IN THE COURT OF COMMON PLEAS, WAYNE COUNTY, OHIO

     This civil action was originally brought by 109 individual Plaintiffs, residents of Wooster and Franklin Townships in Wayne County, Ohio. The lawsuit was filed against Thomas A. Burick and his wife, Elizabeth A. Burick, and LoConn Motocross, Ltd., an Ohio limited liability company owned by the Buricks which operates a motocross track facility on their Franklin Township property. This lawsuit was filed on March 16, 2001, prior to the opening of the racing facility which occurred on June 1, 2001.

     The Plaintiffs claimed that the operation of the race track would constitute a nuisance, and would substantially and unreasonably interfere with the use and enjoyment of their property and will cause a diminution of their property values. The Plaintiffs seek a preliminary and permanent injunction prohibiting the Defendant's from operating the motocross facility, and have requested attendant and incidental money damages, including attorney fees.

     The Plaintiffs, who numbered 104 individuals at the start of trial on December 18, 2001, by reason of voluntary withdrawal from the lawsuit, did not amend or supplement their complaint prior to the start of trial. The Court does not find any limitation to its jurisdiction, however, by reason of the operation of CP Rule 15(B).

     Further, while the Plaintiffs requested a trial by jury in this action, the Court sustained the Defendant's motion to strike such request on authority of State, ex rel. Miller v. Anthony (1995), 72 Ohio St. 3d 132. This lawsuit was tried to the Court.

     On August 24, 2001, during the early evening hours, the Court, at the invitation of counsel for the parties, viewed the areas which are the subjet of this lawsuit, including the motocross track and all of the neighborhoods where Plaintiffs resided. At the time, motorcycles were running on the track.

     Now, being advised in the premises, the Court makes the following Findings of Fact and Conclusions of Law, and renders Judgment thereon:

Findings of Fact

1.     Franklin Township in Wayne County is located to the east and south of the City of Wooster which is the County seat. The land involved in this lawsuit is generally rural in nature, level to hilly, wooded, farm land, with a combination of roadside residences, residential developments, and, adjacent to the west of the Defendant's property, a sand and gravel business. The parties stipulated that at all times pertinent to this lawsuit, there was no zoning law in place for Franklin Township.

2.     By general Warranty Deed, dated December 29, 2000, filed for record with the Wayne County Recorder on January 8, 2001, the Defendants, Thomas A. Burick and Elizabeth A. Burick acquired title to 82.190 acres, more or less, in Franklin Township. Upon transfer of title, the Defendants began developing the property for commercial use as a motocross raceway. The term "motocross" is a contraction of the words motorcycle and cross country and refers to a motorcycle race over a course of very rough terrain. The raceway was opened to the public on June 1, 2001 and continued operation to on or about November 14 when the facility was closed. During the time the facility was open, practice racing was first offered on Thursdays and Fridays from 4:00 p.m. to dusk (8:30 to 9:00 p.m. depending on visibility), and then on Fridays from 4:00 p.m. to 7:00 p.m., and Saturdays 11:00 a.m. to 3:00 p.m. The Defendants stated that they wanted to reopen the raceway in late March or early April, 2002 with practice on Fridays and Saturdays from 4:00 p.m. to dusk, and motocross racing on Sundays from 11:00 a.m. to 5:00 p.m. The raceway, as presently constructed, can accommodate up to 25 or more motocross bikes at a time, depending on conditions, with motorcycles ranging in size from 40 cc to 400 cc. Thomas Burick testified that nothing could be done to the cycles to reduce the noise they produce. Burick is presently a member of the American Motorcycle Association and plans to become a member of the Competition Riders Association (CRA) which is a motorcycle racing sanctioning body. Burick testified that he wants to work full time at the track during the race season and hopes to make his living from operation of the motocross raceway. He stated his desire to have 10 sanctioned races at the track during the racing season. Elizabeth Burick testified that she expected to have more races on more days in 2002, with more people in attendance.

3.     Of the 104 Plaintiffs who remained in this case at the time of trial, twenty (20) testified concerning the nature and extent of the sound emanating from the Defendants' racetrack during the times that it was used for practice or racing. Those who testified were residents in the area during the 2001 practice/race season and have homes between 1,000 feet to one mile from the track. Their descriptions of the sounds they heard at their residences during the running of motorcycles at the motocross course included:

     Those Plaintiffs who lived closer to the track testified that they could hear the motorcycles on the race course from inside their homes even with all the windows shut. Several of the plaintiffs testified that the noise interfered with family gatherings planned outdoors and interrupted conversations. Others stated that during the use of motocross bikes on the course they limited their use of outside space and stayed indoors.

                                        a. Plaintiff Brenda Blackburn, who is an eleven-year resident of 3758 Todd Lane (Lot 24) testified that the sound coming from the track cannot be compared to the sound of lawn mowers in the neighborhood or the sound of traffic from State Route 83, which she did not find annoying. Blackburn stated that the noise created by the track causes her to dread every weekend. Blackburn video taped the racing from her back yard and from an upstairs window in her house on August 17, and October 19 and 20, 2001 (Plaintiffs' Exhibits 5 and 6).

