One of the first legal causes of action to consider when confronting the annoyance and hazards of gas-powered lawn and landscape equipment is whether the use of these machines constitutes, legally, a nuisance. Noise can rob us of the quiet space within which we can think and peacefully exist. It can be a loss of our place. A nuisance is defined by law as something that prevents you from enjoying your property rights. But having a cause of action, or giving authority to public officials, does not necessarily settle the issue. You have to be able to prove your case, or get public officials to act.
Government agencies charged with enforcement of regulations are generally understaffed these days. And once the contractor who may have caused a nuisance has left, the agency that arrives on the scene to answer a complaint has a hard time sorting out perception from reality.
What are reasonable ways to approach these issues? What are some actions that communities can take which would work better? Here are a few ideas, offered to start a discussion on how nuisance law can be made more effective.
- Limitations on timing, frequency and extent of noisy activities that impact on neighbors can be established. Responsibility for nuisance imposed on neighbors could be placed on those who order the service as well as those who perform it, in the form of potential fines or orders to desist. This could create an incentive to hire contractors who do not raise the risk of a nuisance complaint. Imagine a process by which your neighbor, who hires noisy contractors who disturb your ability to work at home (or just take a nap), is informed that he or she has created a nuisance—and along with this notice comes a list of contractors who are certified as Quiet Service Providers. Your neighbors may not even be aware that they are creating a nuisance, and may be willing to switch to quieter services. Providing the certification could promote competition and bring down the price.
- A registration requirement for lawn care services that use gas-powered machinery could create a useful differential that would favor quieter, cleaner operations. A fee for registration could be used to buy equipment for measuring noise nuisance levels. A work notification requirement could be established which would allow for inspecting at the time work is ongoing. No such requirement would be necessary for electrically powered equipment, or raking.
- A state could pass legislation making it easier to take someone to court in a private nuisance action, setting out what the standards could be. The noise-measurement monitors bought by the local fee revenue could be lent out to residents who wish to collect evidence and establish causes of action under the state legislation. The municipality could have its own monitors, to confirm measurements. These instruments could help measure not just decibels but sones, the psycho-acoustic measure that we need to fully understand the impact of the noise source on humans. Simply establishing this program would send a message to contractors that would likely motivate some to provide quieter services.
In a sense, a noise nuisance is only the proverbial “tip of the iceberg.” There are also many serious environmental and occupational exposures associated with the use of these gas-powered devices.
All of which will be considered in future postings here.
Rick Reibstein is a lecturer in environmental law and policy at Boston University and Harvard Extension School. He co-chairs the Quiet Communities Legal Advisory Council with Jeanne Kempthorne, founder of the Good Neighbor Mediation Project, Salem, MA, and a former civil litigator and federal prosecutor.