Opinion
No. CV-01-0095682-S
September 9, 2004
MEMORANDUM OF DECISION
The Plaintiffs seek monetary damages and injunctive relief based on their claim that Defendant caused the water which flows over its property to be directed onto their property. Their four-count Amended Complaint dated February 4, 2002 alleges the wrongful diversion of surface waters (Count One); nuisance (Count Two); restraint of zoning violation (Count Three); and malicious erection of a structure (Count Four). The Defendant has denied the material allegations of the complaint.
Trial was held before the undersigned on April 6, 2004, and the last of the briefs was filed on May 21, 2004. The undersigned received numerous items of documentary evidence at the trial and heard testimony from the both Plaintiffs, a civil engineer named Frank Magnotta, and George Parsons, pastor of the Defendant church.
Many of the basic facts are not in dispute. The Plaintiffs have owned property located on 397 East Street in Middletown, Connecticut for the past five years, and the Defendant owns adjacent property located at 361 East Street, uphill from the Plaintiffs. The Plaintiffs' single-family residence was constructed in 1989 and purchased by them in 1999. Two years after purchasing their property, during which period, according to their testimony, they had never inspected that portion of their land that bordered that of the Defendant and never been aware of any water problems, the Plaintiffs began clearing the back portion of their property. While doing so, they noticed for the first time that large quantifies of water were coming from the church's land over and through the stone wall bordering the two properties.
The Defendant is a religious institution which acquired its property in 1963 and since 1964 has used the structures on it as a meeting hall and residence parsonage. In 1973 and 1974, it expanded the meetinghouse and its parking lot, which until then had consisted of a stone and gravel area to the west and north of the meeting hall. As part of the expansion, the City of Middletown had approved the creation of a new paved parking area with 52 parking stalls to the west and north of the new meeting hall. That main parking area, including the paved portion, has not been altered since 1974.
When the need arose for additional church parking, the Defendant cleared an area at the back of the main parking lot and constructed a new lot in 1986-1987 using an oiled gravel and dust mixture. In 1994, the Defendant repaired the blacktop on the main parking areas and also paved the rear parking area. Since 1994, the Defendant has undertaken no alterations or expansions on its property.
The area where the properties are located consists of a watershed of at least 18 acres which tends to channel surface runoff onto the Grippo property. The church property was described by the Plaintiffs' own expert, Magnotta, as being in the bottom of a bowl with all the water running onto church property and then directed downhill toward the Grippo property. Although the Plaintiffs rely almost exclusively on Magnotta to establish the Defendant's liability, his testimony does not give as much support to their claims as they would like. He did not do an actual calculation of the surface water coming from the total watershed, nor did he do a separate calculation for the "back" parking lot, the real subject matter of this litigation. He was unable to testify as to the change in volume of surface runoff represented by the construction of the back parking lot. Although Magnotta produced calculations tending to show the likelihood of significantly increased runoffs that would result from "25-year storms" and "50-year storms," the fact remains that the Grippos experienced no unusual runoff problems at all until after they had cleared their property to make way for the installation of a swimming pool, some two years after they had moved into their home.
Magnotta confirmed that a significant surface water problem had existed in this location prior to the construction of the Grippo house and that it should have been taken into account at the time the Plaintiffs' home was constructed. Although he described the watershed area in considerable detail, he was unable to testify as to the change in volume of surface runoff, if any, represented by the construction of the back parking lot in 1986-87 or by the change from oiled gravel and dust on that lot to blacktop in 1994. Most significantly, he confirmed that there had been no changes to the church property of any kind after November 1, 1994 that could have affected runoff.
Given the Plaintiffs' testimony that they did not know when the rear parking lot was constructed, Parsons' testimony that it was constructed in 1986 or 1987, and the confirmation of Parsons' testimony by Magnotta, the court concludes that construction of the parking lot was completed no later than 1987, two years prior to the construction of the home that the Plaintiffs eventually purchased, and twelve years prior to their actual purchase of the property. The court also finds that the last time any of the lots was paved was in 1994, five years after the construction of what was to be the Grippos' home, but five years before they purchased it.
