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Environmental Nuisances

By Frederick E. Roth

The Constitution of the State of Illinois, Article XI. Environment, Section 2 Rights of Individuals states:

"Each person has the right to a healthful environment. Each person may enforce this right against any party, governmental or private, through appropriate legal proceedings subject to reasonable limitation and regulation as the General Assembly may provide by law."

While the foregoing provision does not directly establish a private right of action in tort, said provision does assist plaintiffs in that they (a) need not allege special injury to bring an environmental claim nor (b) prove special injury in environmental nuisance cases. NBD Bank v. Krueger Ringier, Inc., App. 1st Dist. 1997, 226 Ill. Dec. 921, 292 Ill.App.3d 691, 686 N.E.2d 704, appeal denied 229 Ill. Dec. 55, 176 Ill.2d 576, 690 N.E.2d 1382; City of Elgin v. County of Cook, 1995, 214 Ill. Dec. 168, 169 Ill.2d 53, 660 N.E.2d 875, rehearing denied.

This article focuses on bringing actions against others for environmental nuisances.

A private nuisance has been described as a substantial interference with another’s use and enjoyment of his property. The interference must consist of something perceptible to the senses. The Supreme Court of Illinois has repeatedly described a nuisance as "something that is offensive, physically, to the senses and by such offensiveness makes life uncomfortable." Rosehill Cemetery Co. v. City of Chicago, 352 Ill. 11, 30, 185 N.E. 170 (1933). Typical examples would be smoke, fumes, dust, vibration, or noise produced by someone on his own land and impairing the use and enjoyment of neighboring land. Illinois courts have allowed nuisance actions where the alleged invasion consisted of noise, odors and flies. People ex rel. Traiteur v. Abbott, 27 Ill.App.3d 277, 282, 327 N.E.2d 130 (1975); Woods v. Khan, 95 Ill.App.3d 1087, 1090, 420 N.E.2d 1028 (1981).

To determine whether or not an activity should be enjoined or result in damages, the usual remedies, (see Belmar Drive-In Theatre v. Illinois State Toll Highway Comm., (1966), 34 Ill.2d 544, 546, 216 N.E.2d 788), the court is required to engage in a balancing process to consider (a) the reasonableness and utility of defendant’s conduct, (b) the harm to plaintiff and (c) general societal policy toward risk-taking.

In Village of Wilsonville v. SCA Services, Inc., 86 Ill.2d 1, 426 N.E.2d 824 (1981), the Supreme Court viewed the balancing process with an emphasis on the rights of the individual with the "greater weight being given to the individual’s right to use and enjoy property over a public benefit or convenience from having a business operate at a particular location." Id. 86 Ill.2d at 23, 426 N.E.2d at 835.

Although compliance with existing laws and regulations may permit a business to exist, nuisance actions are independent of such authority. As the Supreme Court stated in Seacord v. People, 121 Ill. 623, 13 N.E. 194:

"The business of the defendant is a necessary one and it is not a nuisance per se, but if a business is offensive to such a degree as to materially interfere with ordinary physical comfort, measured, not by the standard of persons of delicate sensibilities and fastidious habits, but by the habits and feelings of ordinary people, and the damages are of a nature which cannot be adequately compensated for in an action at law, a court of equity will grant an injunction. In such a case the court will not balance public benefits or public inconvenience against the individual right. (Seacord v. People, 121 Ill. 623 (13 N.E. 194).)"

Moreover, despite the expenditure of substantial sums of money as was the situation in the development and operating of the Earthlink site in Wilsonville, the Court was not deterred, commenting:

"Not only is the site convenient to nearby industries [86 Ill.2d 24] but it is a profit producer for the defendant. All of these elements are relevant to our economic system but notwithstanding the same it is the opinion of the Court that nuisances cannot be justified on such grounds when we have substantial injury to individual rights, community rights, substantial damage to human beings and other living things."

An action to enjoin or abate a nuisance is local in nature and must generally be brought where the nuisance exists. Annotation, Venue of suit to enjoin nuisance, 7 A.L.R.2d 481 (1949); see also Illinois v. City of St. Louis, 10 Ill. 351 (1848) (holding that the nuisance action was properly brought in county where nuisance was being created.) However, the Appellate Court in Johnson drew an interesting distinction. Although deciding the action should have been brought in LaSalle County, the Appellate Court also noted:

"In reaching our decision, we are mindful of the unique type of nuisance, a nontoxic odor, and the way in which it reached plaintiffs, through the air currents. We are also mindful that the alleged nuisance has not physically invaded plaintiffs’ properties because, if it had, then venue would be entirely appropriate in either county. See Ohio & Mississippi Ry. Co. v. Combs, 43 Ill.App. 119, 1891 WL 2214 (1892)." Johnson, 314 Ill.App.3d at 239, 731 N.E.2d 950-51.

Thus, venue is not necessarily limited to the county where the nuisance is created but may also be brought elsewhere depending on the "type" of nuisance.

Though some may argue a planned or threatened facility or operation cannot be declared a nuisance until it is operating, Illinois law provides otherwise. The Supreme Court of Illinois in Village of Wilsonville v. SCA Services, Inc., (1981), 86 Ill.2d 1, 26, 426 N.E.2d 824, 836 announced the standard by adopting the following language of Fink v. Board of Trustees, (1966), 71 Ill.App.2d 276, 281-82, 218 N.E.2d 240, 244:

"While, as a general proposition, an injunction will be granted only to restrain an actual, existing nuisance, a court of equity may enjoin a threatened or anticipated nuisance, where it clearly appears that a nuisance will necessarily result from the contemplated act or thing which it is sought to enjoin. This is particularly true where the proof shows that the apprehension of material injury is well grounded upon a state of facts from which it appears that the danger is real and immediate. While care should be used in granting injunctions to avoid prospective injuries, there is no requirement that the court must wait until the injury occurs before granting relief."

Initially, the plaintiffs bear the burden of proof. In response, the defendants will often seek protection and/or justification for their right to operate by presenting evidence of government issued permits. For many, reliance on compliance with regulatory schemes may appear to offer vindication or grant some the absolute right to operate. It does not.

"When these private residences were built, this area was zoned agricultural and the owners should reasonably have expected that agricultural operations would be carried on which could lead to some production of odors or inconveniences consistent with an agricultural operation which would not be found in the city. Agricultural smells, however, can reach a point whereupon a civil court may enjoin their production when they overwhelmingly interfere with the rights of others to enjoy their property." Woods, 95 Ill.App.3d at 1090, 420 N.E.2d at 1031.

A nuisance action may be the last refuge for those whose constitutional rights and enjoyment of life and property are being unreasonably violated. People cannot expect that government, laws and the mere promulgation or even enforcement of regulations will protect them or provide absolute exoneration for those creating the nuisance if they comply with all applicable laws. Moreover, absent time of war, emergency or some other greater good, economic considerations do not justify a public or private nuisance. The Supreme Court of Illinois stated long ago in Stead v. Fortner, 255 Ill. 468, 99 N.E. 680: