### IN THE COURT OF APPEALS OF TENNESSEE AT NASHVILLE October 9, 2003 Se ssion JAMES L. WEST, ET AL 

### . v. FRANK LUNA
Appeal from the Chancery Court for Lincoln County No. 8380 Lee Russell, Chancellor

No. M2002-02734-COA-R3-CV - Filed January 6, 2004

This a ppeal is the second in a 24 y ear long dispute over a proposed ra ceway in Lincoln C ounty

. After hearing additional proof as this Court required in West v. Luna , No. 01A01-9707-CH-00281, 1998 WL 467106 (Tenn.Ct.App.1998), the trial court entered a new injunction prohibiting the defendant Luna from operating

a race track

o n Old Boo nshill Road

in Lincoln Count

y. I n this appeal, Mr. Luna challeng es the trial court’sinjunction as nonco mpliant wit

h our dec ision in the

first appeal, and in imposing a noise limitation effectively making the race track a nuisance per se . We affirm t he trial c ourt. Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed and Remanded

W IL LI AM B. C AIN , J., delivered the opinion of the court, in which P ATRIC IA J. C OTT RELL and F RANK G. C LEMENT , J R ., JJ., joined.
Brad W. Hornsby , Aaron S. Guin, Murfreesboro, Tennessee, for the appellant, Frank L

una.

R. Whitney

Stevens, Jr ., Fay

etteville , Tennes see, for

the appe llees, James L. West and wife, Nancy West; W. Thomas Norman and wife, Kathry n Norman; Paul Johnson and wife, Elizabeth Johnson; Margaret C. Jennings; David R. McCauley and wife , Rachel McCauley ; Hubert C. Jennings and wife, Sybl e Jenning s; Del ber t Mc Gee ; Ric

har d Mc Gee and wif e, Je an M cGe e; R oge

r J. Jones and wife, Wanda M. Jones; Paul D. Sain and wi fe, Ca ra Sai n; Car l Kin kle; E rnest L. Jenn ings and wife, Sharon Jenn

ings; Ray Barhor st and wif

e, Fay Barhor st.

OPINION

This appeal r

eprese nts a continuing saga, which beg an when the appella nt’s pre decesso

r in interest attemp ted to open a dirt race track on Old Boonshill in L incoln County. The facts of t h e dispute’s origins appear in this Court’s 1998 decision West, et al. v. Luna , No. 01A01-9707-CH00281 , 1998 WL 4 67106 (Ten n.Ct. App. Aug .12,1 998) [West O ne].

In this appeal we are asked to determine whe ther the trial court approp riately applied the holding in West One in enjoining the appellant from developing a race track without first presenting-2-

to the trial court a

comprehensive construction plan that would reduce the sound leve l produced by the track to

an average level no g

reater than 55 db measured at the location of the closest landowner, said averag e to be obtained over a period beginning one hour before race time and ending one hour post race time. The track ’s n eighboring landowners have c ontinuously and strenuously argued agains tthe racetrack as a nuisance based on an excessive noise leve l. The landowners succeeded in obtaining an injunction in 1982 which, up until the events which led to this appea l, “enjoine d [track owners ] from operat ing a speedway ‘until such time as [they] can and will operate same where the noise level will not be a nuisance to theplaintiffs.’ ” West v. Luna , 1998 WL 467106, * 2 . This Court’s decision

in West One

vacate d a 1996 or

der of th e trial c ourt and r einstated the 1982 injunction. We held:
Based on our independent review of the record pursuant to Tenn. R. App. P. 13(d),
we have determined that theevidence preponderates ag ainst finding that thereare no circumstances under which this track could be operated that would not cause a nuisance. Ac co rd in gl y, an injunction preventing any racing at Mr. Luna’s track is not warranted and the August 1996 order must be vacated.

