Opinion
No. CV-04-833336-S
January 14, 2005
MEMORANDUM OF DECISION
On occasion, neighbors become involved in disputes which spiral upward and land in court. This is such a case.
Plaintiffs, residents of 37 Porter Drive in West Hartford, claim that defendants, their neighbors with whom they share a common border and who reside at 35 Porter Drive, are planning to erect a four-car garage in a location near to their house, out of spite. In the First Count of their April 6, 2004 complaint, plaintiffs seek an injunction pursuant to Gen. Stat. Section 52-480, claiming that the planned garage is a malicious structure intended to annoy and injure them. In the Second Count, plaintiffs seek damages for the loss of use and diminution of the value of their property pursuant to Section 52-570 in the event the structure is built.
Section 52-480, Injunction against malicious erection of structure, states as follows:
An injunction may be granted against the malicious erection, by or with the consent of an owner, lessee or person entitled to the 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.
Section 52-570, Action for malicious erection of structure, states as follows:
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.
Defendants in their answer deny plaintiffs' allegations, have filed special defenses, and have filed a counterclaim dated July 16, 2004. In the First Count of the counterclaim, defendants claim pursuant to § 52-480 that the approximately lower 40 linear feet of the plaintiffs' 80-foot-long fence, which runs adjacent to their driveway and down toward, but not to, the street, is itself a malicious structure and that the Court should order these 40 feet removed. In the Second Count of the Counterclaim, defendants seek damages for the loss in their property's value due to the plaintiffs' fence. In the Third Count, the plaintiffs claim that the objected to 40 linear feet of the fence, being excessively high and more than one-half solid in violation of West Hartford Zoning Regulations, constitutes a nuisance because it interferes with defendants' view of traffic when they are operating their cars in their driveway.
For the reasons stated below, the Court finds that neither the plaintiffs nor the defendants are entitled to the requested relief.
This case is a companion to the case of Paul Tchernotzkas, et al. v. West Hartford Zoning Board of Appeals, et al., Docket No. CV 04-0835317, decided contemporaneously with this decision.
Background and Evidence at Trial
Trial in this case began on September 30, 2004, and continued until October 8, 2004. Both sides made detailed presentations of evidence. A viewing of the locations took place on October 8, 2004. Plaintiffs' Exhibit 25. Both sides have submitted detailed proposed findings of fact and conclusions of law. Additional argument was held on January 5, 2005. What follows is a summary of the most significant evidence, from the Court's point of view. I have not attempted to recount every detail of the testimony.
Paul Tchernotzkas testified that he and his wife had lived at 37 Porter Drive for approximately nine years. Plaintiffs' Exhibit 1, 2 and 3. He and his wife own the property. Their single-family house is located in a residential neighborhood. The Friars were already residing at 35 Porter Drive when they moved in. The houses are similar in design. Plaintiffs' house has an addition. When plaintiffs moved in, according to Mr. Tchernotzkas, defendants were friendly. David Friar bought a leaf blower and they agreed to split the cost and share its use. According to Mr. Tchernotzkas, things started to sour when Mr. Friar told Mr. Tchernotzkas not to allow the Tchernotzkases' gardener, Santos, to go across the Friars' property to dump leaves and other detritus in the woods behind the Friars' house. Mr. Tchernotzkas also testified that Mr. Friar told him that Mrs. Friar did not want to see the gardener walking around with his shirt off. At some point, believed to be in 2002, Mr. Tchernotzkas testified, the Friars put up a green wire tomato fence to cut off access to the wooded area behind the Friar's house where Santos was dumping leaves. Subsequently, defendants put up a fence directly in front of his window, without providing any notice, Mr. Tchernotzkas testified. By this time, defendants ignored them, he testified. Subsequently, according to Mr. Tchernotzkas, defendants brought a survey crew to the house and informed plaintiffs that the fence on plaintiffs' property was encroaching on the defendants' property, and demanded that it be moved. Plaintiffs have erected their fence, after the shrubs had been removed, to block out the constant noise that plaintiffs heard from the defendants' cars. Plaintiffs' Exhibit 4. The fence also provides privacy and a visual boundary which blocks out light and noise, given that the defendant was constantly driving his cars in and out, moving them, or washing them as early as 7 a.m. on weekends. Mr. Tchernotzkas testified that the Friars could see through the fence and that the town's regulations concerning height and openness of fences are not routinely enforced. At some point — Mr. Tchernotzkas is not clear when, but perhaps in the spring of 2003 — Mr. Tchernotzkas said he observed Mr. Friar with a smirk on his face, facing plaintiffs' property, state to a friend: "I'll fix his ass." On cross-examination, Mr. Tchernotzkas said he saw Mr. Friar wave his hands and state "I'll show his ass." Mr. Tchernotzkas construed this to be a reference to Mr. Friar's spiteful intention to build the proposed garage. See Plaintiffs' Exhibit 5, Building/Zoning Permit; Plaintiffs' Exhibits 7 and 8; Plaintiffs' Exhibits 22 and 23.
