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*********************************************** 
MICHAEL ABEL ET AL. v. CELESTE M. JOHNSON

(AC 41058)

Keller, Moll and Beach, Js.

Syllabus

The plaintiffs, owners of property in a subdivision, sought to enjoin the

defendant abutting property owner from violating certain restrictive

covenants in connection with deeds to the parties’ properties. The first

deed restriction, which limited the land to residential use only, was

contained in a 1956 deed, whereby the original grantors conveyed the

land to a housing developer, E Co. In a 1961 declaration executed by

E Co., restrictions regarding the keeping of chickens and the parking

of commercial vehicles were added. At trial, the defendant admitted to

operating a landscaping company from her property and keeping chickens on her property, and that several vehicles on her property were

used in conjunction with her landscaping business. The trial court found

that the plaintiffs had standing to enforce the restrictive covenants

contained in the 1956 deed and the 1961 declaration on the grounds

that the parties’ properties were part of a common scheme of development and both parties’ deeds contained the restrictive covenants at

issue. The trial court rendered judgment in favor of the plaintiffs and

awarded the plaintiffs injunctive relief. On the defendant’s appeal to

this court, held:

1. The trial court improperly determined that the plaintiffs had standing to

enforce the restrictive covenant in the 1956 deed that limited the use

of the defendants’ property for residential purposes, as there was no

allegation or evidence that the plaintiffs were the original grantors of

the 1956 deed or their successors in interest; the restrictive covenants

set forth in the 1956 deed were expressly intended to inure to the benefit

of the remaining land of the original grantors of the premises conveyed

in the 1956 deed, which were subsequently conveyed to the parties, the

plaintiffs had neither alleged nor proven that they were entitled to

enforce the restrictive covenants at issue under a theory of mutuality

of covenant and consideration, the original grantors, for their benefit,

extracted covenants from the grantees of the 1956 deed, and there was

no language in the deed that suggested that the restrictive covenants

were intended to benefit the original or subsequent grantees of the 1956

deed, or that the original grantors were dividing their property into

building lots, thereby imposing the restrictive covenants upon grantees

as part of a general developments scheme, as the restrictive covenants

at issue fell within the class of covenants exacted by a grantor from his

grantee presumptively or actually for the benefit and protection of the

adjoining land that he retained.

(One judge dissenting)

2. The trial court erred in awarding injunctive relief regarding the storage

of the defendant’s pickup truck as a commercial vehicle pursuant to a

restrictive covenant contained in the 1961 declaration concerning the

storage of commercial vehicles, as such relief was beyond the scope of

the plaintiffs’ operative complaint; although that court had denied the

plaintiffs’ request to amend the complaint to include a claim for relief

pursuant to the restrictive covenant in the 1961 declaration concerning

the storage of commercial vehicles, it expressly referred to that restrictive covenant in awarding injunctive relief, and the plaintiffs could not

prevail on their claim that the relief awarded was proper because their

complaint sought broad relief with respect to any type of commercial

activity pursuant to the 1956 restrictive covenant limiting the use of the

property for residential purposes only, this court having determined

that the plaintiffs lacked standing to enforce that restriction in the

1956 deed.

3. The defendant could not prevail on her claim that the plaintiffs’ action

seeking injunctive relief concerning the keeping of chickens on the

defendant’s property was moot in light of the fact that she had removed

the chickens from her property prior to the commencement of the action:

although there was undisputed evidence that the chickens were no
longer present on the defendant’s property, the trial court had jurisdiction to consider the claim and to afford the plaintiffs practical relief,

as the defendant still owned the chickens, the coops remained on her

property, the defendant previously attempted to get permission from

her neighbors, as required by the restrictive covenant, to keep continue

keeping the chickens on her property, and no evidence was presented

to establish that she did not intend to resume the prohibited conduct

in the future; moreover, the trial court erred in awarding injunctive

relief that indefinitely prohibited chickens on the defendant’s property,

as the court’s order constituted a blanket prohibition against the defendant and precluded her from availing herself of any permissible exceptions in the future, including the right, under the 1961 restrictive covenant, to periodically seek permission from her neighbors to keep

chickens on her property, and, therefore, the court exceeded the scope

of the restrictive covenant it purported to enforce.

Argued March 7—officially released November 5, 2019

Procedural History

Action for, inter alia, injunctive relief barring the

defendant from violating restrictive covenants on certain of the defendant’s real property, brought to the

Superior Court in the judicial district of Stamford-Norwalk and tried to the court, Hon. Edward R. Karazin,

Jr., judge trial referee; judgment for the plaintiffs, from

which the defendant appealed to this court. Reversed

in part; vacated in part; judgment directed.

Heather M. Brown-Olsen, for the appellant

(defendant).

John R. Harness, for the appellees (plaintiffs).
Opinion

KELLER, J. In this action to enforce restrictive covenants, the defendant, Celeste M. Johnson, appeals from

the judgment of the trial court, rendered following a

trial to the court, in favor of the plaintiffs, Michael Abel

and Carol Abel. The defendant claims that the court

erred (1) in its determination that the plaintiffs had

standing to enforce a restrictive covenant that appears

in a deed that was executed by the original grantors of

the parties’ real properties1 and (2) by granting the

plaintiffs injunctive relief on the basis of two restrictive

covenants that appeared in a declaration of restrictions

that applied to the parties’ real properties. We affirm

in part and reverse in part the judgment of the trial court.

The record reveals the following procedural history.

In their one count complaint, the plaintiffs alleged that

they own real property located at 37 Mill Stream Road

in Stamford and that the defendant owns real property

located at 59 Mill Stream Road in Stamford. The plaintiffs alleged that their property abutted that of the defendant, and that both properties are located in a subdivision named the Saw Mill Association.

The plaintiffs alleged: ‘‘The plaintiffs’ property and

the defendant’s property are subject to certain restrictive covenants recorded in volume 792 at page 118 of

the Stamford land records which states that property

shall be used for private residential purposes only.’’

Also, the plaintiffs alleged: ‘‘The plaintiffs’ property and

the defendant’s property are also subject to certain

restrictive covenants recorded in volume 917 at page

114 of the Stamford land records which state in relevant

part that no animals, poultry or water fowl, except usual

pets quartered within the family dwelling at night shall

be kept on a tract.’’ The plaintiffs alleged that the restrictive covenants ‘‘are common to all tracts or parcels of

land located within the area or subdivision known as

the Saw Mill Association.’’

The plaintiffs further alleged: ‘‘The defendant is violating the restrictive covenants by maintaining chickens

and chicken coops upon the defendant’s property and

by conducting a landscaping business from the defendant’s property.’’ Also, the plaintiffs alleged: ‘‘The defendant has not obtained consent from the Saw Mill Association . . . the plaintiffs or any neighboring property

owner to maintain chickens upon the defendant’s property or to conduct a landscaping business from the

defendant’s property.’’ The plaintiffs alleged that they

had demanded that the defendant cease and desist the

activities at issue, but the defendant had failed to comply with their demand. The plaintiffs alleged that they

had suffered and would continue to suffer irreparable

harm as a result of the activities at issue, and that they

lacked an adequate remedy at law. The plaintiffs sought

injunctive relief ordering the defendant to immediately
cease and desist from violating the restrictive covenants

and such other relief as the court deemed equitable

and proper.

In her answer, the defendant admitted owning 59 Mill

Stream Road, which abuts the plaintiffs’ property, but

she denied that she had violated any restrictive covenant by virtue of her keeping chickens or by virtue of

her landscaping business, denied that she had failed to

obtain consent to conduct her landscaping business,

and denied that the plaintiffs had suffered harm or

would continue to suffer harm as a result of her alleged

violation of the restrictive covenants at issue. Otherwise, the defendant left the plaintiffs to their proof. The

defendant raised four special defenses sounding in the

following legal theories: (1) equitable estoppel and

waiver; (2) unclean hands;2

(3) ripeness, mootness, and

frustration of purpose; and (4) a claim that the action

was time barred pursuant to General Statutes § 52-575a

in that the plaintiffs did not commence the action within

three years from the time that they had actual or constructive knowledge of the alleged violations of the

restrictive covenants. By way of a reply, the plaintiffs

denied all of the special defenses.

