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DUANE GROVENBURG ET AL. v. RUSTLE

MEADOW ASSOCIATES, LLC, ET AL.

(AC 37719)

DiPentima, C. J., and Prescott and Gold, Js.

Argued January 18—officially released June 20, 2017

(Appeal from Superior Court, judicial district of

Hartford, Hon. Richard M. Rittenband, judge trial

referee.)

Barbara M. Schellenberg, with whom was Ari J. Hoffman, for the appellants (defendants).

Jared M. Alfin, for the appellees (plaintiffs).
Opinion

DiPENTIMA, C. J. In this appeal, we address the

contours of judicial review in cases in which a discretionary determination of a common interest ownership

association is challenged. The defendants, Rustle

Meadow Associates, LLC (company), Rustle Meadow

Homeowners Association, Inc. (association), and its

president, Jeffrey D. Miller, appeal from the judgment

of the trial court in favor of the plaintiffs, Duane

Grovenburg and Kristine Grovenburg. The defendants’

principal contention is that the court improperly set

aside the association’s discretionary determination

regarding the plaintiffs’ request to erect a fence on their

property. Specifically, they claim that the court failed

to apply the proper legal standard governing review of

such determinations, as established by our Supreme

Court in Weldy v. Northbrook Condominium Assn.,

Inc., 279 Conn. 728, 904 A.2d 188 (2006). The defendants

also claim that the court improperly rejected the substance of their counterclaim, that it improperly invalidated a special assessment levied by the association,

and that it abused its discretion in awarding the plaintiffs $72,718.25 in attorney’s fees. We affirm in part and

reverse in part the judgment of the trial court.

The relevant facts are gleaned from the court’s memorandum of decision and the undisputed evidence in the

record before us. Rustle Meadow is a planned community1 created pursuant to the Common Interest Ownership Act (act), General Statutes § 47-200 et seq.2

Consistent with the strictures of that act, the Declaration of Rustle Meadow (declaration) was recorded on

the Canton land records in January, 2006. See General

Statutes § 47-220 (a) (common interest community may

be created ‘‘only by recording a declaration executed

in the same manner as a deed’’); Peck v. Milford Hunt

Homeowners Assn., Inc., 110 Conn. App. 88, 95, 953

A.2d 951 (2008) (‘‘a common interest community does

not come into existence until the declaration is filed in

the land records’’). The company is identified as the

declarant in that document.

Approval of the development of Rustle Meadow by

the Canton Planning Commission was conditioned on,

inter alia, the dedication of an eight acre portion of the

property to ‘‘open space.’’ In accordance therewith, the

company granted ‘‘a perpetual conservation restriction

and easement’’ (conservation easement) to the town of

Canton. Among the covenants agreed to by the company

were that ‘‘the [c]onservation [a]rea shall be maintained

in its present condition, and no topographic changes

shall be made,’’ and that ‘‘there shall be no removal,

destruction or cutting of trees, shrubs or plants’’ in

the conservation area. That conservation easement is

memorialized in both the ‘‘Description of Land Being

Declared’’ and an A-2 survey appended to the declaration (declaration survey).3
Rustle Meadow is described in the public offering

statement4 admitted into evidence as a ‘‘common interest equestrian community’’ that features ‘‘the use of a

premier barn, outdoor arena, indoor arena (if built),

acres of pasture, acres of open space, a gorgeous

stream, and walking and riding trails . . . .’’ Miller is

the sole member of the company, which developed Rustle Meadow, and has remained the owner of five of its

seven units. Rustle Meadow is governed by the association, upon which the declaration confers various powers and responsibilities.5 The association, in turn, acts

through its executive board (board), as recognized in

both the declaration and the association’s bylaws. At

all relevant times, the board was comprised of Miller,

his wife, Linda Welles, and his sister, Pam Claywell.6

Welles owns one unit in Rustle Meadow, known as

‘‘Unit 4,’’ where she and Miller reside. On August 11,

2006, the plaintiffs purchased an abutting property,

which the statutory warranty deed (deed) describes as

‘‘Unit No. 3 of Rustle Meadow.’’ That deed provides

in relevant part that ‘‘[s]aid real property is conveyed

together with and subject to the terms, conditions,

agreements, obligations and easements contained in the

[d]eclaration . . . . The [g]rantee, by acceptance of

this deed, agrees to become a member of [the association] and to abide by the Certificate of Incorporation,

Bylaws, Rules and other regulations of the [a]ssociation.’’ Section 21.1 of Article XXI of the declaration

likewise provides that ‘‘[t]he acceptance of a deed or

the exercise of any incident of ownership . . . of a

Unit constitutes agreement that the provisions of the

Documents are accepted and ratified by such Unit

Owner . . . and all such provisions recorded on the

Land Records of the Town of Canton are covenants

running with the land and shall bind any Persons having

at any time any interest or estate in such Unit.’’ At trial,

the plaintiffs testified that they reviewed the declaration

individually and with their attorney prior to purchasing

the property, and were aware of the restrictive covenants contained therein.7

Various exhibits admitted into evidence, including

the declaration survey, indicate that the plaintiffs’ unit

is 1.76 acres in size and narrow in shape.8 Their unit is

bordered to the west by land designated as ‘‘Open

Space’’ and subject to the conservation easement.

Those exhibits also indicate that a northeasterly portion

of the plaintiffs’ parcel is subject to a ‘‘pasture easement’’9

for which development rights to create common

elements of Rustle Meadow were reserved by the

company.10

Article X of the declaration sets forth various restrictions on the units in Rustle Meadow. Pertinent to this

appeal is § 10.1 (k). Titled ‘‘Approval of Building and

Landscaping Plans,’’ it provides in relevant part: ‘‘No

building, shed, swimming pool, pavement, fence, wall
or other structure or improvement of any nature shall

be erected upon any Unit in the Common Interest Community without the prior written consent of the Declarant . . . . No Unit Owner shall make any exterior

addition, change or alteration to a Unit or any residence

located therein . . . or substantially change the topography of a Unit including the removal of any trees without the prior written consent of the Declarant which

consent shall not be unreasonably withheld. Detailed

plans of any such construction or landscaping or any

addition, change or alteration thereto shall be submitted

to the Declarant . . . . The Unit Owner must receive

written approval from the Declarant prior to commencing such construction, landscaping or making any additions, changes or alterations. Any unauthorized

construction or changes must be restored to its previous

condition at such Unit Owner’s expense.’’ Section 13.1

(a) (ii) of Article XIII, which addresses ‘‘Additions,

Alterations and Improvements by Unit Owners,’’ similarly provides in relevant part that a unit owner ‘‘[m]ay

not make any changes, additions, alterations, or

improvements to any structure in or on any Unit . . .

or make any substantial change to the topography of

a Unit . . . including the removal of trees, without the

prior written approval . . . as provided in Section 10.1

(k) of this Declaration . . . . Such approval by . . .

the [a]ssociation shall not be unreasonably withheld.’’

During construction of their residence, the plaintiffs

requested approval to install an in-ground swimming

pool on their property.11 The declarant granted that

request, and the pool was completed in the fall of 2008.

An ‘‘as-built’’ survey, which was admitted into evidence,

indicates that the pool is located behind the plaintiffs’

residence to the south. At its closest point, the pool

measures 24.2 feet from the southeasterly side yard

property line.

In December, 2009, the plaintiffs received written

notice from the Canton building official that ‘‘[t]he pool

is in violation because it is not properly fenced as

required by [the] Connecticut State Building Code.’’ The

plaintiffs thereafter submitted to Miller a written proposal to install a fence around the pool.12 The fencing

proposed by the plaintiffs would border ‘‘Unit 2’’ to

the southeast, and not Welles’ ‘‘Unit 4’’ property to the

northwest. In that June 23, 2010 e-mail, the plaintiffs

invoked §§ 10.1 (k) and 13.1 (a) (ii), stating that

‘‘[a]pproval is expected as soon as possible and per

the [declaration] ‘shall not be unreasonably withheld.’ ’’

They further advised that ‘‘any problems, issues, etc.

should be submitted to our attorney with a copy to us.

He will then contact your legal counsel to resolve.’’

Millerresponded two days later on behalf ofthe association and requested further information on the proposal.13 Hours later, the plaintiffs sent Miller another

e-mail, in which they largely disagreed with the need

for further information. In that communication, the
plaintiffs also asked Miller to ‘‘provide us with the

appropriate sections in the declaration, [association]

rules, or our lot purchase agreement [and] the exact

sections that define the green zone.’’ See footnote 13

of this opinion.

On July 2, 2010, Miller again responded to the plaintiffs via e-mail and elaborated on his request for further

information. In particular, he stated that ‘‘[t]he reason

for the scale drawing is to ascertain where the fence

is on the property, most importantly in relation to the

green zone. Markings on the ground are not sufficient

as they can be erased or damaged in the construction

process. Then there is no way to agree post construction

on where the fence should have been installed. Accurate

measurements from known immovable points are

needed, and then the approved location is well known

and reproducible.’’ With respect to the plaintiffs’ query

about the ‘‘green zone,’’ Miller stated that ‘‘[§] 10.1 (k)

of the declaration is very clear on landscaping changes

requiring approval. The green zone has been established

by the association, and was discussed with you prior

to purchasing [Unit 3] and clearing the lot. All of the

trees cut on both sides of the house . . . are those that

were outside of the green zone, all the trees and shrubs

inside the green zone were not cut. Numerous discussions took place where you acknowledged the green

zone. The green zone falls within the authority of the

board in approving landscape changes after construction. The ‘green zone’ is simply a term which names a

section of the land adjacent to the wooded property

lines where the association will tightly regulate any

landscape changes to maximize the visual buffer

between adjacent lots. You have already done unapproved landscaping on your unit that affects this visual

buffer. Any landscaping approval by the board will

include consideration of maintaining the integrity of

the green zone.’’ In a subsequent e-mail sent ten days

later, Miller advised the plaintiffs that ‘‘[t]he pool fence

will most likely not be approved any closer than fifteen

feet to the property line. Maintaining a visual buffer

between lots in this community is a reasonable criteri[on] from which to make a decision . . . . The language in [§] 10.1 [k] says ‘consent shall not be

unreasonably withheld’. A visual buffer is a common

community practice, is seen as an asset to a community,

and is widely used by both town planning commissions

and common interest communities. The board feels this

is an entirely reasonable criteri[on] on which to base

landscaping decisions.’’

Days later, the plaintiffs submitted certain revisions

to their fence proposal that included a brochure of the

proposed fence material and a drawing with what they

termed ‘‘clear permanent points of measurement’’ for

the fence’s proposed location. That drawing indicated

that the fence would be 8.5 feet from the southeasterly

property line, which borders ‘‘Unit 2’’ of Rustle Meadow.
In their correspondence, the plaintiffs also stated that

‘‘[t]he [d]eclaration, lot purchase agreement, construction contract, all of the written agreements we have for

our home do not mention or stipulate a ‘green zone’ or

a ‘[fifteen] foot’ requirement or any other foot requirement. Therefore they are not relevant to the approval

of the type of fence we have requested to install. We

have a property line which is noted on the drawing.

Any requirement to a ‘green zone’ that does not exist

in the lot plans or declaration is inappropriate and

unreasonable.’’ They further indicated that the proposed fence complied with town regulations. The plaintiffs then requested a decision on their proposal in

writing by the board.

Miller furnished the decision of the board in a July

23, 2010 e-mail to the plaintiffs. In that decision, Miller

reiterated that ‘‘a proper scale drawing is needed.’’ He

then stated that ‘‘[a]s the proposed fence appears to

fall well within the [fifteen] foot visual buffer we call

the green zone . . . the fence as drawn is not approved.

. . . The board would likely approve a black Echelon

fence that is on or adjacent to the patio edge (on the

east side), and encourages you to submit a drawing

proposing that. . . . If you prefer to locate the fence

as close to the [g]reen [z]one line as possible, the board

will require a fence maintenance plan for any section

of fence that lies within [three] feet of the green zone,

or within [eighteen] feet of the property line. . . . In

addition, if the proposed fence is within 1.5 feet of

the green zone the board will require that the line be

surveyed, as the flagging currently in use is only an

approximation. Whether or not you can find the term

‘green zone’ in the declaration does not affect the

authority of the board to determine what are acceptable

landscaping changes to take place in the community.

Authority comes from [§] 10.1 (k) of the declaration

that outlines the landscape review process. . . . The

[fifteen] foot visual buffer green zone is something that

is already in place, and was previously acknowledged

by you. The board has every intention of keeping it in

place. Continuing to state that the board’s landscaping

review criteria are inappropriate and quoting town zoning [requirements are] not responsive to the board’s

request. The town’s requirements are in addition to, but

are not the only requirements in a planned community

like Rustle Meadow. Please submit a pool fence construction plan and an accurate scale drawing that adequately respects the [fifteen] foot visual buffer green

zone if you would like it to be considered.’’

Sixteen months later, Miller sent the plaintiffs an

e-mail dated December 2, 2011, in which he noted that

it had ‘‘been months since we heard from [you] on

submitting a suitable location for the pool fence’’ and

cautioned that ‘‘[t]he association can no longer tolerate

this safety risk, and will be writing a letter to the town

asking for enforcement.’’ Miller subsequently contacted
the Canton building department and informed it that

‘‘[t]here has been no pool fence’’ on the plaintiffs’ property ‘‘since the pool was completed in 2008.’’ Miller also

stated that fencing previously proposed to the association by the plaintiffs ‘‘placed the fence unnecessarily

within a [fifteen] foot visual buffer zone along the property line. The board denied the fence location on that

basis, and encouraged a fence proposal that was outside

of the [fifteen] foot buffer. . . . The entire summer and

fall of 2011 has passed with no new proposal. . . . [A]

temporary garden wire type fence has been put up.

While this is betterthan nothing, the board is concerned

that this dangerous situation is not being rectified

. . . . While we understand winter weather might not

allow an immediate correction, we would hope that an

acceptable plan could be submitted to this board before

spring, and construction could begin when weather

allows.’’ The building department thereafter sent the

plaintiffs a certified letterthatrequested ‘‘[y]our compliance in addressing this serious violation . . . .’’

In the spring of 2012, Attorney Louis N. George submitted a revised fence proposal on behalf of the plaintiffs. That submission states in relevant part: ‘‘Attached

are the plans for the fence and where it will be located.

Town regulations allow the fence to be placed at the

boundary line. There are no [a]ssociation regulations

limiting the location of the fence. Our clients are, however, intending to place the fence approximately eight

feet from the boundary. Hopefully you will embrace

this compromise. The fence design is one that you had

already stated would be fine. Please let us know if

this is acceptable.’’ Included in that submission was an

updated depiction of the proposed fence location,

which the plaintiffs sketched onto a copy of the ‘‘asbuilt’’ survey of the pool. In the eight foot section

between the proposed fence and the southeasterly properly line, the plaintiffs indicated that ‘‘[b]amboo type

shrubs to be placed every [six-eight] feet . . . . Nursery indicated this type of shrub would grow in this wet,

shaded area. These shrubs along with existing vegetation on side yard will provide more than sufficient coverage.’’ In response, the board requested ‘‘details

regarding the species and mature height of the bamboo

and a scale drawing of the plan . . . .’’ Several months

passed as discussions continued between the parties.

At the time of the association’s June 21, 2013 annual

meeting, both the plaintiffs and the association were

represented by legal counsel. The minutes of that meeting state in relevant part that ‘‘[d]iscussion was held

regarding the visual buffer area between units that the

board calls the green zone. The [plaintiffs] stated that

there is no specific boundary in the documents to

restrict activity. [Miller] stated that the [plaintiffs] had

acknowledged in writing the need to maintain a visual

green zone buffer between units for privacy and to

maintain the wooded character of the community. The
board noted that the standard buffer is [twenty feet]

but that the [plaintiffs] were given a concession for

[fifteen feet] because they have the narrowest lot.’’ The

minutes reflect that the plaintiffs had submitted a

revised pool fence proposal, but had not yet responded

to the board’s request for additional information. The

minutes further indicate that the plaintiffs ‘‘agreed to

provide the details on the pool fence plantings

requested by the board and to submit a proposal for

creation of an undisturbed visual buffer area,’’ which

the board ‘‘agreed to review . . . when provided and

respond within [two] weeks.’’

By letter dated July 9, 2013, George responded to the

board’s request for further information on behalf of

the plaintiffs. With respect to the proposed plantings,

George stated that ‘‘Scabrida Clumping Bamboo’’ would

be installed ‘‘between the side yard fencing and the

property line on the [southwesterly] side of the house

with the vacant lot, as noted on the drawing.’’ He also

explained that ‘‘[t]he bamboo grows [twelve-fourteen

feet] tall by [three feet] wide for each bush’’ and that

this species ‘‘is non-invasive, vigorous and easy to grow

. . . .’’ As to the buffer area between Units 3 and 4,

George indicated that the plaintiffs ‘‘would be glad to

agree to continue adding shrubs and ground cover to

this area in the future.’’ Months passed without any

formal response or action by the board. Nevertheless,

discussions between the parties’ respective attorneys

continued in an attempt to reach an agreement. It is

undisputed that, at some point in the fall of 2013, counsel for the association withdrew his representation due

to a personal matter.

The plaintiffs commenced this civil action in December, 2013. At that time, the association had not rendered

a decision on the plaintiffs’ pending proposal.14 The

operative complaint dated April 17, 2014, contains three

counts. The first count set forth a cause of action under

the act; see General Statutes § 47-278 (a);15 and alleged,

inter alia, that the defendants ‘‘failed to approve [the

fence proposal] even though all the requirements were

met’’ and ‘‘unreasonably’’ denied that proposal and

‘‘conditioned the Association’s approval of the fence

on . . . compliance with the fictional Green Zone.’’

The first count also alleged that the defendants improperly issued certain fines against the plaintiffs ‘‘for violating a fifteen (15) foot visual buffer area between

[their] property and Miller’s home (the ‘Green Zone’).’’

The second count alleged a breach of fiduciary duty on

the part of the defendants. The third and final count

sought the appointment of a receiverfor the association

pursuant to General Statutes § 52-504.16

In their prayer for relief, the plaintiffs sought ‘‘[1]

monetary damages; [2] interest; [3] costs of suit; [4]

appointment of a receiver to manage and operate the

[a]ssociation as a matter of equity pursuant to [§] 52-
504; [5] an injunction prohibiting [Miller] from assigning

his rights or powers as the owner of [the company] or

as the president of the association to his wife, heirs,

successors, assigns and/orfamily members [from] holding a position on the [board] or participating in any

voting concerning the association, as well as any and

all relief requested in [the plaintiffs’] application for an

injunction, which is incorporated herein by reference;17

[6] an injunction ordering the association to permit the

plaintiffs to erect a fence around their swimming pool

in accordance with the Town of Canton’s rules and/or

regulations; [7] an order that there is no ‘Green Zone’

as defined by [the defendants] at [Rustle Meadow] and/

or that applies to the plaintiffs’ property at [Rustle

Meadow]; [8] an order that all statutory liens arising

from fines and/or penalties assessed against the plaintiffs by the association from the beginning of time to

date are removed, discharged and declared null and

void; [9] attorney’s fees and costs pursuant to [§] 47-

278 (a); and [10] any and all other relief, legal or equitable, that the court deems just and proper.’’ (Footnote

added.)

