How Annoying?

 

FIRST LINES OF DEFENSE

As our population centers expand, homeowner associations are frequently encountering the dilemma of what to do when a nearby landowner outside the community engages in conduct that is offensive to residents. And, as the distance between homes decreases, communities also must resolve disputes that occur between their own members.

Nuisance covenants and laws are most often the answer. Most states, and many cities and counties, have statutes that can help an association stop conduct on a separate property that causes it harm and inconvenience, such as excessive noise, odor, or water runoff. While these laws are also available for homeowners to use against neighbors within the association, those situations are dealt with more efficiently with the association’s governing documents.

Covenants. Indeed, your association’s documents are usually the first line of defense in the fight against nuisances within the neighborhood. A well-crafted declaration will be written as broadly as possible, with an expansive definition of “nuisance” that encompasses many different unwanted activities and allows you to deem something an outright violation without further debate. For example, the CC&Rs for the Conestoga Place Homeowners Association, in Omaha, state: “No noxious or offensive trade or activity shall be carried upon any Lot covered by this Declaration, nor shall anything be done thereon which may be or become an annoyance or a nuisance to the neighborhood.”

As with all restrictions, it’s important to provide an appropriate procedure for enforcing a nuisance provision. Your documents should detail the association’s power to hold an administrative hearing or other quasi-judicial proceeding, and also provide for notices of violation along with a grace period in which residents can stop their nuisance behavior. The CC&Rs of the Forest Ridge Homeowners Association, in Sterling, Virginia, provide: “In the first formal notice of citation, the Association shall advise the member of the nature of the violation, cite the specific provision of the [nuisance covenant] that the member has allegedly violated, specify the remedy required, and state that within thirty (30) days the member must complete corrective action or request a hearing before the Board of Directors.”

Additionally, the association should allow for an appeals process that a resident who has been notified of a nuisance violation can pursue. This is a fair and reasonable policy, and it also protects you from a possible claim of violating a resident’s right to due process—a base you’ll definitely want to have covered if one of your nuisance actions finds its way to court.

Criminal law. If your association isn’t successful in combating offensive conduct with its covenants, criminal charges might be an option—but only if the behavior rises to the level of a “public nuisance,” meaning it constitutes a criminal violation under your municipality’s body of law. Most cities have specific ordinances detailing the definition, administrative hearing process, and criminal sanctions for nuisances, and also outline procedures to help abate them. Usually, a local government official is empowered to handle alleged violations and, if necessary, to prohibit certain behavior. An Oakland ordinance, for example, states: “Any condition caused or permitted to exist in violation of any of the provisions of this chapter is a threat to the public health, safety, and welfare, and is declared and deemed a public nuisance and shall be punishable as such.” Oakland’s city manager is authorized to declare a public nuisance and to assess civil penalties administratively, and can also appoint a staff member to prosecute public nuisances and recover fines, fees, and costs.

In St. Louis, the city code offers a similarly broad definition, and also provides specific procedures to curb public nuisances: “The Director of Public Safety may initiate an administrative adjudication hearing in order to abate a public nuisance…when the person has failed to abate a nuisance within 30 days of a notice issued…. The order of abatement shall require the taking of reasonable measures designed to prevent the recurrence of the nuisance activity in light of the magnitude of the harm caused by the nuisance, the value of the property, and the extent to which the defendant has failed to take effective measures to abate the nuisance.”

You’ll find that municipal statutes leave little to chance, with ordinances also detailing the specifics of administrative hearings, such as the nature of the proceedings (including testimony and cross-examination), the recording of all hearings, and the right to seek judicial review after an order is given.

CIVIL RITES

If neither your association’s covenants nor the criminal courts succeed in stopping nuisance behavior, your final option is the civil court system. In contrast to the relative ease of relying on your governing documents or bringing criminal charges, navigating the court system can be quite challenging. Although courts routinely enforce restrictive covenants prohibiting nuisances, the time, cost, and emotion involved should make it the last resort when dealing with a homeowner in your association. Of course, if the offensive conduct emanates not from within the association, but from a neighboring property, the civil court system may be the best—and only—option.

That said, as a recent case in Golden, Colorado, demonstrates, state nuisance laws can also be a powerful weapon for an association to use in dealing with its own residents. In that case, a district judge supported a condominium association’s decision to ban a couple from smoking in their unit. Specifically, the judge found that smoking was a violation of the condominium’s declaration and was akin to playing loud music that disturbed neighboring unit owners. The judge found that, according to the declaration, “no nuisance shall be allowed…which is a source of annoyance to residents,” and that the odor from drifting cigarette smoke “constitutes a nuisance.”