Our decision to vacate the August 1996 order does not lea ve Mr. Luna to conduct stock car races as he pleases. To the contrary , vacating the August 1996 order ha s the legal e

ffect o f reinsta

ting th e May 198 2 order that enjoins the track operators from operating the tr

ack “un til such time

as . . . [the

y] c an and wi l l operat

e same where the noise

level will not be a nuisance to the plaintiffs.” Thus, Mr. Luna, as Mr. Holt’s success or, rema

in s enjoine d from ope

rating the trac k in a way

that cau ses a nuisance to the tra ck’s nei ghbors

. Ending our discussion here would leave the parties no better off than they have been since 1979 because they

still lack objective standards for determining whether or not the noise from the track constitutes a nuisance. Even t hough the trial court concluded in 1981 that a

noise lev el of 81 decibels was a nuisance , this stand ard is ina dequate because it fails to indicate over what period of time the noise level should be averaged or the time

of day when this noise leve

l would be

a nuisanc e. Other

courts have been successful in fashioning prec ise nois e standa rds in ca ses simila

r to this
one. See Sherrod v. Dutton , 635 S.W.2d at 120 n. 3. Likewise, many local government s and at least one federal ag ency ha ve established noise control regulations cont aini ng prescriptions for appropriate sound levels for particular
en vi ro nm en ts an d p ar ti cu la r t im es of da y. The dispute surrounding the operation of this track has been in and out of court for the past twenty y

ears and requ

ires a definitive closure. The parties are entitled to a definitive ruling either that operating a track on Old Bo onshill Roa

d is a nuisance per
se that will not be allowed under any circumstances or that a race tra ck may be operated on Old Bo onshill Roa

d as long as it meets objectiv e, well- defined noise levels suitable

for the lo cality

and the character of the surrounding neighborhood as wellas the time of day w

hen the rac es will

be condu cted. Therefor

e, we re mand this
case to permit the parties to present evidence that will enable the trial court to decide,-3-

once and for all, whether a track may be operated on Ol d Boonshi ll Road and , if it may be oper

ated, the conditions for its operation.

West , supraat ** 8-9.
Upon remand, the trial court heard from several experts concerning the noise c ausedby the
race trac k and the p ossi ble remedial measures and their expected eff ect on that noise level. The expertand lay testimony

ran the gamut of noise possibilities, covering the topography of the region and the utility

of eart hen berm s and gr

ound bar riers aswell as mufflers t

o reduce the sound level at its source. The trial court heard from lay witnesses who testified to the difficulties they experienced when the dirt track was in operation in 1981 in conducting conversations and the daily activities of rest and relaxation one would expect from an otherwise quiet rural community. The

trial cou rt also heard expert testimony relating these disruptions and scientific data through the use of sound meters and appli cation of

various n oise stan dards.

Fo r their pa

rt, the a ppellee s continued to presstheir ar gument t hat no cir cumstanc es exist under which Mr. Luna could opera te a race track

withoutcausing

a nuisanc e. Chief in that pro of is th e fol lo wi ng te st im on y fr om Pl ai nt if f’ s e xp er t R al ph Mo se ly.
Q. Now, is there anything in your opinion that can b e done to this land in Lincoln County , taking into considerationthe location of the homes around this track, t

he topog raphy in the ar ea, that would allo w this track to be operated in any

ma nner und

er any circumst ances a nd not be a

nuisance to those residents that are living there now? A. No, there is not, and I would like to explain why , if that’s appropriate. Q. Please do. A. As Ms. Jenning s so appro priately put, this ra

cetrac k is in a valley. It’s similar to an amphitheater effect or a bow l-sha ped effect. Noise created in the middle of the bowl radiates up the sides of the bow l. In t his case , even if

they
were to put a berm or a

wall, since the houses around the site are at a higher elevation, looking down into the va ll ey, then there would be nothing between their line of sight from the houses and the racetrac k itself to prevent

the noise
or reflect or absor

b the noise . A wall wo uld have t

o be as high a s the surrounding ho uses in order for a wa ll around that trac k to have a

ny e ffect. No matter what was done, whether there a re mufflers or no muff

lers or th e number of carsis limi ted to t wo cars, the intensity of the noise as the cars accele rate and then decelerate produces a var iability that

is highly annoy

ing
or interfe ring wit h anyone trying to co nduct con

versatio n. Just about

the time you get used to the peace and

quite, for example, between a race, another race would start up, and then you c ould not maintain conversation.