The defendants thereafter filed both an answer and

a counterclaim. In that counterclaim, the defendants

sought recourse related to (1) certain unpaid assessments levied against units in Rustle Meadow; (2) fines

imposed by the association for unauthorized landscaping allegedly performed by the plaintiffs; and (3) fines

imposed by the association against the plaintiffs due

to their alleged interference with a boundary marker.

In answering that counterclaim, the plaintiffs either

denied its allegations or claimed that they lacked sufficient knowledge and therefore left the defendants to

their burden of proof.

During a pretrial deposition, portions of which were

admitted into evidence at trial, the plaintiffs’ counsel

asked Miller to define the ‘‘green zone.’’ Miller stated

that ‘‘[i]t’s a visual buffer that is one of the standards

that the association uses to evaluate changes to landscaping . . . in the conduct of its business of the subdivision.’’ When counsel requested a more detailed

explanation of that ‘‘buffer,’’ Miller stated that ‘‘[i]t’s an

area where natural vegetation would be protected and

not removed, destroyed, cut, or in other ways inhibited

so as to provide a visual buffer between adjoining building lots.’’ Miller further confirmed that ‘‘[t]here are no

documents recorded at the [Canton] town hall that contain the phrase, the Green Zone.’’

A court trial was held in November, 2014. One day

before trial was to begin, the plaintiffs filed a motion

in limine seeking to preclude any testimony or documentation relating to the green zone, arguing that

because the term ‘‘green zone’’ is not contained in either

the declaration or any other material recorded on the

Canton land records, it is ‘‘is clearly unenforceable’’
under the act. The trial court agreed, stating that ‘‘it

doesn’t seem . . . that it’s reasonable if it is not in

writing. . . . I’m granting the motion in limine because

I don’t think that the so-called green zone, being unwritten, is . . . sufficient notice to the prospective buyer.’’

Trial proceeded over three days, during which the

court heard testimony from the plaintiffs, Miller, and

Welles. Following the close of evidence, the court held

a hearing on the issue of attorney’s fees, at which the

plaintiffs represented that they had incurred $47,420.33

in such expenses.

In its January 14, 2015 memorandum of decision, the

court reiterated its previous finding, made while ruling

on the motion in limine, that the ‘‘green zone is not

reasonable because it was not in writing . . . . [T]here

is nothing in writing in the declaration or bylaws to

indicate to anyone, including the plaintiffs, that there

is a green zone . . . . Accordingly, this court finds that

it was illegal and inequitable for the association to deny

the applications for a fence around the pool in the [green

zone].’’ (Citation omitted.) The court then proceeded

to rule in favor of the plaintiffs on all counts of the

defendants’ counterclaim. At the same time, the court

ruled in favor of the defendants on the plaintiffs’request

for the appointment of a receiver for the association.

The court then issued six specific orders. First, it

ordered ‘‘[a] temporary injunction . . . that the association permit the plaintiffs to erect a fence around their

swimming pool in accordance with the town of Canton’s

rules and/or regulations, whether in the green zone or

not. Further, the defendants are prohibited from

interfering with the plaintiffs’ use of the ‘green zone,’

whetherthe plaintiffs remove,replace, alter or add trees

and foliage. The green zone is, after all, the plaintiffs’

property. The defendants are ordered to cooperate with

the plaintiffs in case a variance is needed or any other

action is needed by them to accomplish the erection

of the fence around the swimming pool as desired by

the plaintiffs. [Second] the defendants are ordered to

remove, immediately, any liens that have been placed

against the plaintiffs’ property for fines/assessments.

[Third] a temporary injunction is issued prohibiting

Miller from assigning his rights or powers as the owner

of the subdivision or as the president of the association

to his wife, heirs, successors, assigns and/or family

members [from] holding a position on the board of the

association as well as any and all relief requested in

[the] plaintiffs’ application for an injunction except for

arms-length sales of individual lots, and their request

for a receiver. [Fourth] the green zone as defined by

the defendants as it applies to the plaintiffs’ property

at the development is hereby declared null and void.

[Fifth] all parties are prohibited from disparaging or

criticizing each other to others, including, but not limited to, possible buyers of lots in the subdivision. [Sixth,
the defendants’] counterclaim [is] hereby rejected. The

defendants’ request for attorney’s fees is denied.’’

Last, the court rendered an award of attorney’s fees

in favor of the plaintiffs in the amount of $57,718.25.

The defendants subsequently filed a ‘‘motion to reargue

and reconsider memorandum of decision’’ and a

‘‘motion for articulation and rectification,’’ both of

which the court summarily denied. The defendants

commenced this appeal on February 23, 2015.

Days later, the defendants filed a motion requesting a

stay of the injunctive relief ordered by the court pending

resolution of this appeal. On March 27, 2015, the trial

court issued the following order: ‘‘Denied. With the

exception that, for clarification purposes, Jeffrey Miller,

Linda Welles, Pam Claywell and unit owners may serve

on the board of directors of the association. The court

finds that the balance of the equities is in favor of the

plaintiffs. Under [Practice Book §] 61-12, there is little

likelihood that the [defendants] will prevail because it

is well settled law that temporary injunctions are not

appealable.18 There is no irreparable harm to be suffered

by the defendants upon immediate implementation of

the judgment. As forthe automatic stay provided during

an appeal, this court, sua sponte, hereby terminates

that stay.’’ (Footnote added.) That same day, the court

granted the plaintiffs’ application for a prejudgment

remedy in the amount of $72,718.25.19

On March 24, 2015, the plaintiffs filed in the trial

court a motion for contempt, claiming, inter alia, that

the defendants had continued to impose assessments

on the plaintiffs’ unit. In its April 6, 2015 order, the

court stated that ‘‘[t]he motion for contempt is denied

on the basis that [the defendants’ counsel] has represented that no liens have been filed . . . .’’ The court

nonetheless ordered that ‘‘[t]he association is to remove

any assessment against the plaintiffs for legal fees

related to this case and any legal fees from here on in

related to this case, which the court declares said fees

to be null and void. . . . The termination of the automatic stay remains in place, except that the plaintiffs

may not execute on the prejudgment remedy or its

substitution while the appeal is pending.’’ On April 24,

2015, the defendants filed an amended appeal with this

court to encompass those additional rulings.

On May 13, 2015, this court granted a motion for

review filed by the defendants with respect to the trial

court’s denial of a stay of injunctive relief and sua

sponte termination of the automatic stay. This court

vacated those orders, specifically determining that the

trial court’s judgment awarding injunctive relief was

permanent in nature and, thus, appealable. This court

therefore remanded the matter to the trial court with

direction to (1) consider whether a stay of such relief

should be imposed in this case under General Statutes

§ 52-47720 and (2) to reconsider whether the automatic
stay should be terminated pursuant to Practice Book

§ 61-11.

On June 25, 2015, the trial court issued an order in

response thereto. In that order, the court reiterated that

the ‘‘green zone’’ was not in writing. It then found that

‘‘the due administration of justice requires an order that

the stay be terminated because it is unlikely that the

[defendants] will prevail in view of the fact that the

‘green zone’ is illegal.’’ The court thus terminated the

stay ‘‘to the extentthatthe plaintiffs may install a permanent fence surrounding the swimming pool within the

‘green zone,’ but shall use their best efforts not to interfere with shrubbery and trees. . . . For the same reasons,the ‘green zone’ being illegal,the stay is terminated

as to the fines imposed by the defendants because of

alleged violation of said ‘green zone.’ The court granted

a prejudgment remedy on behalf of the plaintiffs, but

no attachment or garnishment should be made because

the parties have agreed to a certificate of deposit to

be held in escrow, which will cover the prejudgment

remedy.’’ The defendants then filed a further motion

for review with this court regarding that order. This

court granted review of that motion, but denied the

relief requested.

I

The principal issue in this appeal is whether the trial

court applied the proper legal standard governing judicial review of the discretionary determinations of an

association in a common interest community, or

whether, as the defendants contend, its decision constituted a ‘‘gross departure’’ from that standard. In answering that question, we note that this is an emerging area

of the law that has received relatively little treatment

by the appellate courts of this state. We begin, therefore,

with an overview of the development of common interest community jurisprudence.

A

Background

‘‘Although common-interest communities date back

into the 19th century, they have become a widely available form of housing only since the 1960s.’’ 2

Restatement (Third), Property, Servitudes § 6.13, comment (b), p. 239 (2000); accord Cape May Harbor Village & Yacht Club Assn., Inc. v. Sbraga, 421 N.J. Super.

56, 69, 22 A.3d 158 (App. 2011) (‘‘[c]ommon interest

developments are a relatively recent phenomenon, but

. . . have rapidly grown in the United States’’). As noted

by many commentators, ‘‘[a] large and growing portion

of the housing stock of America is located in common

interest communities governed by owner associations.’’

(Footnote omitted.) S. French, ‘‘Making Common Interest Communities Work: The Next Step,’’ 37 Urb. Law.

359, 359 (2005); see also E. Lombardo, ‘‘A Better Twin

Rivers: A Revised Approach to State Action by Com-
mon-Interest Communities,’’ 57 Cath. U. L. Rev. 1151,

1151 (2008) (‘‘[n]early fifty-nine million Americans live

in private common-interest communities, governed by

member-elected governing boards or associations’’); A.

Arabian, ‘‘Condos, Cats, and CC&Rs: Invasion of the

Castle Common,’’ 23 Pepp. L. Rev. 1, 24 (1995) (‘‘[c]ommon interest developments are the fastest growing form

of housing in the United States’’).

As our Supreme Court has explained, the act ‘‘contemplates the voluntary participation of the owners’’

within a common interest community. Wilcox v. Willard

Shopping Center Associates, 208 Conn. 318, 326, 544

A.2d 1207 (1988). In purchasing units in a common

interest community, owners forfeit certain liberties

with respect to the use of their property by voluntarily

consenting to restrictions imposed thereon, as specified

in the declaration of the community. See, e.g., Weldy

v. Northbrook Condominium Assn., Inc., supra, 279

Conn. 738 (unit owners in common interest community

give up degree of freedom they otherwise would enjoy

in separate privately owned property); Villas West II

of Willowridge Homeowners Assn., Inc. v. McGlothin,

885 N.E.2d 1274, 1278–79 (Ind. 2008) (‘‘Restrictive covenants are used to maintain or enhance the value of

land by reciprocal undertakings thatrestrain orregulate

groups of properties. . . . Property owners who purchase their properties subject to such restrictions give

up a certain degree of individual freedom in exchange

for the protections from living in a community of reciprocal undertakings.’’ [Citation omitted.]), cert. denied

sub nom. Ashcraft v. Villas West II of Willowridge

Homeowners Assn., Inc., 555 U.S. 1213, 129 S. Ct. 1527,

173 L. Ed. 2d 657 (2009); Levandusky v. One Fifth

Avenue Apartment Corp., 75 N.Y.2d 530, 536, 553 N.E.2d

1317, 554 N.Y.S.2d 807 (1990) (purchase of unit in common interest community ‘‘represents a voluntary choice

to cede certain of the privileges of single ownership to

a governing body’’); 1 Restatement (Third), Property,

Servitudes § 3.1, comment (i), p. 364 (2000) (‘‘policies

favoring freedom of contract, freedom to dispose of

one’s property, and protection of legitimate-expectation

interests nearly always weigh in favor of the validity of

voluntarily created servitudes’’).

‘‘Historically, restrictive covenants have been used

to assure uniformity of development and use of a residential area to give the owners of lots within such an

area some degree of environmental stability.’’ Montoya

v. Barreras, 81 N.M. 749, 751, 473 P.2d 363 (1970). As

the Supreme Court of California noted, ‘‘[u]se restrictions are an inherent part of any common interest development and are crucial to the stable, planned

environment of any shared ownership arrangement.

. . . [S]ubordination of individual property rights to the

collective judgment of the owners association together

with restrictions on the use of real property comprise

the chief attributes of owning property in a common
interest development.’’ (Citations omitted.) Nahrstedt

v. Lakeside Village Condominium Assn., 8 Cal. 4th 361,

372–74, 878 P.2d 1275, 33 Cal. Rptr. 2d 63 (1994).

Owners of units in a common interest community,

in turn, secure the right to enforce those restrictions

against others.21 See General Statutes § 47-278; Bella

Vista Condominium Assn., Inc. v. Byars, 102 Conn.

App. 245, 254, 925 A.2d 365 (2007) (owner has ‘‘a cause

of action against the declarant or others who are subject

to the provisions of the act when such parties violate

the terms of eitherthe act orthe particular association’s

declaration or bylaws’’); cf. Mannweiler v. LaFlamme,

46 Conn. App. 525, 535–36, 700 A.2d 57 (discussing right

of owners to enforce restrictions in light of presumption

that ‘‘each purchaser has paid a premium for the property in reliance on the uniform development plan being

carried out’’), cert. denied, 243 Conn. 934, 702 A.2d 641

(1997); Rhue v. Cheyenne Homes, Inc., 168 Colo. 6, 8,

449 P.2d 361 (1969) (‘‘[i]t is no secret that housing today

is developed by subdividers who, through the use of

restrictive covenants, guarantee to the purchaser that

his house will be protected against adjacent construction which will impair its value, and that a general plan

of construction will be followed’’); Lake at Twelve Oaks

Homes Assn., Inc. v. Hausman, 488 S.W.3d 190, 198

(Mo. App. 2016) (restrictions in ‘‘the [a]ssociation’s

[d]eclarations were adopted forthe purposes of enhancing and protecting the value, desirability, and attractiveness of the subdivision’’).

At first blush, the inherently restrictive nature of a

common interest community may appear to conflict

with public policy favoring the free and unrestricted

use of real property, which ‘‘was dominant in the United

States throughout the nineteenth century . . . .’’

Pertzsch v. Upper Oconomowoc Lake Assn., 248 Wis.

2d 219, 232, 635 N.W.2d 829 (App. 2001) (Anderson, J.,

concurring); cf. Easterbrook v. Hebrew Ladies Orphan

Society, 85 Conn. 289, 296, 82 A. 561 (1912) (restrictive

covenants narrowly construed ‘‘being in derogation of

the common-law right to use land for all lawful purposes’’). Nevertheless, the proliferation of common

interest communities in the past half century has led

courts to reconsider certain presumptions regarding

covenants utilized therein. As the Supreme Court of

New Hampshire noted four decades ago, ‘‘[t]he former

prejudice againstrestrictive covenants which led courts

to strictly construe them is yielding to a gradualrecognition that they are valuable land use planning devices.’’

Joslin v. Pine River Development Corp., 116 N.H. 814,

816, 367 A.2d 599 (1976). That court further stated that

‘‘private land use restrictions have been particularly

important in the twentieth century when the value of

property often depends in large measure upon maintaining the character of the neighborhood in which it

is situated.’’ (Internal quotation marks omitted.) Id.,

817. As the Supreme Court of Washington put it, ‘‘[t]he
premise that protective covenants restrict the alienation

of land and, therefore, should be strictly construed may

not be correct. Subdivision covenants tend to enhance,

not inhibit, the efficient use of land. . . . In the subdivision context, the premise [that covenants prevent land

from moving to its most efficient use] generally is not

valid.’’ (Emphasis omitted; internal quotation marks

omitted.) Riss v. Angel, 131 Wn. 2d 612, 622, 934 P.2d

669 (1997). That court thus concluded that, in cases

involving a dispute ‘‘among homeowners in a [common

interest community] governed by the restrictive covenants, rules of strict construction against the grantor

or in favor of the free use of land are inapplicable.’’ Id.,

623; see also Lake at Twelve Oaks Homes Assn., Inc.

v. Hausman, supra, 488 S.W.3d 195 (‘‘the right of one

property owner to the protection of a restrictive covenant is a property right just as inviolable as is the right

of others to the free use of their property when

unrestricted’’). Likewise, the Restatement (Third) of

Property, Servitudes, promulgated in 1998, expressly

eschews the public policy favoring the free use of land

in this context.22

In reviewing the determinations of an association in

a common interest community, Connecticut, like most

jurisdictions, draws a crucial distinction between the

authority to exercise the rights and responsibilities

delineated in a declaration; see Cantonbury Heights

Condominium Assn., Inc. v. Local Land Development,

LLC, 273 Conn. 724, 734, 873 A.2d 898 (2005); and the

propriety of an association’s exercise thereof. See

Weldy v. Northbrook Condominium Assn., Inc., supra,

279 Conn. 734; accord Tierra Ranchos Homeowners

Assn. v. Kitchukov, 216 Ariz. 195, 199, 165 P.3d 173

(App. 2007) (distinguishing between ‘‘a case involving

the interpretation of restrictive covenants’’ and ‘‘a case

involving a challenge to [a] discretionary decision’’

[emphasis omitted]); Felix Felicis, LLC v. Riva Ridge

Owners Assn., 375 P.3d 769, 775 (Wyo. 2016) (distinguishing between questions ‘‘about the meaning of the

covenants’’ and ‘‘the question [of] whether the associations reasonably applied them’’ [emphasis omitted]).

With respect to the former, principles of contract

interpretation control. It is well established that the

declaration is the constitution of a community organized pursuant to the act. Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 737; see also 2

Restatement (Third), Property, Servitudes § 6.12, comment (a), p. 226 (2000) (declaration is ‘‘the foundational

document setting the parameters of the community’s

authority’’); 8 Powell on Real Property (M. Wolf ed.,

2000) § 54A.01 [11] [a], p. 47 (‘‘[t]he declaration is the

constitution for the community’’). A declaration ‘‘operates in the nature of a contract, in that it establishes

the parties’ rights and obligations . . . .’’ Cantonbury

Heights Condominium Assn.,Inc. v. Local Land Development, LLC, supra, 273 Conn. 734; see also Harbour
Pointe, LLC v. Harbour Landing Condominium Assn.,

Inc., 300 Conn. 254, 259, 14 A.3d 284 (2011). Accordingly,rules of contract construction govern the interpretation of declaration provisions. Cantonbury Heights

Condominium Assn., Inc. v. Local Land Development,

LLC, supra, 734–35. No deference to the association,

therefore, is warranted on the issue of association

authority under a declaration. See Southeastern Connecticut Regional Resources Recovery Authority v.

Dept. of Public Utility Control, 244 Conn. 280, 289–90,

709 A.2d 549 (1998).

On the other hand, as to the exercise of an association’s discretionary authority under a declaration,

courts across the country agree that a degree of deference is warranted. As the Supreme Court of California

recognized decades ago, ‘‘[g]enerally, courts will uphold

decisions made by the governing board of an owners

association so long as they represent good faith efforts

to furtherthe purposes of the common interest development, are consistent with the development’s governing

documents, and comply with public policy.’’ Nahrstedt

v. Lakeside Village Condominium Assn., supra, 8 Cal.

