Rose v. Chaikin

• Decision Date: 10 November 1982
• Citation: 453 A.2d 1378,187 N.J.Super. 210
• Parties: , 36 A.L.R.4th 1148 Joel ROSE et ux., et als., Plaintiffs, v. Joseph CHAIKIN et ux., Defendants and Third-Party Plaintiffs, v. Kenneth L. KESLINK, Enertech Corporation, a corporation of Vermont, and City of Brigantine, a municipal corporation of New Jersey, Third-Party Defendants.
• Court: New Jersey Superior Court

Page 210

187 N.J.Super. 210

453 A.2d 1378, 36 A.L.R.4th 1148

Joel ROSE et ux., et als., Plaintiffs, v. Joseph CHAIKIN et ux., Defendants and Third-Party Plaintiffs, v. Kenneth L. KESLINK, Enertech Corporation, a corporation of

Vermont, and City of Brigantine, a municipal

corporation of New Jersey, Third-Party Defendants.

Superior Court of New Jersey, Chancery Division Atlantic County.

Decided Nov. 10, 1982.

Stephen R. Nehmad, Atlantic City, for plaintiffs (Perskie & Nehmad, Atlantic City, attorneys).

Marvin Z. Wallen, Atlantic City, for defendants and third-party plaintiffs (Wallen & Briliant, Atlantic City, attorneys).

Augustine A. Repetto, Jr., Atlantic City, for third-party defendant Enertech Corp.

John R. Armstrong, Northfield, for third-party defendant City of Brigantine (Subin, Armstrong & Armstrong, Northfield, attorneys).

GIBSON, J.S.C.

This action seeks to enjoin the operation of a privately owned windmill. Plaintiffs occupy neighboring properties and allege that the unit constitutes both a private nuisance and a violation of local zoning laws. Defendants deny the allegations and have counterclaimed. Based on the evidence presented at trial, the following factual findings may be made.

All of the parties are residents and/or owners of single-family homes located in a contiguous residential neighborhood in Brigantine, New Jersey. On or about June 18, 1981 defendants, in an effort to save on electric bills and conserve energy, obtained a building permit for the construction of a windmill. Pursuant to that permit they erected a 60'-high tower on top of which was housed a windmill and motor. The unit is located ten feet from the property line of one of plaintiffs. Shortly after the windmill became operational it began to produce offensive noise levels, as a result of which plaintiffs experienced various forms of stress-related symptoms, together with a general inability to enjoy the peace of their homes.

Relief was initially sought through city council. Although certain orders were issued reducing the times when the windmill could operate, the problem continued more or less until an action was instituted in this court. Following an initial hearing here, there was a preliminary finding of a nuisance and a temporary restraining order was issued restricting the use of the machine except for a period of no more than two hours a day, that being the time claimed to be needed for maintenance purposes. By consent, those restraints were continued up through the time of trial and still continue. ¹

Although the evidence was in sharp dispute concerning the impact of the noise levels existing when the windmill is operational, this court is satisfied that those levels are of such a nature that they would be offensive to people of normal sensibilities and, in fact, have unreasonably interfered with plaintiffs' use and enjoyment of their properties. Measurements at the site reveal that the sound levels produced by the windmill vary, depending on the location, but generally show a range of 56 to 61 decibels (dBA). In all instances those levels exceed the 50 dBA permissible under the controlling city ordinance. Ordinance 11-1981, § 906.6.3, City of Brigantine. Although there are other sources of sounds in the area, for the most part they are natural to the site. These background (or ambient) sounds include the ocean, the sounds of sea gulls, the wind and the distant sounds of occasional boat traffic in the adjacent inlet. An exception to these "natural" sounds is the heat pump owned by plaintiffs Joel and Isadora Rose, of which more will be said later.

The sounds of the windmill have been variously described. Generally, however, they most resemble those produced by a large motor upon which there is superimposed the action of blades cutting through the air. The sounds are distinguishable not just by the level of the noise produced (noise being defined as unwanted sound) but because they are unnatural to the scene and are more or less constant. Although a reduction in the wind speed to below eight m.p.h. will automatically shut down the unit, the prevailing winds at this site are generally above that. Given the proximity of the homes involved, the net result is a noise which is both difficult to ignore and almost impossible to escape.

The impact on plaintiffs is significant. Both the lay and expert testimony support the conclusion that, in varying degrees, all of them experienced tension and stress-related symptoms when the windmill was operational. Those symptoms included nervousness, dizziness, loss of sleep and fatigue. The sounds disturbed many of the activities associated with the normal enjoyment of one's home, including reading, eating, watching television and general relaxation.

