Dust, noise from bridge project did not give rise to taking or public nuisance claims

by Hannah Dankbar and Gary Taylor

Sommer v Ohio Department of Transportation
Ohio Court of Appeals, Tenth District, December 23, 2014

In 2007 Nick Sommer and Alyssa Birge bought a home in the Tremont neighborhood in Cleveland. In 2010 the Ohio Department of Transportation (ODOT) started construction to replace the “Innerbelt Central Viaduct truss bridge.”

The first phase of the project was to realign the sewer system.  This phase of the project ran from September 2010 to July 2011. The construction was coordinated between ODOT and Northeast Ohio Regional Sewer District (NEORSD). This phase of construction took place around Sommer’s home and resulted in “construction noise” and the closure of traffic lanes around Sommer’s home. The driving of piles into bedrock for the westbound bridge “create[d] a loud banging sound.”  In June 2012 Sommer filed a complaint against ODOT complaining that the construction resulted in “extreme noise, pounding and vibrations *** separate and distinct from that experience by other affected properties,” and causing his home to be uninhabitable.  Sommer sought declaration of inverse condemnation, as well as a public and private nuisance.  The Court of Claims filed an entry granting ODOT’s motion for summary judgment.

Sommer claimed that the Court of Claims was wrong by (1) not examining their inverse condemnation (takings) claim under the proper legal standard, and (2) granting summary judgment in favor of ODOT on their takings claim.

Sommer argued that the proper analysis for the takings claim was the three-part test set forth by the US Supreme Court in 1978 in Penn Central Transportation Co. v New York:

[w]here a regulation places limitations on land that falls short of elimination all economically beneficial use, a taking nonetheless may have occurred, depending on a complex list of factors including (1) the regulation’s economic effect on the landowner, (2) the extent to which the regulation interferes with reasonable investment-backed expectations, and (3) the character of the government action.”

ODOT countered that because Sommer waited until the appeal to raise this claim, it should not stand.  The Court of Appeals agreed, noting that Sommer’s response to ODOT’s summary judgment motion contained no citation to either Penn Central, or to its three-part test.  It also noted that the lower court did analyze Sommer’s claim under Ohio state caselaw, specifically a 1966 case that recognized a taking as “any direct encroachment upon land, which subjects it to a public use that excludes or restricts the dominion and control of the owner over it.”  The Court of Appeals found no error by the lower court.

The next claim on appeal is that the Court of Claims was wrong to interpret the Ohio law that requires a physical invasion of property or a complete denial of access and that issues of material fact still remain as to whether ODOT substantially interfered with appellants’ use and enjoyment of their property in such a degree as to amount to inverse condemnation. While Sommer complained about how the construction “prohibits you from relaxing completely,” he was never denied access to his property and did not claim any physical damage to his property, prerequisites to an inverse condemnation claim per Ohio caselaw.  “An increase in vibration and dust caused by a highway improvement, both from the construction and from the increase in traffic from the expanded highway, is not compensable as a taking.”  It is assumed that once the construction is complete Sommer will be able to enjoy his property as he did before the construction.

Finally, among Sommer’s other claims he alleged that “a genuine issue of material fact exists regarding whether the harm suffered by appellants was different in kind than suffered by property owners.”  Ohio defines a public nuisance as “an unreasonable interference with a right common to the public.” A private individual does not have standing to claim a public nuisance unless the individual can show that they suffered an injury or damage that was not incurred by the general public. The Court of Appeals reviewed the uncontroverted evidence that the inconveniences experienced by Sommer were also experienced by others in the neighborhood, and concluded that since Sommer failed to show how the harm done to his is different than the harm to others in the neighborhood his claim cannot stand.

US Supreme Court declines to take Grain Processing Corporation nuisance case

The US Supreme Court has declined to hear Grain Processing Corporation’s appeal of the Iowa Supreme Court’s decision that neither the Federal Clean Air Act nor state emissions regulations preempt nuisance suits brought by neighbors complaining of the chemicals and particulate matter from the company’s facility in Muscatine. The original blogpost of the Iowa Supreme Court case is here.

A brief article from of all places, Fox News Montana.

Vermont neighbor can bring nuisance claim for wind farm, despite losing fight against permit

Note:  This case is from the Federal District Court for Vermont, but it is interesting and in keeping with our “wind week” theme.   It was originally posted by Patricia Salkin on her blog, The Law of the Land http://lawoftheland.wordpress.com.

