Errichetti v. Botoff , 185 Conn. App. 119 ( 2018 )

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MICHAEL ERRICHETTI v. DANIEL
BOTOFF ET AL.
(AC 40143)
Lavine, Moll and Bishop, Js.
Syllabus
The plaintiff brought this action seeking injunctive relief pursuant to statute
(§ 52-480) in connection with the alleged conduct of the defendants, D
and L, in maliciously erecting a fence on certain of their real property
that bordered the plaintiff’s property. Following a trial to the court,
the trial court rendered judgment in favor of plaintiff and ordered the
defendants to remove the fence and to restore the surrounding area to
its previous condition. On the defendants’ appeal to this court, held:
1. The trial court properly determined that the plaintiff was entitled to an
injunction pursuant to § 52-480 and that the defendants erected the
fence maliciously and with the intent to injure the plaintiff’s enjoyment
of his land: the defendants’ claim that the court based its determinations
of malice and intent to injure on clearly erroneous findings that the
fence was useless and that the fence impairs the plaintiff’s enjoyment
of his property was unavailing, as uselessness under § 52-480 focuses
on whether the structure served an actual use, not whether the defen-
dants can merely assert a purpose for erecting the structure, the court,
in making its findings, was free to reject parts of L’s testimony that she
and D had erected the fence for privacy and safety, and to credit certain
parts of the plaintiff’s testimony that anyone can walk around the ends
of the fence to enter his property and concerning the aesthetics of the
wooded area and wetlands surrounding his home prior to the defendants’
erection of the fence and how the fence impaired his enjoyment of his
property, and the court’s findings of the absence of any real usefulness
of the fence and that the fence impairs the plaintiff’s enjoyment of his
property were not clearly erroneous; moreover, the trial court did not
err with respect to its finding that the fence was out of character with
the neighborhood, as the court explicitly credited the testimony of the
plaintiff’s expert that the fence caused the plaintiff’s property to lose a
beneficial wooded view, which reduced the value of his property, and
it was not for this court to second-guess the trial court’s assessment of
the credibility of the witnesses.
2. The defendants could not prevail on their claim that the trial court erred
in ordering them to restore the area in which the fence was erected to
its previous condition: the plaintiff clearly requested that relief in his
complaint and there was nothing in the record demonstrating that he
ever abandoned that request, and the relief ordered by the court fell
within the statutory authority conferred by § 52-480, as it was remedial
in nature and consistent with the principle that the effect of the statute
should not be extended beyond the evil it was intended to remedy;
moreover, the court’s order was not vague, as the plaintiff testified
extensively as to the area’s appearance prior to the fence and entered
several photographs of the area into evidence, and the defendants did
not file any motion seeking clarification of the court’s order, which was
not so vague that persons of common intelligence would necessarily
have to guess at its meaning or differ as to its application.
Argued May 16—officially released October 2, 2018
Procedural History
Action for an injunction precluding the defendants
from erecting a fence, and for other relief, brought to
the Superior Court in the judicial district of Stamford-
Norwalk and tried to the court, Heller, J.; judgment for
the plaintiff, from which the defendants appealed to
this court; thereafter, the court, Jacobs, J., granted the
defendants’ motion for a stay of the judgment pending
appeal. Affirmed.
Patrick M. Fahey, with whom, on the brief, was Mat-
thew Ranelli, for the appellants (defendants).
John R. Harness, for the appellee (plaintiff).
Opinion
MOLL, J. This case is about a so-called ‘‘spite fence’’
erected along the border between two residential prop-
erties in Greenwich. The defendants, Daniel Botoff and
Laura Botoff, appeal from the trial court’s judgment
rendered in favor of the plaintiff, Michael Errichetti,
entering an injunction pursuant to General Statutes
§ 52-480,1 which required the defendants to remove the
fence that they had constructed on their property and to
restore the surrounding area. On appeal, the defendants
claim that the court erred by (1) finding the second and
third elements of § 52-480 satisfied, namely, a malicious
erection of the structure and the intention to injure the
enjoyment of the adjacent landowner’s property, and
(2) ordering the defendants to restore the area in which
the fence was erected to its previous condition. We
disagree, and, accordingly, we affirm the judgment of
the trial court.
The trial court found the following facts that are
relevant to this appeal. To aid the reader, we include
from a trial exhibit (plaintiff’s exhibit 5) a diagram of
the properties at issue. ‘‘B’’ identifies the defendants’
property; ‘‘E’’ identifies the plaintiff’s property.
