Stevens-Jacobs v. Cabrera. Deed restriction fails for lack of overall development scheme.

LAND USE DISPUTES

Connecticut Superior Court (2008)�� Deed restriction fails for lack of overall development scheme.

Stevens-Jacobs v. Cabrera

Deed restriction fails for lack of overall development scheme.� ADDED XXXXX

Stevens-Jacobs v. Cabrera

Superior Court of Connecticut,Judicial District of Waterbury

UNPUBLISHED OPINION

2008 WL 2039311

April 25, 2008

Summary of Opinion

Landowner in a subdivision used her horse-owning neighbors, alleging that they violated a deed restriction forbidding animals exce3pt for domesticated household pets.� The Defendants got a waiver of the restriction from the original landowner who put the restriction in place.� The original landowner did not have horses.� The court found that the restrictive covenant had no effect because there was no general development scheme or uniform plan of development.� Because of a lack of a general development scheme the court held that the restrictive covenant had no effect.� The court noted that the plaintiffs actually liked horses.

Text of Opinion

The plaintiffs, Daniel Jacobs and Donna Stevens-Jacobs (the �Jacobses�) and Barry Groman and Angela Groman (the �Gromans�), have brought this action against the defendants, Rafael Cabrera (�Cabrera�) and Alicia DiFederico (�DiFederico�).

During the early stages of this litigation, Lorraine Velush and Christopher Velush, also property owners in the same subdivision, were named plaintiffs and Elaine Toth and Chase American Mortgage Co ., LLC were named defendants. Both Velushes have withdrawn from the case and the remaining plaintiffs have withdrawn the action against Toth and Chase American.

The plaintiffs' second amended complaint alleges: (1) violation of a restrictive covenant; (2) fraudulent misrepresentation; and (3) slander of title. The plaintiffs bring the present action to determine rights in, and quiet title to, certain land, and seek a judgment declaring that a restrictive covenant that no animals, other than household pets, be maintained, housed or raised on certain property is enforceable. The plaintiffs seek injunctive relief, declaratory and quiet title judgments, compensatory and punitive damages, attorneys fees and various court orders with respect to the Southbury Land Records. The defendants filed an answer and denial and twenty special defenses, including, estoppel, laches, unclean hands, the statute of limitations, and the lack of a uniform plan of development. The plaintiffs, in turn, replied with denials of all of the defendants' special defenses.

This matter requiring a determination of the continuing viability of a provision in a land use restriction was tried to the court. The parties presented sworn testimony from multiple witnesses as to a complex set of facts and claims including a long history of the properties involved in the controversy and filed a multitude of exhibits. With the permission of the parties and in the presence of counsel, the court conducted a site visit of the subject properties. Thereafter, counsel for both parties filed post-trial briefs, including proposed findings of fact and conclusions of law together with detailed memoranda of law in support of their respective claims.

Having observed the testimony of the witnesses, reviewed and considered all full exhibits and other relevant evidence adduced during trial, including the court's observations of the subject properties acquired during the site visit, the court makes the following findings.

Background of Land Transactions

1. Fireside Hills subdivision is situated in Southbury, Connecticut. It originally consisted of five lots having a total area of approximately 37.74 acres as depicted on map no. 1371 on file in the Southbury Town Clerk's office. Plaintiffs' Exhibit 1.

2. Fireside Hills was further subdivided in 1972 by Elaine Toth (�Toth�) to create a total of twelve lots, including Lot 12, which lot consisted of approximately 23.59 acres, as depicted on map no. 1346 on file in the Southbury Town Clerk's office. Plaintiffs' Exhibit 2.

3. Toth sold all twelve lots between October 24, 1972 and March 16, 1973, however, the evidence adduced at trial did not identify all the grantees of the twelve lots.

4. The Toth deeds utilized in the sale of the twelve lots included a deed restriction (the �Restriction�).

The Restriction reads as follows: �1. No more than one unregistered motor vehicle may be kept on the premises, and any such motor vehicle shall have all its parts intact. 2. No animals shall be maintained, housed or raised on said premises except domestic household pets. 3. No construction equipment shall be continuously parked upon the premises. 4. The grantor, her heirs and assigns, reserve the right to modify or abrogate any of the above restrictions as to hereafter conveyed lots at any time.�

5. Toth sold Lots 4 and 5 in January 1973 to George Piccot (�Piccot�) by a single warranty deed, which deed included the Restriction. Plaintiffs' Exhibit 6.