As a threshold issue, because the Plaintiffs have specifically pleaded that the cause of their damages was actions taken by the Defendant in the year 2000, the Defendant claims that the Plaintiffs may not recover as there has been absolutely no evidence that the Defendant did anything to its property after 1994. "It is fundamental in any law that the right of a plaintiff to recover is limited to the allegations of the complaint. Facts found but not averred cannot be made the basis for a recovery." Lundberg v. Kovacs, 172 Conn. 229, 232 (1977). "Not every variance, however, is a fatal one since immaterial variances are disregarded under our practice . . . Only material variances, those which disclose a departure from the allegations in some matter essential to the charge or claim, warrant the reversal of a judgment . . . An immaterial variance is one in which the difference between the allegations and the proof is so slight and unimportant that the adverse party is not misled as to the charge he is required to meet or prejudiced in maintaining his defense on the merits of the case. Ordinarily, an otherwise valid judgment will not be invalidated if a variance does not change the theory of the cause of action and the complaining party, at all times, was in a position to know the true state of facts." Strimiska v. Yates, 158 Conn. 179, 183-84, 257 A.2d 814 (1969); see Practice Book §§ 10-62. "[A] variance is material only if the Defendant is prejudiced by it." Commissioner of Motor Vehicles v. De Milo Co., 233 Conn. 254, 276, 659 A.2d 148 (1995).
Generally, the court must examine the evidence and proceedings at trial in order to determine if the Defendant has been prejudiced. See Lyons v. Nichols, 63 Conn.App. 761, 766, 778 A.2d 246, cert. denied, 258 Conn. 906, 782 A.2d 1244 (2001) (determination that variance immaterial made with reference to an exhibit at trial); Criscuolo v. Mauro Motors, Inc., supra, 58 Conn.App. 546-47; Covey v. Comen, 46 Conn.App. 46, 51, 698 A.2d 343 (1997) (allegations not made in counterclaim nor referred to at trial); Marchetti v. Ramirez, 40 Conn.App. 740, 748-49, 673 A.2d 567 (1996), aff'd., 240 Conn. 49, 688 A.2d 1325 (1997); LaFaive v. DiLoreto, 2 Conn.App. 58, 476 A.2d 626, cert. denied, 194 Conn. 801, 477 A.2d 1021 (1984); Francis v. Hollauer, 1 Conn.App. 693, 696-97, 475 A.2d 326 (1984); but see A.V. Giordano Co. v. American Diamond Exchange, Inc., 31 Conn.App. 163, 168-69, 623 A.2d 1048 (1993), where the determination of prejudice was apparently made on the face of the record.
Where the variance involves a pleading deficiency rather than a change in the cause of action pleaded from that proved, the rule is that even if the variance is material, the issue of variance must be raised when the evidence is presented. Winsor v. Hawkins, 130 Conn. 669, 670, 37 A.2d 222 (1944). Where this is not done, the plaintiff is deprived of an "opportunity . . . to make his pleading, if insufficient, conform to the proof" and it is "too late to raise such a point on appeal." Id.
In this case, the Plaintiffs' failure to seek to amend the pleadings so as to reflect a date other than 2000, while troubling, as it would have been so easy to rectify through an amendment prior to or at trial, is not fatal. The variance does not change the causes of action enumerated in each of the four counts, nor did the Defendant object to the variance at trial, thus depriving the Plaintiffs of the opportunity to amend the complaint so as to conform to the proof. Moreover, the Defendant has not claimed to have been prejudiced by the variance in making its defense; indeed, the Defendant defended the case as though the allegations were in fact based on its earlier actions regarding the parking lots. The Defendant is, therefore, not entitled to judgment simply on the basis that the complaint alleges actions occurring in or after 2000, while the evidence focused on events occurring prior to that time.
