we must give the

contract effect according to its terms. . . . A contract

is unambiguous when its language is clear and conveys

a definite and precise intent. . . . The court will not

torture words to impart ambiguity where ordinary

meaning leaves no room for ambiguity. . . . Moreover,

the mere fact that the parties advance different interpretations of the language in question does not necessitate

a conclusion that the language is ambiguous. . . . In

contrast, a contract is ambiguous if the intent of the

parties is not clear and certain from the language of

the contract itself. . . . [A]ny ambiguity in a contract

must emanate from the language used by the parties.

. . . The contract must be viewed in its entirety, with

each provision read in light of the other provisions . . .

and every provision must be given effect if it is possible

to do so.’’ (Citations omitted; internal quotation marks

omitted.) Cantonbury Heights Condominium Assn.,

Inc. v. Local Land Development, LLC, 273 Conn. 724,

734–35, 873 A.2d 898 (2005).

‘‘The meaning and effect of the [restrictive covenant]

are to be determined, not by the actual intent of the

parties, but by the intent expressed in the deed, considering all its relevant provisions and reading it in the

light of the surrounding circumstances . . . . The primary rule of interpretation of such [restrictive] covenants is to gather the intention of the parties from their

words, by reading, not simply a single clause of the

agreement but the entire context, and, where the meaning is doubtful, by considering such surrounding circumstances as they are presumed to have considered

when their minds met. . . . A restrictive covenant

must be narrowly construed and ought not to be

extended by implication. . . . Moreover, if the covenant’s language is ambiguous, it should be construed

against rather than in favor of the covenant.’’ (Citations

omitted; internal quotation marks omitted.) Alligood v.

LaSaracina, 122 Conn. App. 479, 482, 999 A.2d 833

(2010).

Accordingly, to determine whether the amendment

was valid and, therefore, lot owners were permitted to

withdraw from the association, we must review the

contested portion of the declaration in terms of the

declaration as a whole as well as in the context of the

surrounding circumstances. Section 9.10 of the declaration provides: ‘‘Modification or Termination. This [d]eclaration may only be modified in part or terminated in

its entirety by the recording in the [l]and [r]ecords of

Cromwell, Connecticut, of an instrument modifying or

terminating this [d]eclaration, signed by [o]wners and/

or owners of portions of the [p]roperty that are not

[l]ots having more than 50 [percent] of the votes of the
[a]ssociation.9 No modification may modify or terminate any easement created hereunder, including those

referenced in [e]xhibit B attached hereto, that benefits

or burdens any [o]wner’s [l]ot without the approval of

that [o]wner. Notwithstanding the foregoing, [d]eclarant shall have the right, in its sole discretion, to modify

the street lines of, extend the length of, or shorten, the

[p]ublic [r]oadways (whether such [p]ublic [r]oadways

are conceptual as depicted on the [m]ap or actually

construed and installed) and/or install new or additional

[p]ublic [r]oadways, provided that the same shall not

materially and adversely affect the access to, or street

frontage of, any [l]ot not owned by the [d]eclarant.

Further, [d]eclarant (with respect to any [l]ots that

[d]eclarant owns) and/or any other [o]wner or [o]wners

(with respect to the [l]ot or [l]ots owned by them) shall

have the right to add onto, resubdivide (which may

result in more or less [l]ots existing), and/or reconfigure

any [l]ot, at any time, in its and/or their sole discretion,

subject to the provisions of this [d]eclaration and applicable land use regulations.’’ (Footnote added.)

We agree with the trial court’s determination that the

declaration did not prevent the 2012 amendment and,

therefore, the defendant lot owners in July, 2012, were

permitted to withdraw lots from the association. The

plain language of the declaration states that it may be

modified or terminated. Section 9.10 continues by stating that, in accordance with the declaration, the modification or termination must be recorded in the Cromwell

land records and must be signed by a majority of the

voting land owners. The declaration also prohibits and

restricts certain types of modifications and terminations.10 Nowhere in these requirements and restrictions,

however, does the declaration state that a lot owner is

not permitted to withdraw a lot from the association.

