Lee v. Rolla Speedway, Inc.
| Citation | 494 S.W.2d 349 |
| Decision Date | 14 May 1973 |
| Docket Number | No. 1,No. 56177,56177,1 |
| Parties | Ralph E. LEE et al., Plaintiffs-Appellants, v. ROLLA SPEEDWAY, INCORPORATED, a corporation, and Central Missouri Regional Fair, Incorporated, a corporation, Defendants-Respondents |
| Court | United States State Supreme Court of Missouri |
Melvin E. Carnahan, Rolla, for plaintiffs-appellants.
Routh & Turley, Dewey Routh, Rolla, for defendants-respondents.
WELBORN, Commissioner.
Action by persons living in vicinity of proposed automobile race track to enjoin construction, maintenance and operation of such facility. Trial court denied injunction. Evidence showed that at time of trial $60,000 had been expended or obligated by owner of track on its construction. Therefore, appeal, prior to January 1, 1972, was taken to this court. Section 477.040, RSMo 1971 Cum.Supp.
In 1949, a predecessor organization of the Central Missouri Regional Fair, Inc., a not-for-profit corporation, acquired a tract of land of something less than 80 acres south of the Rolla city limits, and lying along the east boundary of U.S. Route 63. Although details of the Fair operation do not appear, the evidence did indicate that beginning shortly after 1949, an annual Fair of three to five days' duration was held on the premises. Occasional horse shows were also held there. One or two circuses had been held on the fairgrounds in some six years prior to the trial of this case.
On October 31, 1969, the Fair corporation entered into a lease which was assigned to Rolla Speedway, Incorporated. The lessee obligated itself to construct and maintain a 3/8-mile automobile speedway track on the fairgrounds. The lease was for a term of ten years, with option for two five-year renewals. At the expiration of the lease, improvements became the property of the lessor. The lessor was to receive $50 'for each day that the Fairgrounds are used.'
By May 5, 1969, Speedway had sent some $20,000 for clearing and grading work at the proposed site of the track.
On May 5, 1969, Mr. Melvin Carnahan, as attorney for 45 residents in the vicinity of the fairgrounds, addressed a letter to the Fair and the Speedway corporations, demanding that construction of the race track stop for the reason that the use of the tract for an automobile speedway would constitute a nuisance.
The letter produced no results and on July 11, 1969, a petition was filed in the circuit court by residents in the vicinity of the project. The transcript does not disclose the number of plaintiffs joining in the petition. The petition did allege that the plaintiffs resided at distances of from 200 feet to 3/8 of a mile of the proposed track. It further alleged:
By interrogatories answered by Mr. M. C. Miller, president of Speedway, and by the trial testimony of Miller, who was called as a witness by plaintiffs, the proposed operation was along the following lines:
An oval racecourse was planned which would have a blacktop surface. The racing surface would be 48 feet wide and its outer perimeter about 120 feet short of a half-mile in length. A grandstand with a seating capacity of 5,000 persons was planned. The track would be lighted by 84 1500-watt lights on 14 poles surrounding the inner oval of the track and 16 1500-watt lights on 4 poles around the outer perimeter.
The outer perimeter of the track is to be surrounded by a 4-foot concrete wall. The curves at each end of the track will be banked at 30 grade, and the straightaway at 12 .
Racing would be held between 7:30 and 10:30 P.M. on Saturdays, beginning in May and ending in September. The automobiles involved would be late model stock cars. At least 25 vehicles are required 'to put on any kind of show in any kind of race.' A typical program would involve 4 heat races of 10 laps each, a 20-lap feature, and a trophy dash.
In answer to an interrogatory, Miller stated: 'Noise will be created by the automobiles participating in the races.' At the trial he stated that the cars would not run with mufflers. He stated: 'The boys, they make the car--they are going to make them as loud as they possibly can.' 'I would say total noise, there won't be an hour and a half of noise one night a week.' '* * * (T)his isn't going to be as noisy as these people think it's going to be * * *.'
Miller testified that spectators' autos will be parked on grass covered lots, with the access roads either blacktopped or graveled and oiled. Space would be provided for parking between 2500 and 3500 automobiles.
At the time of the trial in June, 1970, the site had been cleared and graded. The track had been shaped in and the concrete retaining wall built around its outer perimeter and drainage pipes had been laid in the infield.
Plaintiffs' evidence showed that within a half-mile radius of the grandstand of the track there were 74 housing units in which 256 persons lived. Enlarging the radius to 3/4 mile added 43 units and 126 persons, to 1 mile, 52 units and 190 persons, and to 1 1/4 miles, 77 units and 96 persons, making a total of 246 housing units and 768 residents within a 1 1/4 mile radius. The Primitive Baptist Church was 820 feet from the track and the Calvary Assembly of God Church 1880 feet from the track.
Seven residents testified on behalf of plaintiffs. They owned and lived in houses situated from 220 feet to 1400 feet from the track. The houses were valued at from $15,000 to $27,000. At least five were not air-conditioned. The occupants of those five relied upon natural ventilation in summer. All of the witnesses testified that they spent quite a bit of time outdoors at their homes, gardening, barbecuing and doing yard work. All expressed concern that the noise which would be caused by the races would disturb and interfere with their enjoyment of their homes, particularly insofar as outdoor activities were concerned. They also feared that the additional traffic and resulting dust would be a problem.
Two of the witnesses testified that they could hear the noise caused by the operation of the Char Leah race track, some four miles away. Witnesses also acknowledged that traffic on Highway 63 involved noise and that when fair were held on the grounds the noise caused by loud speakers and other activities was heard by surrounding residents.
A member of the Primitive Baptist Church testified that once a year the church held an association meeting in the summer on Friday, Saturday and Sunday. They also had services on Saturday night when they had a visiting pastor. Three or four such meetings would be held in the evening from spring to fall. He stated that the Fair loud speakers interfered with such meetings and that he believed the race track operation would be objectionable to the church and its activities.
A witness who lived 650 feet from the Char Leah track testified that races are held there from 7:00 to 10:00 or 10:30 P.M. on Sundays. During the week he sits outside in his yard in the evening, but while the races are going on,
Dr. William S. Gatley, Associate Professor of Mechanical Engineering at the University of Missouri at Rolla testified for plaintiffs. Doctor Gatley has a Ph.D. degree from Purdue University in mechanical engineering, with specialization in acoustics, which he described as the study of the means by which sound is produced by various devices, how it is measured, how it is transmitted from one point to another, how it is controlled, and its effects upon people and animals subjected to it.
He stated that sound or noise may be scientifically measured and that the normal unit for measurement is the decibel. The device for measuring sound is known as a sound level meter. This device has built into it a means of excluding lower frequencies of sound, much as does the human ear. The product of such measurement is known as decibels on the A scale. According to the witness, standards had been arrived at for the maximum acceptable decibel values in quiet residential areas, including a basic noise level, frequent peaks, and infrequent peaks, and nighttime and daytime. He stated that such standards, measured by decibels on the A scale are as follows:
"Basic Noise Frequent Infrequent
Level Peaks Peaks
------------ -------- ----------
Night 45 55 65
Day 55 65 70"
According to the witness, the limits of acceptability are based upon what a significant majority of the people regard as acceptable or not.
Doctor...
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