Read the following memo and answer the following question: What available responses would/could you receive from this memorandum?

Question Presented

Whether noise and vibrations emanating from a lawful business can be considered a private nuisance.

Brief Answer

Yes, noise and vibrations from a lawfully operated business can be considered a private nuisance under Georgia law.

Statement of Facts

Better Bodies Gym rented a commercial unit in the high-rise condominium complexin Fulton County, Atlanta, Georgia five months ago. They offer fitness classes, accompanied by very loud music, which starts at 5:00 a.m. and ends around midnight. The gym's clients hoist barbells, weights, and medicine balls and then slam them onto the gym's floor. Our clients say that the loud music and gym equipment noise has become intolerable. The noise has disturbed our clients' sleep, caused vibration of windows and doors, and requires them to keep their windows closed at all times. Our clients complained to Better Bodies Gym two months ago, but Better Bodies Gym has not taken any action or responded. Better Bodies Gym's business is lawful, and it obtained all necessary permits and licenses to operate the business in the complex. Certainly, our clients find the noise and vibrations from the gymto be an annoyance, but they consulted this firm to determine whether the noise and vibrationsconstitute a legal nuisance.

Discussion

1. Legal Standards
2. What is a Nuisance?

Nuisance is described as an act or omission that is a source of hurt, inconvenience, or damage to another. O.C.G.A. 41-1-1. A nuisance requires the inconvenience be such that would affect an ordinary, reasonable man, not someone that is fastidious (i.e., meticulous, hypersensitive, etc). O.C.G.A. 41-1-1. Even an act that is otherwise lawful can be a nuisance. O.C.G.A. 41-1-1. To show a nuisance, the following factors must be present: the defect or level of malfeasance (i.e., wrongdoing, conduct)must be severe enough to go beyond the concept of mere negligence, the act must be of some duration...and the act or flaw must be maintained continuously or repeatedly, and the defendant must failto take action within a reasonable amount of timeafter having knowledgeof the defector dangerouscondition. The latter factornecessitates eitherknowledge or notice of the dangerous condition. 1 LexisNexis Practice Guide: Georgia Real Estate Litigation 5.07 (2022).

1. Categories of Nuisance.

Nuisances can either be public or private. O.C.G.A. 41-1-2. A private nuisance is one which affects only one or a few individuals. O.C.G.A. 41-1-2. A public nuisance damageseveryone who comes within the sphere of its operation, although its effects on individualsmay vary. O.C.G.A. 41-1-2.

1. City Ordinance.

Atlanta, Georgia Code of Ordinances Sec. 74-131(a)(1) states:

[i]t is unlawful to play, use, operate, or permit to be played, used, or operated any machine or device for the producing, reproducing, or amplifying of sound and/or noise at such a volume and in such a manner so as to create, or cause to be created, any noises or sounds which are clearly audible at a distance of 300 feet or more from the building, structure, vehicle, or property, between the hours of 7:00 a.m. and 11:00 p.m. Sunday through Thursday and between the hours of 7:00 a.m. and 12:00 midnight on Friday and Saturday.

1. Remedies (although beyond the scope of this Memo).

According to O.C.G.A. 41-1-5(a), an available remedy for nuisance is abatement, and any person whose property or themselves are injuriously affected thereby may bring a court action. Abatement is "the act of eliminating or nullifying...", and "the act of lessening or moderating; diminution in amount or degree." Black's Law Dictionary 3 (10^th ed. 2014). However, there must be a request to diminish the nuisance before action can be taken. O.C.G.A. 41-1-5(b).

1. Case Law.

In Galaxy Carpet Mills, Inc. v. Massengill, the homeowners in a residential area filed suit to enjoin the operation of coal-fired boilers at the dye plant, which emitted soot and ash and caused loud and offensive noises. 255 Ga. 360, 338 S.E.2d 428 (1986). The Supreme Court of Georgia found that the dye plant was a nuisance and explained that a lawful business may become a nuisance per accidens by reason of its location in a residential area. Galaxy Carpet Mills, Inc. v. Massengill, 255 Ga. 360, 338 S.E.2d 428 (1986). On the contrary, a nuisance at law or a nuisance per se is an act, occupation, or structure that always constitutes a nuisance in any circumstance,regardless of locationor surroundings. Asphalt Prods. Co. v. Marable, 65 Ga. App. 877, 16 S.E.2d 771 (1941).

