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.
II. NUISANCE DEFINED
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."
A recent decision, Johnson v. Compost Products, Inc., 314 Ill.App.3d 231, 731 N.E.2d 948 (2nd Dist. 2000), concerned a nuisance action brought by landowners against the owner of a mushroom composting farm alleging the compost emitted strong offensive odors which had a serious detrimental effect upon the life and enjoyment of plaintiffs. The issue on appeal was whether or not a corporation with its registered office in DuPage County which conducts a farming operation on property in LaSalle County may be sued in Kendall County when the only contact with Kendall County is the resulting odor, albeit malodorous, that emanates from LaSalle County to Kendall County by virtue of the wind and its inherent qualities.
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.
IV. EQUITABLE RELIEF
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."
V. BURDEN OF PROOF
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.
For illustration, in Fink v. Board of Trustees of Southern Illinois University, 71 Ill.App.2d 276, 218 N.E.2d 240 (5th Dist. 1966), the Sanitary Water Board had examined the plans and issued a permit for construction of the system. Yet, the trial court granted the injunction and the Appellate Court affirmed.
Another approach employed by some defendants is the argument that the alleged nuisance activity comports with uses in the area and is therefore not subject to being enjoined. In Woods v. Khan, 95 Ill.App.3d 1087, 420 N.E.2d 1028 (5th Dist. 1981), the plaintiffs sought to enjoin a poultry business as a private nuisance. Although the area was rural, zoned agricultural and many of the plaintiffs also raised crops and livestock on their property, the injunction was entered and the Appellate Court affirmed. The following quote of the trial court in the Appellate Court opinion is particularly instructive:
"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.
VI. OPINION TESTIMONY
Nuisance lawsuits may involve opinion witnesses not only to describe the nature and effects of the alleged nuisance but also to explain alternatives available to the defendant which may resolve the problem. Statler v. Catalano, 167 Ill.App.3d 397, 521 N.E.2d 565 (5th Dist. 1988) (psychologist’s testimony presented at trial to establish that landowner’s actions were causing annoyance and extreme discomfort was relevant and admissible in private nuisance action as it related to element of material annoyance of property owners and related to use and enjoyment of their home); Woods v. Khan, 95 Ill.App.3d 1087, 420 N.E.2d 1028 (5th Dist. 1981) (witnesses at trial showed that the defendants may be able to correct the nuisance-causing problems by converting to an alternative waste disposal system).
Given the jury instructions for nuisance lawsuits are based upon whether or not the alleged activity was "unreasonable", courts have been willing to allow lay witnesses to express opinions. In Kolstad v. Rankin, 179 Ill.App.3d 1022, 534 N.E.2d 1373 (4th Dist. 1989), the second issue on appeal was whether or not the trial court erred in allowing lay witnesses to give opinion testimony concerning noise levels and whether the noise disturbed them. The Appellate Court agreed with the trial court in allowing the lay witnesses to summarize their sensory impressions, stating:
"A lay witness is not prohibited from testifying as to an opinion. It is often virtually impossible to distinguish between fact and opinion or to communicate the facts upon which the opinion is based. A lay witness may testify to an opinion which is rationally based on that witness’s perception such that the opinion would be normally arrived at from the facts observed. Nevertheless, the testimony is only to be introduced if it helps the trier of fact to understand the testimony or determine the facts. Freeding-Skokie Roll-Off Service, Inc. v. Hamilton (1985), 108 Ill.2d 217, 91 Ill.Dec. 178, 483 N.E.2d 524; M. Graham, Cleary & Graham’s Handbook of Illinois Evidence sec. 701.1, at 442-45 (4th ed. 1984).)" Kolstad, 179 Ill.App.3d at 1030, 534 N.E.2d at 1378.
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:
"The maintenance of the public health, morals, safety, and welfare is on a plane above mere pecuniary damage, although not susceptible of measurement in money, and to say that a court of equity may not enjoin a public nuisance because property rights are not involved would be to say that the state is unable to enforce the law or protect its citizens from public wrongs."
Frederick E. Roth of Roth Law Firm, Naperville, Illinois. A graduate of The John Marshall Law School, Mr. Roth received his B.S. in Accountancy with Honors from the University of Illinois.