Opinion
CV156023514S
09-04-2018
Anthony J. TORCHIA et al. v. The GROTON LONG POINT ASSOCIATION, INC.
UNPUBLISHED OPINION
OPINION
Cosgrove, J.
In 2014, a group of children from Groton Long Point organized a bottle and can collection to raise money for a community project of their choice. They raised close to $1,000 and decided to purchase and then donated a GaGa Pit, a game set, to the Groton Long Point Association. The Groton Long Point Association (Association) accepted the gift of the GaGa Pit and placed it on its property adjacent to the lower lagoon, across the street from residences on Sound Breeze Avenue.
The GaGa Pit is a play scape that consists of an enclosure about two to three feet high and about twenty five feet in diameter. The game is played inside the enclosure. There is a soft rubber ball that is critical to the competition, roughly the size of a volleyball. The rules of the game were somewhat incomprehensible to the court but clearly and quickly understood by children from the approximate age of 5 through 18 and any adult or parent who took the time to play the game. Those who played the game had great fun and filled the air with yells, shouts, and shrieks of excitement and happiness for long periods of time.
The popularity of the game was almost immediate. The use of the GaGa pit would start shortly after breakfast with the younger children and continue through the day, with some additions and subtractions of children and some increase in the age of the participants. In the later afternoon, adolescents would join the game, and the games would continue until after sunset sometimes. The grass on the inside of the GaGa pit became dirt and dust but that did not decrease the enjoyment of the game. Sometimes, there would be twenty to thirty children or adults watching or playing the game at the same time.
The more popular the game became with the children, the more unpopular the game became with the plaintiffs who resided on Sound Breeze Avenue and adjacent streets near the GaGa Pit location. The plaintiffs and other persons complained to the Groton Long Point Police Department about the noise. The police responded to those complaints. These persons also complained to the elected leaders of the Association about the noise, the dust, the hours of operation, and the inability to enjoy their properties quietly and peaceably.
The complaints to the elected leaders of the Association were delivered personally and also at monthly meetings of the board. The community was divided. Some persons were of the opinion that the GaGa Pit was a great addition to the Groton Long Point community. It was popular with the children and gave them another activity other than swimming or sailing or tennis or volleyball or basketball or softball during their summer vacations at Groton Long Point. Some persons, particularly those who resided close to the location of the GaGa Pit, found the noise that generated from the GaGa Pit was so loud that they had to close the windows of their houses, and they could not enjoy their decks to watch the sunset. Even with the windows closed, the noise generated by the players of the game was intrusive and stressful. The dust was problematic, and there were safety concerns as times when the ball flew out of the pit and rolled across Sound Breeze Avenue.
A petition for noise abatement was circulated in October of 2014. Ninety-three owners and residents of Groton Long Point signed the petition. It described the noise as being "unreasonably invasive" and injuring the "quality of life." The petition asked the board to take action on the issues because of the rift between neighbors in the Groton Long Point community. "Mutual respect and consideration for our neighbors has always been highly valued among GLP residents ..." It requested the board to find a new location for the GaGa Pit "if in fact there exists one where the quality of life of the nearby owners and residents will not be threatened." There was testimony that the placement of the pit was arbitrary, and the impact on adjacent residences was not considered by the board or its officers.
Groton Long Point has approximately 1,000 year round residents and more than 5,000 summer residents.
At trial, the court heard multiple witnesses who expressed opinions about the character and quality of the noise generated by children playing within the GaGa Pit. Some witnesses described the sounds as obnoxious or causing worry that someone had gotten hurt. The sounds were described as constant and all day long. A renter of a residence on Sound Breeze Avenue described the GaGa Pit as "incredibly noisy, the language foul and the kids unsupervised." A different resident who resided close to the pit described the noise as positive noise, of kids being happy and playing independently. The Torchias presented video recordings of activity at the GaGa Pit that they took of activity at the GaGa Pit. The recordings showed many children playing, yelling, and occasional shrieking or screaming. The sounds were of happy children with an occasional piercing shriek or scream.
Some of the plaintiffs complained that the amount of rent that they could collect for their properties was reduced by the noise from the GaGa Pit. A realtor who specialized in seasonal or summer rentals at Groton Long Point did not see any diminution of rent obtained for properties that she managed near the facility.