Plaintiffs' Exhibit 10 was introduced to demonstrate the present view; Plaintiffs' Exhibit 11, utilizing a tarp, was introduced to show what plaintiffs believed would be their obstructed view from a picture window inside their house if the proposed garage is built. Mr. Tchernotzkas testified that one of the principal reasons he and his wife purchased their house was because of the view out the picture window, which will be obstructed by the proposed garage. This is where the sun comes up, where a portion of the woods is clearly visible, and where the Hartford skyline can sometimes be viewed through the trees. Light will be blocked and the view will be obstructed; so will the view to the east from the deck, which extends from the living room, he testified. Mr. Tchernotzkas testified that the house, purchased for $300,000 in 1995, was on the market with a $629,000 asking price. The proposed addition will have a negative impact on the house's value, he testified. However, he stated that $629,000 was a fair and appropriate asking price. He also stated that a buyer might choose to pay $629,000 in spite of the proposed construction. He also confirmed, see Defendants' Exhibit D, that a Prudential advertisement for the house described it as a "Fantastic contemporary . . . w/great open feeling." See also Defendants' Exhibits E, F, G, H, I and L. On cross-examination, Mr. Tchernotzkas conceded that he "presumed" the proposed garage was intended to house defendants' cars. He further conceded that the proposed garage "probably is" useful to the defendant. He stated that he had owned a Porsche and a motorcycle, and acknowledged that a garage protects vehicles from the elements. He further testified that when the leaves on the trees are full, he is unable to see downtown Hartford.
With respect to the proposed structure, the evidence at trial indicated that it will be 25 X 40 feet, with a height of 15' 10" at the highest point, and an average height of 15 feet. At its closest, it will be between 12 to 16 feet from the Tchernotzkas' residence. The peak of the proposed garage would be higher than that of the Tchernotzkases' house, interfering with the view through a picture window in their living room, to a greater or lesser extent, depending on where one is standing. The picture window presently permits light to flow into the Tchernotzkases' living room, dining room, and kitchen. Through the picture window, the wooded area behind the Friars' house — owned by the town — can be seen.
Keith Burritt, a certified residential real estate appraiser who has run his own business since 1986 and who also invests in real estate, testified that he had examined 35 and 37 Porter Drive, and has reviewed the proposed garage plans. He testified that the Tchernotzkas house, a contemporary dwelling, lets in significant amounts of light. He testified that the proposed project would "negatively affect the value and market appeal" of the Tchernotzkas property by blocking access to the view of the woods, and by interfering with the free flow of light into the house. The structure might also interfere with the view from a side deck. He testified he had not been asked to do an appraisal of the value of the house and therefore offered no opinion as to the amount by which the value of the house might be diminished. He agreed, on cross-examination, that additional garage space can be useful to someone who has more cars than garage space.
Monica Wolff, Paul Tchernotzkas' wife, testified. A graphic designer, she testified that she and her husband spent two to three years looking for a contemporary house, until they came upon 37 Porter Drive. She liked the light, the open views, and the sense of open space. Given her work, aesthetics plays an important role in her life. The proposed building, in her opinion, will "totally block" the view from the east window and will negatively impact her enjoyment of the house by blocking out light, space and unimpeded views of nature. She testified that she spends 95 percent of her time in the kitchen or family room and often goes to the kitchen for a cup of coffee to look east and watch the sun rise. The proposed addition will make this impossible. She testified that she and her husband had decided to put their house on the market due to "negative" feelings toward the Friars. She stated that the Friars' erection of fences showed malice. First they put up a tomato fence; then they put up a wooden fence between their properties without discussion. Then they moved the wooden fence closer to their window. Then the plaintiffs erected a fence and the defendants' moved a portion of their fence again. Prior to that, they had a common planting bed. Then friction arose over Santos.
Joseph Masi, West Hartford's assistant zoning enforcement officer, testified. He worked with Mr. Friar and his architect in connection with the proposed garage to ensure that it met all town height and side yard setback requirements, and all other aspects of the zoning code. At first, the proposal wasn't sufficient to gain needed approvals, but it was modified and later did meet required standards. The town had "gone overboard" in ensuring that the proposal complied with required codes and regulations, he testified. See Plaintiffs' Exhibit 22, final site plan. His first contact with plaintiffs was in connection with the Friars' complaint that plaintiffs' fence was too high and thus out of compliance with code. Defendants' Exhibits O, P and Q. With respect to the counterclaim, Mr. Masi testified that West Hartford regulations, see 177-20(D)(1) imposed a four-foot-high limitation, and a 50 percent openness requirement. The contested portion of the fence met the height requirement when he inspected it, he stated. While it technically did not meet the openness requirement, Mr. Masi noted that wooden pickets were routinely wider than the open space between them, for practical reasons.
Sylvia Newman testified. A landscape architect employed by David Friar, she performed the site design for the proposed garage. She testified that David Friar approached her about two years ago, wanting help in designing a four-car garage that would not require a variance. She worked with Michael Serrano, an architect. Ms. Newman stated she spoke to Mr. Masi to address compliance and drainage issues, and realigned the plan accordingly. She testified that 25 feet by 40 feet was a "minimal" size for a four-car garage. The location that was selected for the garage was the most "logical" site on the Friars' property for ease of use, she said. She testified she believes the planned location is the best place for the garage. She stated she was never told to site the garage so as to obstruct the Tchernotzkases' view. "I was told simply to site the garage to make it as usable as possible," she stated. On cross-examination, she testified that "This was the most useful location for this garage to be placed on the property." She testified that it would be hard to turn a Ferrari around if the garage were located on any other area of the property, given the large turning radius of a Ferrari, a subject she had researched. In siting the garage, she did not take into account the impact on the neighbors. The proposed structure could have been brought closer to the plaintiffs' home and still complied with town regulations.