Brouha v Vermont Wind, LLC
(Federal District Court for Vermont, September 23, 2014)

Plaintiff alleges that the Sheffield Wind Project that the Defendants owned and operated created an unreasonable noise impact, that the noise prevented the Plaintiff from gardening, eating outside, walking and other activities similar, and the Plaintiff therefore suffered stress, pain and suffering and loss of the use of his property.

The District Court of Vermont found that the Plaintiff submitted sufficient information for a private nuisance claim, due to interference with the use and enjoyment of another’s property that is both unreasonable and understanding. Defendants contended that the Plaintiff’s complaint should be collaterally estopped because the claims litigated were already decided when the Plaintiff unsuccessfully contended and appealed against the granting of the permit, but Plaintiff in return claims that the standard applied for the permit were different from the standard applied for private nuisance.

The court found that the enjoyment of the Plaintiff’s property has never been litigated, and the restrictions imposed by the permit did not cover a private nuisance issue. Collateral estoppel does not apply here as the private nuisance claim was not raised in the first action, and the general nuisance claim that focused on the impact to the community was not identical to the private nuisance issue. Defendants’ motion was to dismiss Plaintiff’s private nuisance claim was therefore denied.

 

Insufficient evidence to establish uncut lawn was a public nuisance

by Rachel Greifenkamp and Gary Taylor

County of Forest v. Dwayne Pasternak
(Wisconsin Court of Appeals, July 1, 2014)

In Forest County, Wisconsin Robert Lawrence filed a nuisance complaint against his neighbor, Dwayne Pasternak, for not cutting a portion of his lawn. Pasternak was given ten days to mow his lawn by the County. On July 15, 2013, Pasternak was issued a nuisance citation which he filed a motion to dismiss. The complaint went to trial at the circuit court for Forest County where court concluded that Pasternak’s uncut lawn constituted a public nuisance.  Pasternak appealed.

The county ordinance defines a nuisance as “any  condition which is injurious to health, offensive to the senses, or interferes with public or private use of property….”  In the circuit court, the County argued, and the court concluded, Pasternak’s uncut lawn constituted a public nuisance because it promoted mosquitos, pollen, weeds, and small animals. The court of appeals stated, however, that “if we agreed Pasternak’s uncut lawn constituted a public nuisance on that basis, that determination has no standard of enforcement and has the potential of applying to all lawns in Forest County.”

The Court of Appeals noted that the Wisconsin Supreme Court has held “offensive” to mean “giving pain or unpleasant sensation,” “revolting” or “obnoxious.” In the conclusion reached by the circuit court, Pasternak’s uncut lawn was declared offensive and a nuisance because it did not look nice. Based on precedent, however, just because something is disliked or disagreeable it does not make it a public nuisance. The court of appeals concluded that there was insufficient evidence in the record to establish that the uncut lawn was “offensive” and therefore a public nuisance under the definition in the county code.  The judgment of the circuit court was therefore reversed.

Clean Air Act, state emissions regulations do not preempt private nuisance or trespass claims

by Gary Taylor

Laurie Freeman, et al v. Grain Processing Corporation
(Iowa Supreme Court, June 13, 2014)

Grain Processing Corporation (GPC) conducts corn wet milling operations at its facility in Muscatine.  Laurie Freeman and seven other named plaintiffs – representing a class identified as “all Muscatine residents who have resided…within 1.5 miles of the perimeter of [GPC’s] facility” – allege that GPC’s operations create hazardous by-products and harmful chemicals which are released directly into the atmosphere.  The pollutants include sulfur dioxide, hydrochloric acid, particulate matter, and volatile organic compounds including acetaldehyde.  They assert that particulate matter is visible on nearby properties and that the emissions cause persistent irritations and discomforts and put them at risk for serious health effects.  They brought claims for nuisance, negligence and trespass against GPC.  GPC countered by filing for summary judgment, claiming that (1) the federal Clean Air Act (CAA) preempts the plaintiffs’ state law claims, (2) Iowa Code Chapter 455B – which regulates emissions – preempts the plaintiffs’ claims, and (3) a lawsuit impacting facility emissions lacks judicially discoverable standards for resolving the issues.  The district court sided with GPC and plaintiffs appealed.  The portions of the Iowa Supreme Court decision addressing (1) and (2) will be reviewed here.

