Did Mine Operators Assert Viable Counterclaim that Repeated Complaints to DEC Constituted a Nuisance?
Blake Bassett, Robert Bassett, Sandy Lupo and John Lupo are residents and/or owners of approximately 14 acres of rural land located in the Town of Greenfield, Saratoga County, New York. Peckham Materials Corp. operates a mining operation on land it owns that is adjacent to and abuts the Bassett/Lupo property. In 2019, Peckham entered into a lease agreement with Pallette Stone Corporation to operate Peckham‘s quarry.
The Bassetts/Lupos sued Peckham/Pallette and alleged causes of action sounding in strict liability, negligence, private nuisance, trespass and permanent injunction.
Peckham counterclaimed for private nuisance. The Bassetts/Lupos contended that Peckham’s counterclaim failed to state a claim for private nuisance because the counterclaim failed to contain any factual allegations regarding their use of property causing the alleged nuisance. And that, since Peckham failed to allege that their actual use of their property constituted a nuisance, the counterclaim was fatally deficient and must be dismissed. In opposition, Peckham asserted that its counterclaim was facially sufficient to support a claim for private nuisance in that it sufficiently alleged each of the required elements.
Peckham’s counterclaim allegeds that it “is the owner of a lawfully permitted sand and gravel quarry … located on approximately 181.47 acres in the Town of Greenfield, Saratoga County” and that its “[p]roperty has been used as a quarry since at least February 2002.” Peckham alleged that the property “sits within the Earth material and Extraction Overlay District of the Town of Greenfield” and that the district had been zoned for permissible mining and extraction under Section 105-111 of the Town of Greenfield’s Zoning Law.
Peckham alleged that, prior to acquiring their property, the Bassetts/Lupos had actual and constructive notice that Peckham’s property was being used as an active quarry. Peckham alleged that “since acquiring title [the Bassetts/Lupos] have engaged in actions to deliberately interfere with Peckham’s lawful use and enjoyment of the [p]roperty.” Peckham further alleged that “[they] lodged multiple unfounded and specious complaints with the New York State Department of Environmental Conservation… in a manner that was substantial and unreasonable, regarding the authorized and permitted mining activities on the [p]roperty.” Peckham alleged that, in response to each such complaint, DEC was required to examine and investigate complaints and [they] were required to comply therewith.” Peckham asserted that the “continued and repeated visits from the authorities in response to … multiple meritless complaints, forced Peckham to divert its attention, interrupt its work, and divert resources.” Peckham further asserted that, “[the Bassets/Lupos] multiple complaints were designed to, and did, cause and create angst, delay and frustration to Peckham” and that “[n]one of the complaints resulted in any adverse regulatory action being taken against Peckham by the DEC.” Peckham also asserted that “[the Bassetss/Lupos’] complaints were unreasonable” and that those “ actions were undertaken for the purpose of placing Peckham in perpetual agitation so as to interfere with Peckham’s lawful use and enjoyment of the [p]roperty.”
The elements of a private nuisance cause of action are an interference (1) substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act. A private nuisance claim does not require an actual intrusion upon property by the tortfeasor and may be established by proof of intentional action or inaction that substantially and unreasonably interferes with other people’s use and enjoyment of their property. As a private nuisance claim involves the right to use and enjoy the land, no actual intrusion onto the plaintiff’s property is required and no actual damage to the property itself need be shown.
Where the motion is premised upon claimant’s failure to state a claim, the dispositive inquiry is whether it has a cause of action and not whether one has been stated, i.e., whether the facts as alleged fit within any cognizable legal theory. And the Court of Appeals recently found that allegations in a counterclaim that a party repeatedly made frivolous complaints to city officials resulting in repeated intrusions by such officials into the claimant’s home was sufficient to plead a case for private nuisance.
The Court concluded that the question of nuisance would turn on the number, frequency ,redundancy and legitimacy of complaints. Those facts would be needed to sustain a claim at trial or to survive a summary judgment motion. But for the current purpose, the allegations contained in the counterclaim sufficed to plead a case in private nuisance.