Penland v. Redwood Sanitary Sewer Serv. Dist.

965 P.2d 433



In determining whether a composting operation constitutes a nuisance, whether it substantially and unreasonably interferes with the use and enjoyment of plaintiffs' property, a court must assess five factors: (1) the location of the claimed nuisance; (2) the character of the neighborhood; (3) the nature of the thing complained of; (4) the frequency of the intrusion; and (5) the effect upon the plaintiff's enjoyment of life, health and property. Whether a condition constitutes a nuisance depends on its effect on an ordinarily reasonable person, a normal person of ordinary habits and sensibilities.


Plaintiff homeowner's nuisance action against defendant sewage district was before the court on remand from the Oregon Supreme Court, which had reversed the court's decision that the sewage district was immune from liability for nuisance and could not have been enjoined under the Oregon Tort Claims Act, Or. Rev. Stat. § 30.265(3)(c).


Was defendant’s composting operation a nuisance and, if so, does the balance of equities warrant issuance of permanent injunctive relief?


Yes and yes.


On remand, the court granted a permanent injunction in favor of the homeowners that stopped the sewage district from operating a composting plant. The court addressed two issues that it had initially deferred: whether the composting operation of the sewage district was a nuisance and, if so, whether the balance of equities warranted issuance of permanent injunctive relief. The court answered the questions affirmatively and granted injunctive relief to the homeowners. The court agreed with the trial court that the composting operation was a nuisance. The composting facility generated offensive odors that were consistently detectable on the homeowner's property. The odor substantially and unreasonably interfered with the homeowner's use and enjoyment of their property. The court emphasized that the case was not one of narrow-minded refusal to assume burdens that were, reasonably and necessarily, part of living as a community. It was a clear and compelling case of living next to a public nuisance. The equities favored the issuance of an injunction.

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