Clean Air Act preemption. In a 63-page opinion that included a history lesson on the origins of present day environmental law, the Iowa Supreme Court acknowledged that “the Environmental Protection Agency has created a vast regulatory structure to control the emission of air pollutants, including technological standards, health standards, risk levels, and enforcement provisions, completely transforming what was once the province of state law.” The court also recognized, however, that there are differences between common law remedies such as nuisance and trespass, and regulatory regimes such as the CAA and chapter 455B.  While regulatory regimes focus on the prevention of pollution through emissions standards designed to protect the general public, “the common law focuses on special harms to property owners caused by pollution at a specific location.”  The Iowa Supreme Court noted that the United States Supreme Court is reluctant to find that a federal law preempts state law in areas where states have traditionally exercised their police power.  Congress has the power to preempt local law and can expressly do so, but did not in the CAA.  To suggest that Congress indirectly removed state law claims such as nuisance and trespass “seems…rather unlikely,” and the Iowa Supreme Court declined to interpret the CAA in that way.  “The purpose of state nuisance and common law actions is to protect the use and enjoyment of specific property, not to achieve a general regulatory purpose….We decline to conclude that the increased complexity of the CAA has categorically elbowed out a role for the state nuisance and common law claims presented here.”

Iowa Code Chapter 455B. The court began by noting that “the legislature is presumed to know the existing state of the law when a new statute is enacted.  In the absence of any express repeal, the new provision is presumed to accord with the legislative policy embodied in prior statutes.”  While there are no definitive Iowa cases addressing the question of whether nuisance claims may go forward in light of Chapter 455B, the court did find instructive cases that have found that a lawful business, properly conducted, may still constitute a nuisance, even if in compliance with state regulations.  “We do not see enforcement of nuisance and other common law torts as inconsistent with the regulatory framework of chapter 455B.”  Nuisance claims are based on specific harms to the use and enjoyment of real property, while air pollution regulations are enacted to protect the public interest.

The Iowa Supreme Court reversed the district court’s summary judgment, allowing the case to proceed to trial.

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.
Based on the test set forth above, the Court concluded the noise ordinance was unconstitutionally vague as applied to Farmway because it failed the second prong of the inquiry.  “Consider the uncertainty facing the enforcing agents when they determined … whether Farmway’s noise was ‘excessive,’ ‘unnecessary,’ or ‘unusually loud,’ which ‘disrupts’ or ‘annoys’ others in the city.  The ordinances’ lack of objective standards for making these determinations readily promotes varying and somewhat unpredictable bases for enforcement….This vagueness constitutes an impermissible delegation of basic policy matters to actors ‘for resolution on an ad hoc and subjective basis.'”
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).
The language in the city’s nuisance ordinance is verbatim from the Kansas statutes.  To the two-pronged inquiry the Court added a third consideration for nuisances; that is, that the court must be “mindful of the specific characteristics of nuisances….[W]hether an activity constitutes a nuisance is generally determined by reference to the interest invaded and the harm inflicted, not the nature or quality of the defendant’s acts.”
The Court concluded that, unlike the words found in the noise ordinance, the words “injure” and “endanger” have common meanings widely understood in the legal context.  Similarly the meaning of “public health,” “public safety,” and “public welfare” is widely understood in legal circles. Citing Black’s Law Dictionary and prior caselaw, the Court found that Farmway was “clearly on notice” that its facility was injuring or endangering the public’s health, safety, or welfare, and that the agents enforcing the ordinance were not free to prosecute based on their own ad hoc and subjective judgments; they must consider how the community is affected.  The Court upheld the constitutionality of the nuisance ordinance.

Property did not qualify for Minneapolis vacant building registration program because conditions did not constitute nuisance

by Victoria Heldt

Larry Naber v. City of Minneapolis
(Minnesota Court of Appeals, May 29, 2012)

Larry Naber owns a home in the City of Minneapolis that he vacated in 1996.  In 2001 the City sent a letter to Naber requesting him to apply to the City’s vacant building registration (VBR) program.  Naber paid the $400 registration fee annually and took part in the VBR program from 2001 until 2008.  During those years, the property incurred several minor zoning code violations, all of which Naber remedied in a timely fashion.

