Issues in Nuisance Litigation

By Haley R. Van Loon | September 15, 2009
Many ethanol producers have already been confronted with the prospect of nuisance litigation. In this type of litigation, an ethanol producer's neighbors bring suit alleging that their rights have been interfered with by some aspect of the operation of the ethanol plant. Good planning, careful operation and promptly addressing complaints may help ethanol producers minimize the risks posed by nuisance litigation.

Unreasonable Interference
According to one state Supreme Court, a nuisance is defined as, "[w]hatever is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, as essentially to interfere with the comfortable enjoyment of life or property . . ." Generally speaking, a nuisance is any use of property which unreasonably interferes with neighbors' comfort and reasonable use and enjoyment of property. Judges and juries take into account a number of factors in determining the existence of a nuisance, including: which party was there first, the nature of the area in question and the nature of the activity in question. What constitutes an unreasonable use is typically determined by reference to what a "normal" person in that locality would think. Further, while almost all property uses entail some sort of interference, nuisance law prevents only "unreasonable" interference, so nuisance litigation necessarily involves a question of the degree of interference.

In considering which party to a location was there first, it is important to note that modifications made to an ethanol facility may change a court's assessment under this factor, because changes to an operation may essentially restart the clock regarding which use occupied an area first. Under the second and third factors, the courts examine the typical uses of property in that locality and also examine the activity itself, including any beneficial aspects of the activity.

Within the framework of nuisance law, neighbors to ethanol plants have cited factors like odor, particulate, noise, bright lights and increased traffic as evidence of nuisance. Further, the shear size of ethanol facilities may make them targets for nuisance litigation. As part of bringing suit, plaintiffs often seek injunctions to prevent a plant from operating. Plaintiffs also seek monetary damages to compensate them for diminution in their property value and for future interference with the use and enjoyment of their property. Plaintiffs may also seek damages for personal injuries like physical ailments and emotional distress. Finally, plaintiffs can also ask for punitive damages to punish the defendant for creating the nuisance.

Strategies to Prevent Nuisance Litigation
Existing facilities can also take steps to minimize exposure. Getting to know neighbors and being attentive to their concerns can go a long way towards alleviating problems. Further, keeping abreast of technology changes and being mindful of all aspects of production can help prevent problems before they start. Existing facilities can also add berms, plant trees and use other devices to shield and/or separate projects from neighbors.

Haley R. Van Loon is an associate with BrownWinick, a Des Moines, Iowa-based law firm serving the renewable fuels industry. Reach her at vanloon@brownwinick.com or 515-248-6625.