Turning to the merits, however, Count One of the Plaintiffs' complaint nonetheless fails as the Plaintiffs have not met their burden in proving the wrongful diversion of surface water as a result of the construction of the back parking lot. "An owner of land has the right to occupy and use it as he sees fit, generally speaking, by changing its surface or erecting structures upon it, despite the fact that such a use will cause surface water falling upon it or naturally flowing over it from adjacent lands to accumulate upon the latter or to pass over them in changed direction or quantity." Tide Water Oil Sales Corporation v. Shimelman, 714 Conn. 182, 184 (1932). Nevertheless, "a landowner may not use or improve his land in such a way as to increase the total volume of surface water which flows from it to adjacent property . . . in a manner different in volume or course from its natural flow, to the substantial damage of the owner of that property." Id. at 189.
The testimony of Parsons and Magnotta to the effect that water has continually flowed down the watershed to a collection point on the church property, thence further downhill to the Plaintiffs' property establishes that the basic condition existed not only before the Grippos purchased their property but even before the construction of what would eventually become the Grippo home. Furthermore, the "as-built" and the "plot plan" for the Grippos' home, prepared for submission to the City of Middletown, called for the property to be swaled in order to account for the natural water flow from the watershed, establishing conclusively that water had been flowing over the land now occupied by the Plaintiffs for some time before their house was even built. Additionally, the Plaintiffs themselves were totally unaware of the flow of water from the church property onto their land until they began clearing it, and it was only after they had cleared the land that the water begin to cause damage to their yard, deck and basement. Thus, the Plaintiffs have not met their burden of proving that it was the Defendant who "altered the flow of surface water . . . in a way that caused injury or irreparable harm," George Street of Middletown, LLC v. Woodgate Condominium Association, 36 Conn. L. Rptr. No. 10 381, 382 (March 8, 2004). To the contrary, it is at least as likely that the actions of Plaintiffs themselves led to their own misfortune when they cleared the rear of their land, albeit at least in part because the swale called for in the home's original plans had never been created.
Moreover, Magnotta's testimony that water flowing off the Defendant's property now flows in a faster manner than it used to does not take account of any changes in the volume of water entering the Defendant's property from uphill in determining the volume of water exiting the Defendant's property. He provided no specific calculations as to any increase in volume which could be attributed specifically to the paving of the back parking lot, but rather testified to the existence of a difference between the pre-development condition and the post-development condition of the Middletown Bible Church without regard to the contribution to the problem, if any, made by the paving of the "back" parking lot. Most significantly, Magnotta did not refute the notion that the cutting of the brush and removal of debris undertaken by the Plaintiffs themselves on their own land had a significant effect on the flow of water through their property.
The Grippos, therefore, have not shown by a fair preponderance of the evidence that the proximate cause of their damage was a change in surface water flow effected by the Defendant. To the contrary, the evidence suggests that the more likely proximate cause of the increased flow toward their home was the Grippos' own efforts to change the character of their property, thereby altering a downhill flow of water that had theretofore been essentially harmless.
The Second Count alleges nuisance, the elements of which are: 1) that the condition complained of has a natural tendency to create danger and inflict injury to person or property; 2) the danger created is a continuing one; 3) the use of the land is unreasonable or unlawful; and 4) the existence of the nuisance is the proximate cause of the plaintiff's damages and injuries. Tomasso Brothers, Inc. v. October Twenty-Four, Inc., 230 Conn. 641, 648 (2002). Although styled as "nuisance," this count essentially remains a claim of unreasonable use. "A landowner, in dealing with surface water, is entitled to take such steps as are reasonable, in light of all the circumstances of relative advantage to the actor and disadvantage to the adjoining landowner, as well as social utility." Page Motor Co. v. Baker, 182 Conn. 484, 488 (1980). "The reasonable use doctrine, which is essentially a tort concept, focuses on the resulting interference with another's use and enjoyment of his land In this regard, it is similar to the nuisance concept of tort law. The main consideration there is the reasonableness of the action which altered the flow of surface water in the light of all the surrounding circumstances." Smith v. Rosen, 37 Conn.Sup. 634, 637 (1981).