4th 374; see also McNamee v. Bishop Trust Co., Ltd.,

62 Haw. 397, 407, 616 P.2d 205 (1980) (‘‘[a]s long as the

[association’s] decision was reasonable and in good

faith it will be upheld’’); Melson v. Guilfoy, 595 S.W.2d

404, 407 (Mo. App. 1980) (finding ‘‘no abuse of discretion’’ in discretionary determination to ‘‘approve or disapprove a fence’’); Levandusky v. One Fifth Avenue

Apartment Corp., supra, 75 N.Y.2d 538 (‘‘[s]o long as

the board acts for the purposes of the [common interest

community], within the scope of its authority and in

good faith, courts will not substitute their judgment for

the board’s’’); 2 Restatement (Third), Property, Servitudes § 6.9, comment (d), pp. 173–74 (2000) (‘‘[a]s the

legitimacy and utility of design controls have become

more widely accepted, courts have tended to increase

the amount of deference they give to decisions reached

by architectural-control committees or other design

control authorities’’).

There are innumerable cases like the one now before

us, in which a dispute arose over restrictive covenants

that required association approval prior to construction

on, or the alteration of, a unit in a common interest

community. As the Supreme Court of Hawaii observed,

‘‘[c]ovenants requiring submission of plans and prior

consent before construction . . . are commonly found

in leases and deeds around the country. Most courts

have found these approval clauses to be valid and

enforceable as long as the authority to consent or

approve is exercised reasonably and in good faith.’’

McNamee v. Bishop Trust Co., Ltd., supra, 62 Haw.

402–403; see also Gleneagle Civic Assn. v. Hardin, 205

P.3d 462, 469 (Colo. App. 2008) (‘‘[t]he majority view

with respect to covenants requiring submission of plans

and prior consent to construction by the developer . . .
is that such clauses, even if vesting the approving

authority with broad discretionary powers, are valid

and enforceable so long as the authority to consent is

exercised reasonably and in good faith’’ [internal quotation marks omitted]).23

More specifically, ‘‘[m]ost jurisdictions . . . recognize the validity and, in a proper case, the enforceability

of covenants requiring consent to construction or

approval of plans even if those covenants do not contain

explicit standards for approval.’’ Cypress Gardens, Ltd.

v. Platt, 124 N.M. 472, 477, 952 P.2d 467 (App. 1997);

accord Dodge v. Carauna, 127 Wis. 2d 62, 66, 377 N.W.2d

208 (App. 1985) (‘‘[t]he result in jurisdictions that have

considered covenants lacking objective standards of

approval is generally consistent’’). An association’s

exercise of its ‘‘broad latitude in making aesthetic decisions with respect to every type of improvement on the

property’’; Buick v. Highland Meadow Estates at Castle

Peak Ranch, Inc., 21 P.3d 860, 863 (Colo. 2001) (en

banc); nevertheless remains subject to a general standard of reasonableness. See, e.g., Rhue v. Cheyenne

Homes, Inc., supra, 168 Colo. 9 (‘‘a refusal to approve

plans must be reasonable and made in good faith and

must not be arbitrary or capricious’’); Kirkley v. Seipelt,

212 Md. 127, 133, 128 A.2d 430 (App. 1957) (‘‘any refusal

to approve the external design or location . . . would

have to be . . . a reasonable determination made in

good faith, and not high-handed, whimsical or captious

in manner’’); LeBlanc v. Webster, 483 S.W.2d 647, 650

(Mo. App. 1972) (‘‘we accept the validity of restrictions

requiring prior approval or consent . . . but . . . such

restrictions must be reasonably exercised’’); Cypress

Gardens, Ltd. v. Platt, supra, 124 N.M. 478 (plaintiff may

‘‘exercise its reserved authority to approve or reject’’

mobile homes ‘‘as long as it does so reasonably which

includes in good faith’’).

The Restatement (Third) of Property, Servitudes,

adopts such an approach. As the reporter’s note states,

it ‘‘follows the trend of modern statutes in taking an

expansive view of the powers of a property-owners

association with respect to . . . protection of property

values in the community through covenant enforcement

and other actions to advance the collective interests of

the common-interest community.’’ 2 Restatement

(Third), Property, Servitudes § 6.4, reporter’s note, p.

92 (2000). Although it disavows the existence of an

implied design control power; see id., § 6.9 and comment (b), p. 171; the Restatement recognizes that the

exercise of an explicit design control power is ‘‘likely

to increase property values by preventing aesthetic nuisances’’; id., § 6.9, comment (d), p. 173; as such power

is ‘‘intended to protect the legitimate expectations of

members of common-interest communities.’’ Id., § 6.13,

comment (a), p. 234; accord Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal. 4th 381

(‘‘[w]hen landowners express the intention to limit land
use, that intention should be carried out’’ [internal quotation marks omitted]).

With respect to design control powers that vest discretion in an association to approve a proposed activity,

the Restatement notes ‘‘two kinds of risks for property

owners. [First, owners] may not be able to develop in

accordance with their expectations because they cannot predict how [that discretion] will be applied. Second, property owners may be subject to arbitrary or

discriminatory treatment because there are no standards against which the appropriateness of the power’s

exercise can be measured.’’ 2 Restatement (Third),

Property, Servitudes § 6.9, comment (d), p. 173 (2000).

To alleviate those risks, the Restatement imposes a

reasonableness standard on the exercise of discretionary design control powers. Section 6.13 (1) provides in

relevant part that an association has the duty ‘‘to act

reasonably in the exercise of its discretionary powers

including rulemaking, enforcement, and design-control

powers . . . .’’24 Id., § 6.13 (1) (c), p. 233. The reasonableness standard ‘‘at its core, allows for an adjudicative

posture that honors the fundamental underpinnings of

association functioning and structure, is responsive to

association aims, takes into account investment-backed

owner expectations, and appreciates the potential for

abuse.’’ P. Franzese, ‘‘Common Interest Communities:

Standards of Review and Review of Standards,’’ 3 Wash.

U. J.L. & Policy 663, 669 (2000).

B

Weldy

In Weldy, our Supreme Court, in accordance with

courts throughout the country,recognized that a degree

of deference is warranted to an association exercising

its powers under a declaration. Relying on the

Restatement (Third) of Property, Servitudes, the court

observed that ‘‘declarations and other governing documents contain broad statements of general policy with

due notice that the board of directors is empowered to

implement these policies and address day-to-day problems in the [association’s] operation. . . . Thus, the

declaration should not be so narrowly construed so

as to eviscerate the association’s intended role as the

governing body of the community. Rather, a broad view

of the powers delegated to the association is justified

by the important role these communities play in maintaining property values and providing municipal-like

services.’’ (Internal quotation marks omitted.) Weldy v.

Northbrook Condominium Assn., Inc., supra, 279

Conn. 737. The court continued: ‘‘Because an association’s power should be interpreted broadly, the association, through its appropriate governing body, is entitled

to exercise all powers of the community except those

reserved to the members. . . . This broad view of the

powers delegated to the [common interest community’s] board of directors is consistent with the principle
inherent in the [common interest ownership] concept

. . . that to promote the health, happiness, and peace

of mind of the majority of the unit owners since they

are living in such close proximity and using facilities

in common, each unit owner must give up a certain

degree of freedom of choice which he might otherwise

enjoy in separate, privately owned property. . . .

[U]nit owners comprise a little democratic sub society

of necessity more restrictive as it pertains to [the] use

of [common interest] property than may be existent

outside’’ the common interest community. (Citations

omitted; internal quotation marks omitted.) Id., 738.

In so noting, our Supreme Court expressly relied on

Hidden Harbour Estates, Inc. v. Norman, 309 So. 2d

180 (Fla. App. 1975), an early case that employed a

reasonableness standard of review to discretionary

association action. In that case, the court held that

‘‘the association is not at liberty to adopt arbitrary or

capricious rules bearing no relationship to the health,

happiness and enjoyment of life of the various unit

owners. On the contrary, we believe the test is reasonableness.’’ Id., 182. In another early decision addressing

the exercise of such discretion, the Court of Appeals

of Maryland similarly reasoned that ‘‘[t]he language

used in the covenants . . . makes plain the desire to

regulate the construction of the dwellings in such a

manner as to create an attractive and desirable neighborhood. We think the parties had a right voluntarily

to make this kind of a contract between themselves;

and the covenant does not create any interference with

the fee of the property that would require it to be

stricken down as against public policy. It does not prevent the owner from conveying the property or impose

any unlawful restraint of trade, but affects only its

method of use. We hold that any refusal to approve the

[proposed alterations] would have to be based upon a

reason that bears some relation to the other buildings

or the general plan of development; and this refusal

would have to be a reasonable determination made in

good faith, and not high-handed, whimsical or captious

in manner.’’ Kirkley v. Seipelt, supra, 212 Md. 133.

In Weldy, our Supreme Court instructed that review

of an association’s discretionary determinations

requires a two part inquiry. ‘‘When a court is called

upon to assess the validity of [an action taken] by [an

association], it first determines whether the [association] acted within its scope of authority and, second,

whether the [action] reflects reasoned or arbitrary and

capricious decision making.’’(Emphasis added; internal

quotation marks omitted.) Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 734. The first

part of that inquiry is consonant with prior precedent

indicating that the question of an association’s authority

to exercise certain rights under a declaration is governed by principles of contract interpretation. See Cantonbury Heights Condominium Assn., Inc. v. Local
Land Development, LLC, supra, 273 Conn. 734. The

second part of that inquiry entails application of a reasonableness standard. Indeed, in its very next sentence,

the court in Weldy noted that only the first part of the

two part inquiry was at issue ‘‘[b]ecause the plaintiffs

do not contend that the [association’s discretionary

determination] is unreasonable . . . .’’25 Weldy v.

Northbrook Condominium Assn., Inc., supra, 734.

Weldy was decided by our Supreme Court in 2006.

The two part test articulated therein has therefore governed review of determinations by common interest

community associations in Connecticut for more than

one decade. See, e.g., Gugliemi v. Willowbrook Condominium Assn., Inc., Superior Court, judicial district of

Hartford, Docket No. CV-11-6018687, 2013 Conn. Super.

LEXIS 700 (March 28, 2013) (applying Weldy’s two part

test), aff’d, 151 Conn. App. 806, 96 A.3d 634 (2014);

Weinstein v. Conyers Farm Corp., Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-X08-

106006978-S, 2012 Conn. Super. LEXIS 2683, *19 (October 31, 2012) (reciting Weldy’s two part test and concluding that association’s imposition of condition on

construction approval was ‘‘reasonable’’); Bosco v.

Arrowhead by the Lake Assn., Inc., Superior Court,

judicial district of Waterbury, Docket No. CV-05-

4007579-S, 2008 Conn. Super. LEXIS 1106 (May 8, 2008)

(applying Weldy’s two part test).

C

Reasonableness

As courts across this state have recognized, Weldy

articulated a two part test that governs review of discretionary association determinations. At the same time,

that case involved no claim as to whether the association’s determination was reasonable, a distinction

underscored by our Supreme Court. Rather, ‘‘the only

issue before the court’’ was the authority of the association. Weldy v. Northbrook Condominium Assn., Inc.,

supra, 279 Conn. 734. The present case, by contrast,

plainly involves a matter—specifically, the erection of

fencing on the plaintiffs’ unit—over which the association is vested with discretionary design control authority under the declaration. See Declaration of Rustle

Meadow, §§ 10.1 (k) and 13.1 (a) (ii).26 The plaintiffs

recognized that authority in submitting written proposals that invoked those provisions of the declaration and

requested the approval of the association thereunder.27

Furthermore, we note that the declaration provisions

in question themselves impart a reasonableness standard on the conduct of the association in exercising its

design control powers. See footnote 26 of this opinion.

Unlike Weldy, then, the issue before the court in this

case is the reasonableness of the association’s discretionary determination.

A criticism of some decisions that apply a reasonable-
ness standard in this context is that they do so ‘‘without

defining what reasonable means.’’ W. Hyatt, ‘‘Common

Interest Communities: Evolution and Reinvention,’’ 31

J. Marshall L. Rev. 303, 354 (1998). For example, in

Hidden Harbour Estates, Inc. v. Norman, supra, 309

So. 2d 182, the court stated simply that ‘‘we believe

the test is reasonableness. If a rule is reasonable the

association can adopt it; if not, it cannot.’’ Given the

near universal recognition that a degree of deference

to discretionary association determinations is appropriate, courts in recent years have noted the need for

‘‘a more objective ‘reasonableness’ standard by which

to judge the discretionary actions of community associations.’’ Tierra Ranchos Homeowners Assn. v. Kitchukov, supra, 216 Ariz. 200. An objective standard serves

to minimize the potential that trial judges will substitute

their subjective judgment for that of the entity explicitly

and contractually entrusted with discretionary authority under the declaration.28 As the Restatement notes,

the proper application of the reasonableness standard

must ‘‘protect the collective decisionmaking processes

of common-interest communities from second-guessing

by the judiciary . . . .’’ 2 Restatement (Third), Property, Servitudes § 6.13, comment (a), p. 235 (2000). A

standard that is objective in nature and deferential to

the exercise of association discretion nonetheless

affords meaningful review. See Lamden v. La Jolla

Shores Clubdominium Homeowners Assn., 21 Cal. 4th

249, 269, 980 P.2d 940, 87 Cal. Rptr. 2d 237 (1999)

(rejecting claim that ‘‘a rule of judicial deference will

insulate community association boards’ decisions from

judicial review’’ and stating that the ‘‘judicial oversight’’

provided under deferential standard ‘‘affords significant

protection against overreaching by such boards’’).

No Connecticut appellate court has addressed the

contours of the reasonableness metric in the context

of common interest ownership communities. Itis appropriate, therefore, to look to other jurisdictions for guidance. Weldy v. Northbrook Condominium Assn., Inc.,

supra, 279 Conn. 737.

Mindful of the deference accorded to associations

vested with discretionary authority, many courts have

held that a reasonableness analysis properly begins with

consideration of the rationale and stated bases for the

association’s determination. See Laguna Royale Owners Assn. v. Darger, 119 Cal. App. 3d 670, 684, 174 Cal.

Rptr. 136 (1981) (‘‘[t]o determine whether or not [an]

[a]ssociation’s disapproval of [the proposed activity]

was reasonable it is necessary to isolate the reason or

reasons approval was withheld’’); McNamee v. Bishop

Trust Co., Ltd., supra, 62 Haw. 406 (reasonableness

analysis focuses on association’s ‘‘reasons for disapproving the [plaintiffs’] application’’); Cypress Gardens,

Ltd. v. Platt, supra, 124 N.M. 478 (‘‘[i]n determining

what is reasonable in such cases, the trial court should

consider the facts and circumstances surrounding’’ the
exercise of discretionary authority). In considering the

rationale underlying the association’s exercise of discretionary authority, a reviewing court should make

‘‘findings as to [the association’s] intent and objectives

[and] what substantial and reasonable interests would

be protected by enforcing the restriction,’’ as well as

‘‘findings as to the relation of the [proposed activity]

to its surroundings and other buildings and structures

in the subdivision.’’ Dodge v. Carauna, supra, 127 Wis.

2d 67. Such findings are ‘‘crucial to a determination of

the reasonableness’’ of an association’s discretionary

determination. Id.

Courts also give considerable weight to the purposes

underlying a common interest community. As one

stated, ‘‘[w]e hold that in exercising its [discretionary]

power . . . [the] [a]ssociation must act reasonably,

exercising its power in a fair and nondiscriminatory

manner and withholding approval only for a reason or

reasons rationally related to the protection, preservation and proper operation of the property and the purposes of [the] [a]ssociation as set forth in its governing

instruments.’’ Laguna Royale Owners Assn. v. Darger,

supra, 119 Cal. App. 3d 680; see also Perry v. Bridgetown Community Assn., Inc., 486 So. 2d 1230, 1234

(Miss. 1986) (‘‘[r]eview by the court must be guided by

the intent stated in the declaration’’); Lake at Twelve

Oaks Homes Assn., Inc. v. Hausman, supra, 488 S.W.3d

197 (focusing on ‘‘[t]he plain and obvious intent of the

[d]eclarations’’ and its ‘‘purposes’’ in reviewing association exercise of design control discretion). Several commentators have suggested that this is an integral, if not

predominant, consideration in evaluating the reasonableness of discretionary association action. See, e.g.,

P. Franzese, supra, 3 Wash. U. J.L. & Policy 687 (‘‘courts

ought to apply a reasonableness standard rooted in

consideration of the association’s legitimate objectives

and an assessment of the rational relationship of the

given action to those objectives’’); R. Ellickson, ‘‘Cities

and Homeowners Associations,’’ 130 U. Pa. L. Rev. 1519,

1530 (1982) (‘‘respect for private ordering requires a

court applying the reasonableness standard to comb

the association’s original documents to find the association’s collective purposes, and then to determine

whether the association’s actions have been consonant

with those purposes’’). We agree that consideration of

the collective purposes of an association, as reflected

in its governing instruments, is essential to the proper

application of the reasonableness standard.

Accordingly, application of the reasonableness standard in the context of a challenge to discretionary association action cannot focus exclusively on the interests

of the disgruntled unit owner or the executive board

of an association. Rather, courts must remain cognizant

of the larger interest of the common interest community. See Nahrstedt v. Lakeside Village Condominium

Assn., supra, 8 Cal. 4th 386 (reasonableness ‘‘to be deter-
mined not by reference to facts that are specific to the

objecting homeowner, but by reference to the common

interest development as a whole’’ [emphasis omitted]);

P. Franzese, supra, 3 Wash. U. J.L. & Policy 684 (noting

cases that ‘‘nicely advance a fact-specific approach

rooted not in the circumstances peculiar to the individual unit owner but instead in consideration of the given

community’s unique character and purposes when

viewed as a whole’’). As the Restatement recognizes,

restrictive covenants that vest discretionary authority

in an association are ‘‘intended to protect the legitimate

expectations of members of common-interest communities.’’ 2 Restatement (Third), Property, Servitudes

§ 6.13, comment (a), p. 234 (2000); see also Nahrstedt

v. Lakeside Village Condominium Assn., supra, 372

(‘‘[u]se restrictions are an inherent part of any common

interest development and are crucial to the stable,

planned environment of any shared ownership arrangement’’); Rhue v. Cheyenne Homes,Inc., supra, 168 Colo.

8 (‘‘restrictive covenants . . . guarantee to the purchaser that his house will be protected against adjacent

construction which will impair its value, and that a

general plan of construction will be followed’’); Riss

v. Angel, supra, 131 Wn. 2d 623–24 (urging ‘‘special

emphasis on [protecting] the homeowners’ collective

interests’’ [internal quotation marks omitted]). The

interests of that constituency must be considered in

applying the reasonableness standard.

At the same time, an association cannot exercise its

discretionary authority in an arbitrary or capricious

manner. Weldy v. Northbrook Condominium Assn.,

Inc., supra, 279 Conn. 734; see also Worthinglen Condominium Unit Owners’ Assn. v. Brown, 57 Ohio App.