The trial court, Hon. Edward R. Karazin, Jr., judge

trial referee, held a trial in this matter on June 29 and

30, 2017. On August 24, 2017, the court rendered its

judgment by way of a memorandum of decision that

provides, in relevant part, as follows: ‘‘The defendant

. . . resides with her husband, Eusevio Martinez, at 59

Mill Stream Road, Stamford . . . . The plaintiffs . . .

reside at 37 Mill Stream Road, Stamford . . . . The

plaintiffs’ property abuts the defendant’s property, and

both parcels of land are located within a subdivision

known as the Saw Mill Association.

‘‘The court finds the [plaintiffs] aggrieved as being

. . . adjoining property [owners].

‘‘Both properties are subject to three deed restrictions. The first restriction, [as modified by an agreement] dated March 27, 1957, states that ‘said premises

shall be used for private residential purposes only

(except that a residence may be used for professional

purposes by a member of a profession occupying the

same as his home to the extent that such use is permitted from time to time by the applicable zoning regulations of the city of Stamford).’ The second restriction

is dated March 15, 1961, and states that ‘no animals,

poultry or water fowl, except usual pets quartered

within the family dwelling at night, shall be kept on a

tract.’ The third restriction is also dated March 15, 1961,

and states that ‘any commercial vehicle used by an

occupant of a tract shall be kept within a garage with

doors closed, except for brief periods required for loading or unloading.’

‘‘At trial, the defendant testified that she operates a
landscaping business from her property, that chickens

were on the property but have since been removed,

and that various vehicles parked on her property are

used in conjunction with her landscaping business. . . .

‘‘The plaintiff[s] [argue] that the three deed restrictions listed above are part of a common development

scheme and, therefore, they are able to bring this action

to enforce the restrictions against the defendant. . . .

‘‘The defendant argues that the deed restrictions on

her property are the result of covenants exacted by the

original landowner from the developer of the Saw Mill

Association for the benefit and protection of his adjoining land which he retains and, as a result, the [plaintiffs]

cannot enforce the deed restrictions. In addition, the

defendant asserts four special defenses . . . .’’ (Footnotes omitted.)

After setting forth relevant legal principles, the court

stated: ‘‘The plaintiffs submitted multiple deeds from

various properties of the Saw Mill Association that contained the restrictive covenant[s] they seek to enforce.

In addition, the deeds from both parties contain the

deed restrictions at issue in this case. . . . The court

is satisfied that both the [plaintiffs’] and defendant’s

properties are part of a common scheme of development. Therefore, the plaintiffs may enforce the deed

restrictions against the defendant. Without a showing

by the defendant that the enforcement of those deed

restrictions would be inequitable or that a special

defense applies, the court will enforce the restrictions.’’

The court then addressed the special defenses: ‘‘The

defendant argues that the plaintiffs are estopped from

enforcing the restrictive covenants regarding the operation of a home business because they previously utilized

services from the landscaping business. . . .

‘‘Even if the plaintiffs hired the defendant’s company

in its capacity as a landscaping company, no evidence

submitted at trial supports the proposition that the

defendant changed her position in response to the

[plaintiffs’] offer of work. Nor is there evidence that

the defendant was prejudiced by accepting the work

from the [plaintiffs]. . . . Therefore, the defendant has

failed to prove the special defense of equitable estoppel.

‘‘The defendant also argues that with respect to the

covenant involving poultry, this action is moot and not

justiciable because the chickens that were on the property have been removed prior to the start of trial. . . .

‘‘Both parties agree that the chickens have been

removed from the defendant’s property. In addition,

both parties agree that the chicken coops are still on

the defendant’s property. The defendant testified that

she moved the chickens to another property she owns

and does not have plans to return them to her property

at 59 Mill Stream Road. Given that an injunction against

the defendant regarding the enforcement of the 1961
covenant would provide practical relief to the [plaintiffs] and would resolve any ambiguity about whether

the chickens could be returned to the property, this

court does not find the issue moot. Therefore, the

injunction regarding poultry and water fowl and the

[plaintiffs’] request to order an injunction is not moot,

and the defendant’s special defense has not been

proven.

‘‘The defendant argues that the plaintiffs’ action is

barred by the three year statute of limitations provided

in . . . § 52-575a. General Statutes § 52-575a provides

in relevant part: ‘No action or any other type of court

proceedings shall be brought to enforce a private

restriction recorded in the land records of the municipality [in which the property is located] . . . [unless

such action or proceeding] shall be commenced within

three years of the time that the person seeking to

enforce such restriction had actual or constructive

knowledge of such violation.’ ‘Section 52-575a requires

that a violation occur before the statute begins to

run’. . . .

‘‘The defendant submitted evidence and elicited testimony from [the] plaintiff Michael Abel at trial which

indicated that the plaintiffs had actual knowledge of

the defendant’s landscaping business. The defendant

submitted checks dated in 2007 that the [plaintiffs] used

to pay for landscaping services from the defendant.

In addition, [Michael Abel] testified that he knew the

defendant and her husband were attempting to start a

business and hired them in order to help them with

[the] financial troubles he knew they were having. If

this were the only evidence and testimony relevant to

the defendant’s breach of the restrictive covenant

involving the operation of a home business, then perhaps the statute of limitations would apply and bar the

[plaintiffs’] claim.

‘‘Instead, the defendant has been continually

expanding the operations of her home business. These

expansions involve deliveries of mulch, chipping tree

branches, maintenance of landscaping equipment, and

the parking of several employee vehicles on her property or in front of her home. The defendant put forth

arguments and testimony that some of these activities

are for personal use as she operates a farm at a separate

location. This testimony conflicts with other testimony

provided by the defendant and other witnesses, which

described the expansion of the landscaping business

and the increasing number of clients the defendant

serves with her business. In addition, the plaintiff[s]

provided testimony and a letter addressed to a neighbor

from the defendant that indicated [that] the defendant

was in possession of a large delivery of mulch and

that she could provide mulch in conjunction with other

landscaping services. These violations have taken place

in the three years before this suit was brought.’’
After the court referred to some of the photographic

evidence submitted by the plaintiffs concerning the

activities that took place and equipment that was present on the defendant’s property, the court stated: ‘‘The

exhibits and photographs clearly show that the premises are not being solely used for residential purposes,

but rather a landscaping business. The only use for the

property outside of residential is for professional use

by a member of a profession.

‘‘Within the past three years, the defendant’s new and

expanding uses of her property in relation to her home

business continue to increase beyond the simple founding of a business and operation from the home. Since

these new violations of the restrictive covenant have

been occurring in pursuit of expanding her home business, and continue to increase since the time that the

plaintiffs originally knew about the business, their

action is not time barred by § 52-575a. It would not be

in the interest of justice to find that once a person

violates a restrictive covenant in a minor way, and the

other party does not bring suit, they can continue violating it in progressively larger ways once the statute

of limitations expires. For this reason, the court does

not find that the defendant has [satisfied her] burden

of showing that it would be inequitable to enforce the

covenant against her. Therefore, the statute of limitations special defense has not been proven.

‘‘The plaintiff[s] [argue] that the defendant’s vehicles

used in connection with the landscaping business are

commercial vehicles and subject to the restrictive covenant prohibiting commercial [vehicles] from being

parked outside of a closed garage. The defendant argues

that the vehicles are her and her husband’s private

vehicles that are sometimes used in connection with

the business and not a commercial vehicle for the purposes of any restrictive covenant or rules of the Saw

Mill Association.’’