The elected officers and board members of the Association heard the complaints at various board meetings and received the petition at their September and October 2014 board meetings. There were several responses by the Association. Astro turf was placed inside the GaGa Pit enclosure so as to reduce the dust. Further, the hours of use of the pit were restricted from 9:00 a.m. to 6:00 p.m. The police department was to place a cover over the pit to keep it from being used at night. In addition, a committee was formed to consider alternate locations for the pit. It was expected that the committee appointed by the board would make recommendations about the location of the GaGa Pit prior to the summer season of 2015.
The plaintiffs hired an attorney to prosecute their grievances in the fall of 2014. They were unhappy about the way their complaints had been received by the board. The attorney sent the board a letter citing bylaws and ordinances of the Association as they related to rough play and noise. The attorney also cited the purposes of the zoning regulations adopted by the Association. He complained that his clients’ properties were losing value and that their enjoyment of their property was injured by the unilateral decision to locate the GaGa Pit near their homes. He requested that the facility be relocated or perhaps be abandoned if no suitable location could be identified. The board did not respond to the letter.
Section 12 of the Ordinances of the Groton Long Point Association, Inc. reads, "Disorderly conduct, public nudity, and indecent behavior are prohibited. All forms of rough play, or activities or contests creating hazards to property or persons on Association property involving reckless endangerment are prohibited."
Section 17 of the Ordinances of the Groton Long Point Association, Inc. reads, "No person shall cause or allow any noise that infringes on the ability of others to enjoy the beaches and other Association property except as authorized by the Board of Directors."
In March of 2015, the plaintiffs, Anthony J. Torchia, Katherine B. Torchia, Peter Russo, Jeanne Tingo, trustee of the "Jeanne Tingo 2007 Revocable Trust," and Daniel L. Torchia, the trustee of the Daniel L. Torchia Trust on December 22, 2014 filed this action against the defendants: the Association, John Tuohy, former president and chief executive officer of the Association, and Michael J. Flynn, president and chief executive officer of the Association.
There were initially several other plaintiffs named in the complaint, but they have withdrawn from this action. Each of the remaining plaintiffs owned property in Groton Long Point or were the beneficiaries of trusts that owned property in Groton Long Point during the period of this dispute.
Once this litigation was commenced, the work of the board’s committee on the location of the GaGa Pit was suspended, and no further meetings were held.
The Complaint
This complaint, after revisions and amendments, sounds in five counts. The first count alleges the Association was negligent in permitting the use of the pit without "supervision whatsoever for the safety concern and well-being of the plaintiffs," in allowing "said Ball Pit, speed bumps, stop signs and trash receptacles, ... without erecting any safeguards adequate to determine courses of travel for vehicles, bicycles or pedestrians using the Ball Pit ..."; allowing "indiscriminate use of the property ... when ... such use caused an unreasonable risk of harm to the plaintiffs"; allowed use of the Pit "without providing safety measures for the plaintiffs"; by their failure to warn the plaintiffs; by failing to make a proper and reasonable inspection; and by maintaining the property in its condition.
The second count of the complaint alleges negligence on the part of the individual defendants, Tuohy and Flynn, in the carrying out of their duties as officers of the Association. It repeats the complaints articulated in the October letter to the Association and seeks statutory indemnification by the Association on account of the conduct or actions of those individuals.
The third count alleges against all defendants that they have created a public nuisance. The fourth count asserts an action for private nuisance against all defendants, and the fifth count alleges a breach of fiduciary duty as against the individual defendants.
The plaintiffs seek injunctive relief requiring the Association to remove the GaGa Pit from its current location near their residences; an immediate cessation of the use of the GaGa Pit, and the establishment of rules for its use anywhere where the GaGa Pit would be relocated; a declaratory judgment requiring the Association to adopt Zoning Regulations related to the placement, location, regulation and use of the ball pit; monetary damages for the loss of value of their properties; and attorneys fees. The plaintiffs bear the burden of proof with regard to these claims.
The defendants have answered the plaintiffs’ complaint and raised the special defense of governmental immunity. The court conducted a trial in this case on May 8, 9, 10, and 30. It heard testimony from the plaintiffs, renters of the plaintiffs’ properties, the defendants, current and former residents of Groton Long Point, and employees and officials of the Association.