In 2009 the City cited three code violations (brush/branches, tall grass/weeds, and an inoperable vehicle) which Naber timely remedied.  In September 2009 Naber received a letter from the City requesting he pay a $6,360 registration fee for the VBR program that year.  He refused to pay and the Minneapolis City Council levied the sum as a special assessment against the property.  In district court, the special assessment was affirmed.  The court determined the property qualified for the VBR program since it was unoccupied for 365 days and incurred zoning code violations.  Naber appealed to the Court of Appeals.

The City’s VBR program operates pursuant to MCO §249.10 and works “to enhance the livability and preserve the tax base and property values of buildings within the city.”  The ordinance states that a building is vacant if (among other factors) it is “unoccupied for a period of time over three hundred sixty-five (365) days and during which time an order has been issued to correct a nuisance condition pursuant to section 227.90.”  First, the parties disagreed as to who bears the burden of proof to show the property qualified for the VBR program.  After analyzing precedent, the Court determined that the City bears that burden and that it failed to satisfy it.

Naber argued the fact that his property qualified for the VBR program in 2009 because it was vacant for 365 days and incurred zoning code violations.  He did not deny its vacancy, but rather that the zoning code violations did not meed the code’s nuisance definitions.  According to the code, in order for tall grass to constitute a nuisance condition it must measure eight inches tall or have gone (or about to go) to seed.  Naber noted there was no evidence in the record that the grass measured eight inches tall or that it was about to go to seed.  The picture provided in the record does not indicate the height of the grass.  The Court agreed with Naber and concluded the district court’s finding that the grass was a nuisance condition was not supported by the record.

Naber next argued the violation for fallen branches.  The existence of a branch in a yard is not a nuisance condition and the district court did not find the branch was a health, safety, or fire hazard.  The City’s only witness did not testify about the branch and the picture provided in the record shows only a small branch in the back yard.  The Court determined the district court’s finding that the fallen branch was a nuisance condition was erroneous.

Naber finally argued that the vehicle placed on his property was not a nuisance condition.  He admits that it was parked on the property without current license plates or registration, but asserts that it was not on the property in such a way as to constitute a nuisance.  It was parked on a designated parking pad similar to that of a neighbor.  The City argued that, regardless of the manner in which it was parked, an inoperable vehicle on the property is in itself a nuisance.  The Court disagreed.  It looked to the language of the statute.  An “inoperable vehicle” was listed within a sentence as one of several nuisance conditions separated by a comma.  The sentence ended with the phrase “in such a manner as to constitute a nuisance.”  The Court found that this phrase applied to the entire sentence, so an inoperable vehicle must be parked “in such a manner as to constitute a nuisance” in order to be a nuisance condition.  The Court rejected as erroneous the district court’s finding that the vehicle was a nuisance.

Since the Court of Appeals found that Naber’s property did not qualify for the VBR program it reversed the district court’s decision.

Hatfields and McCoys, meet Huss and Price

by Victoria Heldt

Apple Hill Farms Development LLP, Jon Huss Construction Corp. v. Daryl Price, Nicole Palmer v. Berhoff Homes LLC
(Wisconsin Court of Appeals May 15, 2012)

Jon Huss Construction Corp., a homebuilder, frequently builds speculation homes intended for resale. Huss built one such home on a lot adjacent to Daryl Price’s lot within the Apple Hill Farms Development. Price received approval from Apple Hill to build his house at a specific elevation, which required his lot to slope towards Huss’s and to be no more than four feet higher than Huss’s lot at the border. Price built his lot two feet higher than approved and chose not to slope his lot. Alternatively, he built a 32-foot long, 12-foot high concrete retaining wall near the property line. John Hofferber, who built the wall, stated he built it in a way that allowed it to later be faced with brick or stone. Numerous potential homeowners told Huss they would not purchase the speculation home unless something was done to make the bordering wall more aesthetically pleasing. The wall also blocked the view from Huss’s property, blocked sunlight, and caused increased water, mud, and stones to come onto the property from Price’s property.

The relationship between Huss and Price was contentious from the start. Huss testified that when Price started construction of his home, Huss walked over to introduce himself as the builder next-door. Huss allegedly responded “what the f*** do I need you for?” Hofferber testified that when he would question Price about the concrete wall he would say that “he’ll put stone or brick on it when a judge tells him he has to put stone or brick on.” Matthew Hurteau, a worker on Price’s home, testified that he heard Price say the “big ugly wall can face the ugly house next-door.” Furthermore, Huss claimed someone wrote “a** h***” on his lawn with grass killer.