Thereafter, the court found in light of the evidence

and relevant law that a Dodge pickup truck that the

defendant admitted was used in conjunction with her

landscaping business was a commercial vehicle for purposes of the restrictive covenants.

The court found that the plaintiffs had proven the

allegations set forth in their complaint and that the

defendant had failed to prove her special defenses. The

court ordered the following injunctive relief:

‘‘(1) An injunction ordering the defendant to immediately cease and desist from violating the restrictive covenants;

‘‘(2) An injunction ordering the defendant from keeping any chickens or roosters upon the defendant’s property; (the defendant is not ordered to remove the

chicken coops);
‘‘(3) An injunction ordering the [Dodge pickup truck]

to be kept within a garage with the doors closed except

for brief periods required for loading or unloading;

‘‘(4) An injunction ordering the defendant not to

receive and/or store supplies such as mulch and sod at

the defendant’s property for resale to customers of the

landscaping business;

‘‘(5) An injunction ordering the defendant not to allow

parking of employees or independent contractor vehicles upon the defendant’s property while the employee

or independent contractor is working for the landscaping business;

‘‘(6) An injunction ordering the defendant to stop

performing chipping of tree branches from the landscaping business upon the defendant’s property;

‘‘(7) An injunction ordering the defendant to stop

performing repairs of equipment used in connection

with the landscaping business upon the defendant’s

property.’’3 This appeal followed.

I

First, we address the defendant’s claim that the court

erred in its determination that the plaintiffs had standing to enforce a restrictive covenant that appears in the

1956 deed that was executed by the original grantors

of the parties’ real properties. We agree with the

defendant.

With respect to the restrictive covenants at issue in

this appeal, the following relevant facts are not in dispute. In 1956, Horace Havemeyer and Harry Waldron

Havemeyer (original grantors) conveyed to a housing

developer, Empire Estates, Inc. (Empire Estates),

166.1229 acres of real property in Stamford. The deed

related to this conveyance is recorded in volume 792,

page 118, of the Stamford land records. In relevant part,

the deed provides: ‘‘This deed is given and accepted

upon the following express covenants and agreements

which shall run with the land herein conveyed and shall

be binding upon the grantee, its successors and assigns,

and shall enure to the benefit of the remaining land of

the grantors lying westerly of the premises herein

conveyed:

‘‘(1). Said premises shall be used for private residential purposes only (except that a doctor or dentist having a home on said premises may locate his office herein

if such use is permitted by the applicable zoning regulations), and no buildings shall be erected or maintained

upon said premises except single-family dwelling

houses and appropriate outbuildings.

‘‘(2). Said tract shall not be subdivided for building

purposes into plots containing less than one (1) acre

in area, and not more than one (1) such dwelling house

shall be erected or maintained on any such plot.’’4
In 1961, Empire Estates, through its trustees, Harry

E. Terhune and Gordon R. Patterson, executed a declaration of restrictions (declaration) that was recorded

in volume 917, page 114, of the Stamford land records.

The declaration, which included thirty-five articles and

set forth a wide variety of restrictions, did not contain

a provision restricting the applicable tracts to private

residential use only. In relevant part, the declaration

states: ‘‘Witnesseth, that said trustees hereby place

upon the land records the following restrictions, covenants, agreements, reservations, easements and information which shall govern the use of any tract of land

whenever imposed in a deed of conveyance, by reference to this declaration, from any person or corporation

authorized by either of the said trustees or their successors, by instrument recorded in the land records, to

impose the terms hereof on portions of the land owned

by such person or corporation and shall run with the

land so conveyed and shall enure to the benefit of the

owners of tracts of land affected by the terms hereof,

to the person or corporation authorized to impose the

terms hereof and, where applicable, to the municipality . . . .’’

Article 2 of the declaration provides: ‘‘No animals,

poultry or water fowl, except usual pets quartered

within the family dwelling at night, shall be kept on a

Tract.5 Exceptions to this provision may be made for

not over two year periods if consented to in writing by

the Purchaser6 of each Tract within two hundred (200)

feet of the Tract where the exception is proposed.’’

(Footnotes added.)

Article 8 of the declaration provides: ‘‘Any commercial vehicle used by an occupant of a Tract shall be

kept within a garage with doors closed, except for brief

periods required for loading or unloading.’’

The final article of the declaration, Article 35, provides in relevant part: ‘‘The intent of this Declaration

is to protect property values. Developer7

intends to

enforce the provisions of this Declaration whenever it

feels its interest may be threatened. Enforcement action

may be taken, with or without Developer’s participation, by any aggrieved Purchaser of a Tract, or by any

group of aggrieved Purchasers represented by a Property Owner’s Association, or otherwise.

‘‘Enforcement of this Declaration or any part thereof

shall be by proceedings at law or in equity against any

person or persons violating or attempting to violate any

right herein contained, and said proceedings may be

either to restrain any violation thereof, to recover damages therefor, or to require corrective measures to

accomplish compliance with the intent of this Declaration.’’ (Footnote added.)

The deed conveying the property known as 37 Mill

Stream Road to the plaintiffs, which was recorded on
September 26, 1977, in volume 1680, page 100, of the

Stamford land records, provides in relevant part: ‘‘Said

premises are conveyed subject to any restrictions or

limitations imposed or to be imposed by governmental

authority, including the zoning and planning and wetlands rules and regulations of the City of Stamford;

restrictive covenants and agreements contained in a

certain deed from Harry Waldron Havemeyer et al to

Empire Estates, Incorporated dated August 14, 1956

and recorded in said records in Book 792 at Page 118,

as modified by an agreement dated March 27, 1957 and

recorded in said records in Book 808 at Page 355; a

declaration made by Harry E. Terhune and Gordon R.

Paterson, as trustees, dated March 15, 1961 and

recorded in said records in Book 917 at Page 114 . . . .’’

Materially similar language appears in the defendant’s

chain of title as well.8

In a deed conveying the property

known as 59 Mill Stream Road and recorded on September 30, 1983, in volume 2296, page 146, of the Stamford

land records, the following language appears: ‘‘Said

premises are conveyed subject to planning and zoning

rules and regulations of the City of Stamford and any

other Federal, State or local regulations, taxes and

assessments of the City of Stamford becoming due and

payable hereinafter, restrictive covenants and agreements as contained in a deed from Harry Waldron

Havemeyer, et al to Empire Estates, Incorporated dated

August 14, 1956 and recorded in the land records of

said Stamford in book 792 at page 118, except as the

same are modified by an agreement dated March 27,

1957 and recorded in said records in book 808 at page

355, the terms of a declaration made by Harry E. Terhune and Gordon R. Patterson, as Trustees, dated

March 14, 1961 and recorded in said records in book

917 at page 114, the rights of others, including the City

of Stamford, in and to any brook, river, stream or water

flowage easement crossing and bounding said tract of

land.’’ This 1983 deed is referred to in the 2006 deed

conveying the property to the defendant, which is

recorded in volume 8602, page 54, of the Stamford

land records.

Having set forth some relevant facts, we turn to the

defendant’s claim with respect to standing. As set forth

previously in this opinion, the court concluded that

the plaintiffs had standing to enforce the restrictive

covenant in the 1956 deed related to commercial activity, as well as the restrictions set forth in the 1961

declaration concerning the keeping of chickens and the

parking of commercial vehicles. The court ruled that

the plaintiffs had standing to enforce all of these restrictions because the parties’ properties were ‘‘part of a

common scheme of development’’ and ‘‘the deeds from

both parties contain the deed restrictions at issue in

this case.’’ The court rejected not only the defendant’s

special defenses, but her jurisdictional argument that

the plaintiffs lacked standing to enforce the restriction
in the 1956 deed from the original grantors to Empire

Estates, the developer of the properties that are now

owned by the plaintiffs and the defendant. As stated

previously, the 1956 deed restriction at issue, as modified in 1957, limits the subject premises to ‘‘private

residential purposes only . . . .’’