                                        b. Plaintiff Elizabeth Richey is a six-year resident at 1901 Sherck Boulevard (Lot 58). She and her husband Paul purchased the property because it was outside of town and had an open atmosphere. Richey testified that the noise from the track drove her and her family off their screened outside porch and into the house. She stated that she has considered moving from the residence and would definitely move if the track continues in operation.

                                        c. Plaintiff Lori Faught who has lived at 1964 Sherck Boulevard for three years testified that she and her husband, Michael, who is also a Plaintiff, live ona tree-covered 50 acre lot about 4,000 feet from the race course. They selected the site because of its proximity to the city of Wooster and the quietness the area provided. Richey testified that her use and enjoyment of her home has been affected by the use of the track. She stated that there was a great deal of noise from the race way in August (2001) and that the sound of the motorcycles was disappointing and irritating and could be heard from inside her home even though all windows were shut.

                                        d. Plaintiff Wendy McKee, a resident of 1719 Sherck Boulevard (Lot 14) resides at the property with her husband, Todd, and four children. McKee testified that use of the race track since late spring of 2001 has created noise which has interrupted normal conversation and interferes with family gatherings. McKee stated that she can hear track noise from inside the home and at times can feel the noise. She said that the use of the motocross course has decreased her enjoyment of her home and that she misses the peace and quiet she enjoyed before the track was opened.

                                        e. Plaintiff Steve Bernardy, a resident of 2073 Sherck Boulevard (Lot 39), is an eleven-year resident and testified that he chose the area as a residence site because of the country setting. He stated that his use and enjoyment of his home, and particularly grilling on the outside deck facing north, has been limited during the use of the motocross raceway. Bernardy testified that on one occasion in late July or early August 2001, he experienced the sound of a neighborhood lawn mower being drowned out by the motocross noise which he compared to the sound of chain saws.

                                        f. Plaintiff Bonnie Cherilla, 3838 Todd Lane (Lot 32), testified about the differences between pre and post track use. Pre track conditions were quiet and comfortable; post track conditions included piercing noise and annoying sound. Cherilla testified that she didn't garden in the Spring of 2001 because of the noise. She said she wasn't bothered at first, but that the noise grew in volume. Cherilla said she considered moving because of noise from the track.

                                        g. Plaintiff Ernest Smith, a one-year resident at 1745 Sherck Boulevard (Lot 15), testified that he moved into his home in December 2000. He describes the noise from the track as sounding like a "mechanical bee". Smith said that he was not going to let the noise bother him and that the sound from the track didn't affect his use of the property. Smith did testify that he could hear the sound from the track during its use on Thursdays, Fridays, and Saturdays.

                                        h. Plaintiff Brenda Litt is a ten-yer resident of the area, and a three and one-half year resident at the 3975 Millersburg Road location, along with her husband, Joel Litt, also a party to this action. The Litts are the closest plaintiffs to the motocross track at about 1000 feet. Both testified as to the annoying high-pitched noise created by the motorcycles racing on the track and that their use and enjoyment of their property has been affected by the noise. Brenda Litt stated that since the track has been in use, the dirt and dust created by the track required her to clean the family pool weekly instead of biweekly.

                                        i. Ermon French, a 24-year resident of 4137 Millersburg Road testified that the problem with the motocross track is noise. He described the sound of the racing dirt bikes as sharp, irritating, and annoying. French testified that he can hear the bikes in his house during the times the course is open even with his windows closed.

     4. Expert witnesses testified on behalf of the parties regarding noise measurements taken in the vicinity of the motocross track. Ronald Huff, called by the Plaintiffs, has a 32-year prior employment history as a NASA aerospace technologist, and has worked over the past 14 years as a self-employed consultant in the field of acoustics and noise. William Hannon, called by the Defendants, has been the owner of The D.H. Kaiser Co. for about 17 years. D.H. Kaiser is a business which is involved in community noise assessment, zoning issues, and conducts community noise analyses.

     Huff conducted noise measurements on three separate days at five locations around the track during the summer and early fall of 2001: on July 20 at the southern boundary of the Defendants property near the motocross course, on July 26 on the pool deck of Joel and Brenda Litt who live at 3975 Millersburg Road, and on September 29 at three sites, the property of Lois and Harry Wright, 1742 Tolbert Road, the property of Brenda and Todd Blackburn, 3758 Todd Lane, and again on the pool deck at the Litt residence.

     Hannon conducted sound tests on June 8, 2001 at three sites: at the track entrance onto Millersburg Road, in a swale just off Millersburg Road 250 feet south of the track entrance, and 90 feet south of a mailbox located 3699 Todd Lane, formerly the residence of Plaintiff Scott Burgess; the latter property is now owned by Gerald Vedan, a person who testified during Plaintiffs' rebuttal. Hannon conducted additional sound surveys on September 22, 2001 at 3830 Batdorf Road, 8 Warring Cross Drive, and 1756 Tolbert Road, and on November 16, 2001 near State Route 83.