Discussion
Fifth Count
The court will first address the fifth count of the complaint, which alleges a breach of fiduciary duty against the individual defendants in their capacities as officers of the Association. The plaintiffs argue that as elected officials of the Association, the defendants were obligated to act in such a way as to protect the plaintiffs’ interests as defined by the plaintiffs. They further complain that these officers failed to accept certain recommendations made by the Association’s insurance carrier as to the location of the GaGa Pit. The plaintiffs claim the location has diminished the plaintiffs’ property values, has resulted in a loss of rental income, and has diminished the plaintiffs’ enjoyment of their real property.
The plaintiffs cite no legal authority for recognizing the creation of a fiduciary duty between an elected official and particular members of the public. The defendants direct the court to the case of Candlewood Hills Tax District v. Medina, 143 Conn.App. 230, 245, cert. denied, 310 Conn. 929 (2013), for the proposition that "under Connecticut law, municipal officers, such as the defendants, do not owe a fiduciary duty to the public whom they serve except as may be imposed by statute under specific circumstances."
The plaintiffs have not identified any statute creating an exception. The bylaws and ordinances of the Association give the individuals discretion in carrying out their responsibilities to manage the Association, including the acceptance of and location of a gift of a recreational facility. The duties owed are to all members of the Association and not to specific individual members.
Here, there was a disagreement in the body politic about the GaGa Pit. The plaintiffs’ remedies on this count are political as opposed to legal. There was no proof that a fiduciary relationship existed between the plaintiffs and the defendants, and therefore there can be no breach. The plaintiffs have not provided persuasive evidence that they are entitled to relief under this theory of liability.
First and Second Count
The court next turns to the plaintiffs’ claims for relief under their theories of negligence and indemnification, counts one and two of the complaint.
The plaintiffs complained they were not given advance notice of when or where the GaGa Pit was to be installed. There was testimony that the Association was unfamiliar with the game and that the board members were surprised at its popularity. The primary thrust of the plaintiffs’ claims is that the facility is a generator of excessive noise and that another location should be identified for it or it should be removed. As previously described, the plaintiffs claim the defendants have acted unreasonably and negligently in permitting the use of the facility without "supervision whatsoever for the safety, concern and well-being of the plaintiffs," in allowing "said Ball Pit, speed bumps, stop signs and trash receptacles, ... without erecting any safeguards adequate to determine courses of travel for vehicles, bicycles or pedestrians using the Ball Pit ..."; allowing "indiscriminate use of the property ... when ... such use caused an unreasonable risk of harm to the plaintiffs"; allowed use of the Pit "without providing safety measures for the plaintiffs"; by their failure to warn the plaintiffs; by failing to make a proper and reasonable inspection and by maintaining the property in its condition.
Each of these allegations and the testimony that tended to support them complain of discretionary acts on the part of the Association, acting through its board, its officers, Tuohy and Flynn, or its employees. Issues of supervision, hours of operation, installation of stop signs, speed bumps, safeguards, or lack of safeguards are all actions that call for the exercise of discretion. These actions are protected by the doctrine of governmental immunity, codified by statute. Section 52-557n(a)(2)(B) provides in part, "[e]xcept as otherwise provided by law, a political subdivision of the state shall not be liable for damages to person or property caused by ... negligent acts or omissions which require the exercise of judgment or discretion as an official function of the authority expressly or impliedly granted by law." The decision of where to place the GaGa Pit was an exercise of judgment or discretion. Whether it was a wise or poor judgment, the exercise of such discretion does not and cannot create negligence liability.
The conduct of Mr. Tuohy and Mr. Flynn was also discretionary in nature. The evidence in this case demonstrated that the body politic of Groton Long Point was divided on the location and/or use of the GaGa Pit as a recreational facility for residents at Groton Long Point. The witnesses’ testimonies were in conflict regarding the quality and the amount of the noise generated by the use of the GaGa Pit. Some of the residents living closest to the facility, including the plaintiffs in this case, testified that the use of the GaGa Pit interfered significantly with their enjoyment of their property. Many other residents, including some who also lived close to the facility, believed that the GaGa Pit was a wonderful addition to the recreational activities available to the residents of Groton Long Point. The noise was of children playing.