Since 1993, the plaintiff and his wife have owned and
resided at a property located at 86 Rockwood Lane in
Greenwich. In 2011, the defendants purchased, and
have since resided at, a property located at 5 Dogwood
Lane in Greenwich. Both properties are located in a
two acre zoning district. Part of the defendants’ back-
yard abuts part of the plaintiff’s yard that lies to the
north of his house. The defendants’ property is bounded
to the northeast by property belonging to the Betters,
to the west by property belonging to the Zorthians, and
to the south by both the plaintiff’s property and property
belonging to the plaintiff’s neighbor to the west, the
Mickleys. The parties share a common boundary of 160
feet. In 2014, the defendants built a wooden stockade
style fence along a 103 foot portion of this 160 foot
boundary.2
At trial, the plaintiff described the area surrounding
his home. The trial court found that to the northwest
of the plaintiff’s house is a ‘‘natural wooded area, most
of which is wetlands,’’ that covers part of the plaintiff’s,
the defendants’, the Zorthians’, and the Mickleys’ prop-
erties. The wooded area creates a forty to sixty foot
buffer between the parties’ properties. A stream flows
through this area on its way to Long Island Sound,
and an old farmer’s wall runs along the parties’ shared
boundary. The parties’ properties each slope up from
the stream to their respective homes. In 2004, the plain-
tiff and his wife renovated their house so that several
main rooms offered views of the wooded area.
According to the plaintiff, prior to the erection of the
fence, he had ‘‘felt that his yard was very tranquil and
beautiful’’ and ‘‘that he would not have purchased [his]
property if the fence had been there already.’’
After purchasing the property in 2011, the defendants
immediately began renovating the house. According to
Laura Botoff’s testimony, when she and her husband
bought the property, they discussed erecting a fence
and potentially installing a pool but decided to complete
the work in phases for financial reasons. In 2012, after
completing the renovations to the house, they began a
landscaping project ‘‘to make sure that [the backyard]
was safe for their young sons.’’ When the defendants
began the landscaping project, they had the property
staked for a fence. Laura Botoff testified that she and
her husband believed that a fence would provide them
with privacy and security, but they did not erect the
fence for another two years after having it staked. Dur-
ing this period, the relationship between the parties
deteriorated.
At trial, the parties testified about a few interactions
they had concerning their shared boundary. According
to the plaintiff, in the spring of 2012, he saw the defen-
dants’ landscaping project expanding into the wooded
area between his and the defendants’ homes. Assuming
that the defendants had not received the proper approv-
als from the Greenwich Inland Wetlands and Water-
courses Agency (agency), the plaintiff walked over to
the defendants’ house, introduced himself to Laura
Botoff, and explained that she should contact the
agency before proceeding with the project. Laura
Botoff’s recounting of the interaction differs. She testi-
fied that he approached her, without first identifying
himself, to question her about the nonexistence of wet-
lands flags.
The next notable incident occurred in 2014, when
the plaintiff noticed Laura Botoff walking along their
shared boundary with a man who appeared to be mea-
suring for a fence. The plaintiff testified that he went
outside to ask Laura Botoff whether they were measur-
ing for a fence and that, when she responded that they
were, he reminded her that she needed approval from
the agency before building anything in the wetlands.
According to the plaintiff, Laura Botoff became agi-
tated, at which point the plaintiff left and called the
agency to report the defendants’ plans for a fence.
Again, Laura Botoff’s recollection differs. According to
her testimony, she calmly explained that she under-
stood that she could build the fence as long as she
received the proper permits, and, after the plaintiff
returned to his house, she called the Greenwich Police
Department to file a complaint. Shortly after this inci-
dent, the defendants applied to the agency for a permit
to build the fence. The agency issued the permit over
the plaintiff’s opposition.3
In June, 2014, the plaintiff commenced the underlying
action, seeking injunctive relief pursuant to § 52-480.
In August, 2014, the defendants installed the fence. In
February, 2017, following a two day bench trial, at
which all parties and their respective expert appraisers
testified, the court rendered judgment in favor of the
plaintiff and against the defendants. In its memorandum
of decision, the court found that the plaintiff had met
his burden of proof with respect to his claim under § 52-
480 and, as injunctive relief, ordered the defendants to
remove the fence and to restore the surrounding area to
its previous condition. This appeal followed. Additional
facts will be set forth as necessary.
I
On appeal, the defendants first claim that the court
erroneously determined that the plaintiff was entitled
to an injunction pursuant to § 52-480. Specifically, they
argue that the court, in determining that the defendants
had erected the fence maliciously and with the intent
to injure the plaintiff’s enjoyment of his land, relied on
clearly erroneous subordinate findings, namely, that the
fence is useless, impairs the plaintiff’s enjoyment of his
property, and is out of character with the neighborhood.
The plaintiff argues, to the contrary, that the evidence
adequately supports the court’s findings. We agree with
the plaintiff.
