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

• Court: Court of Appeals of Tennessee
• Parties: JAMES L. WEST, ET AL. v. FRANK LUNA.
• Docket Number: No. M2002-02734-COA-R3-CV.,M2002-02734-COA-R3-CV.
• Decision Date: 06 January 2003

Page 1

JAMES L. WEST, ET AL.
v.
FRANK LUNA. No. M2002-02734-COA-R3-CV. Court of Appeals of Tennessee, at Nashville. October 9, 2003 Session. Filed January 6, 2003.

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...