Alan Bongiovanni, a licensed land surveyor, testified that he did a land survey for plaintiffs.
Michael Serrano, a licensed architect who has worked for Friar Associates for two years, testified that David Friar asked him to work with Sylvia Newman in designing the garage. Ms. Newman decided the site location. Mr. Serrano focused on details to make the garage match the house. Mr. Serrano testified that Mr. Masi expressed concern about avoiding possible drainage of water onto the plaintiffs' property, and that he did what Mr. Masi wanted to address these concerns. He testified that the height of the roof was not unusual for such a structure. Mr. Friar asked him to prepare a computer rendering of the extent to which the Tchernotzkases' view would be blocked by the proposed garage. Defendants' Exhibit T. Mr. Serrano testified that this rendering was accurate, assuming a camera height of 5' 6" looking straight out the plaintiffs' window, placing the structure 10 feet from the plaintiffs' window. He uses similar renderings to model buildings for clients. A rendering prepared by plaintiffs using a tarp to demonstrate the nature of the obstruction, Plaintiffs' Exhibit 10, was not mathematically accurate in his view. The fourth page of Plaintiffs' Exhibit 23, which postulates a high degree of blockage, is misleading because the perspective is inaccurate, he opined. Exhibit U, another computer graphic, depicts a view from another area in the plaintiffs' room, which will be subject to blockage. Mr. Serrano testified that David Friar never asked him to design the garage so as to obstruct plaintiffs' view. Had he wanted to, he could have designed the building to create greater blockage and still adhere to code requirements.
Fiona M. Friar testified. At first, the relationship with the plaintiffs was cordial. She then became concerned when Santos dragged leaves through defendants' backyard in a tarp and dumped them in the woods behind defendants' house. Despite her request to plaintiffs that this stop, it continued. In response, she brought a small tomato fence and tied it to an existing chain link fence to block Santos from bringing the leaves onto her property. She was never bothered by the fact that Santos was barechested. In April 2003, Mrs. Friar testified, she and her husband were driving out of the driveway and observed Mr. Tchernotzkas pounding a stake into the ground.
He complained that a truck removing a dumpster from the Friars' house had left a tire print on his planting bed. Words were exchanged, and Mr. Tchernotzkas raised up the mallet he was using — in what Mrs. Friar took to be a threatening gesture — stating: "What are you going to do about it?" Mr. Friar removed the stake. He informed Ms. Tchernotzkas that the damage had been caused by an Allwaste truck working at their house, and that it would be remedied. Mrs. Friar testified further that she objected to the lower 40 feet of the fence because the slats do not provide sufficient opening to clearly see through them when backing a car out of the driveway toward the street. Defendants have three "beautiful" Ferraris, which they use regularly, and three other daily use cars. Wind and snow can damage the cars when they are left outside; so can tree limbs. Her husband wants the cars kept clean with no dings. She agrees that her husband has a "car fetish," and she has become a car enthusiast, too. She testified further to a dispute over shrubs and provided testimony about the history of the dispute related to the fences on both properties.
David Friar testified that the residence at 35 Porter Drive had been purchased in 1988. He and his wife had a cordial relationship with the Sodels, who sold 37 Porter Drive to the Tchernotzkases in 1995. Neither the Friars nor the Sodels had erected any physical structure near the boundary line between the two properties. The Friars own an existing two-car garage which contains a work space where a small sports car is located, on dollies. His wife put up a tomato fence only after the problem with Santos had developed, and he informed Mr. Tchernotzkas why it had been put up. He testified that during the incident in which Mr. Tchernotzkas had driven the stake into the ground, he, Mr. Friar, had pulled the stake out because he believed it was on his property. He stated to the West Hartford ZBA on May 19, 2004 that after his relationship with his neighbor started to deteriorate, he had an A-2 boundary survey done, but that plaintiffs objected to where property stakes had been placed. In turn, the Tchernotzkases had a survey done, resulting in survey stakes being placed within millimeters from each other. After the survey, the Friars put up the wooden fence. Plaintiffs responded with a wooden fence of their own, in close proximity to defendants' fence. Both families had hired surveyors to determine exactly where the boundary between the houses were and to ensure that their respective fences were properly located. Defendants complained to Mr. Masi about plaintiffs' wooden fence on the ground that it was higher than permitted and more than one-half solid.
