Gustafson v. Cotco Enterprises, Inc.
42 Ohio App. 2d 45, 328 N.E.2d 409, 71 Ohio Op. 2d 264 (1974)
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Rule of Law:
A court of equity may enjoin the construction of a proposed business as an anticipated nuisance, even if the business is not a nuisance per se, where clear and convincing evidence demonstrates that its operation will necessarily result in an unreasonable interference with the use and enjoyment of neighboring properties.
Facts:
- On June 28, 1973, Dragway Enterprises (defendant) acquired 150 acres of land in Berlin Township, a residential-agricultural area with no zoning regulations.
- Shortly after the purchase, the defendant announced its intention to build and operate a commercial drag strip on the property.
- Plaintiffs, who own or occupy land near and adjacent to the defendant's property, learned of the plan.
- Around July 10, 1973, some plaintiffs met with the defendant's officers to express their concerns.
- By a letter dated July 12, 1973, plaintiffs formally notified the defendant of their opposition, stating the drag strip would cause irreparable damage and threatening legal action.
- Despite the notice, the defendant commenced clearing its land to begin construction.
- The defendant planned to operate the track on Sundays from April to October, with races attracting up to 3,000 spectators and featuring extremely loud cars, many without mufflers.
- A Methodist Church, holding Sunday morning services, is located approximately 300 feet from the defendant's property.
Procedural Posture:
- Plaintiffs filed a complaint for injunctive relief against Dragway Enterprises in the trial court to stop the construction of a drag strip.
- The trial court found that the proposed drag strip would constitute a nuisance and issued an injunction preventing its construction and operation.
- The trial court also awarded plaintiffs damages in the form of attorney fees and other litigation expenses.
- Dragway Enterprises, as the appellant, appealed both the injunction and the award of damages to this intermediate appellate court.
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Issue:
Does the planned construction and operation of a drag strip in a residential-agricultural area constitute an enjoinable anticipated nuisance where clear and convincing evidence shows it will necessarily create an unreasonable amount of noise that interferes with the use and enjoyment of surrounding properties?
Opinions:
Majority - Lynch, P. J.
Yes, the planned construction and operation of the drag strip constitutes an enjoinable anticipated nuisance. A court may enjoin a threatened nuisance when clear and convincing evidence shows it will necessarily result from the contemplated act. Although a drag strip is not a nuisance per se and no zoning laws were violated, the evidence here was clear and convincing that the operation would create an unreasonable amount of noise, causing serious interference with the plaintiffs' use and enjoyment of their property. Evidence included expert sound testimony from other tracks, testimony from individuals living near other drag strips describing the noise as comparable to rocket fire, and the defendant's own plans to race cars that develop up to 1,800 horsepower without mufflers. This anticipated noise would prevent normal conversation, interfere with sleep, and disrupt Sunday services at a nearby church, thus constituting a nuisance in fact. The court also held that the trial court erred in awarding attorney fees, as they are not typically recoverable in nuisance actions absent an intentional tort.
Analysis:
This case clarifies the legal standard for granting an injunction against an anticipated nuisance. It affirms that property owners do not have to wait for actual harm to occur before seeking relief if they can meet the high evidentiary burden of showing, by clear and convincing evidence, that a proposed land use will inevitably become a nuisance. The decision reinforces that the common law of nuisance operates independently of zoning regulations, providing a remedy for landowners even in unzoned areas. This precedent is significant for future land use disputes where a proposed lawful activity is alleged to be incompatible with the character of the surrounding neighborhood due to factors like noise, light, or traffic.