Echoing the arguments she advanced before the trial

court, the defendant claims that the court improperly

concluded that the plaintiffs had standing to enforce

the restrictive covenant in the 1956 deed, as modified

in 1957, which generally prohibits commercial activity

on the property. The defendant argues that the restrictive covenant in the 1956 deed, by its terms, inured to

the benefit of the original grantors, Horace Havemeyer

and Harry Waldron Havemeyer, and their successors,

not to the plaintiffs. Moreover, the defendant argues

that the court erroneously determined that the plaintiffs

could enforce the restrictive covenant in the 1956 deed

because the parties’ properties were part of a common

scheme of development. We note that the defendant

does not dispute that the plaintiffs had standing to

enforce the restrictive covenants that appear in the 1961

declaration, which, thereafter, were imposed on the

original grantees of the parties’ properties when Empire

Estates conveyed its interests in individual tracts to

such grantees.

‘‘If a party is found to lack standing, the court is

without subject matter jurisdiction to hear the case.

Because standing implicates the court’s subject matter

jurisdiction, the plaintiff ultimately bears the burden of

establishing standing. A trial court’s determination of

whether a plaintiff lacks standing is a conclusion of

law that is subject to plenary review on appeal. We

conduct that plenary review, however, in light of the

trial court’s findings of fact, which we will not overturn

unless they are clearly erroneous. . . . In undertaking

this review, we are mindful of the well established

notion that, in determining whether a court has subject

matter jurisdiction, every presumption favoring jurisdiction should be indulged. . . . This involves a two

part function: where the legal conclusions of the court

are challenged, we must determine whether they are

legally and logically correct and whether they find support in the facts set out in the memorandum of decision;

where the factual basis of the court’s decision is challenged we must determine whether the facts set out

in the memorandum of decision are supported by the

evidence or whether, in light of the evidence and the

pleadings in the whole record, those facts are clearly

erroneous.’’ (Citations omitted; internal quotation

marks omitted.) Success, Inc. v. Curcio, 160 Conn. App.

153, 162, 124 A.3d 563, cert. denied, 319 Conn. 952, 125

A.3d 531 (2015).

To the extent that the standing issue requires us to

construe language found in deeds, we observe that
‘‘[t]he determination of the intent behind language in a

deed, considered in the light of all the surrounding

circumstances, presents a question of law on which our

scope of review is . . . plenary. . . . Thus, when

faced with a question regarding the construction of

language in deeds, the reviewing court does not give

the customary deference to the trial court’s factual

inferences.’’ (Internal quotation marks omitted.) Avery

v. Medina, 151 Conn. App. 433, 440–41, 94 A.3d 1241

(2014).

Generally, ‘‘restrictive covenants fall into three

classes: (1) mutual covenants in deeds exchanged by

adjoining landowners; (2) uniform covenants contained

in deeds executed by the owner of property who is

dividing his property into building lots under a general

development scheme; and (3) covenants exacted by a

grantor from his grantee presumptively or actually for

the benefit and protection of his adjoining land which

he retains.’’ (Internal quotation marks omitted.) Bueno

v. Firgeleski, 180 Conn. App. 384, 393–94, 183 A.3d

1176 (2018).

‘‘In the first class [of restrictive covenants] either

party or his assigns may enforce the restriction because

there is a mutuality of covenant and the rights are reciprocal.’’ Stamford v. Vuono, 108 Conn. 359, 364, 143 A.

245 (1928). There is no dispute that the restrictive covenant at issue in the 1956 deed, which is not a mutual

covenant entered into by adjoining landowners, does

not fall within the first class of restrictive covenants.

‘‘With respect to the second class of covenants, any

grantee under such a general or uniform development

scheme may enforce the restrictions against any other

grantee.’’ (Internal quotation marks omitted.) Cappo v.

Suda, 126 Conn. App. 1, 4, 10 A.3d 560 (2011). ‘‘In the

second class [of restrictive covenants], upon the same

theory of mutuality of covenant and consideration [that

applies when there are mutual covenants between owners of adjoining lands], any grantee may enforce the

restriction against any other grantee.’’ Stamford v.

Vuolo, supra, 108 Conn. 364. ‘‘The factors that help to

establish the existence of an intent by a grantor to

develop a common plan are: (1) a common grantor sells

or expresses an intent to put an entire tract on the

market subject to the plan; (2) a map of the entire tract

exists at the time of the sale of one of the parcels; (3)

actual development according to the plan has occurred;

and (4) substantial uniformity exists in the restrictions

imposed in the deeds executed by the grantor. . . .

‘‘The factors that help to negate the presence of a

development scheme are: (1) the grantor retains

unrestricted adjoining land; (2) there is no plot of the

entire tract with notice on it of the restrictions; and (3)

the common grantor did not impose similar restrictions

on other lots. . . .
‘‘Early Connecticut case law acknowledges the power

of property holders with substantially uniform restrictive covenants obtained by deeds in a chain of title from

a common grantor to enforce the restrictions against

other owners with similar restrictive covenants. When,

under a general development scheme, the owner of

property divides it into building lots to be sold by deeds

containing substantially uniform restrictions, any

grantee may enforce the restrictions against any other

grantee. . . .

‘‘When making a finding as a matter of law that a

common development scheme exists, courts look to

four factors: (1) the common grantor’s intent to sell all

of the subdivided plots; (2) the existence of a map of

the subdivision; (3) actual development of the subdivision in accordance with the general scheme; and (4)

substantially uniform restrictions contained in the

deeds of the subdivided plots.’’ (Citations omitted; internal quotation marks omitted.) DaSilva v. Barone, 83

Conn. App. 365, 371–73, 849 A.2d 902, cert. denied, 271

Conn. 908, 859 A.2d 560 (2004).

‘‘With respect to the third class of covenants, the

original grantor, who is the owner of the property benefited, and his assigns may enforce [the covenant] against

subsequent purchasers of the property burdened. If the

restrictive covenant is for the benefit of the remaining

land of the grantor, it is an easement running with the

land and may be enforced by a subsequent purchaser

of the remaining land against the prior grantee and his

successors in title . . . .’’ (Internal quotation marks

omitted.) Bueno v. Firgeleski, supra, 180 Conn. App.

394. ‘‘In the third class [of restrictive covenants], there

is no mutuality between the grantees, if there are more

than one, and therefore no right in one grantee to

enforce the restrictions against another grantee upon

[the theory of mutuality of covenant and consideration].’’ Stamford v. Vuolo, supra, 108 Conn. 365.

‘‘[W]hen presented with a violation of a restrictive

covenant, the court is obligated to enforce the covenant

unless the defendant can show that enforcement would

be inequitable.’’ Gino’s Pizza of East Hartford, Inc. v.

Kaplan, 193 Conn. 135, 139, 475 A.2d 305 (1984); Grady

v. Schmitz, 16 Conn. App. 292, 301–302, 547 A.2d 563

(same), cert. denied, 209 Conn. 822, 551 A.2d 755 (1988).

Restrictive covenants, by their nature, are in derogation

of the common-law right to use land for all lawful purposes that go with title and possession. See Pulver v.

Mascolo, 155 Conn. 644, 649, 237 A.2d 97 (1967); Neptune Park Assn v. Steinberg, 138 Conn. 357, 361, 84

A.2d 687 (1951). Accordingly, ‘‘[a] restrictive covenant

must be narrowly construed and ought not to be

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

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

omitted; internal quotation marks omitted.) Morgenbes-
ser v. Aquarion Water Co. of Connecticut, 276 Conn.

825, 829, 888 A.2d 1078 (2006); see also Bueno v. Firgeleski, supra, 180 Conn. App. 411 (same); Alligood v.