A modification or termination resulting in a lot owner’s

withdrawal of a lot from the association, although

impactful, is not prohibited by the language in § 9.10

of the declaration. Further, because the declaration

includes language limiting certain types of modifications or terminations (i.e., the termination of certain

easements), we can infer that, if the declaration also

intended to limit the ability of lot owners to withdraw

a lot from the association, the declaration would have

included express language limiting that action as well.

‘‘[I]t is well settled that we will not import terms into

[an] agreement . . . that are not reflected in the contract.’’ (Internal quotation marks omitted.) Ramirez v.

Health Net of the Northeast, Inc., 285 Conn. 1, 16, 938

A.2d 576 (2008). ‘‘A court simply cannot disregard the

words used by the parties or revise, add to, or create

a new agreement. . . . A term not expressly included

will not be read into a contract unless it arises by necessary implication from the provisions of the instrument.’’

(Citation omitted; internal quotation marks omitted.)

Greenburg v. Greenburg, 26 Conn. App. 591, 598, 602
A.2d 1056 (1992).

In addition to the express language of the declaration,

the trial court’s determination that lot owners were

permitted to withdraw lots from the association is also

supported by the plaintiffs’ previous conduct. Specifically, prior to commencing the present action, in June,

2013, the association, which includes the plaintiffs, sent

a letter to Rescue One acknowledging its withdrawal

from the association. The plaintiffs’ prior acceptance

of a withdrawal of a lot from the association is counter

to its present argument that lot owners were not permitted to withdraw lots from the association. To the contrary, such acceptance suggests that withdrawal was

permissible. Moreover, with regard to DiMaria’s December 23, 2013 settlement agreement with the commission,

the plaintiffs took the position that DiMaria was not a

member of the association. Here, the plaintiffs attempt

to take a contradictory position by arguing that DiMaria

was not permitted to withdraw his lot from the association and is an existing member.

The plaintiffs also argue that the owners of the lots

are required to be members of the association because

§ 3.2 of the declaration provides that ‘‘[e]very owner

shall be a member of the [a]ssociation.’’ The defendants

argue that the plaintiffs’ interpretation incorrectly links

ownership of the lots with membership in the association and that § 3.2 would have to read ‘‘[e]very owner

shall always be a member of the [a]ssociation’’ in order

to import the meaning suggested by the plaintiffs. We

agree with the defendants that the language of § 3.2

does not support the plaintiffs’ position that lot owners

are never able to withdraw their lots from the association. In addition, this portion of § 3.2 can be interpreted

as simply conferring on owners the status as a member

of the association rather than requiring that they must

always remain a member.

The plaintiffs advance two other legal theories in

support of their claim that the court improperly concluded that the declaration permits lot owners to withdraw lots from the association, neither of which we

find availing. One of the plaintiffs’ arguments is that

the amendment to the declaration was invalid because

the lot owners signing the amendment held less than

50 percent of the lots because Rocky Hill Development

was no longer a member of the association. In response

to this argument, the trial court determined that,

‘‘[a]lthough the [a]ssociation allowed Rocky Hill Development to withdraw from the [a]ssociation, it never

recorded any amendment to that effect. That failure

contravened the policies of [§] 9.10 of the [d]eclaration,

which requires that in order to be valid, an amendment

must be filed on the land records. The defendants correctly argue that at the time the [a]mendment was executed, all three signatories, MPM Enterprises, Rescue

One, and Rocky Hill Development, were still part of the
[a]ssociation. Those three parties held more than 50

[percent] voting interest in the [a]ssociation at the time

of the [a]mendment.’’ We agree with the trial court’s

determination that there is no evidence in the record,

namely, the document required to be filed in the land

records, to support the plaintiffs’ position that Rocky

Hill Development was no longer part of the association

at the time the amendment was signed. Therefore, the

record reflects that, at the time the amendment was

signed, Rocky Hill Development was entitled to 27.84

percent of the voting interest, and the three signing

owner entities comprised more than 50 percent11 of the

total voting interest, and thus the parties effectuated a

valid amendment.

