Agenda - Planning Commission - 11/02/1998

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Page 8. -. October 25, 1998 Z.B. Although the town probably wouldn't charge the Warshaws with a code violation if they removed the fence, the Warshaws might be sued if someone were injured after accessing the pool through a missing or damaged fence on their property. see also: Chrysler Realty Corp. v. Orneck, 601 N.Y.S. 2d 194. see also: Gaona v. Town of Huntington Zoning Board of Appeals, 483 N. Y.S. 2d 430. Nuisance -- Neighbor sues agricultural business operating in residential neighborhood Citation: Trosclair v. Matrana 's Produce Inc., Court of Appeal of Louisiana, 5th Circuit, Nos. 98-CA-195 & 98-CA-196 (1998) Trosclair lived in a residential neighborhood in the city of Westwego, La. He had lived there for 24 years. In 1987, Matrana opened a produce business across the street from Trosclair. Trosclair said the business expanded over the years and now encroached its neighbors' properties. Trosclair sued Matrana and the city. He argued Matrana's business violated many state and local laws regarding the use of heavy equipment on city streets. He claimed Matrana violated local noise ordinances, annoyed neighbors, built additions without proper permits, illegally operated refrigeration units too close to residential developments, and released stinking and repugnant fumes that made neighbors ill. Matrana asked the court to dismiss the lawsuit based on a state agricultural law. The law stated no agricultural business could be deemed a nuisance if the business was operated in accordance with generally accepted agricultural prac- tices and the person bringing the lawsuit bought his or her land after the busi- ness began operating. .The court dismissed Trosclair's claims, and he appealed. He claimed the statute didn't bar him from suing Matrana because he had owned his property long before Matrana opened his business. DECISION: Reversed, and returned for a trial. Trosclair was entitled to a trial. The court found the state law might bar Trosclair from suing Matrana, but a trial was needed to determine whether Matrana ran his business according to generally accepted agricultural practices. If he didn't, then he wouldn't be pro- tected by the statute. A concurring judge argued that whether Matrana operated within generally accepted agricultural practices was irrelevant because Trosclair had lived on the property for 24 years -- long before Matrana opened his business across the street. The concurring judge pointed out the statute did not prevent a preex- isting owner from suing an agricultural operation that created a nuisance. see also: &nith v. Trattler, 681 So. 2d 961 (1996).