3d 73, 76, 566 N.E.2d 1275 (1989) (determination of

‘‘whether the decision or rule was arbitrary or capricious’’ entails consideration of whether ‘‘there be some

rational relationship of the decision or rule to the safety

and enjoyment of the [common interest community]’’

[emphasis omitted]). That authority must be exercised

in good faith and not in a discriminatory manner. See

Worthinglen Condominium Unit Owners’ Assn. v.

Brown, supra, 76. Examples of conduct that substantiated a finding that an association’s determination was

unreasonable include a case in which ‘‘there is no evidence that the [association’s executive board] reasonably assessed the impact of’’ the proposed activity or

that it ‘‘visited the site, much less with an eye to neighbors’ views or privacy’’; Riss v. Angel, supra, 131 Wn.

2d 628; and one in which the architectural control committee failed to ‘‘undertake . . . a minimum effort’’ to

visit ‘‘the proposed construction site’’ and failed to

ascertain ‘‘its impact on [neighboring] properties.’’ Leonard v. Stoebling, 102 Nev. 543, 549, 728 P.2d 1358

(1986). The selective enforcement of a restriction

against a unit ownerlikewise has been deemed arbitrary

and unreasonable in certain circumstances. See White
Egret Condominium, Inc. v. Franklin, 379 So. 2d 346,

352 (Fla. 1979) (holding that use restriction in declaration ‘‘was reasonably related to a lawful objective’’ but

association nonetheless ‘‘is estopped from selectively

enforcing [that] restriction’’). An association’s discretionary design control determination also was deemed

arbitrary when ‘‘the record is devoid of an objective

showing that [the proposed activity is] aesthetically

disharmonious with the character of, or that [it]

detract[s] from, the quality of the neighborhood.’’ Kies

v. Hollub, 450 So. 2d 251, 256 (Fla. App. 1984). Similarly,

an association’s denial of permission for a unit owner

‘‘to proceed with [a] heating and air conditioning

upgrade’’; Billig v. Buckingham Towers Condominium

Assn. I, Inc., 287 N.J. Super. 551, 555, 671 A.2d 623

(App. 1996); was ‘‘not reasonable because the change

did not materially or appreciably affect the [common

interest community] property, the common elements,

the limited common elements, the collective interests

of the unit owners, or the interests of any individual

unit owner.’’ Id., 564. In all such cases, the specific

nature of the proposed activity was weighed against

the interests of the common interest community.

Before turning our attention to the decision of the

trial court, two additional aspects of the reasonableness

standard merit discussion. The first pertains to the allocation of the burden of proof in an action in which a

unit owner in a common interest community challenges

an association’s discretionary decisionmaking.

Although our appellate courts have not addressed this

issue, we note that our Supreme Court in Weldy

expressly relied on the Restatement(Third) of Property,

Servitudes, in recognizing a broad view of the powers

delegated to the association and the corresponding deference accorded thereto. See Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 737–38.

Addressing the duty of an association to act reasonably

in exercising discretionary powers, the Restatement

places the ‘‘burden of proving a breach of duty by the

association’’ on a unit owner ‘‘challenging an action of

the association under this section . . . .’’29 2

Restatement (Third), Property, Servitudes § 6.13 (2), p.

233 (2000). As the commentary explains, ‘‘the purpose

of this subsection is to protect the collective decisionmaking processes of common-interest communities from second-guessing by the judiciary and to

protect the community from the expenses of too-ready

resort to litigation by disgruntled community members,

while at the same time protecting individual members

from improper management and imposition by those

in control of the association.’’ Id., § 6.13, comment (a),

p. 235. We believe that this allocation best comports

with the presumption, reflected in the act, of voluntary

participation of owners within a common interest ownership community; Wilcox v. Willard Shopping Center

Associates, supra, 208 Conn. 326; and the community’s
substantial interest in safeguarding the rights of all unit

owners; Weldy v. Northbrook Condominium Assn.,

Inc., supra, 738; who rely on the plan of development set

forth in the declaration being carried out. Mannweiler v.

LaFlamme, supra, 46 Conn. App. 536 (noting unit owners’ interest in ‘‘the uniform development plan being

carried out’’).

Furthermore, a contrary result strikes us as illogical

in light of the deference accorded to associations in

matters involving discretionary determinations under a

declaration, as well as our Supreme Court’s ‘‘broad view

of the powers’’ delegated to an association in a common

interest community. Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 738. It would be truly

bizarre if—in a civil action commenced by a unit owner

contesting an association’s discretionary decision-making—the association, and not the party challenging the

determination, bore the burden to demonstrate that it

properly exercised that discretion.30 We concur with

the approach avowed in the Restatement and other

jurisdictions that places the burden on the challenging

party to demonstrate that an association orits executive

board improperly exercised the discretionary decisionmaking authority accorded to it by the declaration

of a common interest community.

A second noteworthy aspect of the reasonableness

standard pertains to its inherent nature. As many courts

have recognized, the determination of whether an association reasonably exercised its discretion is a question

of fact.31 Connecticut law likewise recognizes that the

question of reasonableness presents an issue of fact.

See, e.g., Deming v. Nationwide Mutual Ins. Co., 279

Conn. 745, 759 n.15, 905 A.2d 623 (2006) (‘‘whether a

covenant is reasonable is a question of fact’’); Williams

Ford, Inc. v. Hartford Courant Co., 232 Conn. 559, 580,

657 A.2d 212 (1995) (‘‘[w]e have consistently held that

reasonableness is a question of fact for the trier to

determine based on all of the circumstances’’); National

Groups, LLC v. Nardi, 145 Conn. App. 189, 199, 75 A.3d

68 (2013) (reasonableness a question of fact for trier

to determine).

In Peterson v. Oxford, 189 Conn. 740, 745–46, 459

A.2d 100 (1983), our Supreme Court described the application of a reasonableness standard as ‘‘a weighing

analysis’’ that entails consideration of ‘‘all the relevant

circumstances’’ and factors. Cf. Cypress Gardens, Ltd.

v. Platt, supra, 124 N.M. 478 (‘‘[i]n determining what is

reasonable . . . the trial court should consider the

facts and circumstances surrounding’’ the exercise of

discretionary design control authority); Shipler v. Van

Raden, 41 Or. App. 425, 429, 599 P.2d 1141 (1979)

(‘‘[r]estrictive covenants are to be construed in the light

of reasonableness under the circumstances’’). The present case likewise calls for such a weighing analysis by

the trier of fact. With that standard in mind, we turn
to the decision of the trial court.

D

Trial Court Decision

On January 14, 2015, the court issued its memorandum of decision. In that decision, the court specifically

addressed the propriety of the green zone and the association’s failure to approve the plaintiffs’ fence proposal. It stated: ‘‘Is there a green zone? The short answer

is no. At the start of this trial, this court granted the

plaintiffs’ motion in limine prohibiting the defendants

from introducing any unrecorded maps or unrecorded

documents that show a green zone. The court found

that the green zone is not reasonable because it was

not in writing, that the green zone, being unwritten, is

not sufficient notice to a prospective buyer. . . . The

green zone as hereinbefore described is in the mind of

Miller, and there is nothing in writing in the declaration

or bylaws to indicate to anyone, including the plaintiffs,

that there is a green zone, namely, a fifteen foot wide

piece of land claimed by Miller from the boundary of

the plaintiffs’ in toward the rest of their property, a

distance of fifteen feet, surrounding the entire property

of the plaintiffs. Accordingly, this court finds that it

was illegal and inequitable for the association to deny

the applications for a fence around the pool in the green

zone hereinbefore described.’’ (Citation omitted.) In a

later portion of the decision concerning ‘‘the defendants’ actions in restricting landscaping by the plaintiffs,’’ the court likewise noted that the conduct of the

association in ‘‘withholding . . . the approval for a

fence’’ was unreasonable because the ‘‘green zone . . .

did not exist in writing . . . .’’ On appeal, the defendants contest the propriety of those determinations.

1

Motion in Limine

We begin with the defendants’ contention that the

court improperly granted the motion in limine to preclude evidence relating to the green zone. The following

additional facts are relevant to that issue. One day prior

to trial, the plaintiffs filed a motion in limine seeking

to preclude any testimony or documentation ‘‘that

relates to the green zone.’’ The plaintiffs emphasized

that all restrictions on the use of property within a

common interest community are required to be

included in the declaration thereof. Because Miller

admitted in his deposition testimony that the term

‘‘green zone’’ is not contained in either the declaration

or any other material recorded on the Canton land

records, the plaintiffs argued that ‘‘the green zone is

clearly unenforceable’’ under the act.

When the court heard argument on the motion on

the first day of trial, the defendants’ counsel responded

by stating, ‘‘Your Honor, this motion in limine is a wonderful way to start this case because it identifies where
the issues are, where the conflicts are’’ between the

parties. He emphasized that the declaration expressly

vests discretionary authority in the association to

approve or deny all exterior development and landscaping within Rustle Meadow.32 At that time, counsel

brought Weldy to the court’s attention, which he

described as ‘‘the only . . . Supreme Court case on

point,’’ and furnished a copy of that decision to the

court. He stated that, in Weldy, ‘‘the [Supreme Court]

was called upon for the first time . . . to decide how

[to] deal with’’ the discretion of an association in a

common interest community. Noting the two part test

articulated therein, counsel explained that ‘‘the second

part ofthe test[asks whether]the homeowners’ association acted reasonably or did it act arbitrarily and capriciously.’’ The ultimate issue before the court, he

continued, was the determination of whetherthe association reasonably exercised its discretionary authority.

Accordingly, he argued that evidence of the ‘‘green

zone’’ was both relevant and necessary to resolving

that issue.

The trial court did not agree with the defendants. It

stated: ‘‘The motion in limine is granted. . . . Apparently [Miller] decided what the green zone is, and . . .

it doesn’t seem to me that it’s reasonable if it is not in

writing. If he wants to testify as to why he did what he

did, I don’t have a problem with that. I’ll evaluate that

as I will any other witness, but I’m . . . granting the

motion in limine because I don’t think that the so-called

green zone, being unwritten, is . . . sufficient notice

to the prospective buyer. I mean, [Miller] says in his

deposition that if you want to know what the green

zone is, ask me. I don’t think that’s sufficient. . . . [I]f

we’re talking about discretion, at this point I think that

is . . . beyond discretion.’’

The court thereafter excluded or redacted certain

evidence and testimony throughout the course of trial.

For example, the court redacted Miller’s statement that

‘‘[t]he [fifteen] foot green zone needs to be respected’’

from his July 22, 2008 e-mail to the plaintiffs, which

was sent prior to the construction of the swimming

pool. The court likewise redacted the plaintiffs’ July 23,

2008 response to that communication, in which they

stated that they were ‘‘confident that when the pool

and grading is done, the green zone will be at least the

[fifteen] feet. Looking at the [southeasterly] side yard,

it looks like the only area the dirt is encroaching is by

the side of the deck. Once [the] patio is in and we do

landscaping I am sure you will be pleased with the

amount of green we add or maintain.’’

On appeal, the defendants claim that the court

improperly excluded such evidence regarding the green

zone. ‘‘The scope of our appellate review depends upon

the proper characterization of the rulings made by the

trial court.’’ (Internal quotation marks omitted.) Olson
v. Accessory Controls & Equipment Corp., 254 Conn.

145, 156, 757 A.2d 14 (2000). Evidentiary claims ordinarily are governed by the abuse of discretion standard.

See, e.g., Klein v. Norwalk Hospital, 299 Conn. 241,

250 n.9, 9 A.3d 364 (2010). That deferential standard,

however, does not apply when ‘‘the trial court’s ruling

on the motion in limine . . . was based on [a] legal

determination . . . .’’ Duffy v. Flagg, 279 Conn. 682,

688–89, 905 A.2d 15 (2006). As the court indicated in

its memorandum of decision, its ruling on the motion

in limine was based on its legal determination that the

green zone needed to be in writing.33 Accordingly, the

applicable standard of review requires this court to

determine ‘‘whether the trial court was legally and logically correct when it decided, under the facts of the

case, to exclude evidence’’ of the green zone. Id., 689.

Our review, therefore, is plenary. See Robinson v.

Cianfarani, 314 Conn. 521, 525, 107 A.3d 375 (2014)

(when trial court draws conclusions of law, review is

plenary as to whether conclusions are legally and logically correct and find support in facts that appear in

record).

On appeal, the plaintiffs submit that the court properly determined that the green zone had to be in writing.

In so doing, however, they rely on decisional law arising

outside the context of common interest communities.

See, e.g., Wykeham Rise, LLC v. Federer, 305 Conn.

448, 52 A.3d 702 (2012); Katsoff v. Lucertini, 141 Conn.

74, 103 A.2d 812 (1954); Hooker v. Alexander, 129 Conn.

433, 29 A.2d 308 (1942); Kepple v. Dohrmann, 141 Conn.

App. 238, 60 A.3d 1031 (2013); DaSilva v. Barone, 83

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

908, 859 A.2d 560 (2004); Grady v. Schmitz, 16 Conn.

App. 292, 547 A.2d 563, cert. denied, 209 Conn. 822, 551

A.2d 755 (1988); Marion Road Assn. v. Harlow, 1 Conn.

App. 329, 472 A.2d 785 (1984); Thompson v. Fairfield

Country Day School Corp., Superior Court, judicial district of Fairfield, Docket No. CV-02-0396513 (November

20, 2003) (36 Conn. L. Rptr. 45); Witter v. Taggart, 78

N.Y.2d 234, 577 N.E.2d 338, 573 N.Y.S.2d 146 (1991);

Nature Conservancy v. Congel, 296 App. Div. 2d 840,

744 N.Y.S.2d 281, leave to appeal denied, 99 N.Y.2d 502,

782 N.E.2d 567, 752 N.Y.S.2d 589 (2002). There is no

indication in any of those cases that the restriction at

issue pertained to a common interest community or

involved a declaration of restrictive covenants that conferred discretionary design control authority on an association thereof. Those decisions, therefore, are

inapposite to the present case.

The plaintiffs’ reliance on the statute of frauds likewise is untenable. Under Connecticut law, the statute

of frauds operates as a special defense to a civil action.

See, e.g., Suffield DevelopmentAssociates Ltd. Partnership v. Society for Savings, 243 Conn. 832, 835 n.5, 708

A.2d 1361 (1998) (noting that defendant raised ‘‘the

special defense of the statute of frauds’’); Levesque
Builders, Inc. v. Hoerle, 49 Conn. App. 751, 754, 717

A.2d 252 (1998)(‘‘[t]he defendantfiled a special defense,

claiming that the contract was unenforceable because

it failed to comply with . . . the statute of frauds’’).

The statute of frauds provides in relevant part that ‘‘[n]o

civil action may be maintained in the following cases

unless the agreement, or a memorandum of the

agreement, is made in writing and signed by the party,

or the agent of the party, to be charged . . . (4) upon

any agreement for the sale of real property or any interest in or concerning real property . . . .’’ (Emphasis

added.) General Statutes § 52-550 (a). In this case, however, it is the plaintiffs who have maintained the civil

action challenging the discretionary determination of

the association. Because ‘‘a special defense operates

as a shield, to defeat a cause of action, and not as a

sword, to seek a judicial remedy for a wrong’’; Bank

of America, N.A. v. Aubut, 167 Conn. App. 347, 374,

143 A.3d 638 (2016); the plaintiffs’ resort to the statute

of frauds in this case is unavailing.

More significantly, this is not a case that lacks a

written agreement. Under Connecticut law, restrictive

covenants in a common interest community must be

included in the declaration thereof; General Statutes

§ 47-224 (a) (12); which, in turn, must be filed on the

land records. General Statutes § 47-220 (a). Consistent

with that statutory imperative, the Declaration of Rustle

Meadow was recorded on the Canton land records prior

to the plaintiffs’ purchase of their unit in the common

interest community. That declaration contains numerous restrictive covenants. At trial, the plaintiffs testified

that they reviewed the declaration prior to purchasing

their unit and were aware of the restrictive covenants

contained therein. See Dolan-King v. Rancho Santa Fe

Assn., 81 Cal. App. 4th 965, 971, 97 Cal. Rptr. 2d 280

(plaintiff ‘‘was aware of the [c]ovenant’s existence and

had ‘read over it’ before she agreed to purchase the

house’’), review denied, 2000 Cal. LEXIS 7972 (Cal.

October 3, 2000).

The declaration contains reciprocal provisions

regarding the association’s discretionary authority over

design control matters. See footnote 26 of this opinion.

Section 10.1 (k) of Article X vests sweeping design

control powers in the association, which, like those at

issue in Buick v. Highland Meadow Estates at Castle

Peak Ranch,Inc., supra, 21 P.3d 863, ‘‘grantthe [association] broad latitude in making aesthetic decisions with

respect to every type of improvement on the property

. . . .’’ The exercise of that broad discretion, however,

remains subject to a reasonableness standard, as § 10.1

(k) provides that approval thereunder ‘‘shall not be

unreasonably withheld.’’ Section 13.1 (a) (ii) of Article

XIII, in turn, expressly prohibits unit owners from making ‘‘any changes, additions, alterations, or improvements . . . in or on any Unit’’ without prior written

approval from the association in accordance with § 10.1
(k). At trial, Kristine Grovenburg acknowledged that

the association had discretion to approve all exterior

changes to her unit pursuant to the declaration and

that she was required to obtain its permission prior to

making any such alterations or improvements.

The record before us contains ample documentary

evidence indicating that the so-called ‘‘green zone’’ was

a criterion considered by the association in the exercise

of its discretionary design control authority under

§§ 10.1 (k) and 13.1 (a) of the declaration.34 In a portion

of deposition testimony that was admitted into evidence, the plaintiffs’ counsel inquired as to Miller’s use

of the term ‘‘green zone’’ in communications with the

plaintiffs. The following colloquy transpired:

‘‘[The Plaintiffs’ Attorney]: Why did you use the word

Green Zone in your e-mail? . . .

‘‘[Miller]: Because—I used the phrase, fifteen foot

Green Zone, because I had discussed with the [plaintiffs] previously the fifteen foot Green Zone, and that’s

why I said it needed to be respected.

‘‘[The Plaintiffs’ Attorney]: Can you define the fifteen

foot Green Zone, please?

‘‘[Miller]: It’s a visual buffer that is one of the standards that the association uses to evaluate changes to

landscaping and—evaluate changes to landscaping and

the—in the conduct of its business of the subdivision.

‘‘[The Plaintiffs’ Attorney]: And it is sort of unclear.

When you were describing the Green Zone as a buffer,

can you just articulate what, in your definition, a fifteen

foot Green Zone is as it relates to the plaintiffs’

property?

‘‘[Miller]: ‘‘It’s an area where natural vegetation would

be protected and not removed, destroyed, cut, or in

other ways inhibited so as to provide a visual buffer

between adjoining building lots.’’

