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Wednesday, August 26, 2009

Ind. Decisions - COA decides environmental nuisance case today

There are also a number of NFP opinions today, but this "for publication" opinion will be treated individually.

In Randall Bonewitz and Russell Dellinger v. Ted Parker, a 13-page opinion, Judge Najam writes:

Randall Bonewitz and Russell Dellinger appeal from the trial court's judgment on their complaint alleging that Ted Parker is maintaining a nuisance by operating a furnace to dry mycelium adjacent to their home. The trial court found that “improvements” Parker has made to the operation have “greatly reduced” the adverse effect of Parker's mycelium-drying business on the home, and the court declined to enter a total permanent injunction against the business. We conclude that notwithstanding the improvements, Parker continues to maintain an unabated nuisance which deprives Bonewitz and Dellinger of the free use and comfortable enjoyment of their property.
All emphases added by ILB. The opinion continues:
In 1997, Bonewitz and Dellinger bought an old farm house on approximately one-half acre in North Manchester. Parker owns the surrounding farm land, which, at the time Bonewitz purchased the farm house, Parker used for farming hay. But in 2003, Parker started a new business called Parker By-Products, a business which dries wet mycelium to be sold for use in animal feed. Mycelium is a byproduct of the manufacture of food-grade citric acid. In order to dry mycelium, Parker built a furnace, which uses sawdust as fuel. The drying process creates emissions that include gases and sawdust ash. Those emissions are discharged from a smoke stack on the furnace, which is located approximately 100 to 150 feet from the Bonewitz home.

When Parker started the business, he obtained a variance from agricultural use to business/commercial use from the Wabash County Board of Zoning Appeals, over the objections of Bonewitz and Dellinger. Parker By-Products operates as follows: up to three to five semi tractor-trailers per day deliver wet mycelium to Parker's facility; sometimes, the wet mycelium sits outside in the sun and emits a stench; trucks deliver sawdust to Parker's facility; initially the sawdust was dumped outside, but Parker has since extended a pole building to accommodate dumping inside; the sawdust is burned to heat the dryer, which dries the mycelium; and trucks pick up the dried product and haul it away. When it is operational, the business generally runs “24/7.”

Bonewitz and Dellinger's enjoyment of their home has been substantially affected by Parker's business operation in numerous ways: emissions of smoke and/or steam surround the house; a “rotten, sour” smell permeates the house and clings to fabrics; a “nauseating” odor comes from the drying process, similar to that of “a rendering plant when they're burning dead animals,” ; sawdust blows onto the Bonewitz property and covers everything; when the dryer is running, Bonewitz and Dellinger can feel strong vibrations that cause the house to shake; and trucks come and go everyday and at all hours of the night, disturbing Bonewitz and Dellinger in their sleep. Because of the foul odor and sawdust, Bonewitz and Dellinger avoid going outside, keep their windows closed, and do not have the unrestricted use of their yard or swimming pool. Parker has taken steps to reduce the sawdust and stack emissions blowing onto the Bonewitz property, to minimize the vibrations caused by the dryer, and to ameliorate the noise and lights associated with the trucks during the night.

On October 10, 2007, Bonewitz and Dellinger filed a complaint alleging that Parker's mycelium-drying operation constitutes a nuisance. Bonewitz and Dellinger sought a permanent injunction or, in the alternative, damages. Following an evidentiary hearing, the trial court declined to enter a total permanent injunction, but ordered that Parker be permanently enjoined from unloading sawdust outside of the pole building. The trial court did not award damages. This appeal ensued. * * *

Indiana Code Section 32-30-6-6 defines a nuisance as whatever is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property. * * *

Here, the undisputed evidence shows that Bonewitz and Dellinger have suffered a number of unreasonable infringements on the use and enjoyment of their property as a result of Parker's business. * * * While the nuisance may have been partially ameliorated, it has not been abated. * * *

The issue here is the off-site impact of infringements from a new business inserted into the neighborhood and whether that impact would offend persons of ordinary sensibilities.

