ORDER

080571

DOCKET NO: KNLCV096001607S

SUPERIOR COURT

LYME LAND CONSERVATION TRUST,
INC.
V.
PLATNER, BEVERLY Et Al

JUDICIAL DISTRICT OF NORWICH/NEW
LONDON
AT NEW LONDON
3/26/2015

ORDER

The following order is entered in the above matter:
ORDER:
Having decided the first portion of this case on March 12, 2015, the court will restate that decision here
as well as resolve the outstanding issues concerning counsel fees in accordance with the terms of the
restrictive covenant which the defendant has been found to have violated and C.G.S. Section 52-560a(c),
as well as the claim for damages under C.G.S. Section 52-560a(d).
As the court found from the bench, the defendant took title to the property in 2007 subject to a
declaration of restrictive covenants which by its terms were intended as "conservation restrictions" as
defined in C.G.S. Section 47-42a. That restriction was first imposed on the property purchased by
defendant by its then owner in 1981. The restriction's purpose, by its terms, is to "assure retention of the
premises predominantly in their natural, scenic or open condition...", echoing the statutory definition of
a conservation restriction. There is a reservation in the restriction for the property owner, inter alia "to
conduct and engage in the cultivation and harvesting of crops, flowers and hay; the planting of trees and
shrubs and the mowing of grass; the grazing of livestock; and the construction and maintenance of
fences necessary in connection therewith"
The property borders the Connecticut River in the Town of Lyme and also borders Selden Creek and
Selden Cove. Aerial photographs depict the property (Exhibits 55 and 56) as it existed about the time the
defendants became owners of the property in 2007. It is apparent that the protected areas are quite
different from the areas not subject to the restrictions.
The defendant herself testified that she had little to do with the details of the extensive landscaping that
was performed on the property, and that her husband was the one primarily responsible for assigning to
the various workmen the tasks to be performed on the property. The court finds that her husband, Mr.
Brian Platner was acting as the agent of the defendant with respect to the activities performed on the
property.
Shortly after the defendant took ownership of the property mowing of the meadow (or field) to the west
of the house which was subject to the conservation restriction was begun and the plaintiff made contact
with the defendant and her husband to discuss what was to plaintiff a violation of the restriction. By his
testimony, Mr. Platner's response to plaintiff's correspondence was to circle the word "mowing" in a
copy of the conservation restriction and return it to plaintiff. The most succinct description of Mr.
Platner's intent was his testimony on direct examination as follows: in 2007, "we began mowing the
fields very, very regularly...by the end of two seasons, the field had turned into what we were looking to
get it to turn into, which was primarily grass. And in 2009, at that point, we began working on the grass
field to move it into more of a lawn like the lawn behind the house, between the house and the river, to
give you a rough description....in 2009 we had a big slice seeding project to, you know, strengthen the
turf, and we also expanded the irrigation into that area to support the seeding that we were doing with
the slice seeding". The court finds that the defendant's actions were willful and caused great damage to
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 the protected area's natural condition which the defendant was obligated to retain. As the court said from
in its decision from the bench, this "tunnel vision" of the defendant led him to attempt to use some
language in a reservation to completely subvert and eviscerate the clear purpose of the conservation
restriction. Exhibits 59 through 62 show the property as it looked in 2013 and in particular show the
protected area to be now clearly indistinguishable from the unprotected area upon which the house is
built.
The court also finds that none of the activity on the property was for the purpose of creating and
maintaining views and sight lines from residential property of the defendant.
Much was made at trial by defendant of the fact that the conservation easement itself does not correctly
name the plaintiff (Lyme Conservation Trust vice Lyme Land Conservation Trust), in spite of the fact
that the deed into defendant refers to the Lyme Land Conservation Trust (Schedule A of defendant's
deed). The evidence shows that this was the only land trust in Lyme, and the court holds that this
argument is without validity. Similarly, defendant claims that the restriction is unenforceable because it
was coerced in 1981 by the Town of Lyme Wetland Enforcement agency. The court finds that this and
defendant's other special defenses have not been proved.
As to defendant's claims of ambiguity in the conservation restriction, "words do not become ambiguous
simply because lawyers and laymen contend for different meanings", Downs v. National Casualty
Company, 146 Conn. 490, at 494,5 (1959). Perhaps it is not entirely clear if defendant can be restricted
to mowing her fields only once a year or if she can mow them more often, and if that were the only issue
in the case the court might undertake some sort of declaratory ruling . Here, though, the violations are so
clear that it is unnecessary for the court to do that, since the severity of the violations require an order