In his July 2, 2010 e-mail to the plaintiffs, Miller similarly stated that ‘‘[t]he green zone falls within the authority of the board in approving landscape changes after

construction. The ‘green zone’ is simply a term which

names a section of the land adjacent to the wooded

property lines where the association will tightly regulate

any landscape changes to maximize the visual buffer

between adjacent lots.’’ In a subsequent e-mail sent days

later, Miller informed the plaintiffs that ‘‘[m]aintaining

a visual buffer between lots in this community is a . . .

criteri[on] from which to make a decision . . . .’’ The

minutes of the association’s June 21, 2013 annual meeting likewise reflect that discussion transpired on ‘‘the

need to maintain a visual green zone buffer between

units for privacy and to maintain the wooded character

of the community.’’ Similarly, when Miller contacted

the Canton building department in 2011, he made no

mention of any ‘‘green zone,’’ but rather indicated that
the plaintiffs had proposed a fence within a ‘‘visual

buffer zone.’’ That correspondence further indicated

that the plaintiffs’ proposal had been denied because

it ‘‘placed the fence unnecessarily within’’ that visual

buffer zone. (Emphasis added.)

Throughout this litigation, the defendants have conceded that there is no reference to either the ‘‘green

zone’’ or that visual buffer area in the declaration or

other documents of Rustle Meadow. Courts across the

country nevertheless have rejected similar claims

regarding the lack of written, objective standards to

guide the exercise of broadly drawn design control powers.35 At the same time, the exercise of discretionary

design control powers that do not contain explicit standards remains subject to a reasonableness standard.36

The Restatement (Third) of Property, Servitudes, likewise provides that a common interest associations has

a duty ‘‘to act reasonably in the exercise of its discretionary powers including rulemaking, enforcement, and

design-control powers . . . .’’ 2 Restatement (Third),

Property, Servitudes § 6.13 (1), p. 233 (2000). That standard is consistent with the broad view of powers delegated to common interest associations espoused by our

Supreme Court in Weldy, as well as the precept that

restrictive covenants vesting broad discretionary

authority in an association are ‘‘intended to protect

the legitimate expectations of members of commoninterest communities.’’ Id., § 6.13, comment (a), p. 234.

Furthermore, we perceive a practical problem with

the position urged by the plaintiffs. If the discretionary

criteria to be considered by an association in exercising

its design control powers must be specifically enumerated and explicated in writing, the size and complexity

of such covenants increases exponentially. Section 10.1

(k) of the declaration plainly confers on the association

the authority to evaluate aesthetic considerations. Yet,

as one court aptly observed, ‘‘[t]he covenant, by making

no attempt to set forth objective ‘aesthetic considerations,’ implicitly recognizes, as do we, that it is impossible to establish absolute standards to guide a judgment

of taste.’’ Palmetto Dunes Resort v. Brown, 287 S.C.

1, 6–7, 336 S.E.2d 15 (App. 1985). ‘‘Great minds have

struggled for centuries to define aesthetic considerations. . . . The law, in all its majesty, cannot compel

the definition of the indefinable.’’ (Citations omitted;

internal quotation marks omitted.) Id., 7 n.2; accord

Dolan-King v. Rancho Santa Fe Assn., supra, 81 Cal.

App. 4th 976 (restrictive covenant conferring discretionary design control authority ‘‘expressly grants the

[a]ssociation . . . broad authority to apply standards

that are inherently subjective and by their nature cannot

be measured or quantified’’).As our precedentinstructs,

determining what is reasonable necessarily entails consideration of the specific circumstances and factors at

play in a given instance.37 Williams Ford, Inc. v. Hartford Courant Co., supra, 232 Conn. 580; Peterson v.
Oxford, supra, 189 Conn. 745. The task of preparing a

compendium of all potentially relevant considerations

would be Sisyphean.

In Weldy, our Supreme Court adopted a ‘‘broad view’’

of the discretionary authority contractually accorded

to associations in common interest communities; Weldy

v. Northbrook Condominium Assn., Inc., supra, 279

Conn. 738; and set forth a reasonableness standard to

govern review thereof. In accordance with that precedent, as well as the authority of sibling jurisdictions

discussed in this opinion and the Restatement (Third)

of Property, Servitudes, we conclude that a restrictive

covenant in a declaration of a common interest community that confers broad design control authority on an

association need not specifically state the criteria to

be considered in the exercise of that authority. That

authority must be exercised reasonably, and not in an

arbitrary or capricious manner. Id., 734.

Whether termed a ‘‘green zone,’’ a ‘‘visual buffer,’’ or

a ‘‘visual green zone buffer,’’ evidence regarding that

criterion was highly relevant to the question of whether

the association reasonably exercised its discretionary

design control authority. In granting the motion in

limine, the court prohibited the defendants from introducing, inter alia, evidence (1) of the rationale for that

criterion, which impaired the court’s ability to determine whether the association’s exercise of discretionary authority was based on legitimate interests of the

common interest community, (2) that the plaintiffs had

actual notice of that criterion prior to the construction

of their swimming pool, and (3) that the association

previously had permitted activity in the green zone area

of the plaintiffs’ unit when a septic system was installed.

The preclusion of such evidence was harmful, as it

likely affected the result in the present case. See Danko

v. Redway Enterprises, Inc., 254 Conn. 369, 383, 757

A.2d 1064 (2000). We, therefore, conclude that the court

improperly granted the motion in limine to preclude

evidence regarding the green zone.

2

Application of Reasonableness Standard

We next consider the defendants’ contention that

the trial court applied an improper legal standard in

evaluating the association’s exercise of its discretionary

design control authority regarding the plaintiffs’ fence

proposal. The defendants claim that the court’s analysis

departed from the mandate of Weldy, which espoused a

deferential view of discretionary association authority,

the exercise of which is governed by a standard of

reasonableness. At its essence, their claim is that the

court departed from that deferential posture and failed

to engage in a proper reasonableness analysis in the

context of common interest communities. We agree.

The court’s decision contains no reference to the act,
Weldy,

38 or any authority from Connecticut or elsewhere

pertaining to common interest communities. Its sole

legal citation is to Busker v. United Illuminating Co.,

156 Conn. 456, 458, 242 A.2d 708 (1968), a case regarding

a real estate commission a half century ago that recites

the preponderance of the evidence standard generally

applicable to civil proceedings. Nothing in the court’s

decision acknowledges the considerable discretion

accorded the association under the applicable provisions of the declaration; see footnote 26 of this opinion;

and the precedent of this state’s highest court, which

recognizes a ‘‘broad view of the powers delegated to’’

common interest associations under a declaration.

Weldy v. Northbrook Condominium Assn., Inc., supra,

279 Conn. 738; accord Dolan-King v. Rancho Santa Fe

Assn., supra, 81 Cal. App. 4th 978–79 (holding that trial

court ‘‘failed to apply the proper deferential standard

to test the [b]oard’s exercise of discretion’’ and instead

substituted ‘‘its own judgment based upon its own evaluation of [the plaintiff’s] applications’’).

The legal basis articulated in the court’s memorandum of decision was its determination that the visual

buffer area known as the green zone was illegal and

unreasonable because it was not in writing. In part I D

1 ofthis opinion, we have explained why that determination is untenable. The critical inquiry, then, is whether

the association’s exercise of its design control authority

‘‘reflects reasoned or arbitrary and capricious decision

making.’’ (Internal quotation marks omitted.) Weldy v.

Northbrook Condominium Assn., Inc., supra, 279

Conn. 734.

Application of the reasonableness standard properly

begins with consideration of the association’s discretionary determination and the reasons therefor. Regrettably, the court’s decision contains no discussion of

that essential component of a reasonableness analysis.

The record indicates that the association’s exercise of

its design control authority over the proposed fencing

on the plaintiffs’ unit was animated by two related interests—the desire to maintain a visual buffer to preserve

privacy within the common interest community, and

the desire to maintain the wooded character of that

community. In various correspondence with the plaintiffs, Miller, on behalf of the association, stated that

‘‘[t]he ‘green zone’ is simply a term which names a

section of the land adjacent to the wooded property

lines where the association will tightly regulate any

landscape changes to maximize the visual buffer

between adjacentlots.’’ The minutes ofthe association’s

June 21, 2013 annual meeting likewise reflect that ‘‘[d]iscussion was held regarding the visual buffer area

between units that the board calls the green zone,’’ and,

specifically, ‘‘the need to maintain a visual green zone

buffer between units for privacy and to maintain the

wooded character of the community.’’39 The trial court,

however, furnished no findings as to whether main-
taining privacy between units and preserving the

wooded character of the community were legitimate

interests of the common interest community.

There also is no indication that the trial court examined the governing instruments of the community to

ascertain the collective purposes of the association. We

note in this respect that although §§ 10.1 (k) and 13.1

(a) confer broad design control authority on the association; see footnote 26 of this opinion; one aspect of

that authority is identified with particular specificity.

Section 13.1 (a) (ii) provides in relevant part that a

unit owner ‘‘[m]ay not make any changes, additions,

alterations, or improvements to any structure in or on

any Unit or to the Common Elements or make any

substantial change to the topography of a Unit or to

the Common Elements including the removal of trees,

without the prior written approval’’ of the association.

(Emphasis added.) Section 10.1 (k) likewise proscribes

the ‘‘removal of any trees without the prior written

consent’’ of the association. The court’s factual determination as to whether the association’s discretionary

action was reasonable must weigh the intent and purpose of those explicit contractual provisions set forth

in the declaration. Lake at Twelve Oaks Homes Assn.,

Inc. v. Hausman, supra, 488 S.W.3d 197; see also

Laguna Royale Owners Assn. v. Darger, supra, 119 Cal.

App. 3d 680 (courts must consider‘‘the purposes of[the]

[a]ssociation as set forth in its governing instruments’’);

Perry v. Bridgetown Community Assn., Inc., supra,

486 So. 2d 1234 (‘‘[r]eview by the court must be guided

by the intent stated in the declaration’’).

Had the court found that the interests proffered by

the association were legitimate ones, it next would have

to determine whether the association’s exercise of its

discretionary design control authority was rationally

related thereto. See, e.g., Laguna Royale Owners Assn.

v. Darger, supra, 119 Cal. App. 3d 680 (exercise of

discretionary authority must be ‘‘rationally related to

the protection, preservation and proper operation of

the property and the purposes of [the] [a]ssociation

as set forth in its governing instruments’’); Kirkley v.

Seipelt, supra, 212 Md. 133 (exercise of discretion must

be ‘‘based upon a reason that bears some relation to

the other [units] or the general plan of development’’);

Worthinglen Condominium Unit Owners’ Assn. v.

Brown, supra, 57 Ohio App. 3d 76 (determination of

‘‘whether the decision or rule was arbitrary or capricious’’ entails consideration of whether ‘‘there be some

rational relationship of the decision or rule to the safety

and enjoyment of the [common interest community]’’

[emphasis omitted]).

The record is hampered by the fact that the court

did not make any findings as to the substance of the

proposal that the plaintiffs submitted to the association.40 The undisputed documentary evidence in the
record indicates that, under the plaintiffs’ revised proposal, fencing would be erected approximately eight

feet from the southeasterly properly line, with ‘‘Scabrida Clumping Bamboo’’ to be planted ‘‘every [sixeight] feet’’ between the fence and the property line.

At the behest of the association, the plaintiffs also submitted written documentation indicating that ‘‘[t]he

bamboo grows [twelve-fourteen feet] tall by [three feet]

wide for each bush’’ and that this species ‘‘is non-invasive, vigorous and easy to grow . . . .’’ Essential to any

determination of whether the association’s exercise of

its discretionary authority was reasonable are factual

findings as to the specifics of the plaintiffs’ proposal and

their relationship to the association’s stated interests in

maintaining privacy between units and preserving the

wooded character of the community.41 No such findings

are present in the court’s decision. Absent such factual

findings, a court reviewing the discretionary determination of an association cannot properly ascertain

whether any legitimate interests of the common interest

community justify the denial of a proposed activity.

See, e.g., Dodge v. Carauna, supra, 127 Wis. 2d 67 (findings as to ‘‘what substantial and reasonable interests

would be protected by enforcing the restriction’’ are

‘‘crucial to a determination of the reasonableness’’

standard).

The record is further impaired by the court’s erroneous granting of the motion in limine, which we discussed in part I D 1 of this opinion. As a result, the

defendants were precluded from presenting relevant

and probative evidence regarding the visual buffer area

known as the green zone. For example, the defendants

at trial attempted to introduce into evidence documentation of the location of a septic system that was

installed on the plaintiffs’ property. When the court

inquired as to ‘‘the purpose’’ of such evidence, their

counsel noted that the septic system was shown on

that document to be ‘‘well within’’ the green zone area.

Counsel thus argued that the document undermined

any claim ‘‘of the green zone being this absolute, incontrovertible thing . . . .’’ After Miller confirmed that the

document was on file with the town health department,

the defendants’ counsel stated that ‘‘what it goes to is

the idea that there’s this inviolate green zone that cannot

be touched, and . . . this simply shows the location

of the septic system within that area . . . much closer

to the lot line.’’ The plaintiffs’ attorney objected on the

basis of the court’s prior ruling on the motion in limine.

The court sustained that objection, stating, ‘‘I don’t see

the relevance of this at all,’’ and thus precluded evidence

of that intrusion into the green zone.42

In granting the motion in limine, the court also foreclosed the introduction of evidence as to whether the

plaintiffs had actual notice of the green zone, as the

defendants steadfastly maintained. As this court has

observed, ‘‘[t]he concept of notice concerns notions of
fundamental fairness, affording parties the opportunity

to be apprised when their interests are implicated in a

given matter. . . . [T]he modern approach to noticegiving attaches primary importance to actual notice and

treats technical compliance with notice procedures as

a secondary consideration.’’(Citations omitted; internal

quotation marks omitted.) Twenty-Four Merrill Street

Condominium Assn., Inc. v. Murray, 96 Conn. App.

616, 622–23, 902 A.2d 24 (2006); cf. O’Connor v. Larocque, 302 Conn. 562, 611 n.5, 31 A.3d 1 (2011) (notice

is question of fact to be resolved by trier of fact). At

trial, the defendants attempted to admit into evidence

multiple written correspondences in which the plaintiffs affirmatively discussed the green zone. For example, the court declined to admit the plaintiffs’ statement

in their July 27, 2008 e-mail to Miller—sent prior to the

construction of the swimming pool—that the plaintiffs

were ‘‘confident that when the pool and grading is done,

the green zone will be at least the [fifteen] feet. . . .

Once [the] patio is in and we do landscaping I am sure

you will be pleased with the amount of green we add

or maintain.’’43 The issue of the plaintiffs’ notice of the

green zone is yet another unresolved factual matter that

a reviewing court must consider in weighing ‘‘all the

relevant circumstances’’; Peterson v. Oxford, supra, 189

Conn. 745; to determine whether the association’s exercise of discretionary authority was reasonable in the

present case.

The court appears to have deemed the ‘‘green zone’’

visual buffer area to be a blanket restriction barring

all use of that portion of the plaintiffs’ unit. Such a

determination is problematic for a number of reasons.

First, the court’s granting of the motion in limine precluded the defendants from offering documentary and

testimonial evidence as to the nature of the green zone

and how it had been implemented by the association

over the years, such as evidence that a septic system

was permitted in that area. Second, it is contrary to

undisputed evidence in the record indicating that the

association entertained proposed intrusions into that

area. The record includes Miller’s e-mail response to

the plaintiffs’ initial fence proposal, in which he

informed them that the proposed fence ‘‘will most likely

not be approved any closer than [fifteen] feet to the

property line.’’ (Emphasis added.) The record also

reflects that the association never denied the plaintiffs’

revised proposal for a fence ‘‘approximately eight feet’’

from the southeasterly side yard property line. Rather,

the association requested additional information on the

nature of certain plantings that were proposed along

the property line, and their ‘‘mature height’’ specifically.

Furthermore, it is undisputed that the parties thereafter

engaged in negotiations over the course of several

months—well before the commencement of this litigation—in an attempt to work ‘‘out [the] details of a settlement.’’44 The association’s willingness to engage in such
negotiations and to consider the revised proposal with

specific plantings cannot be reconciled with a determination that the green zone was a blanket prohibition

applied by the association. See, e.g., Chateau Village

North Condominium Assn. v. Jordan, 643 P.2d 791,

792–93 (Colo. App. 1982)(association board improperly

applied blanket policy against unit owner by failing to

even consider ‘‘the facts of [the owner’s] individual

application’’). Here, the record plainly indicates that

the association did not summarily deny the plaintiffs’

proposal, as that proposal remained pending at the time

that the plaintiffs commenced this action.45 The manner

and extent to which the association considered the

particular facts of the plaintiffs’ proposal is but another

unresolved factual issue relevant to the court’s

weighing analysis.

As we have observed, the reasonableness of the association’s exercise of discretionary design control

authority involves a question of fact. Resolution of that

factual question necessarily is beyond the purview of

an appellate court, as ‘‘it is axiomatic that this appellate

body does not engage in fact-finding.’’46 Hogan v.

Lagosz, 124 Conn. App. 602, 618, 6 A.3d 112 (2010), cert.

denied, 299 Conn. 923, 11 A.3d 151 (2011). Connecticut’s

appellate courts ‘‘cannot find facts; that function is,

according to our constitution, our statute, and our

cases, exclusively assigned to the trial courts.’’ Weil v.

Miller, 185 Conn. 495, 502, 441 A.2d 142 (1981). Accordingly, a remand to the trial court for a new trial is

necessary. As the Colorado Court of Appeals noted

in a similar appeal, ‘‘[t]he determination of whether a

homeowners association has acted reasonably or arbitrarily is a question of fact. . . . Therefore, we conclude that . . . we must remand this case to the trial

court for a determination . . . of the question of fact

of whether the association acted reasonably when it

denied the homeowners’ plan.’’ (Citation omitted.)

Gleneagle Civic Assn. v. Hardin, supra, 205 P.3d 470;

accord Cypress Gardens, Ltd. v. Platt, supra, 124 N.M.

478 (remanding to trial court for factual determination

and noting that ‘‘[i]n determining what is reasonable in

such cases, the trial court should consider the facts

and circumstances surrounding the application of’’ discretionary design control authority); Worthinglen Condominium Unit Owners’ Assn. v. Brown, supra, 57

Ohio App. 3d 78 (remanding to trial court ‘‘for consideration of the reasonableness’’ of association’s discretionary determination); Dodge v. Carauna, supra, 127 Wis.

2d 67 (noting that ‘‘[a] number of findings crucial to a

determination of the reasonableness’’ of discretionary

determination ‘‘are missing’’ and remanding matter to

trial court for further proceedings).

3

Conclusion

In light of the foregoing, we agree with the defendants
that the court failed to properly apply the legal standard

governing review of discretionary decisionmaking

authority by the association. Such review is not governed by the preponderance of the evidence standard

generally applicable to civil proceedings.47 Rather,

Weldy directs a court reviewing the exercise of discretionary association action to engage in a two part analysis, the latter of which requires a finding as to whether

the association’s determination was reasonable. Weldy

v. Northbrook Condominium Assn., Inc., supra, 279

Conn. 734. Proper application of that reasonableness

standard, in turn, requires certain predicate findings

that are lacking in the present case. We therefore

remand the matter to the trial court for a new trial with

direction to apply that legal standard.