The experts provided testimony concer ning various industrial and environmental noise standar d s, amo ng the se are the OSHA standards for industrial sound and EPA standards for environmental noise. Sp ec if

ic al ly, Defendant Luna’ s expert, Mala Beard, refere nces the EPA standard

in his report-4-

of May 28, 2000, t

o wit: “The EPA

recomme nds level s for env

ironmenta

l noise not

to exceed 55 dBA as measured by

the Ldn outdoors and 45 dBA for Ldn indoors.”

The trial court noted , and the record supports the conclusion that as of the date of tr ial on remand, Mr. Luna had no cohere nt plan for constructing the race tra ck so as to minimize the noise level on the adj acent owners’ pr operty . He testi fied tha

t he would

consider building a wall at least
on the portion of the track nearest the West’s property , if not around the entire track. He testified that he could plant trees on the property , and that he intended to require mufflers on the cars that would race on his track. However, he sub mitted no complete construction plan a

nd felt it unnecessary

to do so abs ent any

ruling f rom the court. Mr. Luna also testified to his limited education and th at h e ha d ne ver ope rat ed a rac e tr ack bef ore . In addition, Mr. Luna has construction experience and he expressed his intention to “do whatever he had to” to avoid posing a nuisance for his neighb ors. The

re is ampl e expert proof in this record that, were Mr. L una to do all of the above, the noise lev el would st

ill interf ere with the norma

l activity of his adjacent landowners. As we said in West One,

Whether a particular noise is sufficiently excessive to constitute a nui sance is ordinar ily a questio n of deg

ree and locality --in essence a question of fact to be considered

in light of all the attending circumstances. Cf. Caldwell v. Knox Co ncrete Prods., Inc

. , 54 Tenn. App. at 40 2, 391 S.W.2d at 9. The

circumst ances mo st freque ntly considered in determining whether noise amounts to a nuisance include: (1) the locality, (2) the c haracter of the neighborhood, ( 3) the nature of the use causing the noise, (4) the extent and frequency of the injury, (5) the time of da y when the noise occurs, and

(6) the effects on the enjoy ment of life, health, and property of those affected by

the noise. See Pate

v. City of Martin , 614 S.W.2d at 47; see also Warren County v. Dickson , 185 Ga. 4 81, 195 S.E . 568, 570 ( Ga.1938) ; Finlay v. Finlay , 18 Kan.App. 4789, 856 P.2d 183, 189 (Kan .Ct.App .1993); Racine v. Glendale Shooting Club, Inc. , 755 S.W.2d 369, 372 (Mo.Ct.App.1988)

.
West v. Luna , 1998 WL 467106, * 4.

The case was remanded to the trial court af ter West One on a finding tha t th e evidence preponderated

agains t a judgment that there were no conditions under which a race track could be operated on the property of

the defendants, an d that the evide nce at th at time did

not suppor

t a finding of nuisance per s e. Reman d furthe r was for the purpo se of tak

ing add iti onal proof a nd articulating specific standards to bemet by the defe ndants in o

rder to o perate the race track. Expert testimonytaken after remand rang ed from nuisance per se to averag ing of decibel levels over an extended period of

time. In reaching

his conclusions from all of the evidence after rema nd, the trial court held:

The Court of Appeals directed the atten tion of the

parties t o a footnote in the
case of Sherrod v. Dutton , 635 S.W.2d 117 (19 82). That footnote recited two collections of data

which had been presented in the cases of Bostic v. Smoot Sand and Gravel , 154 F.Supp. 744 (D.Md.1957), and Lee v. Rolla Speedway, Inc. , 539 S.W.2d 627 (Mo.App. 1976). One set of d ata matched dec ibel leve ls to particular ac tivities,-5-

for example, suggesting that conversational speech is conducted at a level of 50-60 decibel s. The second set of data matched decibel leve ls to the level of complaint that would be made b y ne

ighborsat a

particular decibel level or rang e, for example, if the decibel level of

the intru ding activity wa s in the range of 50-60, then there ar e “threats of community a

