Opinion
No. DBD CV09-5008378 S
August 19, 2011
MEMORANDUM OF DECISION
This case involves a dispute between two adjoining land owners in the town of Redding. The plaintiffs, Janice and Stephen Pomazi, initiated this action against the defendants, Michele Holmes and Michele Holmes, Trustee, on September 17, 2009. In their complaint, the plaintiffs allege that the defendants have violated town regulations and have been a continuing nuisance by failing to maintain their property and livestock. They seek injunctive relief, damages, punitive damages, attorneys fees and costs. The defendants have asserted a counterclaim, alleging that they have been harassed, stalked and intimidated by the plaintiffs and seek an order permanently restraining and enjoining the plaintiffs from harassing, stalking and intimidating them Additionally, the defendants seeks money damages and such other relief as the court deems just and equitable. Hearings on the temporary injunction were held on May 24, 2010, August 23, 2010, August 24, 2010 and March 29, 2011, at which time the court heard evidence. On March 30, 2011, the parties stipulated to converting their hearing for a temporary injunction with a hearing for a permanent injunction and a trial on the merits. The remainder of the case was heard on March 30, 2011 and March 31, 2011. Post-trial briefs were filed by the parties on April 29, 2011.
I. FINDINGS
The parties tried the case to the court. The court heard testimony on May 24, 2010, August 23, 2010, August 24, 2010, March 29, 2011, March 30, 2011, and March 31, 2011. The witnesses were: Stephen Pomazi, plaintiff, Janice Pomazi, plaintiff, David Lord, environmental consultant; Adam Negri, a resident of 81 Sunset Hill Road; Douglas Hartline, health officer for the Town of Redding; and the defendant, Michelle Holmes, defendant. The court also reviewed over 200 exhibits admitted into evidence, consisting of, inter alia, maps, photographs, correspondence and other records.
The court finds the following facts credibly proven. The plaintiffs, Janice and Stephen Pomazi, reside in Redding, Connecticut, owning and residing in a premises located at 85 Sunset Hill Road, Redding Connecticut, and are the owners of land located at 8 Sunny View Drive, Redding, Connecicut. The plaintiffs have resided on their property for more than forty years. The defendants, Michelle Holmes and Michelle Holmes, Trustee, own the premises located at 6 Sunny View Drive, Redding Connecticut, and 81 Sunset Hill Road, Redding, Connecticut. The defendants acquired the property at 6 Sunny View Drive, by sale from the plaintiffs on or about July 1999. At all times relevant to this action, the defendants have owned the described land and premises which are located adjacent to the plaintiffs. On October 5, 1999, the defendants applied for, and were eventually granted, permission to clear the lot at 6 Sunny View Drive. In November 2004, the defendants constructed permanent fencing on both of their lots for animal containment as well as fencing and landscaping around the perimeter of their entire property.
The defendants have constructed and enlarged one or more structures, including fences, animal penning areas and a storage area/shed, within fifty feet of the side and rear lot lines of their properties and without first obtaining proper permits for doing so as required by the town regulations. There is a shed and storage area in the northwest corner of the defendants' property at 6 Sunny View Drive. Orders to cease and desist were issued on November 18, 2004 and October 11, 2007 by the Zoning Office for the Town of Redding ordering action to be taken "to abate, correct, or remedy the conditions" that are in violation of Section 6.2 of the Redding Zoning Regulations, Construction of a Shed without a Permit; and Section 5.14.6, failure to maintain fifty-foot setback for animals. Debris, posing possible health hazards, such as propane cylinders, is present on the property. Additionally, gasoline and other chemicals have been stored on the property.
The defendants keep and maintain animals within fifty feet of the side and rear lot lines, causing annoyance to the plaintiffs through odors, noise, pollution and trespass beyond the required setback area. Furthermore, the defendant's allowed manure and animal urine be deposited and to remain on the defendants' properties and on the town of Redding rights of way adjoining the Holmes' properties, as well as stored and disposed of manure and other animal waste materials, in a manner that failed and fails to comply with the requirements of the State of Connecticut Public Health Code and Regulations, thereby generating noxious and offensive odors, causing the contamination of air, water, and creating a risk of injury to health of persons on or off the premises. As a result of the defendants' disregard for the town's regulations the plaintiffs have had to live with offensive smells, sights and sounds over the past eight years.
Lastly, a sightline hazard exists along Sunny View Drive. Trees were planted in the town right-of-way by the defendant. These trees block the sightline for the exit of the driveway.
