West v. Luna, No. M2002-02734-COA-R3-CV (Tenn. App. 1/6/2003), M2002-02734-COA-R3-CV.

Decision Date06 January 2003
Docket NumberNo. M2002-02734-COA-R3-CV.,M2002-02734-COA-R3-CV.
PartiesJAMES L. WEST, ET AL. v. FRANK LUNA.
CourtTennessee Court of Appeals

Appeal from the Chancery Court for Lincoln County; No. 8380 Lee Russell, Chancellor.

Affirmed and Remanded.

Brad W. Hornsby, Aaron S. Guin, Murfreesboro, Tennessee, for the appellant, Frank Luna.

R. Whitney Stevens, Jr., Fayetteville, Tennessee, for the appellees, James L. West and wife, Nancy West; W. Thomas Norman and wife, Kathryn Norman; Paul Johnson and wife, Elizabeth Johnson; Margaret C. Jennings; David R. McCauley and wife, Rachel McCauley; Hubert C. Jennings and wife, Syble Jennings; Delbert McGee; Richard McGee and wife, Jean McGee; Roger J. Jones and wife, Wanda M. Jones; Paul D. Sain and wife, Cara Sain; Carl Kinkle; Ernest L. Jennings and wife, Sharon Jennings; Ray Barhorst and wife, Fay Barhorst.

William B. Cain, J., delivered the opinion of the court, in which Patricia J. Cottrell and Frank G. Clement, JR., JJ., joined.

OPINION

WILLIAM B. CAIN, JUDGE.

This appeal is the second in a 24 year long dispute over a proposed raceway in Lincoln County. After hearing additional proof as this Court required in West v. Luna, No. 01A01-9707-CH-00281, 1998 WL 467106 (Tenn.Ct.App.1998), the trial court entered a new injunction prohibiting the defendant Luna from operating a race track on Old Boonshill Road in Lincoln County. In this appeal, Mr. Luna challenges the trial court's injunction as noncompliant with our decision in the first appeal, and in imposing a noise limitation effectively making the race track a nuisance per se. We affirm the trial court.

This appeal represents a continuing saga, which began when the appellant's predecessor in interest attempted to open a dirt race track on Old Boonshill in Lincoln County. The facts of the dispute's origins appear in this Court's 1998 decision West, et al. v. Luna, No. 01A01-9707-CH-00281, 1998 WL 467106 (Tenn.Ct.App. Aug.12,1998) [West One].

In this appeal we are asked to determine whether the trial court appropriately applied the holding in West One in enjoining the appellant from developing a race track without first presenting to the trial court a comprehensive construction plan that would reduce the sound level produced by the track to an average level no greater than 55 db measured at the location of the closest landowner, said average to be obtained over a period beginning one hour before race time and ending one hour post race time. The track's neighboring landowners have continuously and strenuously argued against the race track as a nuisance based on an excessive noise level. The landowners succeeded in obtaining an injunction in 1982 which, up until the events which led to this appeal, "enjoined [track owners] from operating a speedway `until such time as [they] can and will operate same where the noise level will not be a nuisance to the plaintiffs.'" West v. Luna, 1998 WL 467106, * 2. This Court's decision in West One vacated a 1996 order of the trial court and reinstated the 1982 injunction. We held:

Based on our independent review of the record pursuant to Tenn. R. App. P. 13(d), we have determined that the evidence preponderates against finding that there are no circumstances under which this track could be operated that would not cause a nuisance. Accordingly, an injunction preventing any racing at Mr. Luna's track is not warranted and the August 1996 order must be vacated.

Our decision to vacate the August 1996 order does not leave Mr. Luna to conduct stock car races as he pleases. To the contrary, vacating the August 1996 order has the legal effect of reinstating the May 1982 order that enjoins the track operators from operating the track "until such time as . . . [they] can and will operate same where the noise level will not be a nuisance to the plaintiffs." Thus, Mr. Luna, as Mr. Holt's successor, remains enjoined from operating the track in a way that causes a nuisance to the track's neighbors.

Ending our discussion here would leave the parties no better off than they have been since 1979 because they still lack objective standards for determining whether or not the noise from the track constitutes a nuisance. Even though the trial court concluded in 1981 that a noise level of 81 decibels was a nuisance, this standard is inadequate because it fails to indicate over what period of time the noise level should be averaged or the time of day when this noise level would be a nuisance. Other courts have been successful in fashioning precise noise standards in cases similar to this one. See Sherrod v. Dutton, 635 S.W.2d at 120 n. 3. Likewise, many local governments and at least one federal agency have established noise control regulations containing prescriptions for appropriate sound levels for particular environments and particular times of day.

The dispute surrounding the operation of this track has been in and out of court for the past twenty years and requires a definitive closure. The parties are entitled to a definitive ruling either that operating a track on Old Boonshill Road is a nuisance per se that will not be allowed under any circumstances or that a race track may be operated on Old Boonshill Road as long as it meets objective, well-defined noise levels suitable for the locality and the character of the surrounding neighborhood as well as the time of day when the races will be conducted. Therefore, we remand this case to permit the parties to present evidence that will enable the trial court to decide, once and for all, whether a track may be operated on Old Boonshill Road and, if it may be operated, the conditions for its operation.

West, supra at ** 8-9.

Upon remand, the trial court heard from several experts concerning the noise caused by the race track and the possible remedial measures and their expected effect on that noise level. The expert and lay testimony ran the gamut of noise possibilities, covering the topography of the region and the utility of earthen berms and ground barriers as well as mufflers to reduce the sound level at its source. The trial court heard from lay witnesses who testified to the difficulties they experienced when the dirt track was in operation in 1981 in conducting conversations and the daily activities of rest and relaxation one would expect from an otherwise quiet rural community. The trial court also heard expert testimony relating these disruptions and scientific data through the use of sound meters and application of various noise standards.

For their part, the appellees continued to press their argument that no circumstances exist under which Mr. Luna could operate a race track without causing a nuisance. Chief in that proof is the following testimony from Plaintiff's expert Ralph Mosely.

Q. Now, is there anything in your opinion that can be done to this land in Lincoln County, taking into consideration the location of the homes around this track, the topography in the area, that would allow this track to be operated in any manner under any circumstances and not be a nuisance to those residents that are living there now?

A. No, there is not, and I would like to explain why, if that's appropriate.

Q. Please do.

A. As Ms. Jennings so appropriately put, this racetrack is in a valley. It's similar to an amphitheater effect or a bowl-shaped effect. Noise created in the middle of the bowl radiates up the sides of the bowl. In this case, even if they were to put a berm or a wall, since the houses around the site are at a higher elevation, looking down into the valley, then there would be nothing between their line of sight from the houses and the racetrack itself to prevent the noise or reflect or absorb the noise. A wall would have to be as high as the surrounding houses in order for a wall around that track to have any effect. No matter what was done, whether there are mufflers or no mufflers or the number of cars is limited to two cars, the intensity of the noise as the cars accelerate and then decelerate produces a variability that is highly annoying or interfering with anyone trying to conduct conversation. Just about the time you get used to the peace and quite, for example, between a race, another race would start up, and then you could not maintain conversation.

The experts provided testimony concerning various industrial and environmental...

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