Daily Development for
Tuesday, May 20, 1997

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law

NUISANCE; ADMINISTRATIVE LAW; PREEMPTION: Notwithstanding approval of state environmental agency and land use authorities, Developer can be permanently enjoined from constructing a landfill under the theory that it is an "anticipatory nuisance" and threatens to pollute surface and ground water sources of neighboring landowners. Sharp v. 251st Street Landfill, Inc., 925 P.2d 546 (Okla. 1996).

Although the developer had obtained approval for the project from the Oklahoma Department of Environmental Quality ("DEQ"), the plaintiffs contended that the landfill would pollute their artesian wells and a creek running through the area and obtained a permanent injunction against it. The Oklahoma Supreme Court upheld the injunction, holding that the presumption that the DEQ had fulfilled the legislative purposes of the Oklahoma Solid Waste Management Act could be overcome by expert testimony that water pollution would likely occur. Although the testimony of plaintiffs' only expert was countered by several experts called by the developer, the trial court had sufficient evidence to permanently enjoin the landfill. Plaintiffs qualified for a permanent injunction by showing that the landfill as designed would probably pollute their water, which met the standard of proving that the business could not be conducted in any manner at the place situated without constituting a substantial injury to other property owners.

Compare: San Diego Gas & Electric Co. v. Covalt, 55 Cal. Rptr. 2d 724 (Cal. 1996) (State PUC has controlling authority regarding siting of transmission lines notwithstanding arguments that such lines constitute a nuisance due to electromagnetic wave emanations.)

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 1-6, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Stacy Walter at the ABA. (312) 988 5260 or stacywalter@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.