II. PRIVATE NUISANCE
The law of private nuisance was recently explained by the Connecticut Supreme Court in Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002) as "a nontrespassory invasion of another's interest in the private use and enjoyment of land . . . The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor . . . The essence of a private nuisance is an interference with the use and enjoyment of land." (Citations omitted; internal quotation marks omitted.)
"[I]n determining unreasonableness, [c]onsideration must be given not only to the interests of the person harmed but also [to] the interests of the actor and to the interests of the community as a whole . . . Determining unreasonableness is essentially a weighing process, involving a comparative evaluation of conflicting interests . . . Unreasonableness cannot be determined in the abstract, but, rather, must be judged under the circumstances of the particular case." (Citations omitted; internal quotation marks omitted.) Id., at 352-53, 788 A.2d 496.
In Pestey, the Supreme Court upheld a jury verdict that "offensive odors emanating from the defendants' farm" constituted a private nuisance. Id., at 349, 788 A.2d 496 . . . The court concluded that the "proper focus of a private nuisance claim for damages . . . is whether a defendant's conduct, i.e., his or her use of his or her property, causes an unreasonable interference with the plaintiff's use and enjoyment of his or her property." Pestey v. Cushman, supra, 259 Conn. at 360. The court adopted the basic principles articulated in § 822 of the Restatement (Second) and concluded that "in order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of his or her property. The interference may be either intentional . . . or the result of the defendant's negligence . . . Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case." (Citations omitted.) Id., at 361, 788 A.2d 496.
The Pestey court listed several factors to balance in determining whether an interference is unreasonable "including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant . . . No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable. Id.
Finally, the court in Pestey emphasized that "it is possible to prove that a defendant's use of his property, while reasonable, nonetheless constitutes a common-law private nuisance because it unreasonably interferes with the use of property by another person." Id., at 359-60, 788 A.2d 496. Relying upon Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 457, 736 A.2d 811 (1999), in which it held that "the production of odors by the defendants' plant could constitute a nuisance, notwithstanding the fact that operating a wastewater treatment plant was clearly a reasonable use of the property in question," the court concluded that "[t]he inquiry is cast more appropriately as whether the defendant's conduct unreasonably interfered with the plaintiff's use and enjoyment of his or her land rather than whether the defendant's conduct was itself unreasonable." Pestey v. Cushman, supra, 259 Conn. at 360, 788 A.2d 496.
That there is a personality conflict between the parties is not doubted. Angry words have been exchanged. The court notes that the defendants have made an effort to fix their relationship with the plaintiffs. Overtime, they have added a variety of shrubs and bushes in order to respond to the plaintiff's nuisance complaints. Making a good-faith effort to solve the issues, the defendants have planted forty sixteen-foot evergreens along the back property line. Additionally, the defendants have installed drainage all over the property that was hooked up to the town drainage system. The court finds that the defendants have demonstrated good faith in attempting to resolve the situation.
Nevertheless, under the circumstances of this particular case, the court finds that the defendants' conduct unreasonably interfered with the plaintiffs' use and enjoyment of their land. The interference experienced by the plaintiffs has been significant, disrupting the plaintiffs' use and enjoyment of their home and residence, as amply testified to both by the plaintiffs and numerous letters, photographs and testing reports submitted by them to the appropriate Town of Redding officials over the course of the past eight years which the court finds to be credible.
The defendants' actions have had a significant impact on the plaintiffs, impacting their use and enjoyment of their land through sound, smell, sight and emotions. The interference has been consistent throughout the spring and summer for the past eight years. The defendants have deposited a significant amount of manure onto the defendants' properties, creating a manure-based planting bed approximately twenty-five feet in width and more than four hundred twenty-five feet in length immediately adjacent to the plaintiff's residential properties. The defendants' manner of keeping their animals presents a constant and unending affront to the plaintiffs' sensibilities, as well as to their peaceful use and enjoyment of their residence.
Accordingly, the court finds that the defendants have not taken all feasible precautions to avoid any unnecessary interference with the plaintiffs' use and enjoyment of their land. The court concludes that the plaintiffs have established by a preponderance of evidence that the defendants have created and maintained an unreasonable private nuisance. In addition to the injunctive relief sought, the plaintiffs seek monetary relief for the nuisance. The court finds that they did not prove any compensatory losses.
III. PERMANENT INJUNCTION
The standards for injunctive relief are equally well-settled. "A party seeking injunctive relief has the burden of alleging and proving irreparable harm and lack of an adequate remedy at law . . . A prayer for injunctive relief is addressed to the sound discretion of the court." (Citations omitted; internal quotation marks omitted;) Lydall v. Ruschmeyer, 282 Conn. 209, 236, 919 A.2d 421 (2007). "A mandatory injunction is a court order commanding a party to perform an act . . . Relief by way of mandatory injunction is an extraordinary remedy granted in the sound discretion of the court and only under compelling circumstances . . . Ordinarily, an injunction will not lie where there is an adequate remedy at law . . . In sum, [m]andatory injunctions are disfavored as a harsh remedy and are used only with caution and in compelling circumstances." (Citations omitted; internal quotation marks omitted.) Cheryl Terry Enterprises, Ltd. v. Hartford, 270 Conn. 619, 650, 854 A.2d 1066 (2004).