ction.” Un fo rt un at el y, the re was lit tle evidence at the hearing on September 30, 2002, which was as complete and precise as the evide nce cite d in the footnote to the Sherrod ca se. There was no evidence conc erning the decibel level at which the Plaintiff s begin t o complain or at wh

ich L incoln Countians be gin

to complain or

at which rural residents in general beg in to complain. The evidenc e was more anecdotal than it was the product of a survey , and the c ommunity standar d was re ally provedmore by anecdotal evidence and by analogy to EPA, OSHA, and HUD standar ds. Before any standards can be applied, it is necessary that it be established over what per iod of time

the noise levels are measured and averaged. The failure of the trial court ea

rlier to e stablish

how the no ise level was tobe averaged was one reason why the Court o f Appea

ls vacated the trial court’s 1996 injunction. The Defendant at trial reduce d som e of hi s avera ge noise level figures by averaging

them over longer periods of time, for instance a twenty -four hour period or a week. If a period of only background

noise is averaged in with a pe riod of intense racetrack activity , then obviously the aver age no ise level is gre atly re duced. It was nec essary that the Defendant’s own experts do this averaging using “silent” p eriods b ecause without the inclusion of those p eriods, their own testimony conce rning noise levels during races and standards for acceptable noise level would ha ve establ i shed that the racetrack would be a nuisance. The Defendant ar gued that more noise shoul d be t olerated because the trac k would onl

y op erate f

ifteen time s ayear, beginning in May and ending in Augus t, and only

on weeke

nds. There are circumstances in which averaging whichincludes “silent” periods would be a

ppropria te. I t is the conclusion of this trial court that in the facts of this particular case, in a rural/residential setting, wherethe homes were present before the racetrack was built, and where theracetrack was built in a topographic al bowl, that it is appropriate to average the noise levels o nly over the per iod of four hours of racing plus an hour before the race and a n hour after the race. L

osing the peaceful enjoyment

of your home a

nd yard for a six hour portion of every Saturday during the
warm months of every y

ear is a very

substantial loss and would con stitute a nuisance
even if it were quiet as a tomb next to the racetrack at 2:00 A.M. every Sunday

of the year. The fallacy

of over reliance on an average decibel figure can be demonstrated by a ve ry si mp le e xa mp le. If someone sneaks up behind another person and explodes
a balloon every te

n minutes, that is a nuisance. It does not matter that the prankster is totally sil ent betwee n his pranks. There was ample evidence a t trial as to why continual , that is, pe

riodica lly recurring loud noises, can be more of a nuisance than continuou s loud noise, where the loud noise does not subside at all for a period of time. Each can be a nuisance, but the f ormer requi res multiple adjustments by the victim and the latter requires only one adjustment that must, however, be maintained.-6- The standar

d that is establish

ed by this trial j udge in

this situation is that the racetrack must contain its noise le

vel so tha t there isno substan

tial inter ferenc e with the convers ations of

the Plainti ffs in or o

utside the ir home s during the six hour periods during, just

before, and just after races, a nd no substantial interfe

rence with the ability of the neig

hbors to sleep in the i r homes or conduct other “no

rmal” activities inside or outside their homes during the same periods. The evidence in the
case establishes that a decibel lev el in exces s of 55 would impede normal conversation, so the Defendant cannot exceed that decibel l evel dur ing ope rations,
measure d on the pr

operty of the Pla

intiffs.

As a practical matter Defendants ca nnotmeet the decibel level standards imposed by the trial judge, but the evidence does not prepo nderat e agains t the f act fi ndin gs of the trial court based upon hi s a cc ep ta nc e o f s om e e xp er t t es ti mo ny a nd hi s r ej ec ti on of ot he r e xp er t t es ti mo ny.
These fa ctual determin ations en joy a presum

ption of c orrect

ness on ap

peal abs ent a preponderance

of the evidence to the contrary . Tenn.R.App.P. 13(d ), see Hawks v. City of Westmoreland, 960 S.W.2d 101 (Tenn.1997). Having found no such preponderanc e, we affirm the order of the tri al court

in its entir

ety . The ca

use is re manded w ith costs taxed against the appellant for which execution shall issue.

___________________________________ WILL IAM B. CAI

N, JUDGE