6. Piccot sold Lot 4 in March 1973 to Terrence and Carolyn Thomas by warranty deed, which deed included the Restriction except that it deleted provision no. 4 which reserved the right of Toth to �modify or abrogate� the Restriction. Plaintiffs' Exhibit 7.

7. Toth sold Lot 12, the largest parcel consisting of 24.55 acres, in March 1973 to Piccot by warranty deed, which deed included the Restriction. Plaintiffs' Exhibit 8.

8. Piccot sold Lot 5, in September 1973 to John and Evelyn Perilli by warranty deed, which deed did not specifically include the Restriction but incorporated it by a reference by providing that Lot 5 was being conveyed subject to �Restrictions as to use set forth in a deed from Elaine Toth to George Piccot ...� Plaintiffs' Exhibit 9.

9. Piccot sold a small portion of Lot 12 to Perilli in September 1975 by warranty deed, which deed did not specifically refer to the Restriction or to any specific deed. Plaintiffs' Exhibit 11.

10. Toth granted a waiver, in November 1976 in favor of Terrance and Carolyn Thomas, which is recorded on the land records and provides that �to the extent that she may do so, waives and modifies Paragraph 2� of the Restriction �so as to permit the keeping of horses� on Lot 4. Defendants' Exhibit A.

11. Lot 12 was re-subdivided in May 1977 by Piccot into three lots, (i) Lot 12A consisting of approximately 4.6 acres; (ii) Lot 12B consisting of approximately 6.8 acres; and (iii) Lot 12C consisting of approximately 12.2 acres, all as depicted on map no. 1667 on file in the Southbury Town Clerk's office. Plaintiffs' Exhibit 13.

12. Piccot sold Lot 12C in October 1977 to Cleo and Rita Pelletier by warranty deed, which deed made no specific reference to the Restriction nor was the Restriction incorporated by reference to any prior deed. The deed also reserved and excluded from the property conveyed, a 2.24-acre parcel. Plaintiffs' Exhibit 14.

13. Piccot sold Lot 12A in October 1977 to Leoneil and Catherine Bosley by warranty deed, which deed included the Restriction except that it deleted provision no. 4 which reserved the right of Toth to �modify or abrogate� the Restriction. Plaintiffs' Exhibit 16.

14. Piccot sold Lot 12B in February 1978 to James and Barbara Garratt by warranty deed, which deed included the Restriction except that it deleted provision no. 4 which reserved the right of Toth to �modify or abrogate� the Restriction. Plaintiffs' Exhibit 17.

15. Toth granted a waiver, dated October 18, 1978, in favor of Piccot and Joseph and Beverly Balog which is recorded on the land records and provides that she �hereby waives Paragraph 2 of certain covenants and restrictions contained in a deed from Elaine Toth to George Piccot ... so as to permit the keeping of horses� on a 1 .23-acre parcel of land situated between Lot 11 in Fireside Hills and Lot 7 in the English Farms subdivision, which parcel is now a part of Lot 11. Defendants' Exhibit B.

16. On October 20, 1978, Piccot sold the 1.23-acre parcel to Joseph and Beverly Balog by warranty deed, which deed made no specific reference to the Restriction nor was the Restriction incorporated by reference to any prior deed. Plaintiffs' Exhibit 18.

17. Piccot sold Lot 11 in November 1978 to John Cowan by warranty deed, which deed made no specific reference to the Restriction nor was the Restriction incorporated by reference to any prior deed. Plaintiffs' Exhibit 19.

18. Bosley sold Lot 12A in 1983 to the Gromans by warranty deed, which deed included the Restriction except that it deleted provision no. 4 which reserved the right of Toth to �modify or abrogate� the Restriction. Plaintiffs' Exhibit 20.

19. Pelletier sold Lot 12C in 1994 to Anton Souza by warranty deed, which deed reinstated the Restriction deleted in the prior conveyance of Lot 12C to Pelletier including provision no. 4 reserving the right of Toth to �modify or abrogate� the Restriction. Plaintiffs' Exhibit 21.

20. Garratt sold Lot 12B in 1997 to the Jacobses by warranty deed, which deed did not specifically include the Restriction but included a general reference that the property was being conveyed subject to �Restrictions and Covenants as cited in a deed dated February 18, 1978 and recorded March 1, 1978 in Volume 139 at Page 1098� (the Piccot to Garratt deed). Plaintiffs' Exhibit 23.