There was testimony that Tuohy or Flynn acted without consultation in initially locating the facility or curtailing the hours or conditions of usage. The court also heard more persuasive testimony that there was discussion and consideration by the Association of the acceptance of and the location of the GaGa Pit. The court is persuaded that the actions complained of are discretionary. This type of conduct is also statutorily protected. § 52-557n(b) provides,
Notwithstanding the provisions of subsection (a) of this section ... any employee, officer or agent (of a political subdivision of the state) acting within the scope of his employment or official duties shall not be liable for damages to person or property resulting from ... (7) the issuance ... or failure or refusal to issue, deny, suspend or revoke any ... approval, order or similar authorization. When such authority is a discretionary function by law, unless such issuance, denial, suspension or revocation or such failure or refusal constitutes a reckless disregard for health or safety; (8) failure to make an inspection or making an inadequate or negligent inspection of any property, other than property owned ... by ... such political subdivision, to determine whether the property complies with or violates any law or contains a hazard to health or safety, unless the political subdivision had notice of such a violation of law or such a hazard or unless such failure to inspect or such inadequate or negligent inspection constitutes a reckless disregard for health or safety under all the relevant circumstances.
The plaintiffs argue that the Association’s bylaws, charter, and ordinances created duties owed to the plaintiffs by either the Association or its officers. This is a misreading of those documents. The charter of the Association articulates the powers that it may exercise as a municipal corporation under the statutes and laws of the state of Connecticut. It defines how the Association organizes itself and carries on its business, including the adoption of bylaws and the passage of ordinances to carry out these municipal powers and responsibilities. The bylaws identify the responsibilities of the president of the Association, including presiding over meetings of the Association and the board; voting, when necessary to break a tie; being a member, ex officio for all commissions and committees; approving all contracts and bills; having discretion to establish ad hoc committees; and assigning duties to the directors and the officers. Nevertheless, nothing in the bylaws created a specific duty owed to the plaintiffs, as opposed to all of the body politic of the Association.
The ordinances of the Association limits the times and dates when noisy construction activity is allowed (Section 13); prohibits all forms of rough play, activities, or contests creating hazards to property or persons on Association property, involving reckless endangerment (Section 12); and restricts persons to "cause or allow any noise that infringes on the ability of others to enjoy the beaches and other Association property except as authorized by the board of directors" (Section 17). The enforcement of each of the ordinances calls for the exercise of discretion. The plaintiffs in their post-trial brief direct the court’s attention to a bylaw that defines the function of the Groton Long Point Zoning Commission. The court notes that the zoning commission is not a party to this action, and the evidence in the trial did not implicate any action taken by the zoning commission.
The ordinances do reflect recognition that many of the homes at Groton Long Point are located on small lots and that the activities of neighbors can affect their neighbors’ use and enjoyment of their property. The ordinances also recognize that summer time is the season when most residents take advantage of the beauty and location of their homes at Groton Long Point.
There was evidence that the defendants responded to the complaints of the plaintiffs and others by limiting the hours of operation of the GaGa Pit, curtailing the dust emanating from the game, and responding to complaints of noise. The plaintiffs have not met their burden of proof that they were injured by the negligence of the defendants or that they fell within one of the exceptions recognized in the jurisprudence of governmental immunity. The defendants have provided credible evidence that they exercised their discretion in accepting the GaGa Pit, deciding where to locate the pit, and restricting the use of the Pit in response to complaints. Thus, they are entitled to governmental immunity with regard to this conduct.
Third Counts and Four
Public Nuisance and Private Nuisance
"[The Supreme Court] has stated often that a plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury [on] person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs’ injuries and damages ... In addition, when the alleged tortfeasor is a municipality, our common law requires that the plaintiff also prove that the defendants, by some positive act, created the condition constituting the nuisance." (Citation omitted; internal quotation marks omitted.) Picco v. Voluntown, 295 Conn. 141, 146, 989 A.2d 593 (2010) (concluding that allegations that the municipal defendant "knew or should have known of [a] tree’s dangerous propensities" were insufficient to state a viable cause of action in public nuisance because it did not allege a positive act).