There has been no persuasive evidence of anything unreasonable about either the manner in which the Defendant handled its parking needs at the time of the last actions taken by the Defendant with regard to its parking facilities in 1994. Nor have the Plaintiffs established the manner in which those actions impacted the flow of water across its property. Were it not for the failure of the builder of the Plaintiffs' home to provide the swale originally called for, and were it not for the failure of the Plaintiffs to have inspected their properly before buying it, followed by their clearing their land in the manner in which they did, the Plaintiffs would probably not have sustained damages. The Plaintiffs have offered no basis upon which the court might conclude that the Plaintiffs' failures could or should have been foreseen by the Defendant in 1994 or earlier. Moreover, the court has found that the true proximate cause of the Plaintiffs' losses was more likely their own actions, without which water could have continued to flow from the Defendant's land in a manner that would have caused the Plaintiffs no damage. The Plaintiffs, therefore, cannot prevail on the Second Count of their complaint.
In Count Three, the Plaintiffs allege that the City of Middletown has failed to enforce its own regulations in breach of the City's duty to the Grippos. The Plaintiffs allege a number of complaints to the City's zoning enforcement officer, but the City never took steps to prevent the unlawful construction of the "new" paved parking lot or to require the construction of a detention basin.
Any person specifically and materially damaged by a violation of zoning ordinances which has occurred or likely to occur on another's land may seek injunctive relief restraining such violation. See Reynolds v. Soffer, 184 Conn. 67 (1983), quoting Blum v. Lisbon Leasing Corporation, 173 Conn. 175 (1977); Cummings v. Tripp, 204 Conn. 67 (1987). See also 9 CT Page 13842 Conn. Practice. Land Use Law and Practice, Fuller, Section 41.6. for the proposition that a person suffering from a special injury from what could be a zoning violation may bring a private enforcement action without a demand upon the town and its officials. The Plaintiffs also cite Section 10.10 of the Middletown Zoning Regulations, which requires that "all land development projects which would increase the storm water runoff from its size shall provide for on site detention of the increase . . ." and ask the court to require the Defendant to build such a detention basin.
The Plaintiffs' expert testified that the City of Middletown's design criteria for such detention basins is the 50-year storm. Given the fact that there is no such detention basin on the Defendant's property and that the city has not enforced this regulation, combined with the claim that the paved parking areas are increasing the volume of water running off the Defendant's property and causing them damage, the Plaintiffs seek to have the court enforce Section 10.10 of the Middletown Zoning Regulations and order the Defendant to create a detention basin on its property.
This is not, however, the sort of case the Supreme Court had in mind when it gave limited approval to private actions to enforce zoning regulations. In Reynolds v. Soffer, 183 Conn. 67 (1981), the court observed that in that case:
The uncontroverted allegations including that of a purported nuisance contained in the amended complaint come within the ambit of cases such as Karls v. Alexandra Realty Corporation, 179 Conn. 390, 401, 426 A.2d 784 (1980), in which we held that "[a]ny person specifically and materially damaged by a violation of the Zoning ordinances which has occurred or is likely to occur on another's land may seek injunctive relief restraining such violation. Blum v. Lisbon Leasing Corporation, 173 Conn. 175, 180, 377 A.2d 280 [1977]; Fitzgerald v. Merard Holding Co., 106 Conn. 475, 482, 138 A. 483 (1927); see also, 3 Rathkopf, The Law of Zoning and Planning (4th Ed.) c. 66." (Footnote omitted.)