21. Souza sold Lot 12C on November 24, 2003 to Cabrera by warranty deed, which deed did not specifically include the Restriction but included a reference that the property was being conveyed subject to �Restrictions contained in a deed from Elaine Toth to George Piccot recorded in Volume 112 at Page 709 of said Land Records and restated in that certain Warranty Deed from Cleo Pelletier and Rita Pelletier to Antone J. Souza, Jr., dated June 15, 1994 and recorded June 15, 1994 in Volume 286 at Page 1048 of said Land Records.�Plaintiffs' Exhibit 24.

22. Cabrera provided financial assistance to DiFederico for the purchase of Lot 12C and is the record owner. DiFederico is the holder of an option to purchase Lot 12C and resides there.

23. Toth granted a waiver, dated January 8, 2004, which is recorded on the land records and provides that she does �hereby waive and modify Paragraph 2 of restrictions contained in a deed from Elaine Toth to George Piccot ... as to permit the keeping of horses� on Lot 12C (the �Lot 12C Waiver�). Plaintiffs' Exhibit 25.

Site View

As noted, the court visited the site in the presence of counsel. While the testimony from the witnesses and documentary evidence presented at trial was thorough, the opportunity for the court to view the properties on-site was particularly informative.

The subject properties are located in a rural setting and are heavily treed. The subject lots are irregularly shaped large parcels of land (Lot 12A, 4.57 acres, Lot 12B, 6.79 acres and Lot 12C, 9.99 acres). There are no readily discernable property lines. The Larkin State Park Bridle Trail (the �Bridle Trail�), which extends for about ten miles, abuts the rear boundaries of Lots 12B and 12C and a smaller portion of Lot 12A. Based on the court's observations during the site visit, the Bridle Trail appears to be approximately twenty to twenty-five feet wide.

Lot 12A

Lot 12A is a 4.57-acre parcel of land which has lengthy but direct access to Southford Road (Route 67). Lot 12A is adjacent to Lot 12B to the east and Lot 4 to the west. Lot 4 was granted a waiver by Toth to Thomas in 1976. A small portion of the rear boundary of Lot 12A abuts the Bridle Trail. Defendants' Exhibit I. The plaintiffs Groman purchased the property in 1983 from Bosley. As noted, the deed included the Restriction except that it deleted provision no. 4 which reserved the right of Toth to �modify or abrogate� the Restriction.

Lot 12B

Lot 12B is a 6.79-acre parcel with access to Southford Road (Route 67). Lot 12B is adjacent to, and partially bounded by, Lot 12C to the east and Lot 12A to the west and a small portion of its rear boundary line abuts the Bridle Trail. Lot 12B is separated from Lot 4 by a small portion of Lot 12A. The Jacobses purchased the property in 1997 from Garratt. As noted, the deed did not specifically include the Restriction but included a general reference that the property was being conveyed subject to �Restrictions and Covenants as cited in a deed dated February 18, 1978 and recorded March 1, 1978 in Volume 139 at Page 1098.�

Lot 12C

Lot 12C is a 9.99-acre parcel with access to Southford Road (Route 67). Cabrera purchased Lot 12C in 2003 from Souza. As noted, the deed did not specifically include the Restriction but included a reference that the property was being conveyed subject to �Restrictions contained in a deed from Elaine Toth to George Piccot recorded in Volume 112 at Page 709 of said Land Records and restated in that certain Warranty Deed from Cleo Pelletier and Rita Pelletier to Antone J. Souza, Jr., dated June 15, 1994 and recorded June 15, 1994 in Volume 286 at Page 1048 of said Land Records.�

The Presence of Horses in Fireside Hills

Lot 12A

No evidence was submitted with respect to the presence or keeping of horses on Lot 12A. Barry Groman testified that Lot 12C was �not at all� visible from Lot 12A in the summer and �just barely� visible in the winter. He also testified that he knew there were horses and a small barn on Lot 12C about twelve years earlier, but he only learned about the defendants' keeping of horses on Lot 12C from the Jacobses. Groman also stated that he did not know about the Toth waiver granted to Lot 12C until the time of his deposition.