On remand, in rendering a factual finding on the issue

of reasonableness, the trial court must objectively

weigh the relevant circumstances and factors. Williams

Ford, Inc. v. Hartford Courant Co., supra, 232 Conn.

580; Peterson v. Oxford, supra, 189 Conn. 745–46.

Included among those are the rationales proffered by

the association for its exercise of discretionary authority; the specific nature of the activity proposed by the

plaintiffs; the relationship between any legitimate interests of the association and its exercise of discretionary

authority; the purposes of the association and the general plan of development for the common interest community, as reflected in its governing instruments; and

the extent to which discretionary authority was exercised in good faith or in an arbitrary manner.48 In so

doing, the trial court must heed our Supreme Court’s

‘‘broad view of the powers delegated’’ to the association

of a common interest community; Weldy v. Northbrook

Condominium Assn., Inc., supra, 279 Conn. 738; and

remain ever cognizant of the collective interest of the

common interest community. See Dolan-King v. Rancho Santa Fe Assn., supra, 81 Cal. App. 4th 975 (‘‘courts

do not conduct a case-by-case analysis of the restrictions to determine the effect on an individual homeowner [but rather] must consider the reasonableness

of the restrictions by looking at the goals and concerns

of the entire development’’). The court should ‘‘carefully

and overtly balance the competing interests at stake,

being sensitive to the purposes and fabric of the given

community when taken as a whole.’’ P. Franzese, supra,

3 Wash. U. J.L. & Policy 671.

E

Alternative Ground of Affirmance

In their appellate brief, the plaintiffs address an alternative ground of affirmance—namely, that ‘‘the green

zone is a rule that was required to be adopted through

the association’s rule making process. . . . Because

the green zone was not properly adopted by the [a]ssociation, it is invalid as a matter of law.’’49 We perceive

multiple problems with that contention.
It is undisputed that the plaintiffs’ alternative ground

never was raised before, or decided by, the trial court.

See Connecticut Ins. Guaranty Assn. v. Fontaine, 278

Conn. 779, 784 n.4, 900 A.2d 18 (2006) (alternative

grounds for affirmance must be raised before trial

court); New Haven v. Bonner, 272 Conn. 489, 497–99,

863 A.2d 680 (2005) (declining to consider alternative

ground for affirmance that was not raised before trial

court). ‘‘It is fundamental that claims of error must be

distinctly raised and decided in the trial court.’’ State

v. Faison, 112 Conn. App. 373, 379, 962 A.2d 860, cert.

denied, 291 Conn. 903, 967 A.2d 507 (2009). Our rules

of practice require a party, as a prerequisite to appellate

review, to distinctly raise such claims before the trial

court. See Practice Book § 5-2 (‘‘[a]ny party intending

to raise any question of law which may be the subject

of an appeal must . . . state the question distinctly to

the judicial authority’’); see also Remillard v. Remillard, 297 Conn. 345, 351, 999 A.2d 713 (2010) (raised

distinctly means party must bring to attention of trial

court precise matter on which decision is being asked).

As our Supreme Court has explained, ‘‘[t]he reason for

the rule is obvious: to permit a party to raise a claim

on appeal that has not been raised at trial—after it is

too late for the trial court or the opposing party to

address the claim—would encourage trial by ambuscade, which is unfair to both the trial court and the

opposing party.’’ (Internal quotation marks omitted.)

Travelers Casualty & Surety Co. of America v. Netherlands Ins. Co., 312 Conn. 714, 761–62, 95 A.3d 1031

(2014). For that reason, Connecticut appellate courts

generally ‘‘will not address issues not decided by the

trial court.’’ Willow Springs Condominium Assn., Inc.

v. Seventh BRT Development Corp., 245 Conn. 1, 52,

717 A.2d 77 (1998); see also Crest Pontiac Cadillac,

Inc. v. Hadley, 239 Conn. 437, 444 n.10, 685 A.2d 670

(1996) (claims ‘‘neither addressed nor decided’’ by trial

court are not properly before appellate tribunal).

Furthermore, the factual predicate of the plaintiffs’

claim is lacking, as the record before us contains no

detailed findings as to the nature of the visual buffer

area referred to as the green zone and how it was

adopted and implemented in Rustle Meadow. In that

respect, we note that the court, in granting the plaintiffs’

motion in limine, severely curtailed the defendants’ ability to introduce evidence relevant to that issue. Indeed,

the defendants were precluded from presenting evidence that the plaintiffs ‘‘had acknowledged in writing

the need to maintain a visual green zone buffer between

units for privacy and to maintain the wooded character

of the community,’’ as the minutes of the association’s

July 21, 2013 meeting reflect. See New Haven v. Bonner,

supra, 272 Conn. 499 (declining to review alternative

ground of affirmance because ‘‘factual predicate’’ of

whether defendant received notice ‘‘is not part of this

record’’); cf. McNamee v. Bishop Trust Co., Ltd., supra,
62 Haw. 407 (plaintiff unit owners ‘‘had actual notice’’

of association’s unwritten design control criteria). Without the requisite factual findings, this court cannot

engage in a meaningful review of the plaintiffs’ contention. See New Haven v. Bonner, supra, 499.

We note that, in resolving the principal issue in this

appeal, we have concluded that a remand to the trial

court for a new trial is necessary. See parts I D 2 and

3 of this opinion. On remand, the plaintiffs are free to

pursue the claim underlying their alternative ground

of affirmance, at which time the parties will have an

opportunity to present evidence on that issue.

II

The defendants next contend that the court improperly ruled in favor of the plaintiffs on the defendants’

counterclaim, in which they sought to recover unpaid

fines issued against the plaintiffs. The defendants maintain that the court (1) improperly set aside fines

imposed by the association for (a) certain landscaping

violations by the plaintiffs and (b) the removal of a

metal boundary markerfrom the corner of the plaintiffs’

unit, and (2) improperly declined to render an award

of attorney’s fees in their favor. We address each claim

in turn.

A

We first consider the propriety of the fines levied

by the association against the plaintiffs. Pursuant to

General Statutes § 47-244 (a) (11), a common interest

association ‘‘[m]ay impose charges or interest or both

for late payment of assessments and, after notice and

an opportunity to be heard, levy reasonable fines for

violations of the declaration, bylaws, rules and regulations of the association . . . .’’ Section 25.2 (m) of Article XXV of the declaration likewise provides that the

board may ‘‘[i]mpose charges or interest or both for

late payment of assessments and, after [n]otice and

[h]earing, levy reasonable fines for violations of this

[d]eclaration, and the [b]ylaws, [r]ules and regulations

of the [a]ssociation.’’50 Section 2.2 (m) of the association

bylaws repeats verbatim that provision of the declaration. Section 5.2 of the bylaws further provides that

‘‘following [n]otice and [h]earing, the [board] may levy

a fine of up to $50 for a violation of the [d]ocuments

or [r]ules and $10 per day thereafter for each day that

a violation . . . persists after such [n]otice and [h]earing, but such amount shall not exceed the amount necessary to insure compliance with the rule or order of

the [board].’’

‘‘To protect the financial integrity of common interest

communities’’; Coach Run Condominium, Inc. v. Furniss, 136 Conn. App. 698, 704, 47 A.3d 413 (2012); the

act provides that an ‘‘association has a statutory lien

on a unit for any assessment attributable to that unit

or fines imposed against its unit owner . . . .’’ General
Statutes § 47-258 (a). As one Connecticut court has

noted, in an action maintained by a common interest

association to recover fines imposed on a unit owner,

‘‘the plaintiff has the burden of proving that the fines

. . . were validly imposed . . . .’’ Brookside Condominium Assn., Inc. v. Hargrove, Superior Court, judicial district of Stamford-Norwalk, Docket No. CV-13-

6017151-S, 2013 Conn. Super. LEXIS 2706, *16 (November 26, 2013).

1

Landscaping Fines

In their counterclaim, the defendants alleged that

the plaintiffs violated the declaration ‘‘by removing or

cutting trees, plants and shrubs, installing weed fabric

and grass in the green zone and applying defoliant in

that area . . . without permission of the association.’’

The association thus assessed fines ‘‘in the amount of

$10 per day,’’ which totaled $15,530 at the time that the

counterclaim was filed. In its memorandum of decision,

the court analyzed the propriety of those fines as follows: ‘‘The court finds that there was no green zone by

which the plaintiffs were bound and, therefore, [those]

fines were illegal and inequitable.’’ The court also found

that approval for such activities ‘‘was unreasonably

withheld’’ by the association.

Contrary to that latter finding, it is undisputed that

the plaintiffs never requested permission from the association to conduct landscaping activity on their unit, as

required by §§ 10.1 (k) and 13.1 (a) of the declaration.

There thus is no evidence in the record to support a

finding that the association withheld approval therefor.

The court predicated its decision on the notion that

the green zone was illegal, which we dispelled in part

I D 1 of this opinion. The court also remarked, in a

one sentence footnote to its analysis, that ‘‘[m]oreover,

there is insufficient evidence that it is the plaintiffs who

cut trees, altered or removed foliage’’ on their unit. Yet

the plaintiffs at trial did not disavow their involvement

in that landscaping activity,51 nor have they done so on

appeal.52 Furthermore, in accordance with its ruling on

the motion in limine,the court precluded the defendants

from cross-examining the plaintiffs on landscaping conducted within the green zone, stating in relevant part

that ‘‘[i]f it’s in the green zone, then it is irrelevant, as

far as I’m concerned. . . . If you want to get into landscaping outside that fifteen foot buffer, you’re free to

do so, but not within the fifteen foot buffer.’’

The court’s focus on the identity of the actors who

performed the landscaping work on the plaintiffs’ unit

also obscures the more elemental factual issue of

whether such unauthorized activity took place. Section

10.1 (k) declaration expressly requires the written consent of the association prior to the commencement of

such landscaping activity on units within Rustle
Meadow. The record contains testimonial and documentary evidence depicting specific landscaping activity on the plaintiffs’ unit, including photographs thereof.

Consideration of that evidence is essential to a proper

determination of whether the association’s exercise of

its authority to impose fines was warranted. Yet the

court made no findings as to whether such landscaping

activity transpired on the plaintiffs’ unit or whether

the association’s decision to take enforcement action

against the plaintiffs was arbitrary. See General Statutes

§ 47-244 (h). The court likewise did not determine

whether the fines imposed by the association exceeded

‘‘the amount necessary to insure compliance with’’ the

rules at issue, in contravention of § 5.2 of the association’s bylaws. We therefore conclude that the court

improperly set aside the fines assessed against the plaintiffs for unauthorized landscaping activity. The case,

therefore, must be remanded for a new trial, at which

the trial court shall properly consider the fines imposed

by the association for any unauthorized landscaping

activity in accordance with the foregoing.

2

Boundary Marker Fines

The defendants also imposed fines in the amount

of $9180 for the plaintiffs’ alleged removal of a metal

boundary marker from a corner of their unit. In its

decision, the court concluded that the defendants failed

to prove that the plaintiffs removed or altered the

boundary marker. It therefore concluded that those

fines were improper.

The record before us substantiates that determination. At an association hearing convened to address the

matter, the plaintiffs denied any involvement in the

removal of the marker in question. As Duane

Grovenburg testified at trial, they indicated at that hearing ‘‘that we were never aware that there was a metal

stake.’’53 Kristine Grovenburg similarly was asked

whether she agreed with the accusation that they had

removed the stake in question. She testified: ‘‘No, I do

not agree with that. I—we don’t even know what he’s

talking about. We’ve never seen a stake in [that] location

. . . .’’ The court, as arbiter of credibility, was free

to credit that testimony. See Brett Stone Painting &

Maintenance, LLC v. New England Bank, 143 Conn.

App. 671, 683, 72 A.3d 1121 (2013).

In addition, Miller acknowledged in his testimony

that the association had no video, electronic, or photographic evidence of the plaintiffs interfering with or

removing the marker in question. He further conceded

that there was no eyewitness evidence thereof. In light

of the foregoing, we agree with the trial court that the

defendants failed to meet their burden of demonstrating

that the fines for removing the metal boundary marker

were properly imposed.
B

We next address the court’s denial of the defendants’

claim for attorney’s fees on the counterclaim. The

defendants contend that, to the extent that they prevail

on their counterclaim, such an award is warranted pursuant to General Statutes § 47-278 (a).

Section 47-278 (a) provides that ‘‘[a] declarant, association, unit owner or any other person subject to this

chapter may bring an action to enforce a right granted

or obligation imposed by this chapter, the declaration or

the bylaws. The court may award reasonable attorney’s

fees and costs.’’ Whether to award attorney’s fees is a

quintessential example of a matter entrusted to the

sound discretion of the trial court. See, e.g., Fairchild

HeightsResidents Assn.,Inc. v. Fairchild Heights,Inc.,

310 Conn. 797, 825, 82 A.3d 602 (2014) (‘‘attorney’s fees

. . . are awarded at the discretion of the court’’);

Grimm v. Grimm, 276 Conn. 377, 397, 886 A.2d 391

(2005) (‘‘[w]hether to allow counsel fees . . . and if

so in what amount, calls for the exercise of judicial

discretion’’ [internal quotation marks omitted]), cert.

denied, 547 U.S. 1148, 126 S. Ct. 2296, 164 L. Ed. 2d 815

(2006); Unkelbach v. McNary, 244 Conn. 350, 374, 710

A.2d 717 (1998) (‘‘[a]n abuse of discretion in granting

counsel fees will be found only if [an appellate court]

determines that the trial court could not reasonably

have concluded as it did’’ [internal quotation marks

omitted]); McHugh v. Niantic Dockominium Assn.,

Inc., Superior Court, judicial district of New London,

Docket No. CV-04-0568170, 2005 Conn. Super. LEXIS

958, *5 (April 4, 2005) (‘‘it is entirely within the court’s

discretion to award [attorney’s] fees or costs’’ under

§ 47-278 [a]). The defendants in this appeal have not

suggested otherwise.

In part II A 2 of this opinion, we concluded that the

trial court properly determined that the defendants did

not meet their burden to establish the validity of fines

related to the boundary marker. They therefore cannot

recover attorney’s fees on that portion of the counterclaim. In part II A 1, however, we concluded that a new

trial is necessary on the issue of the imposition of fines

by the association for the allegedly unauthorized landscaping activity. On remand, the trial court shall first

determine the propriety of those landscaping fines.

Should the court rule in the defendants’ favor, it then

shall determine whether an award of attorney’s fees on

that count of the counterclaim is appropriate.

III

The defendants also maintain that the court improperly invalidated a special assessment of the association.

The following additional facts are relevant to that claim.

After retaining legal counsel, the association levied a

special assessment against all unit owners beginning in

January, 2013. Miller testified that the special assess-
ment was issued ‘‘[t]o cover the association’s legal

expenses’’ stemming from the present controversy with

the plaintiffs. At trial, the court opined that the association’s decision to retain counsel at that time was ‘‘prudent.’’ In addition, the plaintiffs introduced into

evidence a document detailing their monthly payments

to the association for the special assessment.

In its memorandum of decision, the court did not

mention that special assessment. Although the court

ruled in favor of the plaintiffs in several respects, the

only relief that related to assessments of any kind was

the orderrequiring the defendants to remove ‘‘any liens’’

that had been filed against the plaintiffs’ unit.

Following the commencement of this appeal, the

plaintiffs filed a motion for contempt with the trial

court, claiming, inter alia, that the defendants had ‘‘continu[ed] to impose an assessment (i.e., a lien) on the

[plaintiffs’ unit] . . . .’’ In response, the defendants

filed an objection, in which they averred that ‘‘[n]o liens

had been filed. There was no evidence of any liens on

[the] plaintiffs’ property. No action was required by the

association to comply with this directive: there was no

lien to remove.’’ In its April 6, 2015 order, the court

denied the plaintiffs’ motion for contempt, specifically

crediting the representation of the defendants’ counsel

that no liens have been filed against the plaintiffs’ unit.

The court nonetheless ordered that ‘‘[t]he association

is to remove any assessment against the plaintiffs for

legal fees related to this case and any legal fees from

here on in related to this case, which the court declares

said fees to be null and void.’’ The defendants thereafter

filed an amended appeal with this court to encompass

that additional ruling.

As a preliminary matter, we note that the act specifically addresses the allocation of common expenses54

within a common interest community. General Statutes

§ 47-226 (b) requires a declaration thereof to ‘‘state the

formulas used to establish allocations of interests.

. . .’’ General Statutes § 47-257 (b), in turn, provides,

with limited exceptions not germane to this appeal, that

‘‘all common expenses shall be assessed against all the

units in accordance with the allocations set forth in

the declaration . . . .’’ (Emphasis added.)

Article XIX of the declaration concerns the assessment and collection of common expenses. Reflecting

the rather unique nature ofRustle Meadow as a common

interest equine community, § 19.2 divides such

expenses into three categories: (1) equestrian facility

common expenses; (2) horse stall common expenses;

and (3) general association common expenses. The

third category is relevant to this appeal, as it includes

‘‘[a]ll other Common Expenses which are not Equestrian Facility Common Expenses or Horse Stall Common Expenses.’’ The special assessment for legal

expenses falls under that third category.
Mirroring the language of General Statutes § 47-257

(b), § 19.3 of the declaration provides that common

expenses ‘‘shall be assessed against all Units in accordance with their percentage interest in such Common

Expenses as shown on Schedule A-2 to this [d]eclaration.’’ Under both the declaration and the act, then,

assessments for common expenses must be apportioned equally among unit owners in accordance with

their respective allocations. Furthermore, § 25.2 (c) of

the declaration and § 2.2 (c) of the bylaws confer on

the board the authority to ‘‘[c]ollect assessments for

Common Expenses from Unit Owners . . . .’’ We reiterate that, in Weldy, our Supreme Court adopted a

‘‘broad view of the powers delegated’’ to a common

interest association under a declaration. Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 738.

Significantly, the plaintiffs never have claimed that

the association improperly imposed the special assessment or that it was apportioned in a manner contrary

to the dictates of the act or the declaration. It also is

undisputed that the plaintiffs paid their portion of that

special assessment on a monthly basis for approximately two years, as documented in the written

accounting that they introduced into evidence at trial.

Moreover, the plaintiffs raised no claim regarding that

special assessment in their operative complaint.

Although their prayer for relief sought ‘‘[a]n order that

all statutory liens arising from fines and/or penalties

assessed against the plaintiffs by the association from

the beginning of time to date are removed, discharged

and declared null and void,’’ the special assessment

arose neither from a fine nor a penalty assessed against

the plaintiffs, but rather was a common expense

assessed against all unit owners in accordance with the

requirements of the declaration and the act. There also

is no evidence in the record before us that the association filed a statutory lien against the plaintiffs regarding

that special assessment.

In its order on the plaintiffs’ postjudgment motion

for contempt, the court declared the special assessment

‘‘null and void’’ with respect to the plaintiffs. The court

provided no authority to support that ruling. The plaintiffs on appeal likewise have provided this court with

no authority for that action, apart from reciting the

general proposition that our courts are vested with

broad latitude in fashioning equitable relief. See, e.g.,

Broadnax v. New Haven, 270 Conn. 133, 170, 851 A.2d

1113 (2004). Even under that liberal standard, the ruling

of the court cannot stand.