Mr. Friar testified that the proposed garage was intended to house the Ferraris, which he had been collecting for six years and which gave him enormous pleasure. They were an investment, and their total value was about a quarter of a million dollars. Mr. Friar testified that he planned to sell them at retirement. Moreover, he used the vehicles in charitable events, including one for Connecticut Children's Medical Center. As for the proposed location of the garage, he testified: "It's the only place on the property it fits." He also stated: "The only logical place to place the structure is on that rear corner." He discussed the matter with Mike Serrano and Sylvia Newman, both of whom worked at Mr. Friar's architectural firm, and told them he wanted to comply with zoning requirements and wanted it to blend aesthetically with his house. He gave no instructions to Mr. Serrano or Ms. Newman to block the view from his neighbors' window. At the same time, he did not take the Tchernotzkases' view into consideration and was unconcerned about the impact it might have. He told Mr. Serrano and Ms. Newman to find the best and highest utilization. Mr. Friar testified about the size of the structure, and the pitch of the roof. The width was influenced, in part, by the need for space given the fact that Ferrari doors open very wide. The structure was about one foot less tall than what zoning permitted. He met with Mr. Masi to discuss the project. He did not recall ever making the "I'll fix his ass" statement, and tends to make gestures when he talks. He noted that the original house at 37 Porter Drive did not have an addition; the addition has obstructed part of his view from 35 Porter Drive, he stated. Prior to the dispute escalating, the parties had agreed to jointly work on a planting bed that runs along approximately 60 feet of the boundary perpendicular to Porter Drive and about to the northwest corner of the Friar house.
By July 2003, the Friars had erected a wooden fence between the properties. Plaintiffs then erected their own fence close to defendants' fence. This fence is approximately 80 linear feet. In November 2003, according to Mr. Friar, defendants moved their fence to the surveyed property line separating the properties, closer to the Tchernotzkases' house.
With respect to 40 feet of the plaintiffs' fence leading down toward the street, he stated that it obstructed a clear view of children and animals when one is backing a car out of the driveway because you cannot see through the narrow fence openings, which, he asserted, do not comply with town regulations. See Defendants' Exhibits JJ, LL, MM, NN and OO. The lower 40 feet is also higher than permitted by town regulations and thus creates a hazard because it obstructs a view of pedestrians. While the higher portion of the fence serves a purpose, the lower 40 foot portion is "ugly," "serves no purpose" and has an adverse impact on the street appeal of the view and the value of the property, Mr. Friar stated. Mr. Masi had told him the fence openings do not comply with town regulations but that it had been overlooked.
There was substantial testimony about various fences, in particular, the two fences between the properties, which contributed substantially to the breakdown of the relationship between the parties.
As indicated, in 2002, the Friars put up a tomato fence to keep Santos off their property. Sometime in the spring or summer of 2003, the Friars had a survey done, after which they erected a wooden fence along the boundary line. This fence was completed in July 2003. Subsequently, this fence was moved closer to the Tchernotzkas property. The Tchernotzkases also built a fence, lining up with the Friar's fence, which included the lower 40 linear feet leading toward, but not all the way down to, the street. There is some dispute as to when the Friars moved their fence. The Friars claim it was after the Tchernotzkases built their fence; the Tchernotzkases claim it was before.
Legal Analysis
The principal disputed legal issue raised by this case is whether, and to what extent, a party alleging a malicious erection of a structure pursuant to Gen. Stat. Section 480 must prove that the structure is useful. Defendants argue, to simplify, that plaintiffs must demonstrate that the proposed structure is entirely useless to prevail, irrespective of defendants' subjective motives, which, in any event, are claimed to be entirely appropriate. Plaintiffs argue, again to simplify, that uselessness is not an essential element that must be proven; and that an inquiry into usefulness and uselessness in no way resolves the issue, but is merely one part of a larger inquiry involving a number of factors.
To put this issue in proper perspective, it is necessary to review in detail the relevant case law, which has evidenced some conflicting signals as to the extent to which a person's subjective motive should restrict his ability to lawfully make use of his land, and the proper place a structure's usefulness, or uselessness, should have in evaluating claims of this sort.
In Harbison v. White, 46 Conn. 106 (1878), the petitioner, owner of a boarding house, claimed that a structure erected at night by a neighbor consisting of boards and posts, and a little over three feet from petitioner's block of houses, was erected with malicious intent. Petitioner claimed the structure, eighteen feet high and more than eighty-four feet long, excluded light and air from the basement, lower story and one-half of the second story of the block houses, rendering them less rentable. The trial court issued an injunction requiring removal of the structure. Focusing on the motive of the person erecting the structure, and construing the Act of 1867 which was the predecessor to Section 52-480, the court upheld the granting of the injunction. Explaining its logic and rejecting the respondents' claim that the structure served a useful purpose, the Court stated that:
Where one from pure malice shuts off air and light from his neighbor's dwelling, this statute obviously intends to give the injured person more effective and speedy relief than comes from successive and long delayed actions at law for damages. Whenever one has formed a malicious plan and allowed his neighbor to have seasonable knowledge of his intention to execute it, he against whom the plan is executed has the power to prevent it by injunction . . . The respondents argue that inasmuch as the structure screened their premises from persons occupying the petitioner's house, they can maintain it. To concede this would be to nullify the statute; for it is not possible for malice to conceive any kind of structure which would not in some measure protect premises from observation. The finding is that malice prompted the erection of the structure in question. That it protected from observation must be regarded as an incident. The statute concerns itself wholly with motive; therefore it enquires for that; that found to he malicious, the statute disregards the incident, and puts an immediate end to the wrong by injunction.
(Emphasis added.) Id., 108-09.