Defendants counterclaim and seek to enjoin the operation of the Rose heat pump. Although the unrebutted testimony indicated that it, too, produced sound levels in excess of 50 dBA, the impact on defendants was relatively small. Complaints were limited to some disturbance of certain activities, such as causing a distraction during reading and dinner. There is no evidence that it unreasonably interferes with defendants' health and comfort. What disturbance does occur is limited not only in duration but in frequency. The unit is rarely used by the Roses, and when used is on for relatively short periods of time.

I. Private Nuisance

The basic standards for determining what constitutes a private nuisance were set forth by our Supreme Court in Sans v. Ramsey Golf & Country Club, 29 N.J. 438, 149 A.2d 599 (1959). The court made clear that a case-by-case inquiry, balancing competing interests in property, is required.

The essence of a private nuisance is an unreasonable interference with the use and enjoyment of land. The elements are myriad.... The utility of the defendant's conduct must be weighed against the quantum of harm to the plaintiff. The question is not simply whether a person is annoyed or disturbed, but whether the annoyance or disturbance arises from an unreasonable use of the neighbor's land.... [at 448-49, 149 A.2d 599]

Unreasonableness is judged

"... 'not according to exceptionally refined, uncommon or luxurious habits of living, but according to the simple tastes and unaffected notions generally prevailing among plain people.' " 50 N.J.Super. 127, at page 134, 141 A.2d 335, citing Stevens v. Rockport Granite Co., 216 Mass. 486, 104 N.E. 371 (Sup.Jud.Ct.1914). [at 449, 149 A.2d 599]

Defendants resist plaintiffs' claim by advancing three basic arguments: first, that noise, standing alone, cannot constitute a private nuisance; second, that even if noise can amount to a nuisance, the noise from their windmill does not exceed the applicable threshold, and third, that in any event the circumstances of this case do not warrant the "extraordinary relief" of an injunction.

The first argument is without merit. New Jersey case law makes it clear that noise may, under the principles of unreasonable use, constitute an actionable private nuisance. See, e.g., Benton v. Kernan, 130 N.J.Eq. 193, 197-98, 21 A.2d 755 (E. & A. 1941); Lieberman v. Saddle River Tp., 37 N.J.Super. 62, 67, 116 A.2d 809 (App.Div.1955); Malhame v. Demarest, 162 N.J.Super. 248, 260-61, 392 A.2d 652 (Law Div.1978); Reilley v. Curley, 75 N.J.Eq. 57, 59-60, 71 A. 700 (Ch.1908). Noise is an actionable private nuisance if two elements are present: (1) injury to the health and comfort of ordinary people in the vicinity, and (2) unreasonableness of that injury under all the circumstances. See Malhame v. Demarest, supra 162 N.J.Super. at 261, 392 A.2d 652. The "circumstances" may be multiple and must be proven by "clear and convincing" evidence. Benton, supra, 130 N.J.Eq. at 198, 21 A.2d 755; Lieberman, supra 37 N.J.Super. at 68, 116 A.2d 809.

Broadly stated, the noises which a court of equity normally enjoins are those which affect injuriously the health and comfort of ordinary people in the vicinity to an unreasonable extent.... Thus, the character, volume, frequency, duration, time, and locality are relevant factors in determining whether the annoyance materially interferes with the ordinary comfort of human existence. [Lieberman v. Saddle River Tp., 37 N.J.Super. at 67, 116 A.2d 809; emphasis supplied]

To the factors listed in Lieberman may be added several others gleaned from New Jersey cases and cases in other jurisdictions applying a "reasonableness under the circumstances" test. For example, the availability of alternative means of achieving the defendant's objective has been found to be relevant. See Sans, supra 29 N.J. at 448, 149 A.2d 599 (change in location of golf tee feasible); Malhame, supra 162 N.J.Super. at 264-266, 392 A.2d 652 (plaintiffs failed to prove that alternative fire-siren system wouldn't just transfer nuisance elsewhere). So, also, might the social utility of defendant's conduct, judged in light of prevailing notions of progress and the demands of modern life, be relevant. See Protokowicz v. Lesofski, 69 N.J.Super. 436, 443, 174 A.2d 385 (Ch.Div.1961) (in light of scientific progress, noise from Diesel engine cannot be considered nuisance per se ). Whether a given use complies with controlling governmental regulations, while not dispositive on the question of private nuisance, Monzolino v. Grossman, 111 N.J.L. 325, 328, 168 A. 673 (E. & A. 1933), does impact on its reasonableness. See, e.g., Desruisseau v. Isley, 553 P.2d 1242, 1245-46 (Ariz.App.1976); 58 Am.Jur.2d, Nuisances, § 30 (1971).

An application of these factors to the present case supports the conclusion that defendants' windmill constitutes an actionable nuisance. As indicated, the noise produced is offensive because of its character, volume and duration. It is a sound which is not only distinctive, but one which is louder than others and is more or less constant. Its intrusive quality is heightened because of the locality. The neighborhood is quiet and...