When a court grants equitable relief, its ‘‘ruling can

be reviewed only for the purpose of determining

whether the decision was based on an erroneous statement of law or an abuse of discretion.’’ (Internal quotation marks omitted.) Id. We conclude that the court’s

declaration that the special assessment was ‘‘null and
void’’ was based on an erroneous statement of law—

specifically, its determination that the visual buffer zone

was ‘‘illegal’’ because it was not memorialized in writing. See part I D 1 of this opinion. We further have

concluded that the court failed to apply the proper legal

standard to review the discretionary design control

determinations of a common interest association,

which necessitates a remand to the trial court for the

proper application of that standard.55 See parts I D 2 and

3 of this opinion. The predicate to the court’s exercise of

equitable relief, therefore, is lacking. Accordingly, we

agree with the defendants that the court improperly

declared the special assessment null and void in this

case.

IV

In light of our remand for a new trial, the court’s

award of $72,718.25 in attorney’s fees to the plaintiffs

also cannot stand. As with the prior claim, the factual

predicate to that award is lacking in light of our resolution of the principal issue in this appeal. See, e.g., Absolute Plumbing & Heating, LLC v. Edelman, 146 Conn.

App. 383, 405, 77 A.3d 889 (noting that award of attorney’s fees ‘‘must be based on findings made by the

trial court’’ and remanding for further proceedings ‘‘to

determine whether attorney’s fees should be awarded

and, if so, the amount of those fees’’), cert. denied, 310

Conn. 960, 82 A.3d 628 (2013); O’Brien v. O’Brien, 138

Conn. App. 544, 557, 53 A.3d 1039 (2012) (award of

attorney’s fees ‘‘must also be remanded forreconsideration’’ in light of reversal and remand of underlying

issues), cert. denied, 308 Conn. 937, 66 A.3d 500 (2013);

Dolan-King v. Rancho Santa Fe Assn., supra, 81 Cal.

App. 4th 983–84 (concluding that association’s exercise

of design control power was reasonable and remanding

to trial court to ‘‘determine entitlement to attorney

fees’’); Gleneagle Civic Assn. v. Hardin, supra, 205 P.3d

471 (remanding to trial court for determination of reasonableness of association’s exercise of discretionary

design control authority and holding that ‘‘the trial

court’s decision to award the homeowners attorney fees

must also be reversed’’). On remand, the trial court,

in its discretion, shall determine whether an award of

attorney’s fees to either party is warranted following its

resolution of the underlying issues. See Total Recycling

Services of Connecticut, Inc. v. Connecticut Oil Recycling Services, LLC, 308 Conn. 312, 333, 63 A.3d 896

(2013) (remanding to trial court to ‘‘determine the

appropriate award of attorney’s fees to which the defendant is entitled’’); Woronecki v. Trappe, 228 Conn. 574,

582, 637 A.2d 783 (1994) (‘‘[a] remand . . . is necessary

in orderto allow the trial court the opportunity properly

to exercise its discretion regarding the award of . . .

attorney’s fees’’).

The judgment is affirmed only with respect to the

portion of the counterclaim pertaining to the imposition
of boundary marker fines. The judgment is otherwise

reversed and the case is remanded for a new trial on

the remaining issues consistent with this opinion.

In this opinion the other judges concurred.

1 General Statutes § 47-202 (25) defines a ‘‘planned community’’ as ‘‘a

common interest community that is not a condominium or a cooperative.

A condominium or cooperative may be part of a planned community.’’

Section 47-202 (9) defines a ‘‘common interest community’’ in relevant

part as ‘‘real property described in a declaration with respect to which a

person, by virtue of his ownership of a unit, is obligated to pay for a share

of (A) real property taxes on, (B) insurance premiums on, (C) maintenance

of,(D)improvement of, or(E) services or other expenses related to, common

elements, other units or any otherreal property otherthan that unit described

in the declaration. . . .’’

Section 2.1 of Article II of the Declaration of Rustle Meadow states that

‘‘Rustle Meadow is a planned community.’’

2

‘‘The act is a comprehensive legislative scheme regulating all forms of

common interest ownership that is largely modeled on the Uniform Common

Interest Ownership Act. . . . The act addresses the creation, organization

and management of common interest communities and contemplates the

voluntary participation of the owners. It entails the drafting and filing of a

declaration describing the location and configuration of the real property,

development rights, and restrictions on its use, occupancy and alienation

. . . the enactment of bylaws . . . the establishment of a unit owners’

association . . . and an executive board to act on . . . behalf [of the association]. . . . It anticipates group decision-making relating to the development of a budget, the maintenance and repair of the common elements,

the placement of insurance, and the provision for common expenses and

common liabilities.’’ (Citations omitted; internal quotation marks omitted.)

Weldy v. Northbrook Condominium Assn., Inc., supra, 279 Conn. 735. As

one commentator observed, ‘‘[t]he common interest community closely

approximates in many ways a small municipal government as it maintains

private streets and parks, provides homeowner security, and collects homeowner assessments for the purpose of financing the aforesaid activities.’’

D. Callies, ‘‘Common Interest Communities: An Introduction,’’ 37 Urb. Law.

325, 326 (2005).

3 The declaration survey was admitted into evidence as exhibit TTT. A

copy of that document is included in the declaration as Schedule A-1 (i).

4 See General Statutes § 47-264 et seq.

5 Pursuant to § 8.10 of Article VIII of the declaration, the company was

vested with exclusive control of the association for a preliminary period of

Rustle Meadow’s existence. Section 8.10 (a) provides in relevant part that

‘‘[t]he period of Declarant control shall terminate no later than the earlier

of: (i) Sixty (60) days after conveyance of sixty percent (60%) of the Units

that may be created to Unit Owners other than a Declarant; (ii) Two (2)

years after all Declarants have ceased to offer Units for sale in the ordinary

course of business; or (iii) Two (2) years after any right to add new Units

was last exercised.’’

The first criterion was not satisfied, as the court found that only two of

the seven units had been conveyed at the time of trial. At trial, the court

made no findings with respect to the latter two criteria, though it did note

that ‘‘[t]he remaining lots of the development have not yet been sold or

transferred . . . .’’ Precisely when the company’s control of the association

under § 8.10 terminated is a factual issue that was not resolved by the trier

of fact. Nonetheless, the court in its memorandum of decision found that

it was the association that denied the plaintiffs’ fence proposal and imposed

fines on the plaintiffs for certain activities. Neither party disputes that determination in this appeal.

6 Article VI of the association’s bylaws provides for the indemnification

of its directors and officers.

7

‘‘A restrictive covenant is a servitude, commonly referred to as a negative

easement . . . .’’ (Citations omitted.) Hawthorne v. Realty Syndicate, Inc.,

43 N.C. App. 436, 440, 259 S.E.2d 591 (1979), aff’d, 300 N.C. 660, 268 S.E.2d

494 (1980). ‘‘A servitude is a legal device that creates a right or an obligation

that runs with the land or an interest in land.’’ 1 Restatement (Third),

Property, Servitudes § 1.1 (1), p. 8 (2000).

8 The plaintiffs’ parcel measures 134.92 feet in width at its westerly border;

its northeasterly border contains approximately 150 feet of frontage on

Rustle Meadow Lane. The parcel’s northwesterly side border is 500.81 feet,
while its southeasterly side borderis 665.42 feet. That parcel is the narrowest

one in Rustle Meadow.

9 The declaration survey indicates that approximately one-third of the

plaintiffs’ parcel is subject to the pasture easement. At trial, Miller described

the pasture easement as ‘‘an area . . . to pasture horses.’’

10 The reservation of such developmental rights is recognized in § 8.1 of

Article VIII of the declaration. Pursuant to § 8.1 (a), the company reserved

‘‘[t]he right to create Units . . . Common Elements, and Limited Common

Elements within the Common Interest Community . . . . Any real property

within which the Declarant may create Units, CommonElements and Limited

Common Elements shall be designated ‘Development Rights Reserved in

this Area’ on the Survey.’’ The area on the declaration survey depicting the

pasture easement bears that designation. The deed expressly indicates that

the plaintiffs acquired Unit 3 subject to ‘‘[t]hose matters shown on Schedule

A-1’’ of the declaration.

11 There is no indication in the record that the plaintiffs requested permission to install a fence at that time. Rather, Kristine Grovenburg testified at

trial that they did so sometime after the pool was constructed.

12 That proposal stated in relevant part: ‘‘Details are as follows: [1] Installed

by Cape Code Fence Company . . . [2] Color for three sides of the fence

is black aluminum . . . [3] The side of the fence along the woods [adjacent

to the southeasterly property line] is to be wood post and black pool wire

required for code. The wood post[s] are natural wood. This is done so that

this side of the fence blends in more naturally with the landscaping and

existing trees . . . [4] A sample section of the Echelon fence product can

be seen at Cape Code Fence.’’

13 Miller’s June 25, 2010 e-mail to the plaintiffs stated: ‘‘The board received

your request for approval of a pool fence, and needs the following materials

to render an approval: [1] Photographs or brochures of the proposed materials for review. [2] A drawing that is to scale. This drawing should show the

patio, fence, green zone and property lines, [and] distance of the proposed

fence from the patio and from the [fifteen] foot green zone line. [3] A

description of the equipment used to install the posts, and a construction

plan describing how all equipment will be used to access the site and where

materials will be stored, and all workmen be kept out of the green zone.

The area between the green zone and the [e]ast side of the pool is narrow

and has many obstructions, consequently careful planning is important. [4]

A post construction review to determine that construction was as approved.

Thank you for submitting the request. I have copied your attorney on this

as you requested. There is no need or authorization at this time to engage

any of our attorneys on this matter, or any other matter of the [association].

This is a normal function of the association, and our attorneys have been

directed to forward any such communications back to the association.’’

14 Although § 13.1 (b) of Article XIII of the declaration directs the board

to act on requests for approval made pursuant to §§ 10.1 (k) and 13.1 (a)

(ii) within sixty days, it further provides that the ‘‘[f]ailure to do [so] within

such time shall not constitute consent by the [board] to the proposed action.’’

15 General Statutes § 47-278 (a) provides: ‘‘A declarant, association, unit

owner or any other person subject to this chapter may bring an action to

enforce a right granted or obligation imposed by this chapter, the declaration

or the bylaws. The court may award reasonable attorney’s fees and costs.’’

16 General Statutes § 52-504 provides: ‘‘When any action is brought to

or pending in the superior court in which an application is made for the

appointment of a receiver, any judge of the superior court, when such court

is not in session, after due notice given, may make such order in the action

as the exigencies of the case may require, and may, from time to time,

rescind and modify any such order. The judge shall cause his proceedings

to be certified to the court in which the action may be pending, at its

next session.’’

17 When the plaintiffs commenced this action in 2013, they also filed an

application for a temporary injunction, which largely mirrors the prayer for

relief contained in their complaint. There is no indication in the record that

this application was acted upon, nor is there any mention of that application

by the parties in their respective appellate briefs.

18 Although the court repeatedly branded the injunction as ‘‘temporary’’

in nature, this court has held that ‘‘[m]erely calling an order a temporary

injunction, however, does not determine its appealability. Our function is

to examine the trial court’s order and determine whether, because of its

form or content, it is in fact a permanent injunction and thus appealable.’’

Stamford v. Kovac, 29 Conn. App. 105, 109, 612 A.2d 1229 (1992), rev’d on
other grounds, 228 Conn. 95, 634 A.2d 897 (1993).

19 The $72,718.25 figure represented the $57,718.25 award of attorney’s

fees to the plaintiffs, which the court augmented by an additional $15,000

at the behest of the plaintiffs for costs that they anticipated incurring in

this appeal.

20 General Statutes § 52-477 provides: ‘‘When judgment has been rendered

for a permanent injunction ordering either party to perform any act, the

court, upon an application similar to that mentioned in section 52-476, shall

stay the operation of such injunction until a final decision in the court

having jurisdiction, unless the court is of the opinion that great and irreparable injury will be done by such stay or that such application was made only

for delay and not in good faith.’’

21 Owners, of course, also obtain the benefit of the community’s common

elements. Wilcox v. Willard Shopping Center Associates, supra, 208

Conn. 326.

22 That treatise states in relevant part: ‘‘The general principles governing

servitude interpretation . . . adopt the model of interpretation used in contract law and displace the older interpretive model used in servitudes law

that emphasized the free use of land, sometimes at the expense of frustrating

intent. In adopting this model, this Restatement follows the lead of courts

that have recognized the important and usefulrole servitudes play in modern

real-estate development. To the extent that the old canon favoring free use

of land remains useful, its function is served in cautioning against finding

that a servitude has been created where the parties’ intent is unclear . . .

and in construing servitudes to avoid violating public policy . . . . It also

may play a role in limiting the creation of servitudes that burden fundamental

rights . . . and limiting the rulemaking powers of community associations

. . . . Aside from those situations, construing in favor of free use of land

should play no role in interpreting modern servitudes.’’ 1 Restatement

(Third), Property, Servitudes c. 4, introductory note, pp. 494–95 (2000).

23 A minority of jurisdictions have adopted the business judgment rule

with respect to the exercise of discretionary association determinations.

See footnote 24 of this opinion.

24 A minority of jurisdictions have adopted the business judgment rule to

govern review of discretionary association action. See, e.g., Reiner v. Ehrlich, 212 Md. App. 142, 155, 66 A.3d 1132, cert. denied, 433 Md. 514, 72 A.3d

173 (2013); Levandusky v. One Fifth Avenue Apartment Corp., supra, 75

N.Y.2d 537; Lyman v. Boonin, 535 Pa. 397, 402–404, 635 A.2d 1029 (1993).

The business judgment rule is even more deferential to association action

than the reasonableness standard, which itself is a deferential one; see Cape

May Harbor Village & Yacht Club Assn., Inc. v. Sbraga, supra, 421 N.J.

Super. 65 (contrasting business judgment rule with ‘‘the less deferential

reasonableness standard’’); as the business judgment rule requires proof of

‘‘the presence of fraud or lack of good faith in the conduct of a corporation’s

internal affairs before the decisions of a board of directors can be questioned.’’ Papalexiou v. Tower West Condominium, 167 N.J. Super. 516, 527,

401 A.2d 280 (1979). For that reason, the Restatement declined to adopt

that lax standard. The commentary to § 6.13 explains that ‘‘[t]he businessjudgmentrule [was] not adopted because the fit between community associations and other types of corporations is not very close, and it provides

too little protection against careless or risky management of community

property and financial affairs.’’ 2 Restatement (Third), Property, Servitudes

§ 6.13, comment (b), pp. 236–37 (2000).

We note that, under the act, association rule making in Connecticut

expressly is governed by a reasonableness standard. See General Statutes

§ 47-261b (h). In addition, our Supreme Court in Weldy, as discussed in part

I B of this opinion, set forth a two part test that entails consideration

of whether an association’s exercise of discretionary authority under a

declaration was reasonable. Weldy v. Northbrook Condominium Assn., Inc.,

supra, 279 Conn. 734. In light of the foregoing, we agree with the Restatement

that the business judgment rule is not the preferable standard to govern

judicialreview of discretionary association decisionmaking in common interest communities in Connecticut. Rather, for the reasons discussed throughout part I of this opinion, we conclude that the reasonableness standard

better protects the interests of both the unit owner and the common interest community.

25 On many occasions, our Supreme Court has distinguished matters that

are ‘‘ ‘reasonable, rather than arbitrary or capricious’ ’’; State v. Jason B.,

248 Conn. 543, 560, 729 A.2d 760, cert. denied, 528 U.S. 967, 120 S. Ct. 406,

145 L. Ed. 2d 316 (1999); State v. Matos, 240 Conn. 743, 749, 694 A.2d 775
(1997); cf. State v. Hodge, 153 Conn. 564, 570, 219 A.2d 367 (1966)(contrasting

‘‘reasonable’’ delays in right to speedy trial with ones that are arbitrary or

capricious); Barr v. First Taxing District, 151 Conn. 53, 59, 192 A.2d 872

(1963) (contrasting ‘‘reasonable’’ exercise of discretion from that which is

‘‘arbitrary’’); accord Leonard v. Stoebling, 102 Nev. 543, 549, 728 P.2d 1358

(1986) (determinations of architectural control committee ‘‘not arbitrary if

they were reasonable and were in good faith’’).

We also note that the two part test memorialized in Weldy was applied

in our Superior Court one decade earlier. In Townhouse III Condominium

Assn., Inc. v. Mulligan, Superior Court, judicial district of Tolland, Docket

No. CV-92-50183-S (March 13, 1995) (Klaczak, J.) (14 Conn. L. Rptr. 112,

113), the court noted that ‘‘[i]n determining the validity of condominium

rules and regulations, courts have developed a ‘reasonableness’ test. The

first prong of the test is whether the board acted within the scope of its

authority. The second prong is whetherthe rule reflects reasoned or arbitrary

and capricious decision making.’’

26 Section 10.1 (k) of Article X of the declaration provides in relevant part:

‘‘No building, shed, swimming pool, pavement, fence, wall or other structure

or improvement of any nature shall be erected upon any Unit in the Common

Interest Community without the prior written consent of the Declarant

. . . . No Unit Owner shall make any exterior addition, change or alteration

to a Unit or any residence located therein . . . or substantially change the

topography of a Unit including the removal of any trees without the prior

written consent of the Declarant which consent shall not be unreasonably

withheld. Detailed plans of any such construction or landscaping or any

addition, change or alteration thereto shall be submitted to the Declarant

. . . . The Unit Owner must receive written approval from the Declarant

prior to commencing such construction, landscaping or making any additions, changes or alterations. Any unauthorized construction or changes

must be restored to its previous condition at such Unit Owner’s expense.’’

(Emphasis added.)

Section 13.1 (a) (ii) of Article XIII of the declaration similarly provides

that a unit owner ‘‘[m]ay not make any changes, additions, alterations, or

improvements to any structure in or on any Unit or to the Common Elements

or make any substantial change to the topography of a Unit or the Common

Elements including the removal of trees, without the prior written approval

of the Declarant as provided in Section 10.1 (k) of this Declaration or of

the [a]ssociation as provided therein, as well as receiving all necessary

governmental permits and approvals. Such approval by the Declarant or the

[a]ssociation shall not be unreasonably withheld.’’

27 At trial, Kristine Grovenburg acknowledged that the association had

discretion to approve all exterior changes to her unit pursuant to the declaration and that she was required to obtain its permission prior to making any

such alterations or improvements.

28 See, e.g., Rymer v. Polo Golf & Country Club Homeowners Assn., Inc.,

335 Ga. App. 167, 175, 780 S.E.2d 95 (2015) (trial court cannot substitute

own judgment for that of association when restrictive covenants confer

discretion on association); Noble v. Murphy, 34 Mass. App. 452, 456, 612

N.E.2d 266 (1993) (‘‘[c]lose judicial scrutiny and possible invalidation or

limitation of fundamentally proper but broadly drawn use restrictions . . .

would deny to developers and unit owners the ‘planning flexibility’ inherent

in’’ statutory scheme); Griffin v. Tall Timbers Development, Inc., 681 So.