A
We begin by setting forth the standard of review and
relevant law. ‘‘When the factual basis of a trial court’s
decision . . . is challenged, our function is to deter-
mine whether, in light of the pleadings and evidence
in the whole record, these findings of fact are clearly
erroneous. . . . A finding of fact is clearly erroneous
when there is no evidence in the record to support it
. . . or when although there is evidence to support it,
the reviewing court on the entire evidence is left with
the definite and firm conviction that a mistake has been
committed. . . . In making this determination, every
reasonable presumption must be given in favor of the
trial court’s ruling.’’ (Internal quotation marks omitted.)
Chase & Chase, LLC v. Waterbury Realty, LLC, 138
Conn. App. 289, 296, 50 A.3d 968 (2012).
‘‘The Connecticut progenitor of what have commonly
been called the spite fence cases appears to be Whitlock
v. Uhle, 75 Conn. 423, 53 A. 891 (1903). . . . In [Whit-
lock], our Supreme Court construed and applied the
predecessors to General Statutes §§ 52-480 and 52-5704
and set forth the elements necessary to state a cause
of action under §§ 52-480 and 52-570. The court held
that the essential elements are: (1) a structure erected
on the [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 is useless
to the defendant; and (6) the enjoyment of the adjacent
landowner’s land is in fact impaired.’’ (Footnote added;
footnotes omitted; internal quotation marks omitted.)
Id., 302. The plaintiff bears the burden of demonstrating
each of these elements by a fair preponderance of the
evidence. See Rutka v. Rzegocki, 132 Conn. 319, 322,
43 A.2d 658 (1945); see generally Deane v. Kahn, 179
Conn. App. 58, 73–74, 178 A.3d 403 (2018) (plaintiff
bears burden of proof).
In its memorandum of decision, the court set forth
the six Whitlock elements, found facts relating to each,
and concluded that the plaintiff had satisfied his burden
with respect to all six elements. The court began its
analysis by stating that, with respect to the first element,
‘‘it is undisputed that the fence is a ‘structure’ that was
erected on the [defendants’] property.’’ The court then
noted that the remaining Whitlock elements were ‘‘inter-
related to a large extent, with the court’s findings on
the last three [elements] serving to inform the court’s
analysis on the issues of malice and intent’’ and, accord-
ingly, analyzed those three elements first. After conclud-
ing that ‘‘the fence has impaired the value of the
[plaintiff’s] property; the fence is useless to the [defen-
dants]; and the fence has impaired the enjoyment of the
[plaintiff’s] property,’’ the court turned to the remaining
two elements. In determining that the plaintiff demon-
strated that the defendants had maliciously erected the
fence, the court relied on the following facts: ‘‘[T]he
[defendants] have erected a stockade style fence along
103 feet of the boundary between their property and
the [plaintiff’s] property. They did not install a fence
anywhere else on their property. The fence was
installed across a previously unspoiled wooded area
and wetlands. It blocks [the plaintiff’s] view of the natu-
ral surroundings and intrudes upon his enjoyment of
his own property. The fence is out of character for the
neighborhood. It does not provide privacy, safety or
security to the [defendants]. Accordingly, the court
finds that the fence was maliciously erected.’’ Similarly,
the court based its finding that ‘‘the [defendants]
intended to injure the enjoyment of the [plaintiff’s] prop-
erty when they erected the fence’’ on the following: ‘‘As
the court has found, the fence impairs the value of the
[plaintiff’s] property and [the plaintiff’s] enjoyment of
the property. The fence is unsightly and out of character
in the parties’ residential neighborhood. The fence is
useless to the [defendants].’’
On appeal, the defendants do not directly challenge
the court’s conclusion that the plaintiff satisfied the
last three Whitlock elements. Instead, the defendants
challenge the court’s ‘‘subordinate findings’’ of use-
lessness, impairment of the plaintiff’s enjoyment of his
property, and the fence being out of character with the
neighborhood, to the extent that those findings support
the court’s conclusions that the fence was erected mali-
ciously and with the intent to injure the plaintiff’s enjoy-
ment of his land. We address these ‘‘subordinate
findings’’ in turn.5
Initially, we note that when determining whether the
plaintiff has met his burden with respect to the second
and third elements of the Whitlock test, the court does
not ‘‘journey deep into the defendant’s heart.’’ Geiger
v. Carey, Superior Court, judicial district of Litchfield,
Docket No. CV-11-500-7327-S (February 25, 2015)
(reprinted at 170 Conn. App. 462, 487, 154 A.3d 1093
[2017]). ‘‘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 party erecting it.’’ DeCecco v. Beach,
174 Conn. 29, 32, 381 A.2d 543 (1977); see also Gallagher
v. Dodge, 48 Conn. 387, 393, 40 Am. Rep. 182 (1880)
(‘‘The inquiry into and adjudication upon a man’s
motives has always been regarded as beyond the
domain of civil jurisprudence, which resorts to pre-
sumptions of malice from a party’s acts instead of
enquiring into the real inner workings of his mind.