Next, the plaintiffs advance the argument that the

amendment did not comply with the CIOA. Specifically,

the plaintiffs argue that, by failing to obtain sufficient

votes required by General Statutes § 47-236,12 the defendants failed to effectuate the amendment. With regard

to the plaintiffs’ argument, the trial court stated that

there was a question as to whether the CIOA applied

to the association because pursuant to § 47-236 (a) (3),13

the CIOA’s requirement of a 67 percent vote to amend

a declaration does not apply in situations in which the

properties that are part of an association are nonresidential. We agree with the trial court’s determination

that the lots are to be used within a functionally integrated business park and not for residential purposes.

Therefore, we conclude that, in amending the declaration, the defendants did not need to comply with the

CIOA voting requirement. On the basis of the foregoing,

we conclude that the court properly concluded that the

declaration did not prevent lot owners from withdrawing their lots from the association. Consequently, the

recorded amendment was proper. DiMaria was not

required to be a member of the association when he

purchased lot 2 from MPM Enterprises and his property

was no longer subject to the declaration’s restrictions.

II

Next, the plaintiffs claim that, in denying their request

for injunctive relief in the second count of their complaint, the court improperly concluded that the defendants were entitled to connect lot 2 to the association’s

drainage system even though the defendants expressly

had waived any right to the association’s common elements in purportedly withdrawing lot 2 from the association. We disagree.

We begin by setting forth the applicable standard of

review. ‘‘A party seeking injunctive relief has the burden

of alleging and proving irreparable harm and lack of

an adequate remedy at law. . . . A prayer for injunctive

relief is addressed to the sound discretion of the court

and the court’s ruling can be reviewed only for the

purpose of determining whether the decision was based

on an erroneous statement of law or an abuse of discre-
tion. . . . Therefore, unless the trial court has abused

its discretion, or failed to exercise its discretion . . .

the trial court’s decision must stand. . . . The extraordinary nature of injunctive relief requires that the harm

complained of is occurring or will occur if the injunction

is not granted. Although an absolute certainty is not

required, it must appear that there is a substantial probability that but for the issuance of the injunction, the

party seeking it will suffer irreparable harm. . . . We

note also that, in exercising its discretion, the court, in

a proper case, may consider and balance the injury

complained of with that which will result from interference by injunction.’’ (Citations omitted; internal quotation marks omitted.) Tighe v. Berlin, 259 Conn. 83,

87–88, 788 A.2d 40 (2002).

The plaintiffs have not demonstrated that the court

abused its discretion by ruling in favor of the defendants

and determining that DiMaria was entitled to connect

his lot to the association’s drainage system, despite the

fact that lot 2 had been withdrawn from the association.

One of the introductory clauses of the declaration states

that ‘‘this [d]eclaration and all of the easements, covenants, conditions and restrictions as set forth herein

shall run with the [l]ots and the balance of the [p]roperty

for all purposes and shall be binding upon and inure

to the benefit of all [o]wners, and their tenants, subtenants, employees, concessionaries, licensees, customers

and business invitees, and their successors in interest.’’

Further, § 9.10 of the declaration provides in relevant

part: ‘‘No modification may modify or terminate any

easement created hereunder, including those referenced in [e]xhibit B attached hereto, that benefits or

burdens any [o]wner’s [l]ot without the approval of

that [o]wner.’’

The plaintiffs argue that, if the amendment permitted

the withdrawal of DiMaria’s lot from the association,

then DiMaria is not permitted to use the drainage easement created under exhibit B of the declaration. The

defendants alternatively argue that, on the basis of their

argument in part I of this opinion, § 9.10 of the declaration permits the removal of any lot from the association,

as well as for the complete termination of the association. Following this logic, the defendants argue that use

of the drainage easement cannot be premised upon

association membership because were the association

to be terminated, the still usable lots would have

nowhere to drain runoff water.

In determining that DiMaria was still permitted to

use the drainage easement, despite the withdrawal of

his lot from the association, the trial court stated the

following: ‘‘The [d]eclaration states that easements,

covenants, and restrictions run with the [l]ots and are

binding on [l]ot owners and their successors in interest.

In the settlement of the site plan appeal, DiMaria proposed to the [commission] that pavement runoff would
discharge into a ‘bay saver’ structure and then to a

detention water infiltration system with overflow

directed to the road drainage system. That proposal

was incorporated into the settlement with the [c]ommission. . . . Based on the foregoing, the court finds that

the defendants have a right to tie into the stormwater

drainage system regardless of whether they belong to

the [a]ssociation.’’