2d 546, 553–54 (Miss. 1996) (trial court may not substitute own judgment

for association in applying reasonableness standard); Preserve Homeowners’

Assn., Inc. v. Zhan, 117 App. Div. 3d 1398, 1399, 984 N.Y.S.2d 743 (courts

will not substitute judgment so long as association board acts for purpose

of common interest community, within scope of its authority and in good

faith), appeal dismissed, 24 N.Y.3d 932, 17 N.E.3d 1140, 993 N.Y.S.2d 543

(2014); Palmetto Dunes Resort v. Brown, 287 S.C. 1, 7, 336 S.E.2d 15 (App.

1985) (‘‘although people may reasonably differ as to [a discretionary design

control determination], the covenant is unambiguous in leaving this solitary

judgment to’’ the association).

29 Accord, e.g., Tierra Ranchos Homeowners Assn. v. Kitchukov, supra,

216 Ariz. 202 (property owner challenging association determination bears

burden of establishing ‘‘that its actions were unreasonable’’); Dolan-King

v. Rancho Santa Fe Assn., 81 Cal. App. 4th 965, 979, 97 Cal. Rptr. 2d 280

(2000) (‘‘[h]aving sought a declaration that the [association’s review board]

imposed restrictions unreasonably and arbitrarily, it was [the plaintiff property owner’s] burden at trial to make that showing before the trial court’’),

review denied, 2000 Cal. LEXIS 7972 (Cal. October 3, 2000); Uptegraph v.
Sandalwood Civic Club, 312 S.W.3d 918, 933 (Tex. App. 2010) (property

owner had ‘‘burden at trial to prove that [the association’s] exercise of its

discretionary authority was arbitrary, capricious, or discriminatory’’).

30 See, e.g., Statewide Grievance Committee v. Ganim, 311 Conn. 430,

451, 87 A.3d 1078 (2014) (burden is on applicant in reinstatement proceeding

to establish that standing committee acted arbitrarily or in abuse of its

discretion in approving or withholding its approval); Moraski v. Connecticut

Board of Examiners of Embalmers & Funeral Directors, 291 Conn. 242,

258–60, 967 A.2d 1199 (2009) (applying abuse of discretion standard to

administrative agency’s decision to permit Department of Public Health to

amend its statement of charges filed against licensed embalmer and funeral

home and holding that plaintiff challenging agency determination bore burden of proof); Conley v. Board of Education, 143 Conn. 488, 498, 123 A.2d

747 (1956)(plaintiff challenging board’s determination bears burden of proof

when ‘‘[t]he question for the court . . . is whether the board, in reaching

its conclusions and taking the action challenged, acted illegally or in abuse

of the discretion’’); Mallory v. West Hartford, 138 Conn. 497, 505, 86 A.2d

668 (1952) (‘‘[t]he burden of proof was on the plaintiffs’’ because ‘‘[t]he basic

allegation of the plaintiffs was that the council acted arbitrarily, illegally,

unreasonably, without authority and in abuse of its discretion’’); Gevers v.

Planning & Zoning Commission, 94 Conn. App. 478, 483, 892 A.2d 979

(2006) (in light of deferential standard of review, ‘‘[t]he plaintiffs shoulder

the burden of demonstrating that the commission acted improperly’’).

31 See, e.g., Tierra Ranchos Homeowners Assn. v. Kitchukov, supra, 216

Ariz. 202; Gleneagle Civic Assn. v. Hardin, supra, 205 P.3d 470; Trieweiler

v. Spicher, 254 Mont. 321, 327, 838 P.2d 382 (1992); Cypress Gardens, Ltd.

v. Platt, supra, 124 N.M. 478; 2 Restatement (Third), Property, Servitudes

§ 6.9, comment (d), p. 174 (2000) (‘‘[d]etermining whether design-control

powers have been unreasonably exercised requires a fact-specific, case-bycase inquiry’’).

32 See footnote 26 of this opinion.

33 Although they argue in their appellate brief that the court properly

‘‘determined that the green zone was unlawful because it was not in writing,’’

the plaintiffs acknowledge that the court did not ‘‘articulate the legal basis

for the green zone having to be in writing . . . .’’

34 In the zoning context, our Supreme Court has observed that ‘‘[i]t must

be borne in mind . . . that we are dealing with a group of [lay people] who

may not always express themselves with the nicety of a Philadelphia lawyer.

Courts must be scrupulous not to hamper the legitimate activities of civic

administrative boards . . . .’’ Couch v. Zoning Commission, 141 Conn. 349,

358, 106 A.2d 173 (1954). That logic applies equally to members of common

interest associations. When considering the reasonableness of its discretionary determination, the focus properly is on the action of the association

and the rationale therefor,ratherthan the particular nomenclature employed

by that body of lay people.

35 See, e.g., Dolan-King v. Rancho Santa Fe Assn., supra, 81 Cal. App. 4th

977 (‘‘California and many other jurisdictions have long upheld such general

covenants vesting broad discretion in homeowners associations or boards

to grant or withhold consent to construction. . . . This is so even when the

covenants contain such broad, general approval standards . . . .’’ [citations

omitted]); Rhue v. Cheyenne Homes, Inc., supra, 168 Colo. 8 (rejecting claim

that restrictive covenant ‘‘is not enforceable because no specific standards

are contained therein to guide the committee in determining the approval

or disapproval of plans when submitted’’); Donoghue v. Prynnwood Corp.,

356 Mass. 703, 707, 255 N.E.2d 326 (1970) (restriction requiring approval of

plans that lack explicit standards of approval ‘‘may be enforced if the power

to do so is exercised reasonably’’); LeBlanc v. Webster, supra, 483 S.W.2d

649 (rejecting claim that ‘‘unless an external standard for the exercise of

the right of approval is provided such a right of approval is vague, indefinite

and unenforceable’’); Syrian Antiochian Orthodox Archdiocese of New

York & All North America v. Palisades Associates, 110 N.J. Super. 34, 40–41,

264 A.2d 257 (Ch. Div. 1970) (noting that ‘‘[t]he most commonly voiced

criticism of such [a restrictive covenant] is that it is vague, fixes no standards

and hence affords the grantor an opportunity to be capricious, unfair and

arbitrary’’ and recognizing that ‘‘such covenants have been very generally

sustained’’ although subject to requirement that ‘‘any disapproval must be

reasonable and made in good faith’’); Smith v. Butler Mountain Estates

Property Owners Assn., Inc., 90 N.C. App. 40, 48, 367 S.E.2d 401 (1988)

(covenants requiring prior approval of plans valid ‘‘even if vesting the approving authority with broad discretionary power’’ and ‘‘even in the absence of
specific approval standards in the covenants . . . so long as the authority

to consent is exercised reasonably and in good faith’’), aff’d, 324 N.C. 80,

375 S.E.2d 905 (1989); Dodge v. Carauna, supra, 127 Wis. 2d 65–66 (lack of

‘‘express standards for approval’’ in restrictive covenant does not render it

unclear, ambiguous, or unenforceable).

36 See, e.g., Rhue v. Cheyenne Homes, Inc., supra, 168 Colo. 9; McNamee

v. Bishop Trust Co., Ltd., supra, 62 Haw. 407; LeBlanc v. Webster, supra,

483 S.W.2d 650; Cypress Gardens, Ltd. v. Platt, supra, 124 N.M. 478.

37 We note that, at oral argument before this court, the plaintiffs were

asked what would constitute a proper basis for the association to exercise

its discretion under § 10.1 (k) of the declaration to deny a proposed activity.

In response, the plaintiffs’ counsel stated that ‘‘safety concerns’’ could be

a proper basis. There is no mention of safety concerns in § 10.1 (k).

38 We note that, in addition to providing the court with a copy of the Weldy

decision at the outset of trial, counsel for the defendants argued that Weldy

was ‘‘the only . . . Supreme Court case on point.’’ Throughout trial, counsel

repeatedly relied on Weldy as binding authority on the ultimate issue before

the court. As but one example, during his cross-examination of Kristine

Grovenburg, counsel inquired as to ‘‘one of . . . the features along the

[southeasterly] side between . . . your house and the [abutting] neighbors

was to have a forested area that would provide some privacy between the

homes.’’ At that time, the plaintiffs’ counsel objected, and discussion ensued

as to whether that line of questioning was improper in light of the court’s

granting of the motion in limine. Counsel for the defendants argued in

relevant part that ‘‘the declaration is an agreement, Your Honor, and . . .

ultimately the Supreme Court says the [trial] court has to decide whether the

decisions are arbitrary orreasonable, and that whole issue ofreasonableness

goes to the landscaping from the beginning [of the common interest community] to the present time . . . .’’ The court sustained the plaintiffs’ objection

and precluded such testimony on the privacy provided by the wooded area

between the units, stating that ‘‘[i]f it’s in the green zone, then it is irrelevant,

as far as I’m concerned.’’

39 Cases such as Leonard v. Stoebling, supra, 102 Nev. 543, are illustrative

in this regard. In finding the exercise of discretionary design control power

unreasonable, the Supreme Court of Nevada held that the committee responsible for exercising such authority ‘‘gave no heed to the impact’’ of the

proposed activity on neighboring properties. Id., 549. The Supreme Court

of Washington similarly found unreasonable the actions of a board that

failed to ‘‘reasonably assess the impact’’ of a proposed activity, ‘‘much less

with an eye to neighbors’ views or privacy.’’ Riss v. Angel, supra, 131 Wn.

2d 628; see also Dolan-King v. Rancho Santa Fe Assn., supra, 81 Cal.

App. 4th 976, 982 (noting that ‘‘[m]aintaining a consistent and harmonious

neighborhood character . . . confers a benefit on the homeowners by maintaining the value of their properties’’ and holding that the trial court improperly ‘‘made no finding as to the ‘rural character’ [of the] neighborhood’’);

McNamee v. Bishop Trust Co., Ltd., supra, 62 Haw. 408 (privacy among

unit owners ‘‘was a reasonable consideration’’ in exercising design control

discretion); Melson v. Guilfoy, supra, 595 S.W.2d 407 (finding ‘‘no abuse of

discretion’’ in discretionary determination to disapprove pool fence even

when no ‘‘ ‘external standard’ ’’ set forth in declaration and noting that

restrictive covenants in question were upheld ‘‘to maintain a park-like residential community’’); Gosnay v. Big Sky Owners Assn., 205 Mont. 221, 227,

666 P.2d 1247 (1983) (association board ‘‘did not abuse its discretion when

it refused . . . permission to build [a proposed] fence’’ because proposal ‘‘is

contrary to [the common interest community’s] overall plan for‘openness’ ’’);

River Hills Property Owners Assn., Inc. v. Amato, 326 S.C. 255, 260, 487

S.E.2d 179 (1997) (association board acted reasonably and in good faith in

denying approval for pool fence that ‘‘would reduce the view’’ of abutting

property). At the very least, such cases shed light on the rationale proffered

by the association in the present case. Nevertheless, we repeat that the

factual issue of reasonableness involves a weighing analysis that entails

consideration of ‘‘all the relevant circumstances’’ and factors in a given case.

Peterson v. Oxford, supra, 189 Conn. 745.

40 The only reference to the plaintiffs’ proposal in the memorandum of

decision is the court’s finding that the plaintiffs sought ‘‘permission from

the association to put a fence around the swimming pool, as required by

the town of Canton . . . .’’

41 In their February 3, 2015 motion for reconsideration, the defendants

requested reargument and reconsideration due to the fact that the plaintiffs

at trial ‘‘never articulated a reason for their preferred placement of the fence
to either [the] defendants or the court, some need that the [a]ssociation

could balance against its privacy concerns. . . . The [a]ssociation could

never balance the needs of the community against the [plaintiffs’] needs

because they never specified the reasons fortheir plans.’’(Citations omitted.)

The court denied that motion.

42 In the ‘‘Reply to Defendants’ Posttrial Memorandum’’ that the plaintiffs

submitted to the court, the plaintiffs appear to concede the location of that

septic system, stating in relevant part that ‘‘the fact that a septic system is

in the green zone is irrelevant . . . .’’ When questioned on this point at oral

argument before this court, the plaintiffs’ counsel likewise acknowledged

that the septic system was located in the green zone, but argued that ‘‘the

septic system is different.’’

43 In their appellate brief, the plaintiffs do not acknowledge their July 27,

2008 written statementto Miller.Rather, they argue that when the association

denied their fencing proposal in 2010, ‘‘[i]t is obvious that Miller blindsided

the plaintiffs with the green zone, in bad faith . . . because he never previously informed the plaintiffs of the restriction . . . .’’

44 The record also indicates that those settlement discussions continued

after the commencement of this appeal. Months after the defendants filed

their appeal, the plaintiffs filed a motion for an extension of time to file

their appellate brief. In that pleading, they represented to this court that

‘‘the parties are continuing substantive settlement discussion relating to the

heart of the legal and factual issues in this case . . . . [A] settlement

agreement in this case will involve the preparation of a detailed landscaping

plan, with specified plantings in designated areas of the [plaintiffs’] property,

among other things. The parties have been working together to formulate

the landscaping plan for months, with the assistance of a professional landscaper.’’

45 Moreover, we note that, in his December 28, 2011 letter to the Canton

building department, Miller did not state that the plaintiffs’ original fence

proposal was denied because it was located in the green zone. Rather, he

indicated that it was denied because ‘‘the plan that was submitted placed

the fence unnecessarily within a [fifteen] foot visual buffer zone,’’ suggesting

that a showing of necessity may have yielded a different result.

46 For that reason, this court cannot, as the defendants urged at oral

argument, decide the question of reasonableness and direct the trial court

to render judgment in their favor.

47 In their respective appellate briefs, neither party has suggested that the

general preponderance of the evidence standard applies in this case.

48 With respect to this last consideration, we note that the court stated,

in a subsequent part of its memorandum of decision addressing landscaping

restrictions, that ‘‘Miller trimmed trees in front of his house and removed

trees in the so-called green zone, and did not ask permission from the

association. He set one standard for himself and another standard for the

plaintiffs.’’ The court made no further findings in this regard.

Those findings are troublesome for two distinct reasons. First, there is

no evidence in the record to substantiate the court’s finding that Miller

‘‘removed trees in the so-called green zone . . . .’’ On cross-examination,

he was asked if he had ‘‘ever cut or trimmed any branches in your yard?’’

Miller answered that he ‘‘did trim some of the ash trees in the center of the

front yard.’’ No question was asked, and no testimony was elicited, on

whether those ash trees were located in the green zone. That finding, therefore, is clearly erroneous. See Wheelabrator Bridgeport, L.P. v. Bridgeport,

320 Conn. 332, 364, 133 A.3d 402 (2016).

Furthermore, even assuming that the ash trees were located in the green

zone, the court’s suggestion that Miller failed to follow association protocols

ignores the fact that, under the plain language of § 8.10 of Article VIII of

the declaration, the company was vested with exclusive control of the

association for a preliminary period of Rustle Meadow’s existence, which

obviated the need for Miller, the sole member of the company, to seek

approval to conduct such activity. As we already have noted, the trial court

failed to make any factual findings as to when the company’s control under

§ 8.10 terminated. See footnote 5 of this opinion. Without any findings as

to precisely where the trees in question were located, when Miller trimmed

those trees, and when the company’s control under the declaration terminated, such evidence was not relevant to the reasonableness analysis.

At the same time, the trial court’s findings suggest that the court was

concerned about whether Miller and the association acted in good faith in

regulating landscaping activity within the green zone area. On remand, if

evidence is adduced at the new trial indicating that landscaping activity
was conducted within the green zone area on any other unit within Rustle

Meadow—including that belonging to Welles—the finder of fact could conclude that the association’s discretionary determinations with respect to

such activity on the plaintiffs’ unit were arbitrary and made in bad faith.

See, e.g., White Egret Condominium, Inc. v. Franklin, supra, 379 So. 2d 352

(finding that use restriction in common interest association ‘‘was reasonably

related to a lawful objective’’ but nonetheless ‘‘was selectively and arbitrarily applied’’).

49 We note that, under our rules of practice, an appellee who wants to

present an alternative ground on which to affirm a trial court’s judgment

is required to file a preliminary statement of issues intended for presentation

on appeal. PracticeBook § 63-4 (a)(1)(A). Ourrules furtherrequire that such

a filing must be filed ‘‘within twenty days from the filing of the appellant’s

preliminary statement of the issues.’’ Practice Book § 63-4 (a) (1) (C). The

plaintiffs have not complied with those requirements in this case.

50 There is no claim in the present case that the association failed to

comply with the notice and hearing requirements of the declaration and

General Statutes § 47-244 (d) (2). Contra Congress Street Condominium

Assn., Inc. v. Anderson, 156 Conn. App. 117, 112 A.3d 196 (2015); Stamford

Landing Condominium Assn., Inc. v. Lerman, 109 Conn. App. 261, 951

A.2d 642, cert. denied, 289 Conn. 938, 958 A.2d 1246 (2008).

51 The plaintiffs did not deny theirinvolvement during their direct examination testimony. To the contrary, their attorney at trial maintained that the

plaintiffs had ‘‘been fined because they intruded on and they did things in

an area that they were not supposed to even touch because there’s a restriction, as Mr. Miller claims, that this area, this buffer zone, can’t be touched,

can’t be used.’’ (Emphasis added.)

52 Rather than disavowing their involvement in the landscaping activity in

question, the plaintiffs in their appellate brief submit that, because the trial

court correctly determined that the green zone was invalid, it properly set

aside the association’s fines for unauthorized landscaping activity. Their

briefing of this issue states: ‘‘Miller testified that all the fines for landscaping

violations were assessed because of landscaping performed by the plaintiffs

in the green zone, without permission. However, it would have been futile

for the plaintiffs to request permission to perform landscaping activity in

the green zone as the request would have been denied since that area is

completely off limits. . . . [T]he trial court properly concluded that the

green zone was invalid, and therefore the fines cannot stand.’’ (Citation

omitted.)

53 On cross-examination, the following exchange ensued:

‘‘[The Defendants’ Attorney]: It’s just a complete mystery to you. Is that

what you’re telling the court, Mr. Grovenburg?

‘‘[Duane Grovenburg]: I’m saying I’m not aware of a metal stake.

‘‘[The Defendants’ Attorney]: You’re not aware of a metal stake.

‘‘[Duane Grovenburg]: No.

‘‘[The Defendants’ Attorney]: You’re not aware of a metal stake being

pulled out of the ground?

‘‘[Duane Grovenburg]: No, I’m not.’’

54 ‘‘Common expenses’’ are defined in the act as ‘‘expenditures made by,

or financial liabilities of, the association, together with any allocations to

reserves.’’ General Statutes § 47-202 (7).

55 On remand, the trier of fact may conclude that the association’s failure

to approve the plaintiffs’revised fencing proposal was reasonable and appropriate under the particular circumstances of this case.