Parker contends that Bonewitz and Dellinger bought their farmhouse knowing that they were in the middle of an agriculturally-zoned area, and he alleges that they “came to the nuisance in the sense that the complaints they have are comparable to the complaints of anyone experiencing any discomfort by any agricultural operation.” Parker also notes that one who moves to an agricultural area simply cannot complain of discomfort based upon agricultural uses. And Parker asserts that Bonewitz and Dellinger purchased a farmhouse in the middle of a farming area but do not want to experience “the normal residual effects of farming.”

But Parker's premise is flawed because Parker By-Products is a separately organized business and not an agricultural use. It is for that very reason that a variance was required.* * * As this court has recognized, not all activities with an agricultural nexus are themselves agricultural. * * *

Here, it is readily apparent that the Parker By-Products “feed business” is a separately organized activity and is, therefore, not an agricultural pursuit. * * *

In requesting that we affirm the trial court's judgment, Parker relies in part on this court's opinion in Wendt v. Kerkhof, 594 N.E.2d 795 (Ind. Ct. App. 1992), trans. denied. In Wendt, we affirmed the trial court's judgment in favor of a hog farmer where the plaintiff filed a complaint alleging a nuisance due to odors from the farm. We observed that “much conflicting evidence was presented, both from experts and nearby landowners” regarding the odors. * * *

In this case, however, the evidence is uncontradicted that offensive odors envelop and permeate the Bonewitz home. While the evidence shows that Parker has taken steps to reduce the effects of noise and dust emanating from his business, the evidence also shows that noise and offensive odors continued to infringe upon and obstruct the free use of their property. * * * As a result, Bonewitz and Dellinger live with the regular onslaught of noise, dust, and odors, which offend the senses, obstruct the free use of their property, and interfere with their comfortable enjoyment of life and property. See I.C. § 32-30-6-6. Thus, the evidence leads only to the conclusion that the nuisance continues unabated, and we are left with the firm conviction that the trial court erred when it declined to grant the relief sought. * * *

But that is not the end of our inquiry. The trial court's judgment addressed Bonewitz's request for a permanent injunction and expressed concern that such equitable relief “would effectively destroy” Parker's business. We share the trial court's concern. * * *

An injunction will not issue where the law can provide a full, adequate and complete form of redress. Id. Here, the trial court did not address Bonewitz and Dellinger's request, in the alternative, for damages. * * *

On remand, we instruct the trial court to determine first whether Bonewitz and Dellinger can be made whole with a money judgment. If so, the trial court shall consider the evidence of Bonewitz and Dellinger's damages. The measure of damages is not restricted to the diminution in rental value. * * *

A proper measure of damages shall be calculated as the difference between the market value of the Bonewitz home if the Parker By-Products mycelium-drying operation ceased and its current market value with an active nuisance next door. * * * Further, Bonewitz and Dellinger presented evidence, and the trial court found, that they have been “disturbed and annoyed” by Parker's business, and they may also be entitled to damages for their discomfort and annoyance as occupants. * * *

On remand, if the trial court decides to award damages in lieu of a permanent injunction, the court shall conduct a hearing solely on the issue of damages, giving the parties an opportunity to present additional evidence on that issue. If, however, the trial court determines that Bonewitz and Dellinger cannot be made whole with a money judgment, then the court shall issue a total, permanent injunction against Parker prohibiting operation of his mycelium-drying business.

Two points:

(1) The opinion stresses that this is not an agricultural operation. This distinguishes the mycelium-drying business from a confined feeding operation.

(2) The nuisance statute, IC 32-30-6-6, is cited twice by the court. IC 32-30-6-9, the "right to farm" section, is not cited at all. Take a look at it. And look also at this June 6th ILB entry, and at fellow attorney Marty Lucas' comments at the end of the entry.

Posted by Marcia Oddi on August 26, 2009 10:05 AM
Posted to Environment | Ind. App.Ct. Decisions