Lot 12B

There is no evidence in the record that horses have been kept on Lot 12B. Susan Santiso, who owns Lot 11, testified that Donna Stevens-Jacobs was �very nice� and granted her permission to regularly cross the Jacobses' property to access the Bridle Trail. At times, Santiso testified that she and as many as five other riders often crossed the Jacobses' property on their way from Lot 11 to the Bridle Trail, occasionally stopping to speak with her.

Santiso said she once asked Donna Stevens-Jacobs why, owning so much land, she did not have any horses and Stevens-Jacobs replied that she �loved to� but did not have the time since she and her husband �were involved in racing cars at Lime Rock.�On cross examination, Stevens-Jacobs admitted that she talked to Santiso about getting horses for herself and her daughter but emphasized that �she never did.�

Lot 12C

Lori Souza testified that she lived in the home on Lot 12C with her husband, Antone Souza, from 1994 until 1999. She testified that shortly after they moved to the property they acquired two horses (named �Jake� and �Dreams�), goats, a rooster and chickens that were housed in a coop on the property. The defendants submitted photographic evidence of a goat, a horse, a barn and paddock fencing on Lot 12C taken 1998-99 (Defendants' Exhibit PP). She stated that the goats and chickens roamed the entire property and were very visible. She also testified that after the Jacobses' move to Lot 12B, their daughter came to Lot 12C nearly every day to pet the horses. She further testified that she rode �Dreams� over the Jacobses property to get to the Bridle Trail and that on one occasion Donna Stevens-Jacobs complained about horse manure in the shared driveway. Souza also testified that she rode to the Bridle Path with others. She further testified that she often rode her horses in plain view of the Groman's home and that the Gromans never complained. After a fire at the Souza house in 1999, she lived in a trailer on the property. Thereafter, her husband transferred title to the property to his parents, who sold it to Cabrera in November 2003. She testified that the horses remained on the property until late in 1999.

Karen Laude, a former neighbor, confirmed in her testimony that the Souzas maintained horses on Lot 12C and even recalled that one of the horses was named �Jake.�

Jennifer Lawton testified that when she visited her parents (Garratt), whose home was on Lot 12B, she observed horses on Lot 12C during the period 1994 through 1996, but did not recall seeing them after that.

Donna Stevens-Jacobs testified that horses on Lot 12C were visible from her home and front yard when there were no leaves present on the trees between the properties. Yet, she claims that she did not see horses and riders on Lot 12C prior to the commencement of this litigation. DiFederico testified that after the closing, she and several friends rode horses on Lot 12C two or three times per week and traversed the Jacobses' property to access the Bridle Trail between November 2003, until their dispute arose in June 2004, which included the winter of 2003-2004 when no leaves were present.

Shortly after she moved into the renovated house on Lot 12C in 2005, DiFederico began permanently keeping two horses in a small barn on Lot 12C and continued to do so though the time of trial.

On June 7, 2004, the local district department of health granted Cabrera and DiFederico permission for a thirty-foot by eighty-six-foot barn on Lot 12C, following which, the town zoning authority issued a building permit.

Lot 11 a/k/a Lot 11A

Lot 11 a/k/a Lot 11A is adjacent to Lot 12C. A portion of Lot 11 (1.23 acres) was part of Lot 12 prior to the re-subdivision of Lot 12 by Piccot and is part of Fireside Hills. Susan Santiso (�Santiso�) bought the property from her parents (Balog) in 1999. Balog purchased it from Piccot in 1978. At that time, Balog obtained a waiver of provision no. 2 of the Restriction from Toth to permit the keeping of horses on the property.

Santiso testified that she lived on the property with her parents from 1978 to 1983, when she married, and that during that time she and her parents kept horses and goats on the property. After she married, she continued to visit the property daily to care for the animals, until 1999 when she purchased and returned to the property. In 1995, her sister moved away taking her two horses with her, and, for a period of time, only goats were on the property. Santiso purchased horses for herself and her daughter shortly after she resumed her residency at the property.

As noted, the Jacobses gave Santiso general permission to ride, with others, over their property, Lot 12B, to get to the Bridle Path.

Laude-Iseppi Property

Behind the Jacobses' and Gromans' properties, separated only by the Bridle Trail, is 173 Jeremy Swamp Road (the �Laude-Iseppi Property�). Although the Laude-Iseppi Property is not part of the Fireside Hills subdivision, based on the court's site visit, the court finds that the Jacobses' property overlooks the Laude-Iseppi Property which is clearly visible from Jacobses' property.