When, therefore, we enquire how far a man was actu-
ated 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.’’). Similarly,
assessing whether the defendants possessed the requi-
site intent to injure ‘‘relates to the thing done, its pur-
pose and effect, and does not depend on the existence
or nonexistence of personal spite or ill-will.’’ Whitlock
v. Uhle, supra, 75 Conn. 427.
‘‘It is quite possible for a structure to bear on its face
. . . convincing evidence that it was intended for a
legitimate purpose, or that it was intended to injure the
adjacent land and its owner. . . . 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. . . . The intent to injure is deter-
mined 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 . . . to the defendant, and from the
character, location and surroundings of the structure
itself . . . .’’ (Citation omitted; internal quotation
marks omitted.) DeCecco v. Beach, supra, 174 Conn.
32. ‘‘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.’’ Whitlock v. Uhle, supra, 75 Conn. 427.
‘‘[O]nce it is established that malice was the primary
motive in [the fence’s] erection, the fact that it also
served to protect the [defendants’] premises from obser-
vation must be regarded as only incidental, since to hold
otherwise would be to nullify the statutes.’’ DeCecco v.
Beach, supra, 32–33.
B
We first address the defendants’ argument that the
court based its determinations of malice and intent to
injure on a clearly erroneous finding that the fence is
useless. In determining that the fence ‘‘does not provide
privacy, safety or security’’ to the defendants and is,
instead, useless, the court relied on the findings of fact
that it had recited when concluding that the plaintiff
had satisfied the fifth Whitlock element, i.e., uselessness
of the structure.6 The defendants rely primarily on Laura
Botoff’s testimony as support for their argument that
the court’s finding of uselessness was clearly
erroneous.7
As an initial matter, the defendants seem to suggest
that uselessness of a structure cannot be found if the
owner of the structure merely articulates an ostensibly
useful purpose. We reject this argument. Uselessness
under § 52-480 focuses on whether the structure serves
an actual use, not whether the defendants can merely
assert a purpose for erecting the structure. See, e.g.,
DeCecco v. Beach, supra, 174 Conn. 32 (‘‘intent to injure
is determined . . . [inter alia] from the absence of any
real usefulness of the structure’’ [emphasis added]);
Harbison v. White, 46 Conn. 106, 109 (1878) (rejecting
defense to malice element—that structure screened
defendants’ premises from persons occupying plaintiff’s
house—because ‘‘[t]o concede this would be to nullify
the statute; for it is not possible for malice to conceive
any kind or form of structure which would not in some
measure protect premises from observation’’); see also
Panagos v. Cooke, Superior Court, judicial district of
Fairfield, Docket No. CV-XX-XXXXXXX-S (February 9,
2006) (notwithstanding fact that fence was erected to
prevent intruders from entering defendant’s property,
fence was deemed spite fence because its construction
allowed intruders to enter property at various other
locations); Brabant v. McCarthy, Superior Court, judi-
cial district of Litchfield, Docket No. CV-XX-XXXXXXX
(August 9, 1996) (although fence was erected to prevent
neighbors from trespassing on property, portion of
fence was deemed spite fence because defendants
could not ‘‘plausibly argue [it was] of benefit to them’’);
Horan v. Farmer, Superior Court, judicial district of
New Haven, Docket No. 30-29-95 (October 31, 1990)
(notwithstanding fact that fence was erected for privacy
and to prevent vandalism, fence was deemed spite fence
because other factors indicated primary motive was
malice).
At trial, Laura Botoff testified that she and her hus-
band had erected the fence to provide privacy and safety
for them and their children; she testified that the fence
does, in fact, serve its intended purposes. For instance,
she stated that the fence ‘‘deters other people from
coming into the yard and it allows for the children to
feel more secure because we do have privacy . . . .’’