Two years later, the Supreme Court decided Gallagher v. Dodge, 48 Conn. 387 (1880). In Gallagher, petitioners sought to enjoin respondents from erecting a show case in front of respondent's store which was to be placed so as to obstruct a side window in the plaintiff's store. As in Harbison, the structure as to which the injunction was sought was wholly on the respondents' land. The respondents had two objects in seeking to construct the showcase, said the court: first, to display their own goods; and second, to prevent the public from seeing the goods of the occupant of petitioner's store through a side window. The court acknowledged that it was facing the "difficult question" of where to draw the line between "structures that are useful and proper in themselves, but into the erection of which a subordinate malicious motive enters, and those where the malicious intent is the leading feature of the act, and the possible usefulness of the structure a mere incident." Id., 391-2. Referring to the court's focus on malicious purpose in Harbison, the court stated as follows:
[W]e regard the predominance of the malicious motive as generally essential to a case in which the court will think itself justified in interfering . . . We think we do not go too far in saying that this malicious intent must be so predominating as a motive as to give character to the structure. It must be so manifest and positive that the real usefulness of the structure will be as manifestly subordinate and incidental. The law regards with jealousy all attempts to limit the use to which a man may put his own property. This right to use is always subject to the wholesome limitation of the common law, that every one must use his own property as not to injure another's, and the person who violates this rule is liable to the person injured whether he has any malicious intent or not; but here the new principle is introduced, that the land owner may erect no structure on his own premises, however lawful it would otherwise be, if he does it maliciously, with intent to annoy his neighbor. The common law has always regarded the existence of malice in the exercise or pursuit of one's legal rights as of no consequence . . . The inquiry into and adjudication upon a man's motives has always been regarded as beyond the domain of civil jurisprudence, which resorts to presumptions of malice from a party's acts instead of enquiring into the inner workings of his mind. When, therefore, we enquire how far a man was actuated by malice in erecting a structure upon his own land, we are enquiring after something that it will always be very difficult to ascertain, unless we adopt, as in other cases where the courts enquire after malice, a presumption of malice from the act done. And in this view of the matter we think no rule can be laid down that is on the whole more easy of application, and more likely to be correct in its application, than that the structure intended by the statute must be one which from its character or location, or use, must strike an ordinary beholder as manifestly erected with a leading purpose to annoy the adjoining owner or occupant in his use of his premises.
Id., 392-93. (Emphasis supplied.)
In 1903, the case of Whitlock v. Uhle, 75 Conn. 423 (1903), was decided by the Supreme Court. The issue in Whitlock, as in many spite cases, was a fence. The Supreme Court upheld the decision of the trial court that five and one half feet of tight boards above a picket fence was erected in order to injure and annoy the plaintiff, and granting an injunction. First, the court characterized the conditions which a plaintiff must satisfy to maintain an action under the Act of 1867 as follows:
A structure erected on the owner's land; a malicious erection of the structure; an impairment thereby of the value of adjacent land; an intent by means of the structure to injure the adjacent owner in the enjoyment or disposition of his land. Briefly stated, the Act is this: The erection of any structure on one's own land, which impairs the value of adjacent land, shall hereafter create a liability to pay the damage thus caused, when the structure is maliciously erected with an intent thereby to injure the adjacent owner in the use or disposition of his land; and the commission of such injuries may be restrained by injunction.
Because the Act was in derogation of common law, the court continued, it should be narrowly applied. Id., 426. The evil which the Act was intended to remedy, continued the court:
[I]s not the use of one's own land for maintaining a nuisance by which a neighbor suffers damage . . . Still less is it the bickerings, spite, and hatred arising from neighborhood quarrels; it is difficult for any legislation to remedy such evil. Plainly, the real evil consists in the occasional subjection of a landowner to the impairment of the value of his land by the erection or a structure which substantially serves, and is intended to serve, no purpose other but to injure him in the enjoyment of his land . . .
Id., 426-27. (Emphasis supplied.)
The court went on to discuss what sort of evidence related to proving an element of the cause of action, e.g., that the party erecting the structure intended to injure the adjoining landowner in the enjoyment or disposition of his land:
We think it follows from this purpose of the Act . . . 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 adjacent land and injure the owner in its use, from the absence of the reasonable possibility of any real advantage, whether of 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 face, 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 relating to the thing done, its purpose and effect, and does not intend on the existence or nonexistence of personal spite or ill-will. The intention is not the motive from which it may have sprung, but the established purpose, from whatever motive, to use the land in a manner not 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 wilfully erected, it is maliciously erected; that is, it is erected in knowing disregard of the law and the rights of others.
Id., 427.
In the case of Whitlock v. Uhle, 21 Conn.Sup. 110 (1958), the issue once again was a fence. Judge McDonald characterized the holding of Whitlock v. Uhle as follows:
[T]he leading Connecticut case on the subject appears to be Whitlock v. Uhle, 75 Conn. Conn. 423, which specifies the ingredients necessary to state a cause of action under the two statutes mentioned above as follows: (1) A structure erected on the owner's (defendant's) land; (2) a malicious erection of the structure; (3) the intention to injure the enjoyment of the adjacent landowner's land by the erection of the structure; (4) an impairment of the value of adjacent land because of the structure; (5) the structure useless to the defendant; (6) the enjoyment of the adjacent landowner's land in fact impaired.