Apple Hill initially sued Price on the grounds that the wall and site grading violated several restrictions and named Huss as an involuntary plaintiff. Subsequently, Huss filed his own claim, alleging the wall was a private nuisance. It also claimed that the wall prevented Huss from selling the property and decreased the fair market value of the property. It further purported that the wall was built to intentionally cause economic loss and damage to Huss. Prior to trial, the parties reached a partial agreement with Price agreeing to cut off the four feet of wall that extended above ground level and to face the remaining portion of the wall with natural stone. The district court declared the wall an intentional nuisance under common law and under Wis Stat. § 844.10. It concluded Huss suffered approximately $148,000 in damages. Price appealed.

Price argued that Huss’s complaint should have been dismissed on summary judgment because he did not prove an “interference with the use of the property as a family residence.” He argued that a private nuisance claim cannot be made based only on physical appearance. The Court quickly dismissed this argument, first noting that Price failed to cite any legal authority. The court cited Prah v. Maretti in which the Court declared a spite fence to be an actionable private nuisance. Within that ruling, it also declared that a private nuisance could exist in the form of blocked sunlight. It referred to the current definition of a nuisance as “a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Clearly, nuisance claims can arise from any disturbance of the enjoyment of property regardless of physical interference.

Price next argued that Huss failed to file a claim under the appropriate statute (Wis. Stat. § 844.10) and that the wall did not constitute a public nuisance under the statute. The Court declined to discuss this argument since it did not affect the circuit court’s determination that the wall constituted a nuisance under common law. It did, however, state that Huss’s complaint was sufficiently filed because Wisconsin statute only requires an individual to set forth basic facts in order to make a claim. Price’s last claim argued that the $148,000 awarded was speculative since it relied primarily on one real estate agent’s estimate. The Court rejected this argument since it was not supported by legal authority. It affirmed the district court’s opinion.

Kansas Court of Appeals strikes down municipal nuisance ordinance

by Gary Taylor

City of Lincoln Center v. Farmway Co-op
(Kansas Court of Appeals, April 12, 2012)

Farmway owns and operates a grain elevator located within the City of Lincoln Center, a small rural farming community in central Kansas. The neighborhood surrounding the Farmway elevator is residential. In December 2008, Farmway applied for a building permit to construct a new grain storage bin adjacent to the existing facility. The new storage bin went into operation on July 14, 2009. From that day forward, nearby residents complained about the increased noise level from the drying fans and the increased grain dust and truck dust in the air. On July 27, 2009, Dawn and Melvin Harlow filed a noise complaint against Farmway. The Harlows described the increased noise levels from the new grain bin and its effect on their everyday life. Other neighbors also complained about the noise, and explained how their yard and vehicles were covered with grain dust and how the operation of the new facility had led to increased health problems.

The Kansas Department of Labor and the Kansas Department of Health and Environment made a total of four visits to the site to investigate and take measurements.  All tests for noise and dust were well within legal limits.  No citations were ever issued.  Nonetheless, on December 9, 2009, the City charged Farmway with violating City ordinances regarding excessive loud noises and nuisances. Count I of the City’s complaint alleged that between July 16, 2009, and December 3, 2009, Farmway willfully, unlawfully, and intentionally did “make, continue, maintain or cause to be made or continue an excessive, unnecessary, unreasonable or unusually loud noise which annoys, disrupts, injures or endangers the comfort, repose, health, peace or safety of others within the City of Lincoln Center, Lincoln County, Kansas, in violation of [City] ordinance #643.”  Count II alleged that Farmway did “maintain a public nuisance by act or failure to perform a legal duty intentionally causing or permitting a condition to exist which injures or endangers the public health, safety, or welfare, namely the excessive, unnecessary, unreasonable or unusually loud noise, and by causing or permitting excessive air pollution and contamination from grain dust all generated by, for or from the new concrete grain storage bin facility” in violation of ordinance #633.  Farmway was found guilty in municipal court and charged a total of $466 in fines and assessments.  Farmway appealed to district court, where the judge threw out the complaint because “the City’s ordinances provide no guidelines or constraints on those that enforce it. One must guess at the meaning of these ordinances and its application may depend upon those attempting to enforce it.”  The City appealed to the Kansas Court of Appeals.