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

(2010) (same).9

Having narrowed the nature of the claim before us

and having set forth the relevant legal principles, we

turn to the restrictive covenant at issue in the 1956

deed. As we have explained previously, the 1956 deed,

executed by the original grantors, set forth two restrictive covenants, one of which limited the land conveyed

by the deed to private residential use. The following

language precedes reference to the two restrictive covenants: ‘‘This deed is given and accepted upon the following express covenants and agreements which shall run

with the land herein conveyed and shall be binding

upon the grantee, its successors and assigns, and shall

enure to the benefit of the remaining land of the grantors lying westerly of the premises herein conveyed

. . . .’’ (Emphasis added.)

As the emphasized language reflects, the restrictive

covenants set forth in the 1956 deed were expressly

intended to inure to the benefit of the remaining land

of the original grantors that lies west of the premises

conveyed in the 1956 deed. The premises conveyed

included tracts that were subsequently conveyed to the

plaintiffs and the defendant. The plaintiffs have neither

alleged nor proven that they are entitled to enforce the

restrictive covenant at issue under a theory of mutuality

of covenant and consideration. In the present case, the

original grantors, for their benefit, extracted covenants

from the grantees of the 1956 deed. Nothing in the

unequivocal language of the deed either suggests that

the restrictive covenant at issue was intended to benefit

the original or subsequent grantees of the 1956 deed,

or that the original grantors were dividing their property

into building lots, thus imposing the restrictive covenant upon grantees as part of a general development

scheme. Instead, the covenants unmistakably fall within

the class of ‘‘covenants exacted by a grantor from his

grantee presumptively or actually for the benefit and

protection of his adjoining land which he retains.’’

(Internal quotation marks omitted.) Bueno v. Firgeleski, supra, 180 Conn. App. 394.

Because there is no allegation or evidence that the

plaintiffs are the original grantors of the 1956 deed, or

their successors in interest, we conclude that they

lacked standing to enforce the restrictive covenant in

the deed that limited the use of the defendant’s property

to residential purposes.10 Accordingly, we conclude that

the court lacked subject matter jurisdiction over this

claim and should have dismissed the plaintiffs’ cause

of action to the extent that they sought to enforce this

restrictive covenant.

II
Next, the defendant claims that the court erred by

granting the plaintiffs injunctive relief on the basis of

restrictive covenants that appear in the declaration of

restrictions that applies to the parties’ real properties.

We agree.

Having concluded in part I of this opinion that the

plaintiffs lacked standing to enforce the restrictive covenant at issue in the 1956 deed, on which the plaintiffs

expressly rely, we turn our analysis to the propriety

of the relief afforded to the plaintiffs by the court in

enforcing the restrictive covenant at issue contained in

Article 2 and Article 8 of the 1961 declaration. As stated

in part I of this opinion, the defendant acknowledges

before this court that the plaintiffs have the right to

enforce the restrictive covenants codified in the declaration. Indeed, in Article 35 of the declaration, that right

is expressly conveyed on every aggrieved purchaser of

a tract of land on which the declaration has been

imposed, a class of persons that includes the plaintiffs.

A

Although the defendant acknowledges that the plaintiffs may enforce the restrictive covenants set forth in

the declaration, the defendant argues that, in awarding

the plaintiffs injunctive relief regarding the Dodge Ram

pickup truck, the court improperly afforded the plaintiffs relief under Article 8 of the declaration because

the operative complaint did not set forth a claim for

relief under this portion of the declaration. The defendant correctly observes that, in their operative complaint, the plaintiffs relied, first, on the restriction in the

1956 deed limiting the use of the property to residential

purposes and, second, the restriction in Article 2 of the

declaration related to the presence of ‘‘animals, poultry,

or water fowl,’’ but not the restriction in the declaration,

in Article 8, related to the presence of commercial vehicles. In both her principal and reply briefs before this

court, the defendant argues that the court improperly

relied on, and granted the plaintiffs relief under, Article

8 in light of the fact that the plaintiffs sought to amend

their complaint to include a claim for relief under Article

8 but were denied permission to do so.

The record further reflects that, on May 11, 2017, the

plaintiffs filed a request for leave to file an amended

complaint. Among the amendments sought by the plaintiffs, in count one, was to rely on and obtain relief with

respect to the restrictive covenant in Article 8 of the

declaration, which states ‘‘that any commercial vehicles

used by an occupant of a tract shall be kept within a

garage with doors closed except for brief periods for

loading or unloading.’’ Additionally, the plaintiffs sought

to add a second count in which they sought injunctive

relief to restrain the defendant from violating the Stamford zoning regulations by operating a landscaping business from her property. The court, Povodator, J., sus-
tained the defendant’s written objections to the request

for leave to amend.

Following the trial, the defendant filed proposed

orders that were based on the complaint dated June

29, 2016, not the proposed revised complaint. In a

motion for reconsideration of the court’s denial of the

defendant’s motion to reargue and/or to reconsider its

ruling, which the court denied, the defendant argued

that the plaintiffs’ attempt to enforce the restriction in

the declaration related to commercial vehicles was time

barred, yet also stated, in relevant part, that the court

had denied the plaintiffs’ ‘‘eleventh hour move’’ seeking

to amend their complaint.

In this appeal, the plaintiffs have not filed a cross

appeal to raise a claim of error related to the court’s

ruling denying their request to amend their complaint.

Evidence concerning the Dodge Ram pickup truck was

presented at trial by the plaintiffs and, in general terms,

they attempted to demonstrate that because it was used

in connection with the defendant’s landscaping business, it was a commercial vehicle that needed to be

stored in a garage. Presently, the plaintiffs argue that

the relief afforded to them with respect to the Dodge

Ram pickup truck, however, is not necessarily related

to the restrictive covenant in Article 8 of the declaration.

They argue that the defendant interprets the operative

complaint, which the plaintiffs were not permitted to

amend, too narrowly. The plaintiffs further argue that

it is of no consequence that they failed in their complaint

to specifically allege that they sought to restrict the

defendant’s storage of commercial vehicles, including

the Dodge Ram pickup truck that was the subject of

injunctive relief granted to them, or that they did not

therein refer explicitly to the restrictive covenant in

Article 8 of the declaration. The plaintiffs reason that

because they plainly sought in their complaint to

enforce the restrictive covenant in the 1956 deed, which

restricted the defendant to use her property for residential purposes only, the defendant had sufficient notice

that the plaintiffs were seeking relief with respect to

any type of commercial activity, including the keeping

of commercial trucks used in connection with the defendant’s landscaping business, such as the Dodge Ram

pickup truck. As the plaintiffs argue, ‘‘[t]he complaint

gave sufficient notice that the defendant would have

to cease all commercial activity on the property and

comply with the restrictive covenants. Therefore, it

would be improper for this court to reverse the judgment based on some sort of late claimed surprise to the

defendant or a hyper technicality as to the pleadings.’’

With respect to this issue, the plaintiffs seem to overlook the significance of the fact that, in its memorandum

of decision, the court expressly referred to the restrictive covenant set forth in Article 8 of the declaration

and found that ‘‘the Dodge pickup truck is a commercial
vehicle under the restrictive covenant.’’ We observe that

‘‘[t]he principle that a plaintiff may rely only upon what

[it] has alleged is basic. . . . It is fundamental in our

law that the right of a plaintiff to recover is limited to

the allegations of [its] complaint. . . . What is in issue

is determined by the pleadings and these must be in

writing. . . . Once the pleadings have been filed, the

evidence proffered must be relevant to the issues raised

therein. . . . In other words, [a] plaintiff may not allege

one cause of action and recover upon another. . . .

Indeed, [a] judgment upon an issue not pleaded would

not merely be erroneous, but it would be void.’’ (Citations omitted; internal quotation marks omitted.) Watson Real Estate, LLC v. Woodland Ridge, LLC, 187

Conn. App. 282, 298, 202 A.3d 1033 (2019).