Further, she testified that the fence in question, com-
bined with the deer fence erected on the Betters’ prop-
erty and the wetlands separating their property from
that of the plaintiff and the Zorthians, prevents the
defendants’ children from leaving their property. On
cross-examination, however, Laura Botoff admitted
that, because the fence only ties into the Betters’ deer
fence on one end and does not connect to any other
fencing at the other end, the children could leave their
property by crossing the wetlands and going around
the end of the fence onto the plaintiff’s property. Like-
wise, she conceded that the way the fence exists now
someone on the plaintiff’s side of the property could
walk around it and get to the defendants’ side of the
property, and the fence does not prevent someone
standing in the defendants’ yard from viewing the plain-
tiff’s property. This portion of her testimony was consis-
tent with the plaintiff’s testimony that anyone could
walk around the ends of the fence to enter his property
from the defendants’ property and that, because the
parties’ properties slope downward toward the fence,
‘‘when you stand on the sloping topography that is [his]
yard and [his] lawn at that point, you can clearly see
right over the fence into the [defendants’] backyard.’’
Likewise, the court’s description of the fence is consis-
tent with these portions of Laura Botoff’s and the plain-
tiff’s testimony.
In its memorandum of decision, the court noted that,
although the defendants erected the fence for privacy
and safety, ‘‘[t]he fence as installed does not extend
along the entire boundary between the [plaintiff’s] prop-
erty and the [defendants’] property. There is a narrow
space between the end of the fence and the Betters’
mesh deer fence on the eastern side of the [defendants’]
property. The opening at the other end, near the Zorthi-
an[s’] property, is approximately fifty-seven feet wide.
. . . The fence does not block the view from the [plain-
tiff’s] property of the [defendants’] house, patio, and
backyard. Apart from any obstruction due to the natural
vegetation, there is a clear sight line from one yard to
the other because the properties slope down toward
their common boundary. The fence would have to be
substantially higher to block or screen the view
entirely.’’
The court was free to reject parts of Laura Botoff’s
testimony and to credit the plaintiff’s. See, e.g., Nor-
mand Josef Enterprises, Inc. v. Connecticut National
Bank, 230 Conn. 486, 507, 646 A.2d 1289 (1994) (‘‘[It]
was for the trial court to weigh the evidence and deter-
mine the credibility of the witnesses. . . . A trier of
fact is free to reject testimony even if it is uncontra-
dicted . . . and is equally free to reject part of the
testimony of a witness even if other parts have been
found credible.’’ [Citations omitted; internal quotation
marks omitted.]). Upon review of the evidence, we are
not ‘‘left with the definite and firm conviction that a
mistake has been committed.’’ (Internal quotation
marks omitted.) Chase & Chase, LLC v. Waterbury
Realty, LLC, supra, 138 Conn. App. 296. Accordingly,
we conclude that the court’s finding of ‘‘the absence of
any real usefulness’’ of the fence; (emphasis added)
DeCecco v. Beach, supra, 174 Conn. 32; was not
clearly erroneous.
C
We next turn to the defendants’ argument that the
court based its findings of malice and intent to injure
on a clearly erroneous finding that the fence impairs
the plaintiff’s enjoyment of his property. Similar to the
court’s finding of uselessness in the context of its deter-
mination of malice and intent to injure, the court did
not recite independent facts when it found that the
fence ‘‘intrudes upon [the plaintiff’s] enjoyment of his
property’’ and, therefore, was erected maliciously with
an intent to injure the plaintiff. Instead, the court relied
on the findings that it had recited when concluding that
the plaintiff had satisfied the sixth Whitlock element,
i.e., impairment of the plaintiff’s enjoyment of his land.8
In challenging this finding, the defendants primarily
argue that the plaintiff has not suffered any objective
harm, such as an interference with the flow of light or
air across, or the increased risk of damage from rain
or snow to, his property. According to the defendants,
the only harm suffered by the plaintiff was an impaired
view of the defendants’ backyard.9
As the court noted, ‘‘[t]he use and enjoyment of prop-
erty may . . . be impaired by the intrusion of an
unsightly structure into a vista that was formerly
unspoiled.’’ See, e.g., DeCecco v. Beach, supra, 174 Conn.
30–31. Although the court stated that this ‘‘fence itself
may not be ugly as far as stockade fences are con-
cerned,’’ it nevertheless credited the plaintiff’s testi-
mony and found that the fence impairs his enjoyment
of his property. The plaintiff testified extensively about
the aesthetics of the wooded area and wetlands sur-
rounding his home prior to the defendants’ erection of
the fence. He submitted several photographs of the
area into evidence, including photographs depicting the
dense woods separating the parties’ properties and of
the fence running along the border between their yards
and cutting across the wetlands and stream. As the
plaintiff and his expert testified, the plaintiff had
designed several rooms of his house to afford views of
these wetlands. The fence, therefore, is clearly visible
from these rooms, as well as from his yard and when
pulling up to the front of the house. The plaintiff testified
that he had purchased this property because of the
‘‘natural wooded surroundings’’ and that if he ‘‘had seen
. . . a stockade fence . . . [he] would not have pur-
chased the property.’’