that the property subject to the conservation restriction be restored to the condition it was in at the time
defendant acquired the property.
This order extends to the extensive landscaping of all of the protected area, including (by way of
example and not limitation)those portions of the protected areas where literally tons of soil and sand
have been placed on the protected areas, to say nothing of the huge amounts of fertilizer used to install
this overreaching landscaping project done, as the court has found, willfully.
Based on the forgoing findings the court awards damages under 52-5602(d) of our statutes in the amount
of $350,000.00. The court has taken the evidence that restoration of the field to the west of the residence
will take approximately $100,000.00 to restore, and imposed a multiple of 3.5 to that amount. Since the
court (perhaps naively) expects that the defendant will have an interest in seeing that the restoration is
carried out in a manner that will not be more burdensome than necessary, it is the order of the court that
this damage award be a fixed sum(or if the statute requires a precise multiplier, such a multiplier that
will result in damages of $350,000.00) so that any increased costs that the defendant may wish to bear
over what the court will require will not increase the damage amount.
As to counsel fees, defendant has objected to several aspects of the claims for counsel fees, some of
which the court agrees with. The court declines to award counsel fees expended in connection with a
settled defamation suit about which the court has little information except enough to conclude that those
charges cannot reasonably be argued to fit within the authorization for counsel fees in either the
statutory language or that of the conservation restriction. Further the court declines to award counsel
fees incurred by a pro hac vice attorney prior to that attorney's admission to practice in Connecticut in
conjunction with this case, albeit the court otherwise finds those charges to be reasonable.
The court finds nothing improper in Attorney Pritchard's commencing pro hac vice representation on a
pro bono basis and mending that agreement with his client to provide for a fee if plaintiff prevailed and
was awarded counsel fees.
Connecticut counsel for plaintiff was charging at a discounted rate until the end of 2012, when because
of the limited resources of plaintiff, the fee arrangement was changed to a contingency, so that if
plaintiff prevailed counsel would receive her usual rate of $350.00 per hour (which the court finds to be
reasonable). Defendant objects to this, arguing that counsels fees "have obviously been increased after
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 trial", when defendant is actually benefiting from the discounted rate earlier paid by the plaintiff. Indeed,
plaintiff might have made the argument that the early billings at the reduced rate should be adjusted
upward, but the court would probably not have approved that.
Defendant argues that plaintiff's appearance at an Inland Wetlands hearing to oppose only that portion of
plaintiff's application to relocate her driveway insofar as the relocated driveway encroached on the area
subject to the conservation restriction, and its appeal from that decision (withdrawn after the driveway
was rapidly relocated by defendant) is not fairly included in the authorization for counsel fees in the
restriction itself or in the applicable statute. Similarly, defendant argues that fees expended in the early
part of this case which was begun as a declaratory judgment action are not an "enforcement action" and
therefore not fairly included as counsel fees. Some background is required to properly analyze this
claim. From the defendant's purchase of the property in 2007, mowing of fields has increased, but the
plaintiff still hoped to resolve the issues between the parties to is case amicably. The declaratory
judgment action was commenced in the fall of 2009, before the defendant's application to Inland
Wetlands to relocate the driveway, when some amicable resolution could have reasonably been hoped
for. After the Wetlands agency's approval of a permit permitting encroachment on the restricted area
together with the defendant's increased improper activity on those areas, the plaintiff mended the instant
lawsuit to claim the injunctive relief which the court grants today. Thus the court finds that the charges
incurred in connection with the Inland Wetlands Commission and the early, declaratory judgment
portion of this case are within statutory and conservation restriction authorizations for an award of
counsel fees.
The court awards counsel fees of $115,000.00 for Attorneys Pritchard and Russo, as well as counsel fees
of $185,000.00, for a total award of $300,000.00 attorneys fees.
It is the court's belief that the date of this judgment begins the time for the running of the period in
which to appeal, but if counsel for defendant are concerned about that time expiring earlier the court will
grant an extension upon motion properly filed.
The court will retain jurisdiction over this matter, to oversee the implementation of this injunction order.
To that end, a hearing is scheduled for Wednesday May 27, 2015 at which the court will hear from the
parties as to the specifics of the manner and timing of the restoration of the property and issue further
orders in aid of this judgment.
Copies of this order mailed to all counsel of record on 3/26/15
080571
Judge: JOSEPH Q KOLETSKY

KNLCV096001607S

3/26/2015

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