Brackett v. Moler Raceway Park, L.L.C.

195 Ohio App. 3d 372
CourtOhio Court of Appeals
DecidedSeptember 6, 2011
DocketNo. CA2010-07-014
StatusPublished
Cited by6 cases

This text of 195 Ohio App. 3d 372 (Brackett v. Moler Raceway Park, L.L.C.) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brackett v. Moler Raceway Park, L.L.C., 195 Ohio App. 3d 372 (Ohio Ct. App. 2011).

Opinion

Piper, Judge.

{¶ 1} Defendant-appellant, Moler Raceway Park, L.L.C. (“Moler”), appeals the decision of the Brown County Court of Common Pleas regarding restrictions placed on the use of its property. We reverse the decision of the trial court and remand the case for further proceedings.

{¶ 2} Moler owns 40 acres of land in Sterling Township on which it operates a quarter-mile dirt track motor raceway. There are no zoning regulations in the township, and there are no noise ordinances. Once construction plans for the racetrack were announced, the Sterling Township Trustees considered whether or not to enact noise ordinances, but ultimately chose not to do so.

{¶ 3} Moler operates its racetrack for a limited number of race days each year, concentrated from late spring into the fall. The dirt track is wetted down before the races begin, and all cars must have a muffler in order to race. The track is also surrounded by trees to help with the noise and dust. The gates open around 4:30, and qualifying laps begin at 8:00 p.m. Racing is normally over by midnight, but some race nights have extended until 1:45 a.m.

{¶ 4} As adjoining landowners, plaintiffs brought suit claiming that the racetrack constituted a nuisance. They complained that the traffic is increased on race days and that spectators park near their property. Plaintiffs also objected to the noise levels and argued that their use and enjoyment of their property has diminished because of the racetrack. Plaintiffs also argue that family events and social occasions held outside are ruined by the noise, spectators, and general operation of the racetrack.

{¶ 5} The trial court held a hearing, at which 20 witnesses for the plaintiffs appeared (many of whom were the plaintiffs themselves), and 22 witnesses appeared for the defendants. The trial court issued findings of facts and conclusions of law, and then ordered several restrictions on the future operation of the racetrack. Moler now appeals that decision, raising the following assignments of error.

{¶ 6} Assignment of Error No. 1:

[375]*375{¶ 7} “The trial court erred in issuing injunctive relief while conceding that plaintiffs had not met their burden of proof.”

{¶ 8} Assignment of Error No. 2:

{¶ 9} “The trial court erred by issuing restrictions that are against the manifest weight of the evidence.”

{¶ 10} Assignment of Error No. 3:

{¶ 11} “The trial court abused its discretion by arbitrarily limiting racing to Friday nights.”

{¶ 12} Assignment of Error No. 4:

{¶ 13} “The trial court erred by failing to set specific terms of its injunction in violation of rule 65 of the Ohio Rules of Civil Procedure.”

{¶ 14} Moler’s four assignments of error collectively challenge the trial court’s decision regarding its findings, conclusions, and restrictions.

{¶ 15} Plaintiffs assert that the racetrack is a private nuisance. “Nuisance” is a term used to designate “ ‘the wrongful invasion of a legal right or interest.’ ” Battelle Mem. Inst. v. Big Darby Creek Shooting Range, 192 Ohio App.3d 287, 2011-Ohio-793, 948 N.E.2d 1019, ¶ 18, quoting Barnett v. Carr ex rel. Estate of Carr (Sept. 17, 2001), Butler App. No. CA2000-11-219, 2001 WL 1078980, at *10. A “private nuisance” is a nontrespassory invasion of another’s interest in the private use and enjoyment of land. Id. at ¶ 19. In order for a private nuisance to be actionable, the invasion must be either (a) intentional and unreasonable or (b) unintentional but caused by negligent, reckless, or abnormally dangerous conduct. Id.

{¶ 16} An absolute nuisance, or nuisance per se, is that for which strict liability will attach. “Absolute nuisance, for which strict liability or liability without fault is imposed by law, may be defined as a distinct civil wrong arising or resulting from the invasion of a legally protected interest, and consisting of an unreasonable interference with the use and enjoyment of the property of another.” Taylor v. Cincinnati (1944), 143 Ohio St. 426, 28 O.O. 369, 55 N.E.2d 724, paragraph two of the syllabus. “A qualified nuisance, or nuisance dependent on negligence, consists of an act lawfully but so negligently or carelessly done as to create a potential and unreasonable risk of harm, which in due course results in injury to another.” Metzger v. Pennsylvania, Ohio & Detroit RR. Co. (1946), 146 Ohio St. 406, 32 O.O. 450, 66 N.E.2d 203, paragraph two of the syllabus. Regardless of the label placed on a nuisance, a trial court retains broad discretion in fashioning the terms of an injunction. Adkins v. Boetcher, Ross App. No. 08CA3060, 2010-Ohio-554, 2010 WL 571987, ¶ 18.

[376]*376{¶ 17} A court can abate a private nuisance that is already established. Haas v. Sunset Ramblers Motorcycle Club, Inc. (1999), 132 Ohio App.3d 875, 726 N.E.2d 612. A court can also enjoin an anticipatory nuisance. “A court may enjoin a nuisance that is either threatened or anticipated where it clearly appears that a nuisance will necessarily result from a contemplated act.” State ex rel. R.T.G., Inc. v. Ohio Dept. of Natural Resources (Mar. 31, 1997), Franklin App. No. 96APE05-662, 1997 WL 142363, *6. “ ‘But the court must see plainly that the acts will constitute a nuisance before it will issue an injunction. The degree of proof required before a court will enjoin an anticipated nuisance must be convincing, and if the act or thing sought to be enjoined may or may not become a nuisance, depending on the use or manner of its operation, or other circumstances, equity will not interfere.’ The degree of proof required before a court will enjoin an anticipated or threatened nuisance must be clear and convincing.” Gustafson v. Cotco Ents., Inc. (1974), 42 Ohio App.2d 45, 47-48, 71 O.O.2d 264, 328 N.E.2d 409, quoting 41 Ohio Jurisprudence 2d (1960), 143, 144, Nuisances, Section 55.

{¶ 18} Civ.R. 65(D) provides, “every order granting an injunction * * * shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained * * * [.]” The Ohio Supreme Court has held that in order to comply with Civ.R. 65(D)’s requirements, an injunction must be sufficiently specific that “ ‘an ordinary person reading the court’s order should be able to ascertain from the document itself exactly what conduct is proscribed.’ ” Planned Parenthood Assn. of Cincinnati, Inc. v. Project Jericho (1990), 52 Ohio St.3d 56, 60, 556 N.E.2d 157, quoting 11 Wright & Miller, Federal Practice & Procedure (1973) 536-537, Section 2955.

{¶ 19} As previously stated, a trial court has the discretion to issue injunctive relief when faced with a nuisance.

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Bluebook (online)
195 Ohio App. 3d 372, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brackett-v-moler-raceway-park-llc-ohioctapp-2011.