It’s easy to see why a court decision banning people from performing a legal act in their own home, much less in their neighborhood, can create controversy as this decision did when it was announced in the media this past November. But nuisance provisions are unique—as both covenants and legislation. Rarely does a court allow you to stop conduct that’s otherwise legal from taking place on someone’s own property. Nuisance laws, however, typically let you obtain an injunction, along with damages, even when a person’s use of his or her land doesn’t violate any local zoning or other ordinances. In such cases, a court usually employs a standard that asks a judge or jury to determine if a “reasonable person” would find the conduct offensive. If so, an injunction may be warranted.

As the U.S. Supreme Court eloquently put it 80 years ago, in a case called Village of Euclid, Ohio v. Ambler Realty Co.: “A nuisance may be merely the right thing in the wrong place, like a pig in the parlor instead of in the barnyard.” In other words, whether something is a nuisance depends largely on context. Thus, in Euclid, the Supreme Court for the first time recognized the power of a municipality to create zones of land—zoning—in which otherwise permitted uses were restricted. Today, a court will fully examine the relationship between the nature of a particular use that is alleged to be a nuisance and its location within, or with respect to, a neighborhood. In most cases, the court conducts a benefit-and-burden analysis to assess several criteria, including the direct and indirect impact the use has on your community (and, more specifically, on your residents’ use and enjoyment of the property), any benefits it adds to the neighborhood, its negative effects, and the length of time the use has existed.

Before filing a nuisance complaint, prepare yourself by examining the relevant statute in your jurisdiction. Georgia’s nuisance statute, for example, uses fairly common language: “Nuisance is anything that causes hurt, inconvenience, or damage to another, and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. The inconvenience complained of shall not be fanciful, or such as would affect only one of fastidious taste, but it shall be such as would affect an ordinary, reasonable man.” Most state nuisance statutes use similarly broad terms that leave the determination to a judge or jury. (As a side note, in most states, a civil defendant doesn’t have a right to a jury trial when the plaintiff is asking only for an injunction. However, if a plaintiff is seeking monetary damages, the defendant usually can insist on a jury. This is an important distinction in nuisance cases, because it can be difficult to convince a local jury that people’s use of their own property should be regulated.) Some form of the “reasonableness” test is also traditionally used to qualify who would be “annoyed” or “inconvenienced” by the nuisance. As the Georgia statute makes clear, it must offend not just someone of extreme sensitivities, but “an ordinary, reasonable man.”

Thus, courts have come down against noxious odors caused by everything from 30,000-chicken poultry houses in Georgia (in 1995’s May v. Brueshaber), to a wood-burning stove in someone’s home in Nebraska (1996’s Thomsen v. Greve), to airplane fuel at a private airport, again in Georgia (1971’s Camp v. Washington). Courts have also targeted loud noise, from a radio blasting outside a window for the specific purpose of harassment in Georgia (1987’s Hardwick, Cook & Co. v. 3379 Peachtree, Ltd.), to a racetrack in Alabama (1993’s Patterson v. Robinson), to a holiday light display and the spectator traffic it generated in Arkansas (1995’s Osborne v. Power). And courts have clamped down on environmental nuisances as well, including the continuing discharge of chemicals into the ground caused by a leaking pipeline in Georgia (1992’s Hoffman v. Atlanta Gas Light Co.) and “collecting water on one’s property in a greater quantity than normal and causing it to flow into another’s land in greater quantity than before” (1950’s Cox v. Martin).

Often it’s a unique or unusual use of land relative to the surrounding area that triggers nuisance litigation. In 1999’s Superior Farm Mgmt. v. Montgomery, for example, the builders of a commercial hog-breeding facility challenged a Georgia court’s decision to stop the facility’s construction after neighbors protested such an abnormal and noxious use in their area. But the Supreme Court of Georgia found that the residents “proved to a reasonable degree of certainty that there was a substantial threat that they would be irreparably damaged, hurt, inconvenienced, or injured by defendants’ construction of the proposed swine facility.”

Not that every nuisance claim is upheld. In 1998’s Berardo v. Emro Marketing, a Michigan business owner sued a company whose service station had reported a release of gasoline that was spreading to her property. The plaintiff claimed a loss of value in her property, even though the leak hadn’t actually reached it yet. Michigan law defines a private nuisance as “the intentional interference with the use and enjoyment of the land by those entitled to the use.” The court stated that a showing of trespass is not sufficient if there is not “a showing of a substantial interference” with the use and enjoyment of the plaintiff’s property, and found that the plaintiff’s business remained successful both before and after the contamination had occurred. Because her business was virtually unimpaired by the contamination, the court denied her nuisance claim.

As new communities and new land uses are developed every day, the covenants, laws, and procedures concerning nuisances constantly evolve. Whether you’re a board member, manager, attorney, or other community leader, it’s essential that you be aware of the relevant laws in your jurisdiction. Remaining current on the changes in this ever-growing area will help to protect your neighborhood, your properties, and your residents from the hazards, injury, loss in value, and plain inconvenience that nuisances can cause.