Picco considered a nuisance claim under General Statutes § 52-557n(a)(1)(C). In the present case, neither the plaintiffs nor the defendants have made references to the statute. Therefore, this claim is brought exclusively under the common law. Nevertheless, Picco asserted that "§ 52-557n(a)(1)(C), ... as with the common law, [imposes liability] ... only when a municipality has engaged in some positive act that results in the creation of the nuisance." (Emphasis added.) Id., 151. Therefore, Picco is instructive about the parameters of the positive act requirement at common law. In construing § 52-557n(a)(1)(C), the court concluded that a municipality is liable "only when [it] positively acts (does something) to create (cause) the alleged nuisance." (Emphasis in original.) Id., 150.
Whether conduct amounts to a public nuisance or a private nuisance depends upon the nature of the injury claimed. At common law, a public nuisance has been defined as an unreasonable interference with the exercise of a right common to the general public, and may include conduct that significantly interferes with the public health and safety. See Pestey v. Cushman, 259 Conn. 345, 357 (2002). In contrast, a private nuisance claim requires that the conduct complained of relate to an unreasonable interference with the right to the use and enjoyment of a person’s property as opposed to a right shared in common with the public. Id., 357-58.
Because the defendant is a political subdivision, § 52-557n(a)(1)(C) provides that a political subdivision of the state shall be liable for damages to person or property caused by "acts of the political subdivision which constitute the creation or participation in the creation of a nuisance ..."
In this case, the plaintiffs’ claim of relief under both theories of liability as to all the defendants fails.
A
Public Nuisance
In this case, the plaintiffs offered testimony that the location of the GaGa Pit adjacent to Sound Breeze Avenue interfered with the public health and safety because the ball would occasionally get hit out of the GaGa Pit and a child would chase the ball into the road. They also complained about the creation of dust, and the management of traffic in the area adjacent to the GaGa Pit and their homes. They argued that the location of the Pit on one of the two roads leading into and out of Groton Long Point drew children riding bikes into a dangerous road condition. They further complained of the noise caused by automobiles slowing and accelerating as they passed over speed bumps that were placed on Sound Breeze Avenue on a seasonal basis.
The court finds that the Association, through its officers, acted in a positive fashion in electing to locate the GaGa Pit in the location across the street from some of the plaintiffs’ homes. It is reasonable to anticipate that children would utilize the GaGa Pit and that they would make noise while they were using the pit.
Whether or not these actions created a nuisance is another question. The placement of the GaGa Pit and the intended use, however, are not the types of activities or uses that would naturally cause danger or inflict injury. The use of the GaGa Pit was initially uncontrolled in the hours of operation but now is curtailed during the evening hours from 6 p.m. to 9 a.m. the next morning. While the GaGa Pit is stationary, its use by residents of Groton Long Point is variable. The property where the GaGa Pit was located is owned by the Association. Immediately adjacent to the GaGa Pit is a volleyball court and the waterfront. One of the functions of the Association is to provide recreational facilities for residents of all ages. It cannot be said that this is an unlawful use.
The plaintiffs’ third count, the claim for a public nuisance, fails on several levels. First, the nature of the plaintiffs’ complaints does not primarily focus on the interference with the rights of common to the general public. To be injured by a public nuisance, a party must establish he was injured in the exercise of a public right. The locus of the plaintiffs’ complaints is in the enjoyment of their properties, which are not open to public uses. The installation of a recreational facility on public property does not interfere with the rights in common of the public. The public benefits from the provision of recreational facilities open to all, to be enjoyed by all. The condition complained of does not have a natural tendency to inflict injury, and the use of the land is clearly lawful. The unreasonableness of the use in this case is in the eye of the beholder rather than in the use itself.
The plaintiffs have not met their burden of proof that the placement of the Pit and that its use has interfered with the public health and safety. Thus, the plaintiffs cannot prevail on the theory of creation of a public nuisance.