(Emphasis supplied.)
He added the following: "In other words, the question whether a structure was 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 person erecting it." Id., 111.
Finally, in DeCecco v. Beach, 164 Conn. 29 (1977), another "spite fence" case, the Supreme Court reviewed earlier case law and then stated as follows:
The intent to injure is determined 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 any real usefulness of the structure, or a portion of it in the present case, to the defendant, and from the character, location and surroundings of the structure itself; and, once it is established that malice was the primary motive in its erection, the fact that it also served to protect the defendant's premises from observation must be regarded as only incidental, since to hold otherwise would be to nullify the statutes.
Id., 32-33. (Emphasis supplied.)
See also Rutka v. Rzegocki, 132 Conn. 319 (1945); Berube v. Nagle, 81 Conn.App. 681 (2004).
Findings of Fact and Conclusions of Law: The Tchernotzkases' Malicious Structure Claim
1. A Structure Erected on the Defendant's Land: Based on the evidence produced at the trial, the plaintiffs have proven by a preponderance of the evidence that the planned structure will be on the defendant's land.
However, at trial, Mr. Tchernotzkas refused to concede that the proposed structure was entirely on defendants' land, claiming that he has recently become aware of new information that caused him to believe that a small portion of the proposed garage might encroach on his land and that he might wish to pursue an adverse possession claim. The Court denied plaintiffs' request to delay the trial so that this issue could be further investigated. Notwithstanding this testimony, which the court views as speculative, the court concludes that plaintiffs have proven this element.
2. A Malicious Erection of the Structure: Notwithstanding the history of enmity between the parties, the plaintiffs have failed to prove by a preponderance of the evidence that the defendants have planned a malicious erection. The plaintiffs' claim essentially rests on three arguments: first, that the overall sequence of events demonstrates that David Friar's decision to construct the garage came only after, and was caused by, the deterioration of the relationship between the neighbors; second, that David Friar's alleged statement, "I'll show his ass," evidences malice; and third, that the size and the location of the garage create the inference that the structure is being erected out of spite and malice. None of these arguments holds up to scrutiny.
As to the sequence of events generally, it is true that defendants' decision to build the garage came to fruition after the relationship between the neighbors had deteriorated. Plaintiffs' Exhibit 20. It is also true that David Friar told the ZBA that he completed the boundary survey after the relationship deteriorated. "Without the mutual ill will, there would have been no survey, and consequently no garage," plaintiffs state at page 6 of their Proposed Findings of Fact and Conclusions of Law. And Mr. Friar's testimony made it clear that he does not care whether the proposed structure will have an adverse impact on his neighbor. But plaintiffs' argument is based on a fallacy: the fact that the decision to build the garage followed the breakdown of the relationship does not mean that the decision was caused by the breakdown of the relationship. All of the evidence at trial indicated that David Friar has a passionate interest in his cars, and that this interest pre-existed the problems between the neighbors. The very most that can be said, from the plaintiffs' point of view, is that the breakdown of the relationship removed from the Friars' minds any potential concerns they might have had about the impact of the proposed garage on their neighbors.
As to the "I'll show his ass statement," David Friar has not denied making this statement, but has not admitted it. Even if the statement was made, it proves very little. It is by no means clear from the evidence that it was made in reference to the plan to build the proposed garage. Assuming for the sake of argument that it was, however, while it demonstrates some ill will, it falls far short of proving that the decision to proceed with the garage was actuated by malice. It is one thing to express negative feelings toward a neighbor; it is entirely another to conclude that the expression of such feelings is the cause of a decision as significant as erecting a $40,000 garage approximately 1300 square feet large. As noted above, Mr. Friar did not consider the impact the addition would have on his neighbor. Nonetheless, the evidence is clear that the Friars' primary motive in constructing the structure will be to provide a safe and secure structure to protect the valuable cars that will be housed inside it. The evidence is clear that Mr. Friar's love of his cars borders on an obsession, and predated the breakdown of the relationship between him and his wife and the Tchernotzkases. Mr. Friar uses the Ferraris for pleasure, as well as for charitable purposes. Mr. Friar testified that the cars are worth approximately a quarter of a million dollars, and that he intended to use the cars as part of his retirement plan. Sylvia Newman and Michael Serrano both testified that they were not told to site, or design, the structure so as to annoy the Tchernotzkases. The Court credits their testimony. The credible evidence demonstrates that the defendants believe that the location selected represents the optimal location available. The plaintiffs have failed to carry their burden in proving that the Friars are predominately motivated by malice.
As to the size and location of the proposed structure, it is true that it is quite large, relatively speaking, that it will be an anomaly in the neighborhood, and that it will be close to the plaintiffs' property line. It is also true, as noted, that Mr. Friar evidenced no concern about the impact the structure would have on his neighbors. However, the Court is not being asked to decide whether building the proposed structure would be a neighborly thing to do; the Court is being asked to decide whether it is lawful. The evidence at trial, including the testimony of Sylvia Newman and Michael Serrano, made it clear that there were logical, valid reasons to plan the garage at the height, width and depth planned. Also, the evidence was that the location chosen was the optimal location in the view of Sylvia Newman, who testified that she considered other possible locations on the site. In light of the full record, it is not possible to draw an inference from the size and location of the proposed structure that the decision to build it was actuated by malice.
