Lincoln Center (KS) noise ordinance unconstitutional as applied, nuisance ordinance was not
by Gary Taylor
City of Lincoln Center v. Farmway Co-Op and Farmway Storage #1
(Kansas Supreme Court, December 20, 2013)
Farmway owns a grain elevator in the city of Lincoln Center, largely surrounded by residences. In 2008 Farmway applied for, and was granted a permit to expand the facility by adding a new 124-feet tall grain bin and four aeration fans for grain drying.
According to the testimony of neighbors, when the new facilities began operating in 2009 the levels of dust and noise increased significantly. The fans made sleeping, conversing and watching TV difficult, and large clouds of grain dust frequently reduced visibility and caused respiratory problems. It was undisputed that Farmway took several steps to reduce noise and dust concerns, and that the facilities complied with all state and federal regulations regarding dust and noise. Nevertheless, the city cited Farmway for violations of both its noise and its nuisance ordinances. Farmway was found guilty of both. Farmway appealed on the grounds that both ordinances were unconstitutionally vague. The district court sided with Farmway and, on appeal, the Court of Appeals affirmed. The city appealed to the Kansas Supreme Court.
To determine if an ordinance is unconstitutionally vague, a Kansas court must make a two-pronged inquiry to (1) determine whether the ordinance gives adequate notice to those tasked with following it; specifically, whether it conveys sufficient definite warning and fair notice as to the prohibited conduct in light of common understanding and practice. (2) the ordinance must be precise enough to adequately protect against arbitrary and discriminatory action by those tasked with enforcing it.
The City’s Noise Ordinance:Section 1. DISTURBING THE PEACE. It is unlawful for any person to make, continue, maintain or cause to be made or continue any excessive, unnecessary, unreasonable or unusually loud noise which either annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City.
The City’s Nuisance Ordinance:MAINTAINING PUBLIC NUISANCE. Maintaining a public nuisance is by act, or by failure to perform a legal duty, intentionally causing or permitting a condition to exist which injures or endangers the public health, safety or welfare. (K.S.A. 21-4106). Maintaining a public nuisance is a Class C violation.PERMITTING PUBLIC NUISANCE. Permitting a public nuisance is knowingly permitting property under the control of the offender to be used to maintain a public nuisance, as defined in Section 9.5 of this article. (K.S.A. 21-4107).