In Davis v. Deariso, the plaintiffs sought to stop the defendant from constructing a fueling station in a residential neighborhood. 210 Ga. 717, 82 S.E.2d 509 (1954). The plaintiffs claimed that the gas station would produce several unfavorable and inconvenient characteristics, including noise, smells, light reflection, and increased fire dangers. The defendant's general demurrer was overruled by the trial court, but the court of appeals overturned that decision on the grounds that the petition did not sufficiently allege a cause of action. Davis v. Deariso, 210 Ga. 717, 82 S.E.2d 509 (1954). The right to use one's property for legal commercial purposes, as well as the right to use one's land for residential purposes, was upheld by the court in the absence of any valid zoning regulations or restrictive covenants. Davis v. Deariso, 210 Ga. 717, 82 S.E.2d 509 (1954). The court further determined that a filling station in a residential area was not a nuisance per se and that usual, natural, and necessary noises, odors, and light reflection in neighboring homes, increased fire hazards, a decline in the value of neighboring property, and annoyances and inconveniences to nearby residents and landowners did not constitute a nuisance per accidens. Davis v. Deariso, 210 Ga. 717, 82 S.E.2d 509 (1954).

1. Analysis

Whether it is a private nuisance when noise emanates from a lawfully operated business is situation specific. However, in a general sense, given the above statutes, city ordinances, and cases, noise and vibrations from a lawfully operated business can be considered a private nuisance under Georgia law.

In this case, Better Bodies Gym is operating lawfully, but the noises and vibrations, which themselves are not unlawful, are an inconvenience to the condo residents, who seem to be ordinary, reasonable people. SeeO.C.G.A. 41-1-1. Because there are only a few (6) individuals, the nuisance is private. Should the entirety of the condominium complex complain, the nuisance very well could be public, as then it would be damaging everyone who comes within the sphere of its operation. See O.C.G.A. 41-1-2.

Further, Better Bodies Gym violates Atlanta, Georgia Code of Ordinances Sec. 74-131(a)(1), as it offers fitness classes accompanied by very loud music that starts at 5:00 a.m. and ends around midnight, disturbing the clients' sleep. Furthermore, the gym's clients hoist barbells, weights, and medicine balls and then slam them onto the gym's floor causing vibrations of windows and doors. Our clients have complained that the loud music and gym equipment noise has become intolerable and requires them to keep their windows always closed.

In Georgia, a lawful business may become a nuisance per accidens by reason of its location in a residential area. While Better Bodies Gym would not constitute a nuisance per se, as in Galaxy Carpet Mills, Inc. v. Massengill, discussed above, it likely constitutes a nuisance per accidens because of its location in a residential area. In a similar case, Davis v. Deariso,the plaintiffs attempted to prevent the defendant from building a gas station in a residential area. The plaintiffs asserted that several undesirable and inconvenience-producing qualities will result from the gas station. Both cases show how even lawful business can end up as nuisances if they annoy or disturb the individuals or environment around them.

Although beyond the scope of this memo, if Better Bodies Gym continues to fail to respond to our clients' request to diminish the nuisance, our clients may bring a court action to seek abatement of the nuisance. SeeO.C.G.A. 41-1-5.

Conclusion

Based on the facts of the case, the noise and vibrations emanating from Better Bodies Gym canbe considered a private nuisance, as it is a source of inconvenience to our six clients, interfering with the use and enjoyment of their property. Although Better Bodies Gym operates lawfully, it could nonetheless be considered a nuisance because of the severity of the noise levels generated. As can be observed in Section 74-131(a)(1) of the Atlanta, Georgia Code of Ordinances, there are additional regulations in place to combat noise pollution. In accordance with the provisions of O.C.G.A. 41-1-5(a), abatement is one of the potential solutions to the problem of nuisance.It is abundantly clear, considering the cases Galaxy Carpet Mills, Inc. v. Massengill andDavis v. Dearisothat lawful businesses can still become a nuisance if they harm, damage, or inconvenience individuals or the environment in their immediate vicinity.The noise levels and vibrations generated by the Better Bodies Gym are severe enough to disturb the sleep of the plaintiffs, and they require the plaintiffs to keep their windows always closed. Therefore, our clients are within their rights to seek abatement of the nuisance.