On December 6, 2021, the Georgia Court of Appeals decided Kempton v. Southern Flavor Real Estate, 2021 Ga. App. LEXIS 575. The case involved a defendant’s emission of light from a commercial greenhouse that was located on rural land zoned for agricultural use. Id. at *2. It used automated lights to supplement natural sunlight for the winter months, which emitted a significant amount of light. Id. The plaintiff owned acreage with a house about 1,000 feet away and claimed that the light awakened him at night and diminished his quality of life. Id. The trial court granted the defendant summary judgment because its operations were lawful and therefore could not constitute a nuisance, and the Court of Appeals affirmed. Id. at *1.
Georgia’s nuisance statute provides, “A nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance.” Ga. Code Ann. § 41-1-1. The plaintiff argued that the statute allows a lawful land use to constitute actionable nuisance. The Court of Appeals disagreed. The court explained, “‘that which the law authorizes to be done, if done as the law authorizes, cannot be a nuisance. Thus, where the act is lawful in itself, it becomes a nuisance only when conducted in an illegal manner to the hurt, inconvenience or damage of another.’” Id. at *2 (quoting McBrayer v. Governors Ridge Office Park Ass’n, 359 Ga. App. 741, 744–45 (2021)). The court held:
[I]t is undisputed that Southern Flavor obtained all necessary licenses and permits and was authorized by law to operate the greenhouse on the site zoned for agricultural use. So “it could have become a nuisance only if conducted in an illegal manner.” Effingham County, supra. But there is no evidence that the greenhouse was operated in an illegal manner. On the contrary, the undisputed evidence shows that Southern Flavor operated the greenhouse lawfully.
Id. at *3.
Shortly before Kempton, the same court decided McBrayer v. Governors Ridge Office Park Association, 359 Ga. App. 741 (2021). McBrayer involved a nuisance claim by an office park association against an abortion services provider in the office park. Id. at 742. The plaintiff claimed that the abortion services were a nuisance because they attracted protestors and made it difficult for businesses to operate in the park. Id. The plaintiff also claimed that owners were upset that abortions occurred in the office park, which the plaintiff claimed was “grossly out of character” with the office park’s nature. Id. at 744.
The case was tried to a verdict for the plaintiff. The trial court denied the defendant’s motion for a new trial, and the Court of Appeals reversed. The court held that the verdict was contrary to the law because the office park’s zoning permitted medical practices, and there was no evidence that the defendant operated his clinic unlawfully. Id. at 744–45. The court explained, “[t]hat which the law authorizes to be done, if done as the law authorizes, cannot be a nuisance. Thus, where the act is lawful in itself, it becomes a nuisance only when conducted in an illegal manner to the hurt, inconvenience or damage of another.” Id. at 744 (quoting City of Douglasville v. Queen, 270 Ga. 770, 773 (1999)).
Both decisions also held that a use that is permitted by its zoning cannot constitute a nuisance under the Georgia common-law concept that a lawful use can be a nuisance if it is in a wrong place and is injurious or offensive to others. Kempton held that the defendant’s greenhouse operations were not in the wrong place or operating inconsistently with its area because its zoning allowed greenhouse operations, and the defendant “has not performed any action, illegal or otherwise, which would not ordinarily and necessarily be performed by a [greenhouse].” Kempton, 2021 Ga. App. LEXIS 575, at *5–6. Likewise, McBrayer held that the defendant’s abortion services were not located in the wrong place, because his property was zoned for medical practices and located in a commercial office park and because the office park contained other medical practices. McBrayer, 359 Ga. App. at 746. McBrayer emphasized that a contrary holding “could be used to expose a broad array of legal businesses and institutions to nuisance liability due to the fact that some find them controversial and some will protest their very existence.” Id.
W. Clay Massey is a partner at Alston & Bird LLP in Atlanta, Georgia.
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