To the extent that the court ordered injunctive relief

pertaining to the Dodge Ram pickup truck that was, as

the plaintiffs suggest, the result of the court’s enforcement of a restrictive covenant in the 1956 deed, we

conclude for the reasons set forth in part I of this opinion that the plaintiffs lacked standing to enforce such

restrictive covenant and, thus, such relief was improper

because it flowed from a claim over which the court

lacked subject matter jurisdiction. To the extent that

the court awarded injunctive relief pertaining to the

pickup truck because it was enforcing the restrictive

covenant set forth in Article 8 of the declaration, which

specifically governs commercial vehicles, such relief

was improper because it was premised on a claim that

was not properly before the court.11

B

We next address the defendant’s argument that the

relief afforded to the plaintiffs with respect to the keeping of chickens was improper. We agree.

The following facts are relevant to this claim. As

set forth previously in this opinion, Article 2 of the

declaration provides: ‘‘No animals, poultry or water

fowl, except for usual pets quartered within the family

dwelling at night, shall be kept on a Tract. Exceptions

to this provision may be made for not over two year

periods if consented to in writing by the Purchaser of

each Tract within two hundred (200) feet of the Tract

where the exception is proposed.’’

In its decision, the court observed that the defendant

claimed, by way of special defense, that the plaintiffs’

claim for enforcement of the restrictive covenant concerning chickens on her property was moot because,

prior to trial, she removed the chickens from her property. The court stated: ‘‘Both parties agree that the

chickens have been removed from the defendant’s property. In addition, both parties agree that the chicken

coops are still on the defendant’s property. The defendant testified that she moved the chickens to another

property she owns and does not have any plans to
return them to her property at 59 Mill Stream Road.

Given that an injunction against the defendant regarding

the enforcement of the 1961 covenant would provide

practical relief to the [plaintiffs] and would resolve any

ambiguity about whether the chickens could be

returned to the property, this court does not find the

issue moot.’’ Among its orders, the court set forth the

following: ‘‘An injunction ordering the defendant from

keeping any chickens or roosters upon the defendant’s

property; (the defendant is not ordered to remove the

chicken coops) . . . .’’

The defendant raises two distinct arguments with

respect to the injunctive relief afforded the plaintiffs

that applied to the defendant’s keeping of chickens or

roosters on her property. First, the defendant claims

that the court improperly rejected her special defense

that the cause of action, insofar as it was based on

her keeping of chickens on her property, was rendered

moot in light of the undisputed fact that she had

removed the chickens from her property prior to the

trial. Second, the defendant claims that, even if the

issue was justiciable, the court lacked the authority to

prohibit her from keeping chickens on her property

forever, because such order exceeded the scope of the

restrictive covenant set forth in Article 2 of the declaration. We address each argument in turn.

1

‘‘Mootness is a question of justiciability that must be

determined as a threshold matter because it implicates

[a] court’s subject matter jurisdiction . . . . Because

courts are established to resolve actual controversies,

before a claimed controversy is entitled to a resolution

on the merits it must be justiciable. . . . Justiciability

requires (1) that there be an actual controversy between

or among the parties to the dispute . . . (2) that the

interests of the parties be adverse . . . (3) that the

matter in controversy be capable of being adjudicated

by judicial power . . . and (4) that the determination

of the controversy will result in practical relief to the

complainant. . . . A case is considered moot if [the

trial] court cannot grant . . . any practical relief

through its disposition of the merits . . . .’’ (Citations

omitted; footnote omitted; internal quotation marks

omitted.) Valvo v. Freedom of Information Commission, 294 Conn. 534, 540–41, 985 A.2d 1052 (2010); see

also Mendillo v. Tinley, Renehan & Dost, LLP, 329

Conn. 515, 523, 187 A.3d 1154 (2018) (discussing justiciability). ‘‘[I]t is not the province of [the] courts to

decide moot questions, disconnected from the granting

of actual relief or from the determination of which no

practical relief can follow. . . . When . . . events

have occurred that preclude [the] court from granting

any practical relief through its disposition of the merits,

a case has become moot.’’ (Internal quotation marks

omitted.) Dutkiewicz v. Dutkiewicz, 289 Conn. 362,
366, 957 A.2d 821 (2008). ‘‘[B]ecause an issue regarding

justiciability raises a question of law, our appellate

review is plenary.’’ Office of the Governor v. Select Committee of Inquiry, 271 Conn. 540, 569, 858 A.2d 709

(2004).

In a special defense, the defendant alleged in relevant

part, as follows: ‘‘(1) On April 6, 2016, the Saw Mill

[Association] Board of Directors sent a letter to the

defendant signed by Julie Hollenberg, President of the

Saw Mill Association.

‘‘(2) The letter directed the defendant to obtain necessary consents from abutting neighbors within 200 feet

[of her property] and, if unable to do so, to remove the

‘chickens’ from [the] defendant’s property.

‘‘(3) The defendant did not obtain consent from all

neighbors within 200 feet.

‘‘(4) In response to the letter [from] the Saw Mill

Association, the defendant has relocated the chickens

or any other fowl to another location in the state of Connecticut.

‘‘(5) There are no ‘chickens’ or other fowl on the

defendant’s property. The restrictive covenant does not

prohibit chicken coops from being on the defendant’s

property.

‘‘(6) The plaintiffs may not claim that they are entitled

to injunctive relief and allege irreparable harm when,

in fact, the defendant removed the chickens or other

fowl from her property as directed by the Saw Mill Association.’’

As the court observed in its memorandum of decision,

it was not disputed at trial that, prior to the time of

trial, the defendant had removed all chickens, but not

the chicken coops, from her property at 59 Mill Stream

Road. In relevant part, Hollenberg, one of the parties’

neighbors and a member of the board of the Saw Mill

Association, testified at trial that, in 2016, she became

aware of complaints by some of the defendant’s neighbors about the fact that the defendant was keeping

chickens on her property. Hollenberg raised the issue

before the board and spoke with the defendant, who

indicated that she had been unaware of the prohibition

in Article 2 of the declaration but, after learning of

the complaints, had attempted to obtain the necessary

permission from her neighbors to continue to keep the

chickens on her property in accordance with Article

2. The defendant, however, was unable to obtain the

consent of all neighbors. Hollenberg testified that, in

her conversations with the defendant concerning the

issue, the defendant did not resist her efforts to address

the problem and that, after she sent the defendant an

‘‘official correspondence’’ from the board asking her to

remove the chickens, the defendant was ‘‘very compliant’’ about doing so.
At trial, the defendant testified that, in either September or October of 2016, she removed the chickens,12

which had been kept in chicken coops, from her property at 59 Mill Stream Road. She testified, however, that

the coops, which were built by her husband, are still

present on the property. The defendant testified, as

well, that after she had discussed the matter with Hollenberg and was unable to secure permission to keep

the chickens on her property in accordance with Article

2 of the declaration, she took immediate action by building a new enclosure for the chickens and moving them

to a separate farm that she owns in Connecticut.

At the time of trial, the defendant relied on the fact

that the chickens were no longer present on the property. The plaintiffs argued that, although the chickens

had been relocated by the defendant to her farm and

the violation of the restrictive covenant was limited to

the presence of the chickens, but not the presence of the

chicken coops, the continued presence of the chicken

coops on the defendant’s property posed a ‘‘threat’’ that

the defendant could bring the chicken coops back to

her property at any time. The plaintiffs argued ‘‘[t]here’s

no other use for those chicken coops, there’s been no

testimony in that regard.’’

We observe that the plaintiffs did not bring a declaratory judgment action pursuant to Practice Book § 17-

55 to seek resolution of an ongoing dispute between

the parties related to the presence of chickens on the

defendant’s property. Rather, in their prayer for relief

in this action to enforce restrictive covenants, the plaintiffs asked for ‘‘[a]n injunction ordering the defendant

to immediately remove the chickens and chicken coops

from the defendant’s property . . . .’’ Article 35 of the

declaration afforded the plaintiffs, as ‘‘aggrieved Purchaser[s] of a Tract,’’ the right to enforce the declaration

against ‘‘any person or persons violating or attempting

to violate any right herein contained . . . .’’

