Neighbors Can Sue for Trespass over ‘Noxious’ Odors: Don Pinto Quoted in Massachusetts Lawyers Weekly

Excerpted from the June 18, 2020 issue of Massachusetts Lawyers Weekly

A Massachusetts Superior Court judge in the Business Litigation Session has ruled that homeowners living near a gelatin manufacturing plant could bring a trespass action over noxious odors that allegedly interfered with the use and enjoyment of their property.

The defendant, Rousselot Peabody, Inc., argued that only a “tangible” invasion of land — and not the wafting of offensive smells — can constitute an actionable trespass.

In his decision denying the defendant’s motion to dismiss, the judge wrote, “Since Massachusetts treats the nonpermissive invasion of land by physical things or substances as a trespass, and molecules that produce a foul odor are physical things, there appears to be no reason why Massachusetts law does not similarly treat a release of noxious gas or other microscopic things as a trespass.”

The judge also rejected the defendant’s argument that its wastewater discharge permit issued by the Department of Environmental Protection insulated it from the plaintiffs’ claims.

Pierce Atwood real estate and land use litigation partner Donald R. Pinto, Jr. found it noteworthy that the DEP wastewater discharge permit did not necessarily protect Rousselot on its own.

“Though that finding allows the case to proceed to discovery,” Pinto said, “with evidence that the foul odor is inherent in the wastewater being discharged — and that Rousselot has complied with the permit while fulfilling its duty of reasonable care — the permit potentially could still serve as a complete defense.”

Pinto added, “Real estate practitioners may not appreciate the unfettered power that government authorities have to authorize the creation or maintenance of a nuisance, even one that causes widespread annoyance or harm, simply by enacting legislation or issuing a permit for the offending activity.”

Pinto mentioned the SJC’s 1976 decision in Hub Theatres, Inc. v. Massport, which the judge cited in his ruling, where the court dismissed nuisance and trespass claims arising from the operation of Logan Airport.  Pinto noted, “There, the SJC held that the plaintiffs’ only potential remedy was to bring a taking claim, which is about as cold as cold comfort gets.”

The complete article by Eric Berkman can be found in the June 18, 2020 issue of Massachusetts Lawyers Weekly.