James Piotrowski v. Margo Esparo
 

MEMORANDUM OF DECISION

This cases arises out of a dispute between abutting neighbors who reside in a bucolic farm setting in Durham, CT. Each is the owner of a large residence sitting on over five acres of land. Despite the beauty of the natural setting and their good fortune to reside amidst the tranquility of wild life, trees and rolling hills neither is capable of living peaceably with the other. Instead each has embarked on a campaign of jab and counterpunch that has escalated into a neighborhood jihad consuming the valuable time, energy and resources of various Durham zoning boards and commissions and staff, the Connecticut Department of Public Safety and even their neighbors.

When and how this feud developed is buried in an infinite regress of cause and effect. Who threw the first punch and who responded in self defense; which neighbor comes before the court with clean hands and which does not is fiercely contested amidst mutual accusations of bad faith, lying and abuse of the administrative and judicial processes. Claims of malicious attempts to destroy the beauty and value of one neighbor's property is met with accusations that the other implemented a police like state surveillance system yielding 3,000 still photographs. One party left his leaf blower running unattended for hours on his neighbor's border, installed a high density lamp that shines directly into the neighbor's bedroom, and ultimately erected a massive 45' x 75' x 16' steel hangar/barn on the edge of the neighbor's property while the other has made over 80 complaints to the Connecticut State Police, stopped and photographed vehicle occupants on Bailey Road, trailed the neighbor's vehicles and filed serial complaints with Durham Zoning Boards and Commissions.

The following background defines the issues in this unfortunate case. The plaintiffs James and Ellen Piotrowski reside at 48 Bailey Road, Durham, CT. The defendants Margo and Bryant Esparo reside at 36 Bailey Road immediately adjacent to the Piotrowski residence. Both properties are zoned farm residential and abut each other; the Esparo's house sits on approximately ten acres. Mr. Esparo is a contractor who owns numerous trucks and heavy equipment and does business as Cheshire Construction. He and his wife moved into 36 Bailey Road in January 2005. Shortly thereafter, the Piotrowskis filed a series of complaints with the local zoning officer alleging that Mr. Esparo was utilizing his property as a storage facility for his trucks and heavy construction equipment and also dispatching the trucks from there in the early hours of the morning to plow snow. These claims were documented, in part, by some of the approximately 3,000 photographs taken by the Piotrowkis of the Esparo property, construction equipment and the Esparos themselves.

The Durham Planning and Zoning Commission issued five notices of zoning violations between February 2005 and September 2007. Since the last citation, Mr. Esparo has been in compliance with applicable Durham Zoning regulations. Concurrent with his contesting the alleged zoning violations, Mr. Esparo began the construction and installation of a steel hangar measuring 75' x 45' and 16' tall at the peak. The purpose of the hangar is to store vehicles and equipment. Originally the Esparos, with no objection from the Piotrowskis, planned to site the hangar in the left rear portion of their yard, identified as position #1. They then decided to relocate it to an area which is generally directly behind their house, but closer to the Piotrowksi property, known as position #2. The Piotrowksis did not object to this location; accordingly, the footings were poured and the framework erected. Following this relocation, the Esparos were cited by the Durham Planning and Zoning Commission for a violation reported by the Piotrowksis. A subsequent inspection by the Town indicated full compliance by the Esparos. Following this citation, Esparo, having obtained all necessary building and zoning approvals from the Durham Planning and Zoning Commission, relocated the hangar to the border between his and the Piotrowski property, identified as position #3. It is that move that caused the plaintiffs to file this action, alleging that the relocation was done maliciously in retaliation for their complaint to the Planning and Zoning Commission and for the purpose of destroying their view and reducing their property value. Mr. Esparo testified that the purpose of the move was to allow for the installation at position #2 of a larger hangar to be used as an animal barn.

The following legal principles govern the resolution of this case. General Statutes §52-570 allows a neighbor to seek judicial relief if "the owner or lessee of land adjacent . . . maliciously erects any structure thereon, with intent to annoy or injure the plaintiff in his use or disposition of his land." §52-480 authorizes the court to grant injunctive relief upon a finding that a structure was erected maliciously. In Whitlock v. Uhle, 53 A. 891 (1903), the Supreme Court identified a six-factor test to determine whether a structure has been maliciously erected. Subsequently, that test has been collapsed into a four-factor analysis:

"(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 the adjacent land because of the structure;" United Petroleum Corp v. Atlantic Refining Co., 3 Conn.Cir. 255 (1965).

In most cases, including the present one, the dispositive issue is whether the structure was erected with malice. Courts can infer malice from the character, location and use of the structure, or from actual statements made by the defendant. "Whether a structure is maliciously erected is to be determined rather by its character, location and use than by an inquiry into the actual motive in the mind of the party erecting it." Id., at 259.

In this case, because the defendant has denied that the hangar was erected maliciously, and because no direct evidence such as his statements has been offered in support of that claim, the plaintiff's proof is necessarily circumstantial. The plaintiff relies on a series of actions initiated by Mr. Esparo that followed complaints by Mr. Piotrowski. The temporal sequence of these actions are evidence, plaintiff argues, of the defendant's malicious intent. In sum, plaintiff claims that the defendant: 1) installed a yellow caution tape spite "fence" at 2:00 a.m. on the common border; 2) replaced the yellow tape with an eight-foot high stockade fence; 3) placed a generator on the property line running unattended; 4) installed a non-functioning video camera on the top of the stockade fence; and 5) relocated the hangar to the border of their property. Plaintiffs assert that all of these actions are causally related to their filing complaints with town zoning and law enforcement officials.

For their part, the Esparos deny the claim of malicious intent and argue strenuously that since the purchase of their home, the Piotrowskis have embarked on a systematic, but failed campaign of harassment culminating in the filing of this action when their most recent complaint to the Zoning Commission was not substantiated. They cite the following facts: 1) within two days of moving into their new residence, the plaintiffs began photographing and surveilling the defendants and their friends entering and leaving their property; 2) the Piotrowskis repeatedly tiled bad faith complaints with town officials; 3) the Piotrowskis made approximately 80 complaints to the State Police none of which resulted in an arrest or the issuance of a citation; 4) the Piotrowskis erected a fence around the Esparo property and decorated it with yellow caution tape and pink ribbons; and 5) the plaintiffs told the defendants that they "Did not want to look at a barn in Esparo's backyard."

The court is persuaded that the plaintiffs have satisfied their burden of proving that the Esparos have violated General Statutes §§52-570 and 52-480. In accordance with the rule of Whitlock v. Uhle, supra, and United Petroleum Corp. Atlantic v. Refining, supra, the court concludes that the plaintiffs have demonstrated that: 1) a structure-the hangar-was erected on the owner's land; 2) the erection was done maliciously; 3) the intent of such erection was injure the plaintiff's enjoyment of their property;(fn1) and 4) the value of the plaintiff's property has been impaired.(fn2) Accordingly, a temporary and permanent injunction is entered requiring the defendants to remove, within sixty days of this order, the hangar located at position #3. Plaintiff's request for punitive damages is denied.

SO ORDERED.

Robert L. Holzberg, J.

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Footnotes:

1. The court understands the plaintiffs' claim to be, and finds, that the act complained of is the relocation to and erection of the hangar at position #3. There is no evidence that the plaintiff objects to the placement of the hangar at either position #1 or #2.

2. The plaintiff properly testified to his personal opinion concerning the diminution in value of his property. Palladino v. Pellini, 2005 WL 590090 at 4 (Conn.Super. 2005). No evidence was offered establishing the amount of the diminution.