In its decision, the court acknowledged that the

chickens were no longer present at 59 Mill Stream Road

but reasoned that enforcing the restrictive covenant in

Article 2 of the declaration ‘‘would provide practical

relief to the [plaintiffs] and would resolve any ambiguity

about whether the chickens could be returned to the

property . . . .’’13 Thereafter, the court afforded the

plaintiffs relief by prohibiting the defendant from keeping any ‘‘chickens or roosters’’ on her property.

Presently, the defendant argues that the court

improperly failed to conclude that the issue concerning

chickens was moot. She states: ‘‘[The defendant]

removed the chickens from her property when she was

not able to obtain written permission from her neighbors within 200 feet of her property to keep the chickens. [The defendant] began the process of relocating

the chickens to her upstate farm before this action
was commenced and finished the process [at] least six

months before the trial commenced. [The defendant]

kept the chicken coops but got rid of the chickens. Her

husband built the chicken coops and [the defendant]

believed that they could be put to other uses on her

property.’’ Additionally, the defendant argues that ‘‘[t]he

trial court had no authority to grant injunctive relief

against [her] when, in fact, there were no chickens to

be removed from the property.’’

‘‘It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a . . .

court of its power to determine the legality of the practice, because, [i]f it did, the courts would be compelled

to leave [t]he defendant . . . free to return to his [or

her] old ways. . . . The voluntary cessation exception

to the mootness doctrine is founded on the principle

that a party should not be able to evade judicial review,

or to defeat a judgment, by temporarily altering questionable behavior. . . . Thus, the standard for

determining whether a case has been mooted by the

defendant’s voluntary conduct is stringent, and a case

becomes moot only if subsequent events [make] it absolutely clear that the allegedly wrongful behavior could

not reasonably be expected to recur. . . . The heavy

burden of persua[ding] the court that the challenged

conduct cannot reasonably be expected to start up

again lies with the party asserting mootness.’’ (Citations

omitted; internal quotation marks omitted.) Boisvert v.

Gavis, 332 Conn. 115, 139, A.3d (2019); see also

Windels v. Environmental Protection Commission,

284 Conn. 268, 281, 933 A.2d 256 (2007) (relying on fact

that defendant had ‘‘not alleged, much less established,

that it does not intend to resume’’ activity at issue in

concluding that voluntary cessation of activity did not

render claim moot).

Although the court did not expressly consider

whether the defendant, who asserted the issue of mootness, had satisfied her heavy burden of demonstrating

that subsequent events made it absolutely clear that

the conduct at issue could not reasonably be expected

to recur, we readily conclude that evidence of such a

nature was lacking. To be sure, there was evidence that

the defendant relocated her chickens once she was

informed that some of her fellow neighbors in the Saw

Mill Association raised a complaint that her conduct

violated Article 2 of the declaration. However, the

defendant’s testimony reflects that she still possesses

chickens at her farm in Connecticut and that the coops

in which the chickens were kept remain on her property

at 59 Mill Stream Road. Furthermore, the evidence is

not in dispute that, in response to the complaints of

some of her neighbors, the defendant attempted to

obtain the permission required by Article 2 to continue

to keep the chickens at 59 Mill Stream Road. There is

no evidence of subsequent events that make it unreasonable to expect the prohibited conduct to recur, and
we observe that the defendant has neither alleged nor

presented evidence to establish that she does not intend

to resume the prohibited conduct in the future.

In light of the foregoing, we conclude that although

there was undisputed evidence that the chickens were

no longer present on the defendant’s property, the court

had jurisdiction to consider the claim and afford the

plaintiffs practical relief in connection with this aspect

of their complaint.

2

Next, we address the defendant’s argument that, in

prohibiting the defendant ‘‘from keeping any chickens

or roosters upon the defendant’s property,’’ the court

exceeded the scope of the restrictive covenant it purported to enforce. We observe, once again, that, apart

from arguing that the plaintiffs’ claim for relief under

Article 2 of the declaration was moot, the defendant

does not argue that the court improperly enforced the

restrictive covenant in Article 2 but, rather, that the

court’s order of injunctive relief was overbroad.

As we explained previously in part I of this opinion,

this court’s interpretation of the language of the declaration presents a question of law over which we exercise

plenary review. Avery v. Medina, supra, 151 Conn. App.

440–41. Here, the plain language of Article 2 of the

declaration unambiguously provides an exception to

the prohibition for keeping animals, poultry, or water

fowl that are not quartered within a family dwelling at

night. The declaration provides: ‘‘Exceptions to this

provision may be made for not over two year periods

if consented to in writing by the Purchaser of each

Tract within two hundred (200) feet of the Tract where

the exception is proposed.’’ (Emphasis added). The

court’s order constituted a blanket prohibition against

the defendant and, as she argues, precludes her from

availing herself of any permissible exceptions in the

future, as is her right. For this reason, we conclude that

the court’s broad award of injunctive relief with respect

to the keeping of chickens on the defendant’s property

exceeds the plaintiffs’ rights under the declaration, to

the defendant’s detriment. Although we affirm the judgment of the trial court enforcing Article 2 of the declaration, the proper remedy for the error in the court’s order

of injunctive relief is to vacate the court’s order of

injunctive relief prohibiting the defendant from keeping

any chickens or roosters on her property at 59 Mill

Stream Road, and to direct the court to fashion an

appropriate order that is consistent with Article 2 of

the declaration, as interpreted in this opinion.

The judgment enforcing the restrictive covenants is

reversed to the extent that the court enforced a restrictive covenant that appears in the 1956 deed and the

restrictive covenant that appears in Article 8 of the

declarations. The orders of injunctive relief related to
these restrictive covenants (orders 1, 3, 4, 5, 6, and

7) are vacated. The judgment enforcing the restrictive

covenant that appears in Article 2 of the declaration,

relating to the keeping of ‘‘animals, poultry or water

fowl,’’ is affirmed, but the order of injunctive relief

prohibiting the defendant from keeping any chickens

or roosters on her property (order 2) is vacated and

the case is remanded to the trial court with direction

to order appropriate relief that is consistent with Article

2 of the declaration.

In this opinion MOLL, J., concurred.

1 We note that the defendant raised three distinct claims on appeal. The

first claim that we analyze in this appeal, which concerns the issue of

standing, encompasses the issues raised in the first two claims that are set

forth in the defendant’s brief. These claims are (1) whether the court properly

concluded that the plaintiffs had ‘‘standing to enforce a private deed restriction that was expressly stated to inure to the benefit of the retained land

of the grantor’’ and (2) whether, in determining that the plaintiffs had standing to enforce the restrictive covenants in the deed, the court properly

concluded ‘‘that the deed restrictions at issue in this case were collectively

part of a common plan of development . . . .’’

2 At trial, the defendant abandoned the special defense of unclean hands.

3 After it rendered judgment in the plaintiffs’ favor, the court granted a

motion to stay the judgment pending the outcome of the present appeal.

Also, the court denied a motion to open the judgment filed by the defendants.

4

In 1957, an agreement between the original grantors, Empire Estates,

and Country Lands, Inc., to whom a portion of the land at issue had been

conveyed by Empire Estates, was recorded in volume 808, page 355, of the

Stamford land records. Although it does not affect our analysis of the present

claim, we observe that the agreement modified the first restrictive covenant

in the 1956 deed, set forth previously, as follows: ‘‘[T]hat portion of [the]

restrictive covenant . . . which is contained within parenthesis shall be of

no further force and effect and there shall be substituted in lieu of the

language contained within parenthesis, effective from the date hereof, the

following language: (except that a residence may be used for professional

purposes by a member of a profession occupying the same as his home to

the extent that such use is permitted from time to time by the applicable

zoning regulations of the city of Stamford).’’

