Oglethorpe Power Corporation v. Forrister, A09A2015 (Ga. App. 3/30/2010), A09A2015.

Decision Date30 March 2010
Docket NumberA09A2015.
CourtGeorgia Court of Appeals

BARNES, Judge.

The difference between a permanent nuisance and a continuing nuisance continues to be "one of the most baffling areas of the law."1 In this case we must define the kind of nuisance created by the noise and vibration from a part-time power plant. If it is permanent, this consolidated suit against the owner and operator of the plant by twelve property owners is barred by the expiration of the statute of limitation. If the nuisance is continuing, however, as the trial court found in denying the defendants' motion for summary judgment, the suit is not barred. This court granted interlocutory review, and for the reasons that follow, we affirm the trial court's decision and remand for further proceedings.

On appeal we review the trial court's grant of summary judgment de novo to determine whether the evidence, viewed in the light most favorable to the nonmoving party, demonstrates a genuine issue of material fact. Summary judgment is proper only when no issue of material fact exists and the moving party is entitled to judgment as a matter of law. Ford v. Bank of Am. Corp., 277 Ga. App. 708 (627 SE2d 376) (2006). When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence. Wachovia Bank v. Moody Bible Inst. of Chicago, 283 Ga. App. 488, 489 (642 SE2d 118) (2007).

"A 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." OCGA § 41-1-1. A nuisance is permanent if the damage it causes is complete when the action creating the nuisance first occurs, and gives rise to a single cause of action that initiates the running of the statute of limitation. City Council of Augusta v. Lombard, 101 Ga. 724, 727 (28 SE 994) (1897). On the other hand, a nuisance is not permanent if it causes continuing damage, and is "one which can and should be abated by the person erecting or maintaining . . . it." Id. In that case, "every continuance of the nuisance is a fresh nuisance for which a fresh action will lie" and a fresh statute of limitations begins to run. Id. "The classification of an alleged nuisance as continuing in nature directly controls the manner in which the statute of limitations will be applied to the underlying claim." City of Atlanta v. Kleber, 285 Ga. 413, 416 (677 SE2d 134) (2009).

In this case, the landowners contend the power plant creates a continuing nuisance. The defendants contend that, if the power plant created a nuisance at all, it was a permanent one and the statute of limitation began running when it started in 2000.

Viewed with all inferences in favor of the respondent to the motion for summary judgment, the record shows the Sewell Creek Energy Facility is a gas-fired "peaking" power plant which began operating in 2000. It is owned by Smarr EMC, and operated by Oglethorpe Power Corp., both of which are power supply cooperatives formed and operated under OCGA § 46-3-170 et seq. The Sewell Creek facility does not operate continuously, but is designed to generate power only when energy usage exceeds the capacity generated by base and intermediate plants, such as on a hot summer afternoon when the use of air conditioning increases. The facility occupies 25 acres of a 160-acre site, located at the intersection of an underground gas line and an overhead high-capacity electricity transmission line in Polk County. Electricity is generated at Sewell Creek with four gas-fired combustion turbine units, which are variations of jet airplane engines, and which are used in peaking plants because they can be turned on and off in minutes to meet short-term energy demands.

Shortly after the plant started up in September 2000, neighbors began complaining of the noise and vibrations emitted from the turbine units. Before the 2002 operating season Sewell Creek added insulation and mufflers and during that season they tuned two of the units. The company also hired a sound and vibration expert who recommended several changes, some of which were implemented. The noise abated for a time, but in 2004 it returned, becoming louder with more of a "rumble" sound. In 2005 the noise became still louder; in 2006 a "booming" sound arose; and in 2007 a high-pitched squeal began, with the plant operating more often and later at night. One landowner noted that at times the plant was so loud that even inside her house her family "could not basically function."

Another peaking plant in Talbot County was built in 2003 with different exhaust stacks which worked well to reduce the noise, anD a turbine plant in Omaha, Nebraska, was retrofitted with a similar kind of exhaust stack to reduce the noise level. An acoustical consultant specializing in the power industry testified that the exhaust stacks supplied by the manufacturer for Sewell Creek were designed with "very thin acoustical baffles and do not attenuate, or absorb, any low frequency sounds." The expert noted that "[t]he gas turbine manufacturers are in the business of selling megawatts. They're not in the business of selling environmental controls, and some just take a cavalier attitude to noise requirements." While it could be "difficult to motivate the manufacturers to concentrate on environmental issues," by insisting, the expert said, the buyer could obtain units that produced lower sounds levels. The expert concluded that retrofitting the Sewell Creek plant with better exhaust stacks would abate the noise to a level that was "essentially inaudible and imperceptible," at a cost witnesses have estimated as ranging from $2 to $8 million.2

Sewell Creek moved for summary judgment, arguing that the noise and vibrations emanating from the plant constitute a permanent nuisance incapable of abatement. Therefore, the landowners' 2007 complaints are barred by the expiration of one of two statutes of limitation: the 12-month statute of limitation for certain claims against EMCs under OCGA § 46-3-204, or the four-year statute for trespass or damage to realty under OCGA § 9-3-30. The landowners responded that the plant is not a permanent nuisance, that the noise and vibrations have changed during the plant's operations, and that the problems can be abated.

After conducting a hearing on the motion and reviewing the voluminous record, which includes 19 depositions as well as numerous exhibits and affidavits, the trial court denied the defendants' motion for summary judgment in a detailed, well-considered opinion. After noting that the plant is a public enterprise, the court found that the landowners introduced evidence that the noise and vibrations from the plant differed and worsened from 2004 to 2007. "With regards to the main issue in the case, that is whether the noise and vibrations are and should be abatable, there is sharp conflict in the evidence," the court held. Thus, it concluded, the defendants did not establish "as a matter of law that any nuisance produced by the operations at Sewell Creek is not capable of abatement" and thus could not be characterized as permanent as a matter of law.

The court then held that the 12-month statute of limitations in OCGA § 46-3-204 applies only to claims against an EMC in which the property owner's land would be burdened by a perpetual easement, and was "particularly inapplicable here." Finally, the trial court found that Sewell Creek was an intermittent operating plant without routine or normal operations; that the statute of limitation began to run in 2004 when the quantity and quality of the noise and vibrations changed adversely, and that claims preceding that date were barred.

On appeal, the defendants argue that the trial court erred in ruling that the 12-month statute of limitation in OCGA § 46-3-204 does not apply. They also argue that the trial court erred in failing to find that Sewell Creek was a permanent nuisance and in finding that the landowners' claims accrued in 2004.

1. OCGA § 46-3-204, titled, "Limitations as to actions growing out of acquisition of rights of way, easements, or occupation of lands of others; damages recoverable," provides, in full:

All rights of action accruing against any electric membership corporation growing out of the acquisition of rights of way or easements or the occupying of lands of others by such electric membership corporations shall be barred at the end of 12 months from the date of the accrual of such cause of action; and in cases where any such electric membership corporation is in possession of the lands of others without having condemned the property as provided, and such electric membership corporation is using any such land of another for any of the purposes for which an electric membership corporation may be created under this article, and the owners of the land took no legal steps to prevent the occupation of the land by the electric membership corporation, the rights of the owner of the land shall be limited to whatever damages may have been caused to his realty by such occupation; and this limitation shall apply to all persons whether sui juris or not.

The defendants argue that, in enacting this statute, "the Georgia Legislature established a one-year statute of limitations for property rights claims against EMCs." But "property rights" does not include the right to be free of nuisances, as the defendants seem to argue. The statute applies to "rights of way or easements or the occupying of lands of...

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