The Court of Appeals stated that “in determining whether an ordinance is void for vagueness, two inquiries are appropriate: (1) whether the ordinance gives fair warning to those persons potentially subject to it and (2) whether the ordinance adequately guards against arbitrary and discriminatory enforcement.”  The court observed that the case fell somewhere in between a long line of cases in which the courts found the ordinances constitutionally deficient because of the complete lack of an objective standard, and another line finding ordinances constitutional because they contained expressly stated-objective standards clarifying the ordinance’s application.  The Lincoln Center ordinance’s use of the word “unreasonable” in describing one type of loud noise “appears to be an attempt at creating an objective standard”; however, the court concluded that the noise ordinance “does not give fair warning to those potentially subject to its reach because there are no objective standards imparted.”

[T]he critical piece of the Lincoln ordinance is … the fact that it only applies where the noise “either annoys, disrupts, injures or endangers” the comfort, repose, health, peace or safety of others within the City. It is the ordinance’s application language that makes it vague. There is no objective standard by which to judge whether the complainants have reasonable grounds to complain about the noise either annoying, disrupting, injuring, or endangering them. We agree with the district court that this language fails to provide an objective standard. The absence of an objective standard subjects the defendant to the particular sensibilities of the complainant, not something that is geared toward a “reasonable sensibility” standard. Consequently, the ordinance does not adequately guard against arbitrary and discriminatory enforcement….

We find there is no reason that the City cannot enact a more specific ordinance to proscribe the objectionable conduct involving dust and industrial noise and provide constitutionally acceptable objective standards for consideration of the conduct. We realize that small farm towns depend on the agricultural economy for its survival and vice versa…. However…if dust and industrial noise present a public nuisance, then it lies within the power of the City to enact an ordinance specifically prohibiting such nuisance and defining objective standards to give anyone subject to its criminal penalties fair warning for what conduct will be prosecuted.

Legal non-conforming use still subject to junk and nuisance ordinances

by Victoria Heldt

Soo Township v. Lorenzo Pezzolesi
(Michigan Court of Appeals, October 25, 2011)

Lorenzo Pezzolesi purchased a piece of property in Soo Township in 1987 when the property was zoned commercial.  He began using it as a junk/salvage yard soon after that.  In 2001, the property was zoned residential and Soo Township passed a nuisance ordinance and a junkyard ordinance.

Subsequently, the Township filed a complaint against Pezzolessi claiming that he was in violation of the ordinances, that the property wasn’t zoned to be a junkyard, and that he did not have a license to operate a junkyard.  The Township’s Supervisor testified that the junkyard did not even classify as “commercial” since no commercial signs were up, the entrance was blocked on a regular basis, and no evidence of commercial activity existed.  Pezzolesi argued that his operation was a salvage yard, not a junkyard.  He claimed to have made sales two weeks prior to the trial and, when asked about employees, he responded that he called “Peter, Joe, and Bob” on the weekends when they were free.  He was unable to provide the last names of his helpers.  The trial court ruled in favor of Pezzolesi.  It found that his salvage yard constituted a commercial operation on property that was zoned commercial at the time of purchase.  The property was rezoned residential after the establishment of the salvage yard; therefore the salvage yard was a legal nonconforming use not subject to the license requirement in the zoning ordinance.  The trial court also found that Pezzolesi was not subject to the nuisance ordinance for the same reason.

The Township appealed, first arguing that the defendant abandoned his right to a nonconforming use when he ceased operating a “commercial” business.  The Court denied this argument, noting that the act of abandonment required “an act or omission on the part of the owner or holder which clearly manifests his voluntary decision to abandon.”  The Court found no such action.  Next, the Township argued that the Pezzolesi’s property was subject to the nuisance ordinance and the junkyard ordinance.  On this issue, the Court agreed.  It distinguished between a zoning ordinance and a regulatory ordinance in that “zoning ordinances regulate land uses, while regulatory ordinances regulate activities.”  It cited a previous case in which it ruled that “a regulatory ordinance can be imposed on a prior nonconforming user, but a zoning ordinance cannot.”  It found that in this case, the junkyard ordinance and the nuisance ordinance constituted regulatory ordinances since they governed people’s behavior regarding the operation of junkyards.  Similarly, the nuisance ordinance “address activity or conditions that could apply to any property, regardless of its location.”  Therefore, the ordinances applied to Pezzolesi’s junkyard/salvage operation.

The Court remanded the decision to the lower court to take further evidence and hear arguments on whether Pezzolesi’s operation in fact violated either of the regulatory ordinances.

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