People frequently visit my law office and complain that a nearby factory, airport, apartment complex, or night club is creating an ongoing problem for them. They either complain that the establishment smells, that it is too noisy, that the people who inhabit the premises are inclined to litter, or that it is constantly undesirable in some other similar manner. And the question always is the same: what are their legal rights?
It would take more than this short column allows to answer a question that is so broad. In this article, however, I want to focus on the following narrower topic: how do you resolve a nuisance complaint when the offender began operations long before the neighbors built their homes and moved in next to the business operation under attack.
There is a concept well known to lawyers throughout the country which holds that one cannot "move to a nuisance" and then complain about the nuisance. What that means is that if you purchase a house next to an existing business establishment, it is up to you to make sure that you understand the kind of noise and odors produced by that establishment and to ensure that you will be able to live with that establishment as your neighbor.
It is considered to be unfair to the establishment for people to move next to it knowing full well that it is an operating establishment, and then complain afterwards that they cannot tolerate the noise, odor or other problems relating to the establishment. That is why they say that one cannot move to a nuisance and then complain about the nuisance.
Often, I find that people do not conduct due diligence before they move next to these kinds of operations. The concept of fundamental fairness is just as important here as in any competing legal doctrine. Fairness dictates that if you do not like the manner in which a business is conducted, don't move along side it.
Factories and industrial establishments after all have a right to exist. So do operating farms, churches (whose bells bother some people) and firehouses. It is unfair for the newest resident on the block to harass these institutions by complaining that he or she cannot tolerate the noise and other normal problems associated with regular operating establishments.
In many states where residential development has been intense since World War II, the easy to build isolated communities have already been saturated with housing. That means that with increasing frequency, people are moving to areas that are closer to uses that might otherwise be deemed noxious. Thus, it appears that these kinds of moving to a nuisance issues are becoming more common. At least it appears that way to me.
My favorite scenario occurs when people move out to the country. With residential development generally at a premium (albeit there has been a slight slow down as of late), it has been common for large home developers to construct subdivisions consisting of McMansions in what used to be pure farm land. Indeed, many farmers have sold property to these large national developers making huge profits.
As it sometimes turns out, persons accustomed to living in suburbia who purchase these McMansions in farm country are not always accustomed to the smell of manure, the sight of farm runoff, or the occasional spraying of necessary pesticides that have forever accompanied rural life in this country. You have to chuckle when these displaced suburbanites ask whether they have any legal recourse to try to prevent neighboring working farms from conducting traditional farming operations.
As a general rule, the answer is and should be no, there is no legal relief for these people. If they did not want to live next to an operating farm, they should not have purchased a house in the vicinity of an operating farm. And as a general rule, the same applies to operating factories, operating night clubs, etc.
That is not the end of the legal analysis, however. It is one thing to move next to an existing establishment and then not be happy with status quo. It is completely another thing to move next to an industrial establishment that overly intensifies its use after the houses are constructed, resulting in increased levels of noise, odor, traffic, pollution, and other issues that frequently arise in mixed use disputes.
For example, airports that for decades served small propeller aircraft are not at all the same kind of operation when the use of the airport intensifies to now accommodate 727 sized private jets. In such a case, neighbors surrounding the airport certainly have a right to object. They are not objecting to the sounds and smells associated with small propeller aircrafts that used the airport for decades, but to the thunderous sounds generated by the huge jet aircrafts.
In addition, people surrounding an industrial establishment have a right to complain when the industrial establishment ceases to comply with its own legal obligations. For example, persons who reside next to an operating dairy processing facility, may not be able to complain so long as operations remain consistent with local noise ordinances. However, when noise levels exceed legal levels the neighbors may very well have a legitimate right to complain and pursue legal recourse.
A dramatic increase in industrial activity may also constitute a sufficient change in use so as to entitle neighbors to relief. For example, an establishment that for decades only had business operations that coincided with a traditional work day, might be considered to be an entirely different operation if it becomes an around the clock facility.
And claims of fraud will also impact the rights of neighbors in these kinds of circumstances. For example, if a national builder constructs a subdivision in the vicinity of a meat processing facility and the sales representative makes verbal commitments to would be purchasers that the noise levels are minimal and only occur during the hours of 8-5, neighbors may very well have a right to legal redress when it turns out that the noise is louder during the winter when the trees that shielded the noise during the summer lose their leaves and when operations continue until the middle of the night.
There are several legal concepts at issue in these nuisance cases. Caveat emptor means the buyer must be aware of what he or she is purchasing, including surrounding land use activities. And the doctrine that one cannot move next to a nuisance and complain continues to retain its vitality as a general matter.
But where the intensity of site operations changes, or where there have been material misrepresentations made about the nature of site operations, or where other material changes take place, it is possible for neighbors to complain and have their day in court. While you cannot move to a nuisance and complain about the nuisance, the nuisance may not be able to significantly expand or change without losing protection from nuisance complaints.
