On Wilson Point, fences – good or bad – don’t always make good neighbors

Anne Yang of Norwalk didn’t back down when her homeowner’s association hit her with a $100-a-day fine for an allegedly unacceptable fence. She took the Wilson Point Property Owners Association (WPPOA) to court.

Six years later, Yang, a Board of Estimate and Taxation member, has won four of the five charges she filed against WPPOA, its then-president, Mitch Palais, and attorney, Christian Nagler in September 2020. The fine was not imposed in good faith, Judge Kenneth Povodator agreed.

Yang seeks to be reimbursed by the association for her $65,200 in legal fees. Povodator’s decision states that the association is only on the hook for $1,000.

Yang’s lawsuit, filed in Stamford Superior Court, alleges breach of good faith, violation of the Connecticut Non-Stock Corporation Act – a State Statute that pertains to companies that don’t offer stock and delineates proper behavior – breach of contract, and breach of the covenant of good faith and fair dealing. The suit seeks declaratory judgment. In his decision issued May 17, Povodator said WPPOA did not violate the Connecticut Non-Stock Corporation Act but was guilty of the other charges.

“It would be easy to dismiss this dispute as a petty conflict between wealthy individuals over a trivial matter. However, there are larger issues at stake,” a reply from Palais states.

Yang has been stubborn and passive-aggressive, the defendants say. “While the board action may seem extraordinary, so was the plaintiff’s unwillingness to seek a compromise to defuse the conflict.”

Wilson Point is a private gated community located on a 100-acre peninsula off Wilson Avenue. Yang has lived there for 32 years. Her home is appraised at nearly $3 million.

Running along its southern border is a path to the beach, on Association property. It was abandoned due to liability concerns in 1971 and had become overgrown, but in 2011, the complaint states, Nagler began using it. Soon, association members cut down and removed vegetation – including bushes and trees on Yang’s property, without notifying her, according to the complaint. “As a result of this trespass, {Yang} lost substantial privacy and security for her property.”

She complained to the Board but was ignored. Two months later, Yang installed a dark brown natural bamboo picket fence and landscaping tarp, compliant with WPPOA rules and not visible from the road, the complaint states. No one objected until 2015 when, in cracking down on Yang’s new driveway gate, the association inserted into a legal document a passage granting her 10 years to keep the fence, provided she made some adjustments.

Yang did not sign the agreement but voluntarily made the alterations, according to the complaint.

Defendants say that a Board member told Yang in 2014 that the fence needed to be removed for noncompliance with association rules.

Meanwhile, Yang’s garage was destroyed in a fire. She planned to have it rebuilt on the existing footprint in 2018, and WPPOA sought to have her sign a construction agreement.

It contained two paragraphs about the fence, although the garage was on the other side of the house. One said the agreement “runs with the property,” and the other said the fence was allowed through 2025.

That provided her foundation for the lawsuit. Yang crossed out those paragraphs and signed the agreement, but the Board refused to accept the edited version.

“{Yang} made these changes because (i) a construction indemnification agreement only lasts for as long as the construction is underway and not in perpetuity; and (ii) the garage construction had nothing to do with a fence on the opposite end of her property,” the complaint states.

“Astonishingly, the plaintiff still misses the very point of this case (even after a trial),” defendants say. “By providing her with a ten-year accommodation to keep the fence in place, the board was doing precisely what the plaintiff suggests. Despite finding a violation of the association rules, the board was not imposing a draconian penalty on the plaintiff. Rather, the board wanted to give the plaintiff the opportunity to have the fence to improve her privacy so long as the fence was removed in 10 years.”

The decade of grace was intended to allow Yang to have plants grow high enough to provide privacy, the document states. Instead, she doesn’t intend to remove the fence, according to the defendants.

In December 2018, the Board held a hearing on the topic.

Meeting minutes say the Board voted unanimously to fine her $100 a day. Yang contends this is a lie. The minutes say, “There were no votes against.” Yang maintains this is disingenuous, as there was no vote.

Defendants deny that.

Povodator said Yang’s accusation isn’t frivolous, but there’s not enough evidence to back it up. A Board member testified that she didn’t remember a vote and wouldn’t have voted in favor of issuing a $100-a-day fine, but the Board approved the minutes.

“Nagler and Palais have acted in concert to use the threat of a patently unreasonable and extortionate $100-per-day fine to force {Yang} to submit to their demands for execution of the garage construction indemnification agreement exactly as submitted to {Yang}, and for the removal of the Passway Fence, despite the fact that the Board of Directors in 2015 voluntarily and unilaterally decided not to seek enforcement of any purported Passway Fence-related rule violation until at least 2025,” the complaint states.

In retaliation Palais harassed her, Yang contends. He called Norwalk police and accused her late husband of driving badly, called the Health Department to see if she had a permit for septic system work and contacted the building department to complain about her pergola and garage. He also ordered workmen to leave one day and forced her to pay a $1,000 “road fee,” which she felt was not applicable.

Palais denies harassing Yang.

“Nagler and Palais have engaged in arbitrary, malicious and unreasonable conduct toward {Yang} based on personal animus and for the advancement of personal interests, rather than the legitimate interests of the WPPOA members, including {Yang},” her complaint states.

WPPOA (through Nagler and Palais) continued to threaten Yang with the imposition of “statutory liens” and a potential foreclosure action should she fail to pay the fines and remove her fence.

Other fences violated the rules, yet no fines were issued, according to Yang.

Not true, said the defendants, producing evidence to support their defense.

Povodator absolved Nagler and Palais of personal responsibility and also said Yang is not entitled to punitive damages. WPPOA’s attempt to foreclose on her property was also denied. She was “not in default of her obligation to comply with the Association’s fence rules in 2018 to an extent that warranted or permitted the imposition of daily fines.”

Yang has nevertheless filed a motion to have WPPOA pay the $65,200.

The “statute represents a public policy based on principles of compensation and deterrence by mandating an award of reasonable attorneys’ fees and costs to a prevailing party in the type of foreclosure action before the Court,” the motion states. “Those principles can be served and advanced only if (a) the wrongfully foreclosed (like {Yang}) are compensated for needlessly incurred legal fees and costs, and (b) the wrongfully foreclosing (like WPPOA) are forced to reimburse needlessly incurred legal fees and costs and thus deterred from acting in bad faith.”

Yang “has had longstanding animosity toward the” WPPOA Board, the defendants say. “Her conflicts with the board are entirely of her own making.”