The court finds that the plaintiffs have established that they suffered irreparable injury and lack an adequate remedy at law. More particularly, the defendants' activities have caused, and continue to cause, the plaintiffs to unreasonably suffer in the use and enjoyment of their property from the noise and odor directly caused by the defendants' farming practices and zoning violations as well as public health violations. If an injunction is not granted, then the resulting harm to the plaintiffs will continue to occur to their detriment.
IV. DEFENDANTS' COUNTERCLAIM
In their counterclaim, the defendants appear to make a claim sounding in intentional infliction of emotional distress. The defendants allege that since 2003, the plaintiffs have filed false allegations against the defendants and have engaged in conduct detrimental to the defendants. The defendants allege that the plaintiffs have filed frivolous and false complaints against the defendants to the departments of health, zoning, building police and fire within the town of Redding. Additionally, the defendants allege that the plaintiffs have stalked, harassed and photographed the defendants' property for the purpose of intimidation.
"To prove intentional infliction of distress, the plaintiff must demonstrate (1) that the [defendant] intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result [from] his conduct; (2) that the conduct was extreme and outrageous; (3) that the defendant's conduct was the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was severe." (Internal quotation marks omitted.) Hall v. Bergman, 296 Conn. 169, 182-83 n. 9, 994 A.2d 666 (2010). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous!" (Internal quotation marks omitted.) Tracy v. New Milford Public Schools, 101 Conn.App. 560, 569-70, 922 A.2d 280, cert. denied, 284 Conn. 910, 931 A.2d 935 (2007).
"Whether a defendant's conduct is sufficient to satisfy the requirement that it be extreme and outrageous is initially a question for the court to determine . . . Only where reasonable minds disagree does it become an issue for the jury . . . Therefore, in assessing a claim for intentional infliction of emotional distress, the court performs a gatekeeping function. In this capacity, the role of the court is to determine whether the allegations of a complaint . . . set forth behaviors that a reasonable fact finder could find to be extreme or outrageous. In exercising this responsibility, the court is not fact-finding, but rather it is making an assessment whether, as a matter of law, the alleged behavior fits the criteria required to establish a claim premised on intentional infliction of emotional distress." (Citations omitted.) Hartmann v. Gulf View Estates Homeowners Ass'n., Inc., 88 Conn.App. 290, 295, 869 A.2d 275 (2005). As one Superior Court judge has quoted, although the definition of "outrageous" is "somewhat subjective," "there are some basic things the courts appear to agree upon." Deutsche Bank v. Lichtenfels, Superior Court, judicial district of New Haven, Docket No. CV 04 4003402 (June 17, 2009, Corradino, J.) ( 48 Conn. L. Rptr. 133, 137). For example, "the cases distinguish between situations where a person merely accuses another of fraudulent or dishonest activity as opposed, for example, to actively encouraging or trying to bring about a false prosecution." Id.
The court finds that the defendants' failure to observe the rules and regulations of the Town of Redding was the cause of the conflict. This failure was initiated by the defendants, rather than the plaintiffs, and therefore the defendants have failed to provide sufficient evidence to support a claim for intentional infliction of emotional distress. Accordingly, court finds against the defendants on their counterclaims.
V. ATTORNEYS FEES
The plaintiffs have requested attorneys fees without citing any authority. In Connecticut, "a prevailing party may recover attorneys fees if such an award is authorized by either statute or contract." Neiditz v. Housing Authority, 42 Conn.App. 409, 413, 679 A.2d 987 (1996). The court will not award attorneys fees as there is no authority to do so.
VI. RELIEF
Accordingly, the court enters the following orders: 1. The defendants are required to immediately remove, at their own expense, the debris storage shed/area from within the lawful fifty-foot side and rear setback areas of the defendants' properties as well as all animal waste.
2. The defendants are prohibited from allowing their animals from entering the lawful fifty-foot side and rear yard setback areas of the defendants' properties.
3. The defendants are required, at their own cost and expense, to remove any trees, shrubs, walls and/or other impediments affecting the plaintiffs' or others' appropriate sight lines along Sunny View Drive, either entering or exiting the plaintiff's properties.
4. The plaintiffs are awarded costs.