An Ohio state appeals court has affirmed the ruling of a trial court that the noise emanating from a race park did not constitute a “nuisance.”
The plaintiffs in the case were residents of Sterling Township, who lived in close proximity to the Moler Raceway Park. The park was situated on 40 acres of land in Sterling Township on which a quarter-mile dirt track motor raceway is operated.
Notably, there are no zoning regulations or noise ordinances in the township. Nevertheless, the raceway is surrounded by trees in order to help with noise and dust. As adjoining landowners, the residents sued Moler on June 16, 2008, alleging that the operation of the raceway constitutes a nuisance. The residents sought damages for loss of use and enjoyment of property and diminution of property values. They also sought injunctive relief including, but not limited to, a complete shutdown of commercial activities at the raceway.
On May 3, 2010, a four-day bench trial began. Proffered testimony revealed that the raceway is in operation approximately 25 days per year, holding racing events primarily on Friday evenings, and occasionally on Saturdays and Sundays. Each racing event consists of roughly 100 cars per night racing in four separate classes on a dirt track, which is wetted down before the races begin. Each car that participates in a race must have a muffler. The raceway opens around 4:30 p.m. with racing beginning at 7:00 p.m. and lasting typically until 12:30 a.m., although some race nights have extended until 1:45 a.m. During this time period, the residents claim that the noise produced by the Raceway is loud enough to interfere with conversations held inside or outside their respective houses and disrupts their ability to sleep. Furthermore, several of the Residents contend that “post-race activity,” including honking car horns, can be heard as late as 3:30 a.m.
In addition to the testimony of the residents and other persons living around the Raceway, expert witnesses testified on behalf of both parties. The residents’ expert witness, Eric Zwerling, is a noise expert who testified that noise from the Raceway was an “unnatural” sound with decibels (dBA) reaching levels that interfere with a person’s sleep. The defendants’ expert witness countered that the sound from the raceway is no greater than sounds emanating from other local events.
On June 28, 2010, the trial court issued a decision denying the residents’ request for a permanent injunction to halt operations at the raceway. Nevertheless, the trial court also determined that the raceway could become a nuisance and, consequently, ordered several restrictions on further operation of the raceway. These restrictions provided that all races must be completed by midnight and that racing may only be held on Fridays. Moler appealed the 2010 Decision and, on September 6, 2011, this court remanded the case to the trial court “to determine with clarity whether or not a nuisance exists or is anticipated to exist, what type it is, and what restrictions are proper pursuant to Civ.R. 65(D).” Brackett v. Moler Raceway Park, LLC, 195 Ohio App. 3d 372, 2011 Ohio 4469, ¶ 27, 960 N.E.2d 484 (12th Dist.) (Brackett I).
On remand, the trial court issued a decision similar to the 2010 Decision with the exception that the restrictions placed on the Raceway were deleted and the following language was added:
“The court finds that the operation of the defendants’ race track is not a nuisance per se.
THE COURT FINDS that acts constituting a nuisance has [sic] not been proven by clear and convincing evidence.
There are no sound or noise standard [sic] in Sterling Township, Brown County, Ohio.
An anticipated nuisance can be enjoyed by a Court, but only when the factor [sic] show that the anticipated or threatened nuisance will occur by clear and convincing evidence. This was not done in this case.
The plaintiffs have failed their burden of proof. The Plaintiff’s case was not proven by the required standard of proof.
The plaintiffs case is hereby dismiss [sic].”
On appeal, the residents’ made four assignments of error.
In their first assignment of error, the residents made several arguments regarding the expert witnesses in this case. First, the Residents contend the trial court erred in considering Moler’s witness, because he had not performed any independent noise testing in the Sterling Township community, had not performed a study or published any articles relating to the impact of noise, and did not state his opinions to any probability or reasonable scientific certainty. Second, the residents argued the trial court erred in stating that the testimony of Zwerling and their expert was “conflicting.” Finally, the residents asserted the trial court erred in stating that the noise testing by Zwerling was performed on only one day and was, therefore, a “snapshot” test.
The appeals court was unmoved. “While we do not deny that the parties presented convergent views of the noise level coming from the raceway and its impact on the surrounding Sterling Township community, it is apparent that the trial court found Moler’s evidence, including the testimony of the defendants’ expert, to be more credible. After a careful review of the record, we are not persuaded by the residents’ contention that the trial court’s judgment that the testimony of Zwerling and the defendants’ expert is conflicting is against the manifest weight of the evidence. Although the residents clearly find their expert to be more qualified in the field of noise testing, the trial court was in the best position to observe the witnesses and ultimately make credibility determinations. See Schneble, 2012 Ohio 3130 at ¶ 69. Accordingly, the trial court did not clearly lose its way and create a manifest miscarriage of justice in making such credibility determinations.”
In their second assignment of error, the residents argued that “the trial court erred in stating that the residents had the burden of proving their case by clear and convincing evidence when the proper standard in a nuisance case is proof by a preponderance of the evidence.”
The court agreed with the plaintiffs on “the proper standard in a nuisance case.
“However, the residents sought a permanent injunction against Moler to completely shut down all commercial activity at the Raceway. In order to obtain injunctive relief, the residents had the burden to prove their allegations by clear and convincing evidence. Brackett I at ¶ 16; City of Youngstown v. McDonough, 7th Dist. No. 00 C.A. 19, 2000 Ohio 2628, 2000 WL 1847662, *2 (Dec. 12, 2000). Thus, even though the Residents were only required to prove the existence of a nuisance by a preponderance of the evidence, they were further required to establish the need for injunctive relief by clear and convincing evidence.”
In their third assignment of error, the residents argued that, “rather than following the directive of this court in Brackett I to provide further analysis of its decision, the trial court simply deleted the restrictions it had initially placed on the Raceway. In doing so, the Residents contend the trial court ‘completely and totally’ failed to follow this court’s order and, consequently, the trial court’s 2012 decision was made in error.”
The appeals court disagreed, writing that “based upon our review of Brackett I, as well as the trial court’s 2010 and 2012 Decisions, we find that the trial court did not err as a matter of law by not following this court’s directive. The trial court did as it was instructed on remand. As such, the residents’ third assignment of error is overruled.”
In their final assignment of error, the residents argued the trial court “erred in conducting independent research prior to ruling on the case.”
The appeals court countered that the trial court “took judicial notice of facts regarding State Route 32 and the Franklin County metropolitan area. The statements do not indicate that the trial court relied on outside research in forming its opinion. Rather, the trial court’s statements regarding State Route 32 and Franklin County are introductory material regarding the geographical areas in and around Sterling Township.”
The panel concluded that “if any of these statements were made in error, the error would be harmless, as the statements made by the trial court are not relevant to the trial court’s findings and, as analyzed above, sufficient, competent, credible evidence exists on the record from which the court could conclude that the Raceway did not constitute a nuisance. Schneble v. Stark, 2012 Ohio 3130 at ¶ 16.”
Corinne Brackett, et al., v. Moler Raceway Park, et al.; Ct. App. Ohio, 12th App. Dist., CASE NO. CA2012-06-009; 2013 Ohio 1102; 2013 Ohio App. LEXIS 990; 3/25/13
Attorneys of Record: (for plaintiffs-appellants) John H. Schaeffer, J. Douglas Drushal, Patrick E. Noser, Critchfield, Critchfield & Johnston, Ltd., Wooster, Ohio. (for defendants-appellees) Joseph L. Trauth, Jr., Michael T. Cappel, Keating Muething & Klekamp PLL, Cincinnati, Ohio.
