Point of Odor

SEEKING A CHANGE OF MOOD AND atmosphere, a Washington, D.C. resident decided to move to a rustic, suburban area near the Potomac River. He bought a lot, hired a builder and, for the next eight months, regularly watched as construction proceeded. Although he planned on living in the house, he boasted that the locale was so desirable, he could easily sell his interest and make a nice profit on the deal.

Shortly after moving into the house, he organized and led a community effort challenging a proposed increase in flights in and out of National Airport. You see, his neighborhood lay beneath a principal take-off and landing path. The protest fizzled after local papers reported that none of the protestors had lived in the area longer than five years. Aircraft had been using these approach and departure lanes since 1941.

How much sympathy can you have for someone who voluntarily puts himself at a detriment and then complains about it? Not much, according to a ruling by a Washington State appeals court.

Since 1967, Ostrom Co. has operated a mushroom farm on property near the Thurston County landfill in Olympia, Wash. When Ostrom got started, the surrounding area was rural. Residential neighborhoods now surround the farm. Composting is a key part of the mushroom operation. To make its compost, Ostrom mixes dried poultry waste and wheat straw, which emits an odor when wet. Through the years, the company has conscientiously worked with the surrounding community and government agencies to control odors from its operations.

Homeowners near the landfill brought nuisance and negligence claims against Thurston County and its operator, Skagit Sand and Gravel, alleging that landfill-related hazardous substances, odors and birds interfered with the use and enjoyment of their land. The county drew Ostrom into the lawsuit with a complaint charging that the mushroom farm contributed to the odors that the neighbors found offensive. Ostrom responded by arguing that the county failed to present any facts to support its theory that the company's activities were not protected by state law. The trial judge agreed and dismissed the complaint.

The state's Right-to-Farm Act (RTFA) was adopted in response to city residents moving into rural areas and then filing nuisance suits based on odors linked to farming. Under RTFA, a farmer's activity may be a nuisance only if a plaintiff can prove: (1) a substantial adverse effect on public health and safety; (2) disregard of good agricultural practices; or (3) the plaintiff occupied his land before the nuisance activity began.

The Washington State Court of Appeals upheld the lower court, agreeing that the county had failed to present any facts to support its claims. “Thurston County only offers speculative theories about Ostrom's contribution to odors in the … area,” the appellate opinion said.

Finally, the appeals court faulted the county for not providing evidence of negligence. “The general experience and observation of mankind does not instruct that … compost never smells unless someone is negligent,” the court chidingly added.

[Vicwood Meridian Partnership v. Skagit Sand and Gravel, No. 29623-3-II, Wash.App.Div.2, Oct. 19, 2004]

The legal editor welcomes comments from readers. Contact Barry Shanoff via e-mail: [email protected].

The columnist is a Rockville, Md., attorney and serves as general counsel of the Solid Waste Association of North America.