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03/31/95 WILLIAM H. PARKER v. LEON ASHFORD

March 31, 1995

WILLIAM H. PARKER
v.
LEON ASHFORD, ET AL.



Appeal from Shelby Circuit Court. (CV-94-086). D. Al Crowson, TRIAL JUDGE.

Rehearing Denied May 5, 1995.

Houston, Kennedy, Ingram, Cook, and Butts, JJ., concur. Maddox, J., Dissents.

The opinion of the court was delivered by: Houston

HOUSTON, JUSTICE.

The defendant appeals from an order granting a permanent injunction against an anticipated nuisance, pursuant to Ala. Code 1975, § 6-5-125. That order "permanently enjoined and restrained [William H.] Parker from any acts or actions in furtherance of constructing and operating a dirt racing track or any similar facility at the existing excavated location ... on the parcel of land [made the] subject of this action." We affirm, although not on the rationale stated by the trial court.

William H. Parker had resided on a 15-acre tract of land for more than 20 years. On January 4, 1994, he purchased an adjoining 20 acres of land with the intention of building a dirt racetrack. The plaintiffs are 31 individuals who own property located within 1.5 miles of the proposed racetrack. The proposed track adjoins the property of plaintiffs Jody and Robert Porter and Susan and Arnold Moore, on which those plaintiffs maintain residences. These parcels of land are located in an unzoned area of Shelby County that is primarily rural. The plaintiffs sued to enjoin Parker from constructing and operating the proposed racetrack, with the principal allegation being that the noise and the lights from the racetrack would constitute a nuisance.

After hearing ore tenus evidence and after personally inspecting the racetrack site, the trial court entered a temporary restraining order, making the following findings of fact (which it later adopted in its final order granting the permanent injunction):

"FINDINGS OF FACT

"The Court finds as follows:

"1. That the plaintiffs Robert L. Porter, Jr., and Mr. and Mrs. Moore own property adjacent to the proposed racetrack property owned by [Parker].

"2. That the property of plaintiff Robert L. Porter, Jr., lies within one hundred yards of where the proposed track will be located.

"3. That the property of plaintiffs Mr. and Mrs. Moore is also in very close proximity to the proposed racetrack.

"4. That the other plaintiffs are owners of property located approximately one to one and one-half miles from the proposed racetrack.

"5. That [Parker] did not notify any of the plaintiffs before he commenced excavation work toward building the proposed racetrack.

"6. That only some excavation work [had] been done by [Parker] prior to the hearing on the cause.

"7. [That Parker's] track will be open to the public and [he] anticipates that when the racetrack is open, the races will number five, having six to ten cars in each race, and occurring on Fridays beginning at 7:00 P.M. and ending around midnight.

"8. [That Parker's] plans are to have six 1,500watt lights (some in the direction of plaintiffs Robert L. Porter, Jr., and Mr. and Mrs. Moore) and have cars split into four classes, to-wit: (1) hobby class, (2) pony class, (3) hog class, and (4) super street class.

"9. That [Parker] testified that all races will be without mufflers and that the sound of such race cars [is similar to that of] a garbage truck being without a muffler from where [Parker's] house is located, which is approximately the same distance as from the Porters' house to the racetrack, if not a little closer.

"10. That an audiologist testified:

"a) That a normal conversational speech ... ranges between 50 and 60 decibels;

"b) That a person's speech should be 28 decibels above any other sounds;

"c) That there is a danger posed to one's hearing if [one is] exposed to ...


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