     Based upon their noise studies, Huff and Hannon testified respectively that:

     Another expert witness called by the Plaintiffs, Eric Zwerling, testified that at a sound level of 65 dB it would be difficult for two people to converse over the sound at a distance of one meter. Zwerling also testified that a sound level of 35 dB and above interferes with sleep and, therefore, noise ordinances typically establish nighttime noise limit caps of 50 dBA.

     The Court, as the trier of facts, finds the testimony of expert witnesses, Ronald Huff and Eric Zwerling, to be more credible in this matter than that of William Hannon.

     6. Black's Law Dictionary defines nuisance as:

     A private nuisance is defined as:

     7. The leading case in Ohio dealing with the law of nuisance is Taylor v. Cincinnati (1944), 143 Ohio State 426. In support of its holding that liability for nuisance does not depend upon the question of negligence and may exist although there is no negligence, the Court in Taylor cited cases from outside Ohio in support of such premise:

     The Court in Taylor, regarding absolute nuisance for which strict liability or liability without fault is imposed by law, summarized that absolute nuisance may be defined as a distinct civil wrong, arising or resulting from the invasion of a legally protected interest, and consisting of an unreasonable interference with the use and enjoyment of the property of another; the doing of anything, or the permitting of anything under one's control or direction to be done without just cause or excuse, the necessary consequence of which interferes with or annoys another in the enjoyment of his legal rights; the unlawfully doing of anything, or the permitting of anything under one's control or direction to be done, which results in injury to another; or the collecting and keeping on one's premises of anything inherently dangerous or likely to do mischief, if it escapes, which, escaping, injures another in the enjoyment of his legal rights. (Emphasis added). Id., 143 Ohio St. 440.

     The Court also acknowledged a fourth situation where nuisance may be dependent upon negligence, the failure to exercise due care. In such cases, the Court stated, negligence must be averred and proven in order to warrant recovery. Id., 143 Ohio St. 441.

     8. A finding of common law nuisance is not dependent upon the existence of zoning laws.

     9. The law of Ohio has established that the test as to the amount of annoyance necessary to constitute a nuisance is measured by the degree of discomfort that a person of ordinary sensibilities would experience. The Court must look at what persons of ordinary tastes and sensibilities would regard as an inconvenience or interference materially affecting their physical comfort to a degree which would constitute a nuisance. O'Neil v. Atwell (1991), 73 Ohio App. 631.

     10. The Court concludes, in view of the evidence presented in this lawsuit, that the Defendant's use of the property in Franklin Township, Wayne County, Ohio constitutes an absolute nuisance for the reason that the Defendant's operation of the commercial motocross track situated in Franklin Township, Wayne County, Ohio, generates excessive noise which causes a substantial and unreasonable interference with the following Plaintiffs' use and enjoyment of their property, all of which would be offensive or inconvenient to any person of ordinary tastes and sensibilities:

     11. In seeking to abate a nuisance, a Court of Equity may restrict the activity "no more than is required to eliminate the nuisance." 5 Powell, Real Property (1985), 64-69, ¶704[4]. See Christensen v. Hilltop Sportsman Club, Inc. (Feb. 17, 1993) Pickaway App. No. 91 CA 33, unreported, LEXIS 1112. Therefore, the Court concludes that the permanent injunction which should be ordered here regarding the commercial use of the 82.190 acres for motocross practice and racing, cannot be extended to prohibit the use of the property by the Defendants Thomas and Elizabeth and their family for reasonable purposes, including the operation of their personal motocross equipment thereon.

     12. The general rule in Ohio is that, absent a statutory provision allowing attorney fees as costs, the prevailing party is not entitled to an award of attorney fees unless the party against whom the fees are taxed was found to have acted in bad faith. State, ex rel. Crockett v. Robinson (1981), 67 Ohio St. 2d 363.

     It is Ordered, Adjudged, and Decreed, that a permanent injunction shall be and hereby is granted to the Plaintiffs named herein above at Conclusions of Law ¶10, and that the Defendants, Thomas A. Burick, Elizabeth A. Burick, and Lo-Conn Motocross, LTD. shall be and hereby are permanently enjoined from using and operating, or permitting any other person, corporation, or business entity to use and operate a commercial motocross or commercial "dirt bike" track or course on their property as is fully described in the General Warranty Deed, filed for record on January 8, 2001, and recorded in the Wayne County Deed Record at Volume 315, Pages 497-498, which description is fully incorporated in this Judgment.

     It is further Ordered that a marginal reference to this Judgment shall be made by the Wayne County Recorder on the Deed Record noted in the above paragraph and that the fee therefor shall be taxed as court costs herein.

     No attorney fees are Ordered in this action.

     Court costs are taxed to the Defendants.

     ORDERED.