May 16, 2018
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.
Patrick M. Fahey, with whom, on the brief, was Matthew
Ranelli, for the appellants (defendants).
R. Harness, for the appellee (plaintiff).
Lavine, Moll and Bishop, Js.
case is about a so-called ‘‘spite fence''
erected along the border between two residential properties
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,  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.
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.
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' backyard 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.
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' properties. 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 plaintiff 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
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. During this period, the relationship between the
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 defendants'
landscaping project expanding into the wooded area between
his and the defendants' homes. Assuming that the
defendants had not received the proper approvals from the
Greenwich Inland Wetlands and Watercourses 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
testified that he approached her, without first identifying
himself, to question her about the nonexistence of wetlands
next notable incident occurred in 2014, when the plaintiff
noticed Laura Botoff walking along their shared boundary with
a man who appeared to be measuring for a fence. The plaintiff
testified that he went outside to ask Laura Botoff whether
they were measuring 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 agitated, 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 understood 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 incident, the defendants applied to the
agency for a permit to build the fence. The agency issued the
permit over the plaintiff's opposition.
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
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 ...