B
Private Nuisance
In Pestey v. Cushman, supra, 259 Conn. 357-58, the Supreme Court discussed the significant differences between public and private nuisance causes of action. The court noted that "[s]howing the existence of a condition detrimental to the public safety, or as the first two elements of the four-factor analysis discussed previously require, showing that the condition complained of had a natural tendency to create a continuing danger, is often irrelevant to a private nuisance claim ... In light of the fundamental differences between these two distinct causes of action, we conclude that further attempts to employ the four-part test ... would be imprudent ..." Id., 357. "[I]n 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 ... [T]he 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." (Citations omitted). Id., 361.
The court has previously determined that the defendants have engaged in a positive action in accepting and locating on its property the GaGa Pit. The court must balance the interests of the plaintiffs with those of the defendants to determine whether relief is appropriate.
The context here is important. Approximately nine months out of the year, Groton Long Point is a relatively sleepy, residential community. In the summer, however, its population swells, windows open, children are on vacation, and use of the recreation facilities offered by the municipality increases.
There is nothing inherently unreasonable about the decision to accept the gift of the GaGa Pit or the decision of placement on Association property. The popularity of the game with children over a broad range of ages is a positive. It creates an environment for independent competitive play. It gets them away from their computer screens. It is not reasonable to expect that children will use this facility without giving into the sounds of happiness and excitement. This is not a situation where the GaGa Pit was placed on private property, and children congregated there.
The plaintiffs were aware that the Association owned the property across the street from their homes and that it was entitled to make an appropriate use of the property. There was evidence that this property was already used for municipal recreational purposes, as evidenced by the location of the volleyball court. Further, the lagoon located to the west of the GaGa Pit and volleyball court was also a resource used by the community for recreational activities.
The residential use of the plaintiffs’ properties was also a reasonable and appropriate use. It is evident to the court that the location of the GaGa Pit has increased the noise and dust that the plaintiffs experience on their properties. It is further evident that the plaintiffs do not enjoy this increased noise.
The defendants have taken steps to avoid interfering with the plaintiffs’ enjoyment of their properties. The hours of operation of the game have been limited to daylight hours so that the dinner and sleep time of the residents would not be injured. The police have responded to complaints of use outside the allowed times. The creation of dust has been curtailed, and garbage cans have been placed near the site to deal with litter.
The court does not doubt the plaintiffs’ testimony that they experience the noise emanating from the use of the GaGa Pit as harmful and stressful. It respects the sincerity of the plaintiffs’ complaints. Nonetheless, the standard to be used is the reasonableness or unreasonableness of the activity. Groton Long Point is a small municipal entity that beckons families to enjoy the number of recreational activities available in the summer. The GaGa Pit has been judged by the defendants to be a good and appropriate addition to the recreational inventory of the Association.
The plaintiffs testified that they cannot enjoy a sunset on their decks or peace and quiet in their homes when the GaGa Pit is in use. They acknowledge and, in fact, complain that the game is too popular and thus acknowledge it adds to the enjoyment of other residents of Groton Long Point. Some of the plaintiffs provided testimony that they could not achieve their usual rental income from the property and that they attribute this loss of rental income to the ambient noise created by the GaGa Pit. Nonetheless, other plaintiffs have not been required to reduce their rental rates. Although the plaintiffs expressed their opinion as to the diminution of value of their property caused by the GaGa Pit, the court heard contrary evidence from a real estate professional that was active in the Groton Long Point rental market.
The plaintiffs claimed that their situation is analogous to the situation described in the case of Esposito v. New Britain Baseball Club, Inc., Superior Court, judicial district of Hartford, Docket No. CV 030522820 (April 28, 2005, Berger, J.) . The court disagrees. In Esposito, the firework displays complained of had occurred at night and were created by a profit making entity. The interference with the use and enjoyment of the plaintiffs’ property was significant and inconsistent with the expected use of the plaintiffs’ properties during the times in question.
In the present case, the court concludes that the plaintiffs have not met their burden of proof that the balancing of the factors enumerated above entitles them to the extraordinary relief they claim. The interfering use complained of is the noise of children using a recreational facility located on municipal property. The facility is located on property already used by the municipality for recreational purposes. The use is curtailed to certain hours of the day, and steps have been taken to minimize the creation of dust. The balance that the court must make in this case regarding the claim of private nuisance does not tip in favor of the plaintiffs.
The plaintiffs’ requests for injunctive and declaratory relief, monetary damages and attorneys fees are denied. Judgment may enter in favor of the defendants.