Recorder reporter Aalianna Marietta’s excellent Dec. 22 story entitled “Deerfield Selectboard sets new conditions for Tree House Brewing Co.’s summer concerts” shows that ordinary homeowners cannot rely on public officials to protect their interests. The people must organize and advocate for themselves.
Neighboring residents whose lives are adversely affected by Tree House events may not be aware that they have a legal right to band together and go to Franklin Country Superior Court in Greenfield to seek injunctive relief (and possibly money damages as well) based on the well-established legal doctrine of “private nuisance.”
An actionable private nuisance is any activity that unreasonably interferes with homeowners’ quiet use and enjoyment of their property. Neither compliance with a zoning permit nor a license issued by the Select Board immunizes Tree House from a private nuisance claim. Complying with those legal requirements does not entitle the company to make neighbors’ lives miserable so the company owners (who live far away from the noise) can make more money.
In my opinion, if the noise keeps either children or adults awake at night, or interferes with ordinary activities like watching television, reading or conversation, that constitutes unreasonable interference entitling the homeowners to injunctive relief, money damages, or both.
Noise issues provide a solid basis for private nuisance claims because the Massachusetts Department of Environmental Protection (MassDEP) has published a noise policy with measurable standards online at https://www.mass.gov/doc/massdep-noise policy/download which states in part as follows: A source of sound will be considered to be violating the Department’s noise regulation (310 CMR 7.10) if the source:
- Increases the broadband sound level by more than 10 dB(A) above ambient, or
- Produces a “pure tone” condition — when any octav1c band center frequency sound
pressure level exceeds the two adjacent center frequency sound pressure levels by 3
decibels or more. These criteria are measured both at the property line and at the nearest inhabited residence. Ambient is defined as the background A-weighted sound level that is exceeded 90% of the time measured during equipment operating hours. The ambient may also be established by other means with the consent of the Department. - To pursue a nuisance claim based on noise, one needs an expert who can take readings with a decibel meter, write a report and if necessary, testify at trial as an expert witness.
To pursue a private nuisance claim in Superior Court in Greenfield, one needs an experienced attorney. There are excellent litigators in Greenfield and Northampton. One need not go far afield to hire a big (and likely very expensive) law firm. I suggest residents contact local law firms based in Greenfield or Northampton, asking first “Does your law firm do Superior Court civil litigation?” If the answer is “yes,” the next question is “Who is your most experienced Superior Court litigator?” That is the lawyer you want to consider hiring. Interview several, discuss legal fees and expenses frankly, and make your own decision.
One lawyer can represent a group of people if their interests are aligned and if they can make all decisions by consensus. If the group members cannot resolve disagreements during the course of litigation, each faction must hire another lawyer. That provides a powerful incentive to reach unanimous decision.
Neighbors should beware of freeloaders. Only those who join a client group and agree to pay a share of legal fees and expenses will be privy to attorney-client privileged information and have a voice in decision-making. If at some point the Tree House Brewing Company agrees to a monetary settlement or if the court awards money damages, only those who are members of the client group will benefit. If an injunction is issued ordering Tree House to keep the noise down to a specified level at specified hours, likely only those who are named plaintiffs in the litigation will be able to pursue a complaint for contempt of court if Tree House exceeds those limits.
I do not handle private nuisance claims anymore, although I have taught legal seminars on private nuisance. As a former legal aid lawyer, I do not like to see ordinary folks pushed around.
Michael Pill is an attorney who lives in Shutesbury.