3. The Intention to Injure the Enjoyment of the Adjacent Landowner's Land By the Erection of the Structure: For the reasons stated both above and below, the Court concludes that plaintiffs have failed to prove that it is a predominating motive of the defendants to injure the plaintiffs by erecting the proposed garage.
The Structure's Usefulness to the Defendants. As noted, Plaintiffs claim that a demonstration of uselessness is not an element they must prove, and that Judge McDonald in the Rapuano case improperly included it in the list of elements which must be proven. Plaintiffs claim that the uselessness, or usefulness, of a structure is one element in the analysis, but that they do not under the case law bear the proof of proving uselessness. Defendants disagree, and claim that a plaintiff bringing a malicious erection suit must prove that the proposed structure is useless to prevail. Defendants take the view that unless plaintiffs can demonstrate uselessness, plaintiffs cannot prevail.
Having considered the arguments of the parties and the case law, the Court concludes that the uselessness, or usefulness, of a structure is best evaluated as part of the analysis of element three — whether it was or will be erected with intention to injure the enjoyment of the adjacent landowner's land.
I agree with the plaintiffs' argument that the Rapuano court decision — a trial court decision — mischaracterized the essential elements which must be proven by a plaintiff alleging a malicious structure cause of action. Placing the language of Harbison, Gallagher, Whitlock and DeCocco under a microscope, nowhere is it specifically stated that uselessness in and of itself is a distinct element which must be proven. At the same time, review of the cases makes it clear that Rapuano is correct that analysis of a structure's uselessness and/or usefulness is a central and indispensable part of a broader inquiry into the required element of the intent to injure. Inquiry into the usefulness of a structure deserves heavy weight in the overall analysis because of the undoubted proposition that a property owner may put his property to any use he pleases, as long as zoning approvals are obtained, and as long as no undue harm is caused to a neighbor. Harbison does not speak directly to the full elements analysis required, but focuses on the subjective motive of the party building the challenged structure. While the court in Gallagher does not provide a comprehensive list of the elements which must be proven, it does provide a discussion of malice, but does so in the context of its analysis of the intent to injure element. Likewise, the Whitlock court's discussion of the uselessness/usefulness issue is made as part of a discussion of the intention of the landowner to injure his neighbor. See extended quotes from Gallagher and Whitlock above. See also DeCocco v. Beach, supra, at 32-33: "The intent to injure is determined 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 any real usefulness of the structure, or a portion of it in the present case, to the defendant, and from the character, location and surroundings of the structure itself . . ." But as indicated, the Court rejects the argument of the plaintiffs that it should draw the inference, from the size and location of the structure, that what is being planned is a malicious structure. See Plaintiffs' Reply to Defendants' Post-Trial Brief at pages 3-4. While it might be possible to draw such an inference in certain cases, the facts in this case simply do not permit it.
In light of all the evidence, the Court concludes that while the defendants did not care if the proposed structure was injurious to plaintiffs, the evidence falls short of proving that the defendants intend the structure to injure.
4. An Impairment of the Value of the Adjacent Land Because of the Structure: Solely for purposes of analyzing the First Count of the plaintiffs' complaint, the Court concludes that plaintiffs have proven by a preponderance of the evidence that the erection of the structure might impair the value of the adjacent land, but have fallen short of proving by a preponderance of the evidence that the value will be diminished. See the uncontradicted testimony of Keith Burritt that the proposed garage would negatively affect the market value of the property. The Court rejects the argument that because an exact value of the impairment cannot be established, this element cannot be proven insofar as it relates to the claim that the planned structure is a malicious erection. The structure will interfere with the plaintiffs' view through the picture window, to a lesser or greater extent, depending on where one is situated within plaintiffs' house. However, as discussed below, the evidence on this point is necessarily speculative. It is noted, also, that the plaintiffs' house has access to substantial light through other windows, and that wooded areas are viewable from other locations on plaintiffs' property.
5. The Enjoyment of the Adjacent Landowner's Land In Fact Impaired: While the structure has not yet been built, the Court concludes that when it is built, it will impair the enjoyment of the plaintiffs' land if they still reside at 37 Porter Drive. Even accepting defendants' argument as to the limited extent of the possible harm, it will interfere with the plaintiffs' view, and interfere with the flow of light into the residence, and view out from the picture window, particularly from the kitchen and deck areas. It will also interfere with their view of a portion of the woods behind the Friars' home. It is noted that both plaintiffs testified that one of the things that drew them to the house was its open, sunny quality, and that for Mrs. Tchernotzkas, aesthetic factors were essential in the decision to buy the house.
In summary, plaintiffs have failed to prove two of the essential elements of the First Count. Their claim for relief on this count is denied.