Karen Laude testified that she lived on the Laude-Iseppi Property from 1990 to August 1997. During that time, she kept a horse on the property and the property also had a prominent barn and horse paddock.

Kendra Iseppi testified that she purchased the Laude-Iseppi Property from Laude, added an additional barn and has since then kept between three and five horses on the property. Iseppi, a retired registered nurse, testified that she regularly observes five horses on the Bridle Trail during weekdays and ten to fifteen horses per day on the weekend.

When asked if she ever spoke to Donna Stevens-Jacobs, Iseppi recalled a conversation during which Stevens-Jacobs told her how much she and her daughter �loved� the Iseppi's horses.

The Effect of the Restriction on Lot 12c

The plaintiffs assert that their properties (Lots 12A and 12B) and that of the defendants (Lot 12C) remain subject to the Restriction without modification. The issue for the court to decide is whether the plaintiffs have sustained their burden of proving that the lots were developed under a uniform plan of development, thereby conferring the right to enforce the Restriction and whether the waiver of the Restriction granted by Toth viably permits the keeping of horses on Lot 12C.

�Restrictive covenants generally fall into one of three categories: (1) mutual covenants in deeds exchanged by adjoining landowners; (2) uniform covenants contained in deeds executed by the owner of property who is dividing his property into building lots under a general development scheme; and (3) covenants exacted by a grantor from his grantee presumptively or actually for his benefit and protection of his adjoining land which he retains.�(Internal quotation marks omitted.) DaSilva v. Barone, 83 Conn.App. 365, 371-72, 849 A.2d 902,cert. denied, 271 Conn. 908, 859 A.2d 560 (2004).

In light of Toth's clearly expressed reservation of her personal right to �modify or abrogate� the Restriction �at any time� and her subsequent delivery of the waiver modifying the Restriction to permit the keeping of horses on Lot 12C, the plaintiffs have the burden to show that they have the right to challenge the validity of the waiver and to enforce the Restriction. In order to do so, they must show that the common grantor intended to develop the lots in accordance with a uniform plan of development. DaSilva v. Barone, supra, 83 Conn.App. at 372.

�The factors that help to establish the existence of an intent by a grantor to develop a common plan are: (1) a common grantor sells or expresses an intent to put an entire tract on the market subject to the plan; (2) a map of the entire tract exists at the time of the sale of one of the parcels; (3) actual development according to the plan has occurred; and (4) substantial uniformity exists in the restrictions imposed in the deeds executed by the grantor ... The factors that help to negate the presence of a developmental scheme are: (1) the grantor retains unrestricted adjoining land; (2) there is no plot of the entire tract with notice on it of the restrictions; and (3) the common grantor did not impose similar restrictions on other lots.�(Citations omitted.) Id.

The foregoing are not an exclusive list of factors which affirm or negate the existence of a uniform plan of development. Other factors noted in Powell on Real Property as tending to support the existence of a uniform plan are the observance of the covenants by the lot owners over a period of time, physical similarity of the lots and compatibility and interrelationship of portions of the land, and language in the deeds indicating that the covenant is to run, thus implying that the lot owners could enforce, since the grantor no longer had an interest in the land. Factors found by the courts to be evidence against the existence of a uniform plan include lack of uniformity of lot size and language in the deed showing that the grantor personally had the right to enforce the covenant. G. Korngold, Private Land Use Arrangements: Easements, Real Covenants, and Equitable Servitudes (2d Ed.2004) � 9.09, p. 344. �No hard rules exist and no single fact seems to be determinative. Rather, often it seems that the courts could decide either way, based on the evidence.�Id., at 343.

�In the absence of an express statement in the covenant itself, the intention of the parties must ordinarily be determined as a matter of fair inference from the language of the covenant, the nature of the restriction granted or reserved and all the circumstances surrounding the transaction.�Bauby v. Krasow, 107 Conn. 109, 114, 139 A. 508 (1927).

Restrictive covenants �being in derogation of the common-law right to use land for all lawful purposes that go with title and possession ... are not to be extended by implication.�Easterbrook v. Hebrew Ladies Orphan Society, 85 Conn. 289, 296, 82 A. 561 (1912). If their language is of �doubtful meaning, it will be construed against rather than in favor of the covenant.�Id.�The party seeking to enforce a restriction has the burden of proving that his or her property is benefitted.�G. Korngold, supra, at p. 345.