We agree with the defendants that the lot owners’

use of the drainage easement is not predicated on membership in the association. Preliminarily, according to

the express language of the declaration, the easements

created by the declaration run with the land and are

binding on all lot owners. Further, although not argued

by the defendants in their appellate brief, we agree with

the trial court’s determination that the drainage system

was created as part of the subdivision approval on

August 3, 2004, prior to the filing of the declaration.

Therefore, DiMaria’s right to use the drainage system

arose before the creation of the declaration and the

easement rights created therein. Moreover, DiMaria’s

December 23, 2013 settlement with the commission

incorporated a proposal that DiMaria would utilize the

drainage system in question. On the basis of the foregoing, we conclude that the court did not abuse its discretion in declining to grant the plaintiffs’ request for an

injunction preventing DiMaria from using the drainage easement.

III

Finally, we conclude that we need not address the

plaintiffs’ third claim, that the court improperly concluded that the plaintiffs’ cause of action was barred

by the doctrines of laches and equitable estoppel, or

their fourth claim, that the court erred in declining to

grant the plaintiffs’ request for a permanent injunction

prohibiting DiMaria from constructing a crematorium

on his lot without approval from the association.

On the basis of our conclusion in part I of this opinion

that the amendment was valid and therefore the defendants, being the current and prior owners of lot 2, were

permitted to withdraw that lot from the association,

the plaintiffs are unable to prevail with respect to either

of these claims. These claims are dependent on the

plaintiffs’ having prevailed on their first claim, that the

court improperly concluded that the declaration does

not prevent lot owners from withdrawing a lot from

the association.

The judgment is affirmed.

In this opinion the other judges concurred.

1 Rocky Hill Development, LLC, and Rescue One, LLC, were also named

as defendants but the plaintiffs withdrew the action as against them prior

to trial, and those two entities are not part of this appeal. We refer to MPM

Enterprises and DiMaria as the defendants.

2 Plaintiffs’ exhibit 2, a subdivision map of the property, depicts the seven

lots originally included in the association.
3

In this case, all votes came from owners of entire lots and none of the

votes came from owners of portions of lots.

4 On June 12, 2012, the owner of lot 1 was Rocky Hill Development.

5 At the time the amendment was signed, the plaintiffs owned lots 3, 4, 5 and

6. Those lots comprised 44.03 percent of the park property. MPM Enterprises

owned lot 2, Rocky Hill Development owned lot 1 and Rescue One owned

lot 7. Lots 1, 2 and 7 comprised 54.14 percent of the park property.

6 The application was filed by MPM Enterprises and DiMaria, in anticipation of the sale of lot 2 to DiMaria.

7 Counts two and three are alleged against both defendants, DiMaria and

MPM Enterprises, but, practically speaking, because MPM Enterprises sold

lot 2 to DiMaria, the counts really affect only DiMaria as the current owner

of the lot.

8 The court originally sustained the defendants’ objection but, at a later

date, held sua sponte that the plaintiffs’ amendment to the complaint should

be permitted.

9 As previously noted, for purposes of this appeal, all of the defendants

voting in favor of the amendment were owners of full lots, not portions of

lots. See footnote 3 of this opinion.

10 In accordance with the declaration, a modification or termination cannot

modify or terminate an easement created under the declaration that benefits

or burdens a lot owner without that lot owner’s consent.

11 As previously noted, Rocky Hill Development owned 27.84 percent,

MPM Enterprises owned 11.01 percent, and Rescue One owned 15.3 percent,

for a total of 54.15 percent.

12 General Statutes § 47-236 (a) (1) provides that a declaration may be

amended by ‘‘vote or agreement of unit owners of units to which at least

sixty-seven per cent of the votes in the association are allocated, unless the

declaration specifies either a larger percentage or a smaller percentage, but

not less than a majority, for all amendments or for specific subjects of

amendment . . . .’’

13 General Statutes § 47-236 (a) (3) provides that ‘‘[t]he declaration may

specify a smaller number [of voting percentage] only if all of the units are

restricted exclusively to nonresidential use.’’