We again note that it is within the province of the
trial court to assess the credibility of the witnesses; see,
e.g., Normand Josef Enterprises, Inc. v. Connecticut
National Bank, supra, 230 Conn. 507; and that the court
credited the plaintiff’s testimony. Upon review of the
evidence and in giving ‘‘every reasonable presumption
. . . in favor of the trial court’s ruling,’’ we are not
convinced ‘‘that a mistake has been committed.’’ (Inter-
nal quotation marks omitted.) Chase & Chase, LLC v.
Waterbury Realty, LLC, supra, 138 Conn. App. 296.
Accordingly, we conclude that the court’s finding that
the fence impairs the plaintiff’s enjoyment of his prop-
erty was not clearly erroneous.
D
Finally, we address the defendants’ argument that
the court clearly erred in finding that ‘‘[t]he fence is
. . . out of character in the parties’ residential neigh-
borhood.’’ In its memorandum of decision, the court
described the fence and surrounding area, noting that
‘‘[b]oth properties are located in the Greenwich RA 2
zoning district, which is a two acre zoning district.’’
The court proceeded to describe the natural wooded
area and the ‘‘old fieldstone farmer’s wall between the
two properties.’’ The fence, which runs along this field-
stone wall, ‘‘is a stockade style fence with a natural
wood finish and capped posts between the fence sec-
tions.’’ Nevertheless, the court noted that the plaintiff
‘‘described the fence as a commercial grade, stockade
fence, of the type that he was accustomed to seeing
beside a supermarket, not in a residential area’’ and
that ‘‘he had not seen similar fences in the Rockwood
Lane neighborhood, although the house across the
street from the [plaintiff’s] property has an old four foot
tall stockade type pool fence, which he understood was
required by the town of Greenwich.’’
The court heard conflicting testimony from the par-
ties and their experts concerning the character of the
neighborhood. According to the plaintiff, ‘‘on average,
the homes [in this neighborhood] are worth anywhere
between . . . four and seven million dollars,’’ and his
property ‘‘would achieve at least five million dollars in
the market.’’ Although the defendants’ expert testified
that fences are ‘‘not uncommon in Connecticut, in
Greenwich’’ and that the property across the street from
the plaintiff has a stockade fence, the plaintiff’s expert
testified that stockade fences ‘‘are rare in property val-
ues such as this neighborhood.’’ In discussing the testi-
mony of the parties’ respective experts regarding the
impact of the fence on property values, the court explic-
itly credited the testimony of the plaintiff’s expert. The
court stated ‘‘that the fence caused the [plaintiff’s] prop-
erty to lose a beneficial wooded view, which reduced
the value of the [plaintiff’s] property by 1 to 5 percent.’’
Laura Botoff testified that the Betters and Mickleys had
installed fences on their properties, which conflicted
with the plaintiff’s testimony that he had not seen fences
like this elsewhere in his neighborhood of Rockwood
Lane. When questioned about the fence across the street
from his house, the plaintiff described it as an old,
approximately four foot tall pool fence that, for the
most part, is not visible from the street and would be
removed as soon as the owners remove the pool that
it encloses.
Although the court received evidence of other fences
in the neighborhood, ‘‘[w]e cannot second-guess the
trial court’s assessment of the credibility of the wit-
nesses . . . . It is the trial court which had an opportu-
nity to observe the demeanor of the witnesses and
parties; thus, it is best able to judge the credibility of the
witnesses and to draw necessary inferences therefrom.’’
(Internal quotation marks omitted.) Normand Josef
Enterprises, Inc. v. Connecticut National Bank, supra,
230 Conn. 507. Upon review of the evidence in the
record, we are not firmly convinced ‘‘that a mistake has
been committed’’; (internal quotation marks omitted)
Chase & Chase, LLC v. Waterbury Realty, LLC, supra,
138 Conn. App. 296; and, therefore, the court’s finding
in this regard is not clearly erroneous.
In sum, the court did not clearly err with respect
to any of the subordinate findings challenged by the
defendants in connection with the second and third
Whitlock elements, i.e., malice and intent to injure. We
therefore affirm the court’s conclusion that the plaintiff
was entitled to an injunction pursuant to § 52-480.
II
The defendants also claim that the court erred by
ordering them to ‘‘restore the area in which the fence
was erected to its previous condition.’’ They argue that
the plaintiff abandoned this request for relief, the court
exceeded its statutory authority by ordering ‘‘the land-
owner to do anything other than take down the
offending structure,’’ and the order is impermissibly
vague.10 These arguments are unavailing.
The defendants first contend that the plaintiff had
abandoned seeking the relief ordered by the court
because he did not explicitly mention this particular
relief in his trial management report, at trial, or in his
posttrial brief. ‘‘[T]he scope and quantum of injunctive
relief rests in the sound discretion of the trier . . . .’’