The evidence in the present case suggests that a uniform plan of development did not exist.

The defendants argue that there was no common scheme or uniform plan of development by Toth, that she granted a valid waiver and therefore, there are no enforceable restrictions on Lot 12C. They point out that none of the deeds from Toth contain any provision that the Restriction may be enforced by or is for the benefit of any other grantee nor is to run with the land. As further evidence of the lack of any intention to create a uniform plan, the defendants further point out that there is no separate declaration of restrictive covenants recorded on the land records.

Toth's attorney, James T. Ryan (�Ryan�) drafted the Restriction for Toth and represented her in the sale of all of the lots. Ryan testified that Toth's intention by placing the Restriction in each deed rather than recording a separate declaration of restrictions was to preserve �flexibility� including the option to make amendments to the covenants as they may relate to the sale of lots in the future.

The conclusion that the subject lots are not part of a uniform plan of development is supported by Attorney Ryan's testimony and is further supported by Toth's actions. Toth continued to grant, and lot owners accepted, waivers long after she sold the last lot to Piccot. The court also finds it significant that all the waivers granted by Toth were limited to the specific exemption of horses from the operation of provision no. 2 of the Restriction as opposed to a full release of the Restriction. Despite the language of the Restriction prohibiting the �raising of animals,� the consistent pattern of behavior of releasing �horses� by Toth, coupled with the pervasive presence of horses and rural character of the entire surrounding neighborhood casts doubt on whether the Restriction was ever intended, or could be reasonably interpreted as encompassing horses in the first place.

Furthermore, �[t]he area covered by a uniform plan must be so defined as to be clearly ascertainable; 5 R. Powell, [Real Property] � 672, p. 60-25; so that a judgment affecting rights arising under such a scheme will be susceptible of enforcement ... [U]nless the boundaries of the area of uniform development can be ascertained from the evidence admitted at trial, the plaintiffs' case must nonetheless fail.�(Citations omitted.) Contegni v. Payne, 18 Conn.App. 47, 58-59, 557 A.2d 122,cert. denied, 211 Conn. 806, 559 A.2d 1140 (1989).

A total of six different subdivision maps were filed by Toth and Piccot in the land records. None of the maps makes any reference to the Restriction or to a uniform plan and all of the maps have variations of one kind or another. The initial subdivision by Toth and the re-subdivision of Lot 12, out of which Lots 12A, 12B and 12C were created, together with Piccot's carving out smaller parcels from the original Lot 12, including one without zoning approval, together with the inclusion of the Restriction in some of Piccot's subsequent deeds, but not in others, creates difficulty in ascertaining the precise boundaries of the restricted parcels. The court notes that the plaintiffs' testimony showed their great uncertainty as to which properties were situated within or outside the Fireside Hills subdivision when they purchased their properties.

Reliance

Not only does the evidence fail to show a uniform plan of development but the plaintiffs have also failed to credibly demonstrate the equitable requirement of their reliance on the Restriction in connection with the purchase of their properties. �When the existence of the general plan is clear, the purchasers' reliance on the developer's obligation to convey all lots subject to the general-plan restrictions is reasonable, unless the developer has expressly retained the right to deviate from the plan, or the facts or circumstances otherwise establish that the purchasers did not reasonably rely on effectuation of the general plan when they bought their lots.� 1 Restatement (Third), Property, Servitudes � 2.14, p. 191 (2000).

Mannweiler v. LaFlamme, 46 Conn.App. 525, 700 A.2d 57,cert. denied, 243 Conn. 934, 702 A.2d 641 (1997), makes it clear that the enforcement of a restrictive covenant is governed by principles of equity. �The doctrine of the enforceability of uniform restrictive covenants is of equitable origin.The equity springs from the presumption that each purchaser has paid a premium for the property in reliance on the uniform development plan being carried out.�(Emphasis added.) Id., at 535-36.

In an action governed by equitable principles, the court is called upon to balance the equities between the parties. �The determination of what equity requires in a particular case, the balancing of the equities, is a matter for the discretion of the trial court.�Kakalik v. Bernardo, 184 Conn. 386, 395, 439 A.2d 1016 (1981).

Reliance by the Plaintiffs

The Jacobses claim that they purchased Lot 12B in reliance on the Restriction.

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