People v. Romani

No. 36990 (Cal. Super. Ct. December 6, 1972)

Auto racing at the County Fair Grounds is a nuisance as conducted because persons of ordinary sensibilities are annoyed by the noise, and because the utility of the racing is outweighed by the social cost it imposes. The utility of the racing as recreation, as a substantial source of revenue for the fairgrounds, as an activity conducted in an area specifically designated for recreation, and as an activity involving substantial capital investments, is outweighed by its social cost in terms of interference with the use of patios, the viewing of television, and the sleep of nearby residents.Auto racing is not, however, a nuisance at law. The permanent injunction will not apply between 10 A.M. and 6 P.M., during "fairtime." or during evening hours when racing vehicles conform with state noise control standards. The stricter noise standards of the city ordinance do not apply to racing at the fairgrounds. Furthermore, they may be invalid because the state has pre-empted noise control.

Counsel for Plaintiffs
William L. Owen City Attorney for Roseville
Roseville, Calif. 95678

Daniel J. Higgins District Attorney, Placer County
Auburn, Calif. 95603

Counsel for Defendants
Jack Mitchell
219 Estates Drive
Roseville, Calif. 95678

[3 ELR 20161]

Wolters, J.

In February, 1972 this Court filed its "Opinion" as regards its decision upon the evidence presented at the hearing heretofore held in this action upon a temporary injunction. Pursuant to opinion a temporary injunction was issued out of this Court. Evidence was subsequently offered and received upon the trial in chief in this matter and memoranda were filed by the parties.

Upon a review of the evidence and the law, the Court believes the decision in this case requires the resolution of two basic questions, to-wit:

1. May Ordinance No. 1106 of the City of Roseville be applied to determine the legality of activities conducted on the Placer County Fairgrounds, and

2. Does the noise the result of automobile racing conducted upon the Placer County Fairgrounds constitute a public nuisance?

1 — THE ORDINANCE

As pointed out by all counsel concerned, there does not appear to be any case in California which is directly in point upon this issue. It is the opinion of the Court however that if the basic reasoning found in 31 AG 46 is applied, then it would follow that the subject ordinance is not to be held applicable to the activities conducted upon the Placer County Fairgrounds.

In Akins vs. County of Sonoma, 67 C2d 185; 60 CR 499 (1967), the building and safety codes were held not applicable to Roller Derby activities at the County Fair grounds. This case in principle is extremely close to the instant situation.

It is therefore the decision of the Court that the subject ordinance does not control the subject conduct on the Placer County Fairgrounds.

Thus the Court is not required to again inquire into, consider and decide upon the constitutionality of the subject ordinance. Suffice it to say, however, that the Court still entertains a strong suspicion as to the constitutional validity of said ordinance. Even though amendment has been made, it is still apparent that vehicles meeting the requirements of the State of California as to emission noise level may well violate the subject ordinance. That one could drive his vehicle on a public street and not upon his own adjacent land seems ridiculous, and of course this is one of the reasons why local governmental agencies are not permitted to enter fields of regulation which have been substantially taken over by the State.

[3 ELR 20162]

2 — NUISANCE

Of much more abiding concern is the question of public nuisance. Again, as at the previous hearing, both sides presented witnesses who testified as to the effects upon themselves, their families, the use of their properties, etc., created by the noise or sound emanating from the fairground area while auto races were or are in progress.

Also, again, experts on sound measurement were called and testified as to the measurements made at various places in the area of the fairgrounds at times when races were and were not in progress.

In considering all the evidence, there are several areas of concern, i.e., the use of scientific "noise meters" will help to determine the volume of noise reaching a certain spot, but not the quality or offensiveness of the sound in question; is the "complaint" in the instant case against the "noise" itself, or is it against the nature of that noise and the specific conduct or source from which that sound eminates?

"Noise", by definition, is a sound which is not wanted by those who hear it. Music to one person may be a noise when transmitted to another or when transmitted with distortion to the music lover. Time and the nature of sound can make it noise. Familiar noises become oftimes tolerated noises and frightening noises are more annoying than those with pleasant connotations.

From the struggles the Courts have had over hundreds of years in reconciling the conflicting interests of two property owners as regards the one who will use his as he wishes and the neighbor who believes he is entitled to use his without annoyance, it would appear that two major principles have evolved. As stated in the Restatement of Torts, these are:

"First, each person must put up with a certain amount of annoyance, inconvenience and interference.

Second, in determining the amount of annoyance, inconvenience and interference that must be tolerated, the gravity of the harm to the complainant should be weighed against the utility of the conduct of his troublesome neighbor."

Mere annoyance itself should therefore not be the test, nor can the Court be guided by individual idiosyncracies, but the standard to be imposed is that of what a person of "ordinary sensibilities" can tolerate.

In the instant case, the Court has thoroughly charted and weighed the evidence presented by each side in order to locate and delineate the distribution of the complained of sounds. The Court has also carefully compiled the testimony as to the nature of complaints, the alleged specific effects of the noise upon the complainants and the "damages" complained of. The testimony of those witnesses claiming to be not affected or to not "hear" the noise has been considered.

There is no doubt but that a considerable number of the residents near the Placer County Fairgrounds are annoyed, disturbed and inconvenienced by the sounds of the weekly auto racing program. It also appears that the principal complaints are that the sounds are too loud, that the time of the racing (nights until rather late), cause problems of sleep interferences, television viewing interference and interferes with the use of patios for summer evenings.

It is the opinion of the Court that the evidence of sound level measurements of the subject sound, the testimony of the complainants and all other relevant evidence when properly weighed, clearly establishes that the automobile races as conducted on the Placer County Fairgrounds at the times and on the days scheduled are a public nuisance.

Now, however, it is also the opinion of the Court that the subject racing activities are not a public nuisance as a matter of law, that they constitute a valid and beneficial recreational activity and that they are being conducted in an area long established as an area used for general public or community recreational activity. It is further true that the defendants have a substantial investment in the facility used and that the income resulting to the Placer County Fair from the racing activities provides a substantial portion of the funds necessary to the continued operation of the fairgrounds for the benefit of a large number of citizens.

It seems therefore that a compromise decree must be devised in order to allow the complained of activity to continue, but in a manner providing relief to the plaintiffs from the effects upon them from the complained of noise.

Thus, it is the opinion of the Court that a permanent injunction be granted enjoining and restraining defendants from conducting automobile racing upon the Placer County Fairgrounds during the hours between 6:00 P.M. every evening and 10:00 A.M. the following morning. Racing should be permitted at any time during the yearly "fairtime". In the event the vehicles being raced are equipped in a manner to conform with the noise control standards set for motor vehicles by the State of California, then racing should be permitted in the evening hours.

Counsel for plaintiffs shall prepare, file and serve a judgment not inconsistent with this opinion.