DeCecco v. Beach, supra, 174 Conn. 35. The plaintiff’s
complaint specifically sought, in relevant part, ‘‘[p]er-
manent injunctive relief ordering the [defendants] . . .
to remove any construction work to date and to restore
the wetlands and watercourse area to its previous con-
dition . . . .’’ See, e.g., Levesque Builders, Inc. v.
Hoerle, 49 Conn. App. 751, 758, 717 A.2d 252 (1998)
(‘‘general rule is that a prayer for relief must articulate
with specificity the form of relief that is sought’’ [inter-
nal quotation marks omitted]). The plaintiff clearly
requested the relief granted, and ‘‘there is nothing in
the record which discloses that the plaintiff ever aban-
doned’’ that request. Varley v. Varley, 170 Conn. 455,
459, 365 A.2d 1212 (1976). Accordingly, this argument
fails.
The defendants’ second argument is that the court
lacked the authority to grant such relief. ‘‘Any determi-
nation regarding the scope of a court’s . . . authority
to act presents a question of law over which our review
is plenary.’’ Tarro v. Mastriani Realty, LLC, 142 Conn.
App. 419, 431, 69 A.3d 956, cert. denied, 309 Conn.
912, 69 A.3d 308, 309 (2013). Section 52-480 provides
in relevant part that the court has the authority to order
‘‘[a]n injunction . . . against the malicious erection
. . . of any structure . . . intended to annoy and injure
any owner or lessee of adjacent land in respect to his
use or disposition of the same.’’ The defendants rely
on DeCecco v. Beach, supra, 174 Conn. 35, for the propo-
sition that § 52-480 does not permit an injunction
beyond the removal of the offending structure. In that
case, however, our Supreme Court found error in an
order ‘‘enjoining the building of any other structures
on that portion of the land from which it ordered
removal of the fence since that part of the judgment
went beyond the relief to which the plaintiff was entitled
under the statutes.’’ Id. The injunctive relief at issue in
this case is materially different in that the court ordered
the defendants to return the land to its prior condition,
which is remedial in nature and consistent with the
well settled principle that the effect of § 52-480 ‘‘should
not be extended beyond the evil it was intended to
remedy.’’ Whitlock v. Uhle, supra, 75 Conn. 426. Simply
stated, we conclude that the relief ordered by the court
falls within the statutory authority conferred by § 52-
480.
The defendants’ final argument is that the order is
impermissibly vague because ‘‘the record does not
address how the [defendants’] property appeared in a
manner by which compliance—or lack of compliance—
with the trial court’s permanent injunction could be
reasonably assessed.’’ Following the issuance of the
court’s memorandum of decision, the defendants did
not file any motion seeking clarification of this order.
Additionally, as previously noted, the plaintiff testified
extensively as to the area’s appearance prior to the
installation of the fence and entered several photo-
graphs of the area into evidence. Accordingly, we con-
clude that this injunction is not ‘‘so vague that men
of common intelligence must necessarily guess at its
meaning and differ as to its application . . . .’’ (Internal
quotation marks omitted.) Gabriel v. Gabriel, 324 Conn.
324, 339, 152 A.3d 1230 (2016).
The judgment is affirmed.
In this opinion the other judges concurred.
1
General Statutes § 52-480 provides: ‘‘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.’’
2
Although the defendants had applied for, and the Greenwich Inland
Wetlands and Watercourses Agency had issued, a permit for a 110 foot
fence, the agency later decided that the fence could be only 103 feet long.
3
In June, 2014, the plaintiff appealed from the agency’s decision to the
Superior Court, which action the court dismissed in July, 2015. See Errichetti
v. Inland Wetlands & Watercourses Agency, Superior Court, judicial district
of Stamford-Norwalk, Docket No. FST-CV-XX-XXXXXXX-S (July 28, 2015) (60
Conn. L. Rptr. 892). The plaintiff did not appeal from that dismissal to
this court.
4
Whereas § 52-480 provides for injunctive relief for the malicious erection
of a structure, § 52-570 provides a legal remedy therefor. See, e.g., Geiger
v. Carey, Superior Court, judicial district of Litchfield, Docket No. CV-11-
5007327-S (February 25, 2015) (reprinted at 170 Conn. App. 462, 466, 154
A.3d 1093 [2017]). This case concerns solely § 52-480.