In this case, however, the allegations of purported nuisance were hardly uncontroverted. Moreover, as indicated above, the court has not found that the Plaintiffs were "specifically and materially damaged" by the actions of the Defendant but rather that the Plaintiffs had failed to prove that their damages were proximately caused by the Defendant. Furthermore, the cases cited involve situations in which courts were asked to stop practices that violated zoning regulations. The Plaintiffs have cited no cases in which courts, substituting themselves for zoning authorities, have ordered such relief as the creation of detention basins. Finally, the evidence produced by the Plaintiffs has not established that their damages, even if they were proximately caused by the Defendant were the result of zoning violations. Count Four claims that the Defendant's actions were malicious and in violation of General Statutes § 52-570 in that it knowingly disregarded the law and the rights of the Plaintiffs. General Statutes § 52-570 provides, "An action may be maintained by the proprietor of any land against the owner or lessee of land adjacent, who maliciously erects any structure thereon, with intent to annoy or injure the plaintiff in his use or disposition of his land" General Statutes § 52-480, entitled "Injunction Against Malicious Erection of Structure," provides: "An injunction may be granted against the malicious erection, by or with the consent of an owner, lessee or person entitled to possession of land, of any structure upon it, intended to annoy and injure any owner or lessee of adjacent land in respect to his use or disposition of the same."
To prevail on this count, the Plaintiffs must prove the following elements: 1) a structure erected on the Defendant's land, 2) the malicious erection of the structure, 3) the intention to injure or annoy the enjoyment of the adjacent owner's land because of the structure, 4) an impairment of the value of the adjacent land because of the erection of the structure, 5) the fact that enjoyment of the land is in fact impaired, and 6) the structure is useless to the Defendant who erects it. Whitlock v. Uhle, 75 Conn. 423 (1903). In Whitlock, the court indicated that
the intent to injure by the erection of the structure is an intention which must be discovered mainly from the fact that the structure does impair the value of the adjacent land and injure the owner in its use, from the absence of reasonable possibility of any real advantage, whether profit, protection or pleasure, in the use of the land, and from the character, location and surroundings of the structure itself. It is quite possible for a structure to bear on its fact as it were, convincing evidence that it was intended for a legitimate purpose, or that it was intended to injure the adjacent land and its owner. Such intention relates to the thing done, its purpose and effect, and does not depend on the existence or nonexistence of personal spite or ill-will. The intention is not the motive from which it may spring, but the established purpose, from whatever motive, to use the land in a manner justified by its ownership, and forbidden by law. When a structure useless to the owner, injuring adjacent land and its owner, intended to work such injury, is willfully erected, it is maliciously erected; that is, it is erected in knowing disregard of the law and the rights of others.
In DeCecco v. Beach, 174 Conn. 31 (1977), the Supreme Court also noted that "[w]hether the structure is maliciously erected is to be determined rather by its character, location and use than by an inquiry into the actual motive in the mind of the party erecting it." There has certainly been no direct evidence of malice or of a motive or intent to annoy or injure the Plaintiff. Rather, the Plaintiffs claim that malice and an intent to injure should be inferred from the fact that the Defendant knew of the propensity of water to flow on to the Plaintiffs' property and that there was no real reason for them to go ahead and pave the back parking lot. They point to the fact that the Defendant received letters of concern which it turned over to its attorney, but this cannot be construed as malice or an intent to injure. Parsons' testimony, that the church's sole motivation in expanding its parking facilities was to accommodate the church's growth and consequent desire for additional parking, was both reasonable and uncontradicted.
Moreover, as previously discussed, there had been no significant consequences arising from runoff until after the Plaintiffs themselves cleared that portion of their land that abutted that of the Defendant. Under those circumstances, it can hardly be said that there is — or was — evidence of unreasonableness of the Defendant's conduct in light of the circumstances as they existed as late as 1994, the last date of any significance for purposes of assessing the reasonableness of Defendant's actions.
In summary, the Plaintiffs have failed to show by a preponderance of the evidence that the Defendant wrongfully diverted the surface waters which run across its property in an unreasonable manner. Nor have they shown that the Defendant committed a nuisance. The Plaintiffs have not established that they are entitled to have this court enforce zoning regulations which they believe the Defendant violated. Finally, there was absolutely no evidence that the Defendant erected its paved parking areas maliciously, or in clear disregard of the law and the rights of its adjoining property owners.
In light of the above, the court does not reach the issue of damages or the nature of any injunctive relief. Judgment will enter in favor of the Defendant with respect to all four counts of the Plaintiffs' complaint.
Jonathan E. Silbert, Judge