5 The declaration defines a ‘‘Tract’’ as ‘‘[a] parcel of land shown and

delineated on a map filed in the land records of the MUNICIPALITY which

has been conveyed by the DEVELOPER to a PURCHASER.’’

6 The declaration defines a ‘‘Purchaser’’ as ‘‘[a]ny Purchaser of a TRACT

upon which this Declaration has been imposed, and his, her or its successors

in title.’’

7 The declaration defines a ‘‘Developer’’ as ‘‘[t]he person or corporation

authorized by either of the trustees executing this Declaration or their

successors to make subject to this Declaration any property conveyed by

said person or corporation.’’

8

It does not appear to be in dispute that the parties’ properties are located

in the Saw Mill Association, a ‘‘neighborhood association’’ that encompasses

142 properties on eight contiguous streets in Stamford. The plaintiffs presented evidence that the restrictive covenants that appear in the chain of

title of the parties’ properties are found in the chain of title of several other

property owners in the Saw Mill Association.

9 The dissenting opinion cites to Contegni v. Payne, 18 Conn. App. 47,

52, 557 A.2d 122, cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989), in support

of the principle that property owners have an equitable right to enforce

against other property owners restrictions that are imposed as part of a

uniform development plan. According to the dissent, ‘‘[r]egardless of the

genesis’’ of the restrictive covenant at issue in the present case, equity favors

the plaintiffs’ ability to enforce it. For several reasons, we disagree with

this rationale. In light of the principles cited previously, we are mindful that

courts must not extend restrictive covenants by implication. Regardless of

Empire Estate’s intent, it is undisputed that it failed to include the restriction

at issue in its lengthy declaration that applied to the properties in the

subdivision. Instead, in the deeds conveying tracts to the parties’ predecessors in title, Empire Estates referred to the fact that the tracts were ‘‘subject
to’’ the restrictive covenant that appeared in the deed from the original

grantor. It is noteworthy that, in the parties’ deeds, Empire Estates also

referred to the fact that the tracts were ‘‘subject to’’ a variety of additional

restrictions or limitations, including but not limited to those which could

be imposed by governmental authority, zoning regulations, city regulations,

taxes, and easements. Certainly, despite the fact that these additional restrictions or limitations might apply with equal force to the parties and others

in their subdivision, it cannot reasonably be suggested that the plaintiffs

have the right to enforce them.

10 The dissenting opinion states that Maganini v. Hodgson, 138 Conn. 188,

192–93, 82 A.2d 801 (1951); Mellitz v. Sunfield Co., 103 Conn. 177, 182, 129

A. 228 (1925); Prime Locations of CT, LLC v. Rocky Hill Development, LLC,

167 Conn. App. 786, 796 n.10, 145 A.3d 317, cert. denied, 323 Conn. 935, 150

A.3d 686 (2016); and 5011 Community Organization v. Harris, 16 Conn.

App. 537, 540, 548 A.2d 9 (1988); support the conclusion that because the

covenant limiting the use of the property for residential purposes was part

of a general development scheme, the plaintiffs had the right to enforce it

against the defendant. Respectfully, we believe that the cases cited by the

dissent broadly apply to restrictions that are imposed as a uniform scheme

of development, the very fact that has not been established by the facts in

the present case. Further, we believe that the cases cited differ materially

from the facts at issue in the present case and, thus, do not support the

conclusion that the covenant at issue in the present case is enforceable by

the plaintiffs against the defendant.

In Maganini, the original grantor of property included a restrictive covenant limiting the use of the property for residential purposes in the deed

conveying the property to a developer who subsequently conveyed it by

deed to the parties in Maganini. Maganini v. Hodgson, supra, 138 Conn.

190. There is no indication, however, that the original grantor included this

covenant for its benefit. The court explained: ‘‘The tract was originally

deeded to the developer restricted to residential purposes. He put a map

on record showing its subdivision. In his first deed [to one of the plaintiffs

in Maganini], he expressly obligated himself to impose on his remaining

land and recited the restrictions which were repeated in later deeds, in

many respects verbatim. The [trial] court was fully justified in concluding

that a uniform plan or scheme existed.’’ (Emphasis added.) Id., 193. Our

Supreme Court observed that, in a situation involving ‘‘a general development

scheme, [in which] the owner of property divides it into building lots to be

sold by deeds containing substantially uniform restrictions, any grantee

may enforce the restrictions against any other grantee.’’ (Emphasis added;

internal quotation marks omitted.) Id., 192. In the present case, in deeds to

subsequent tract owners, the developer referred to restrictions that expressly

inured to the benefit of the original grantor, which restrictions appeared in

the deed conveying the property from the original grantor to the developer.

In Mellitz, an original grantor conveyed property to a developer by means

of a deed that contained a restrictive covenant that, by its terms, ran with

the land and was ‘‘enforceable at law and equity by the grantor herein named

or by the owner at any time of any portion of said premises.’’ (Emphasis

added; internal quotation marks omitted.) Mellitz v. Sunfield Co., supra,

103 Conn. 179. In light of this language in the deed, our Supreme Court

relied on the fact that the restrictions that appeared in the deed between

the original grantor and the developer ‘‘were for the common benefit of all

subsequent lot owners in the tract conveyed.’’ Id., 182. As we have discussed

previously in this opinion, the restrictive covenant at issue in the present

case expressly inured to the benefit of the original grantor and not to any

grantee of the deeded property.

Although 5011 Community Organization did not involve a claim that a

party lacked standing to enforce a covenant in a deed, this court observed

that the covenant at issue in that case was included in a majority of the

deeds in a subdivision and was part of a common plan of development.

5011 Community Organization v. Harris, supra, 16 Conn. App. 540. This

court stated: ‘‘The trial court concluded, and we agree, that the restrictions

on the subdivision were created to benefit the lot owners. Thirty-seven of

the forty-four lots comprising the subdivision contained similar restrictions.

Moreover, there was no evidence that [the original grantor] intended to

retain ownership of any part of the tract. It is clear that there was a common

scheme of development in the original subdivision.’’ Id., 540. In the present

case, the original grantor retained a portion of the tract of property conveyed

to the developer and expressly stated that the restrictive covenant at issue

benefitted the original grantor, not the lot owners. Moreover, unlike the
present case, it appears that the covenants at issue in 5011 Community

Organization contained restrictions, not merely reference to restrictions

that appeared in the deed conveying the property to the developer.

Finally, the relevant issue of standing in Prime Locations of CT, LLC,

required this court to determine whether, under a declaration that was a

common scheme of development, individual lot owners had standing to

enforce restrictions against other lot owners. Prime Locations of CT, LLC

v. Rocky Hill Development, LLC, supra, 167 Conn. App. 794. In the present

case, the restriction sought to be enforced by the plaintiffs against the

defendant does not appear in the declaration of restrictions that was

expressly referred to and incorporated by reference in the parties’ deeds

from the developer.

11 Additionally, the defendant argues that the court failed to expressly

resolve the issue of whether her special defense, based on the three year

statute of limitations set forth in § 52-575a, defeated any claim related to

the presence of the Dodge Ram pickup truck. According to the defendant,

the evidence was uncontroverted that the truck was present on her property

for more than three years prior to the time that the plaintiffs commenced

the present action and, thus, the defense applied to defeat the plaintiffs’

claim. In light of our analysis and conclusion in parts I and II A of this

opinion, however, it is unnecessary for us to reach the merits of this additional argument.

12 The defendant testified that, during the time that she kept chickens on

the property, she kept a rooster and a hen on her property, in the garage,

at 59 Mill Stream Road.

13 We note that the court also observed that ‘‘[t]he defendant testified that

she . . . does not have any plans to return [the chickens] to her property

at 59 Mill Stream Road.’’ Our review of the defendant’s testimony does not

support this observation.