5
In their brief to this court, the defendants argue that ‘‘[b]ecause the
subordinate facts necessary for [the court’s] finding [of intent to injure] are
essentially the same as those required for a finding of malice, and because
the subordinate findings analyzed [with respect to malice] . . . are clearly
erroneous, the trial court’s finding that the [defendants] intended to injure
[the plaintiff’s] land was also in error.’’ The defendants do not provide
additional analysis specific to their claim regarding the intent to injure
element. We likewise analyze these two claims together.
6
With respect to the fence’s uselessness, the court found that ‘‘the fence
does not completely enclose the [defendants’] property. The [defendants]
did not erect a fence on the eastern boundary of their property with the
Better[s’] property, or on the western boundary with the Zorthian[s’] prop-
erty, or on the southern boundary with the Mickley[s’] property. The fence
extends for only 103 feet on the southern border of the [defendants’] prop-
erty, which is less than two thirds of the 160 foot boundary between the
[defendants’] and [the plaintiff’s] properties.
‘‘The fence does not prevent the [defendants’] children from exploring
the [plaintiff’s] property or the rest of the neighborhood. Similarly, the fence
does not block anyone from entering the [defendants’] property through
the [plaintiff’s] property. The [defendants’] children—and anyone else—can
venture from the [defendants’] property to the [plaintiff’s] property and back
through the fifty-seven feet of the border that remains unfenced. . . . The
[defendants’] house, patio, and backyard are as visible from the [plaintiff’s]
property as they were before the fence was erected.’’
7
The defendants also argue that the court misapprehended the law by
concluding that ‘‘a ‘spite fence’ may serve some purpose yet still be objection-
able.’’ The defendants seemingly argue that where a structure serves a use,
the plaintiff must show malice in fact. The defendants, however, fail to
recognize that the court found, as a matter of fact, that the fence in question
does not serve a use. Additionally, as previously noted, our Supreme Court
has stated that ‘‘[w]hether 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 party erecting it.’’ DeCecco v. Beach,
supra, 174 Conn. 32. Accordingly, the defendants’ argument fails.
8
With respect to this element, the court found that ‘‘[t]he fence blocks
the view from the [plaintiff’s] property of the natural surroundings that
[the plaintiff] previously enjoyed. The fence is out of character for the
surrounding area—described by [the plaintiff’s expert] as having a park-
like aesthetic—and it starkly intrudes upon what would otherwise be an
unspoiled vista. [The plaintiff] testified that it is impossible to look into his
yard without seeing the fence. While the fence itself may not be ugly as far
as stockade fences are concerned—it is new and apparently well-con-
structed—it is unsightly as installed across 103 feet of woodland and wet-
lands on the boundary between two residential properties in the Greenwich
RA 2 zoning district.’’
9
In addition to arguing that the evidentiary basis for the court’s finding
was insufficient, the defendants argue that this finding was clearly erroneous
because the statute and relevant case law do not provide a landowner with
the right to a view of a neighbor’s property. Similarly, the defendants argue
that the court erroneously construed the statute broadly by ordering the
defendants to remove the fence based on its interference with the plaintiff’s
interest in a view onto their property. See, e.g., Willoughby v. New Haven,
123 Conn. 446, 454, 197 A. 85 (1937) (‘‘operation of a statute in derogation
of the common law is to be limited to matters clearly brought within its
scope’’). The defendants premise this argument on the fact that their
‘‘[r]esearch has not revealed a case where . . . § 52-480 was successfully
invoked on the grounds that a structure obstructed an adjoining property
owner’s view onto her neighbor’s property itself.’’
These arguments misconstrue the court’s memorandum of decision. The
court considered the fence’s effect on the plaintiff’s view of the surrounding
woods and wetlands, some of which is situated on the defendants’ property,
when finding that the fence impairs the plaintiff’s enjoyment and value of
his property. Contrary to the defendants’ arguments, the court did not find
that the plaintiff has a right to a view of their land. Additionally, as our
Supreme Court has noted, ‘‘[i]t is only incidental that the plaintiff, having
established the elements necessary for relief under the [statute], might
acquire in the process a . . . view’’ of the defendants’ land. DeCecco v.
Beach, supra, 174 Conn. 34 (rejecting defendant’s argument that judgment
in favor of plaintiff created unlawful visual easement across defendant’s
land where portion of fence that obstructed plaintiff’s view of river was
spite fence). Accordingly, these arguments fail.
10
The plaintiff argues that this claim is unreviewable because the defen-
dants failed to seek an articulation of the court’s basis for this portion of the
order. Although Practice Book § 61-10 places the burden on ‘‘the appellant
to provide an adequate record for review,’’ that section provides in relevant
part that ‘‘[t]he failure of any party on appeal to seek articulation pursuant
to Section 66-5 shall not be the sole ground upon which the court declines
to review any issue or claim on appeal.’’ We therefore reject this argument.