By Correy E. Stephenson
A defendant’s violation of the city’s lighting ordinance constituted a nuisance per se and a trial court properly exercised its equitable authority to abate the nuisance, a Michigan Court of Appeals panel has ruled.
In 2016, Immaculate Conception of Traverse City submitted a formal site plan and sought the necessary permits for the construction of the Immaculate Conception Elementary School.
When the project started, the city informed Immaculate Conception that exterior light sources had to be deflected downward and away from adjacent properties and rights-of-way, and could not violate the night sky provisions of the Traverse City Code of Ordinances.
The city’s lighting ordinance dictates that “[a]ll outdoor lighting fixtures shall provide a 100 percent cut off above the horizontal plane at the lowest point of the light source,” and building faade lights “shall be from the top and directed downward with full cut-off shielding.”
Construction of the school facility began in 2017. Approximately 11 antique lamp exterior light fixtures were installed along the south-facing faade of the school facility. The lamps have prismatic glass around the bulbs that allows light to pass through. The lamps come on at dusk and turn off around sunrise each day. The lamps are not 100% cut off, nor are they hooded or louvered.
In 2019, the city’s planning and zoning administrator informed the director of school operations that residents adjacent to the school property had complained about the school’s light levels. In 2020, the city planner sent an email reporting on a lighting test that determined Immaculate Conception’s exterior lighting violated the outdoor lighting ordinances in several areas.
Amelia Hasenohrl filed a nuisance action against Immaculate Conception, alleging that the unshielded outdoor light fixtures emitted light from dusk to dawn daily that trespassed into her home and substantially interfered with her peaceful use and enjoyment of her property.
Following a one-day bench trial, the Grand Traverse Circuit Court held that Hasenohrl had standing to pursue a nuisance per se claim, that the subject light fixtures violated the lighting ordinance and thus constituted a nuisance per se and that she was entitled to equitable relief.
Immaculate Conception appealed, arguing that Hasenohrl lacked standing and that, even if she did have standing, the light fixtures do not violate the ordinance.
The appeals court panel Judges Michael F. Gadola, Stephen L. Borrello and Sima G. Patel disagreed.
The use of land or a dwelling, building or structure in violation of a zoning ordinance is a nuisance per se, and a private citizen may bring an action to abate a nuisance arising from the violation of a zoning ordinance when the individual can show damages of a special character distinct and different from the injury suffered by the public generally.
Hasenohrl testified that the lights intrude into her home and bedroom all night long every single day, and the city administrator testified that the subject light fixtures violated multiple city ordinances because they are not 100% cutoff, they are not shielded and they allow direct glare to emanate from them.
In addition, the director of school operations admitted that Hasenohrl has a direct line of sight to the school and its lights on the south-facing faade, and that the light fixtures create a direct glare into her windows at night.
“Because plaintiff has suffered ‘distinct’ and ‘different’ injuries from the general public who do not have a direct line of sight to the school, the trial court did not err by finding that plaintiff has standing to pursue her claim,” the judges wrote.
The court similarly rejected Immaculate Conception’s argument that the exterior light fixtures constituted a nuisance per se.
“Traverse City Ordinances, 1375.05 is clear and unambiguous,” the panel wrote. “All outdoor lighting must ‘be hooded, louvered or a combination thereof’ and ‘provide a 100 percent cut off above the horizontal plane at the lowest point of the light source,’ regardless of the lumens produced by the lighting.”
The judges weren’t left with a “definite and firm conviction” that the trial court erred when it found that the subject light fixtures violated the Traverse City Ordinances.
“The record shows that defendant maintains light fixtures on its property that violate the ordinance,” the panel concluded. “Under MCL 125.3407 , the use of land or a dwelling, building, or structure in violation of a zoning ordinance is a nuisance per se.”
The case is Hasenohrl v. Immaculate Conception of Traverse City ( MiLW 08-107967 , 9 pages).
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