Findings of Fact — Count Two
The plaintiffs' claim for damages due to a claimed diminution in value of their home is denied. While there was testimony that the value of the property will be diminished, see above discussion of testimony of Keith Burritt, it is not possible to determine with any certainty what the amount of any such damages might be. Determining an amount would be highly speculative, because as Mr. Tchernotzkas testified, a buyer who has never lived in the house might very well pay the full asking price even knowing that the proposed structure was going to be built. See, e.g., Conway v. Prestia, 191 Conn. 484, 493-94, 464 A.2d 847 (1983) ("it is axiomatic that a claimant seeking damages bears the burden of proving, with reasonable certainty, those damages sustained as a result of his injury"). Therefore, while the proposed structure would certainly diminish the value of the house in the Tchernotzkases' view, it is not possible to reliability arrive at a damages award.
The Counterclaim
In their July 16, 2004, Counterclaim, the Friars allege in the First Count that the approximately 40 linear feet of plaintiffs' fencing between the building line and the street is a malicious structure in violation of Section 52-480. In the Second Count, the Friars seek money damages in connection with the fence. The Third Count alleges that the fence is a nuisance — or is a private enforcement action — due to the fact that it is over four feet high and the fact that it is more than half solid, in violation of Section 177-20D.(1) of the West Hartford Zoning Regulations, which states that "No structure shall be erected between the building and the street line except: (1) A wall or fence not over four feet in height and not more than 1/2 solid . . ." Plaintiffs dispute all counts of the counterclaim, relying in part on the legal maxim de minimis non curat lex — the law is not concerned with trifles.
The Friars have failed to carry their burden of persuasion on the First Count, having failed to prove most of the essential elements of this claim. While the Friars may not find the fence aesthetically pleasing, the evidence of malice is lacking. Mr. Tchernoskas testified that the fence blocked car lights and noise emanating from the Friars' many vehicles. The fence therefore has a bona fide use.
The Friars have also failed to prove harm to the value of their property, and have thus failed to prove the Second Count of the counterclaim.
The Third Count can be viewed as alleging a private nuisance, or as a private enforcement action, and seeks an order requiring the entire lower 40 feet to be removed. Plaintiffs claim that defendants have failed to adequately allege private nuisance, and have failed to prove a private enforcement action.
The elements of a private nuisance are set out in Berube v. Nagle, 81 Conn.App. 681, 694-96 (2004). "A private nuisance is a nontrespassory invasion of another's interest in the private use . . . of land." Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002). As the court stated in Berube, citing Pestey at 81 Conn.App. 695:
[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 maybe either intentional . . . (nuisance is created intentionally if defendant intends act that brings about condition found to be nuisance); 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. In balancing the interests, the fact finder must take into consideration all relevant factors, 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 to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable.
The determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modern society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable.
In the Court's view, the minor interference created by the fence in this case is not substantial enough to constitute a private nuisance.
Our Supreme Court in Karls v. Alexandra Realty Corp., 179 Conn. 390, 401-02 (1980), had this to say about the requirements of a private enforcement action:
Any 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, . . ." The issuance of an injunction is the exercise of an extraordinary power which rests within the sound discretion of the court, and the justiciable interest which entitles one to seek redress in an action for injunctive relief is at least one founded on the imminence of substantial and irreparable injury . . . It is not enough to show that the defendant has violated the zoning regulations. The plaintiff seeking injunctive relief bears the burden of proving facts which will establish irreparable harm as a result of that violation . . . In the present case, although the plaintiffs have shown that they may possibly suffer irreparable harm, i.e., emergency vehicles blocked by a car stuck in the right-of-way, they have failed to demonstrate that such harm is imminent or that it will necessarily be caused by the defendant's violation of the zoning regulations. In the absence of such a showing, an injunction cannot be issued. Injunctive relief may not lie where it is predicated on the fears and apprehensions of the party applying for it or where it would be incompatible with the equities of the case; . . . and likewise the power of equity to grant such relief may be exercised only under demanding circumstances . . . The extraordinary nature of injunctive relief requires that the harm complained of is occurring or will occur if the injunction is not granted. Although an absolute certainty is not required, it must appear that there is a substantial probability that but for the issuance of the injunction, the party seeking it will suffer irreparable harm . . . (Citations omitted.)
See also Miskimen v. Biber, 85 Conn.App. 615 (2004).
The evidence in this case demonstrates that the 40 feet at issue are technically out of compliance with zoning regulations as to openness. Based on the evidence, see Defendants' Exhibits MM, NN and OO, and testimony of Joseph Masi, as well as the Court's own personal observations, the Court agrees that this portion of the fence momentarily obstructs the view of drivers leaving the Friars' residence. At the same time, these 40 feet do not extend all the way to the road, permitting visibility near the road. One remedy to the problem is simply driving slowly and with caution. Moreover, as the court stressed in Karls, and as the law relating to injunctive relief makes clear, injunctions should not be granted unless substantial and irreparable harm is imminent. "Injunctive relief may not lie where it is predicated on the fears and apprehensions of the party applying for it or where it would be incompatible with the equities of the case." Id. Under all the circumstances, it is not possible to conclude that the potential problem caused by lower 40 feet are so serious, irreparable, or imminent that injunctive relief is required. The Friars claim for relief on the Third Count of the counterclaim is therefore denied.
Defendants' motion to dismiss for failure to make out a prima facie case, made at trial, is denied. Any other claim or defense asserted by either side, not addressed in this memorandum, is denied.
Douglas S. Lavine Judge, Superior Court