548 S.W.3d 137
Ark.2018Background
- The American Legion (Legion) built and operated a sport shooting range on 40 acres in rural Arkansas County adjacent to several plaintiffs' properties.
- Neighbors and nearby businesses (appellants) sued for nuisance and sought an injunction and/or damages, alleging noise from the range interfered with use and value of their land.
- The Legion moved to dismiss, invoking Ark. Code Ann. § 16-105-502, which immunizes shooting ranges from noise-based suits if the range complies with local noise-control ordinances that "applied" when the range was constructed and began operation.
- No local noise-control ordinance existed in Arkansas County when the range began operation.
- The trial court granted the Legion's motion and dismissed the suit; the plaintiffs appealed arguing the statute does not apply without an existing ordinance and that the statute effects an unconstitutional taking.
- The Arkansas Supreme Court affirmed, holding the statute applies when no local ordinance exists (because the range is therefore "in compliance") and that the statute does not constitute a taking under the state constitution.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ark. Code Ann. § 16-105-502 requires an existing local noise ordinance to trigger immunity | Statute requires an existing local noise ordinance that "applied" to the range when it began operation; absent such an ordinance, immunity does not apply | Statute immunizes ranges so long as they are not in violation of any local noise ordinances; if no ordinance exists the range is "in compliance" and receives immunity | The court held the statute grants immunity where no local ordinance existed because the range was therefore in compliance with local ordinances at commencement. |
| Whether the immunity statute creates an absurd or unreasonable result (policy/reliance) | Requiring immunity absent an ordinance yields absurd outcomes (e.g., unrestricted hours/locations) and undermines reliance interests | Lack of ordinance is itself a reliance basis; counties retain zoning authority to address land-use concerns | The court rejected the absurdity and reliance arguments, noting county zoning powers and that lack of ordinance is a legitimate reliance interest. |
| Whether application of § 16-105-502 effects a taking under Ark. Const. art. 2 § 22 | Immunity that prevents nuisance suits deprives appellants of property use and value, amounting to a taking | Immunity is a statutory modification of nuisance law; diminution of use/value does not necessarily constitute a taking | The court held the statute does not constitute a taking; diminished use/value from noise is an insufficient burden to amount to a taking. |
| Whether the trial court erred in dismissing the complaint on statutory/immunity grounds | Dismissal improper because statute inapplicable and/or unconstitutional | Dismissal proper because immunity applies and is constitutional | The court affirmed dismissal. |
Key Cases Cited
- Jenkins v. Clayton, 542 S.E.2d 503 (Ga. 2001) (interpreting a similar statute to confer immunity where no local noise ordinance existed)
- Yates v. Kemp, 979 N.E.2d 678 (Ind. Ct. App. 2012) (construing an Indiana statute that expressly required an existing ordinance and denying immunity where none existed)
- Sara Realty, LLC v. Country Pond Fish & Game Club, Inc., 972 A.2d 1038 (N.H. 2009) (interpreting a similar immunity statute; discussed interplay of provisions and limits of ordinance-based immunity)
- Barrett v. Poinsett County, 811 S.W.2d 324 (Ark. 1991) (holding loss of one profitable use or diminished value alone not a taking)
- Winters v. State, 782 S.W.2d 566 (Ark. 1990) (quarantine regulation imposing economic loss did not constitute a taking)