“Drive-in movie theaters, like soda fountains, juke boxes, and The Platters, are instances of 1950s post-war Americana that trigger instant feelings of nostalgia. Maryland once boasted as many as 47 drive-ins; today, however, only Bengies Drive–In Movie Theatre…remains.”
Blue Ink, Ltd. v. Two Farms, Inc., 96 A.3d 810 (Md. Ct. Spec. App. 2014)
So begins the opinion of the Court of Special Appeals that, in its recent decision may have been nostalgic for the past but ultimately determined that the private nuisance standards in Maryland do not serve as tutelary to a fading era for entertainment.
Some history regarding how both Bengies and Royal Farms came to exist in this geographical area is helpful in understanding how this lawsuit came about. Bengies Drive-In Movie Theatre is a family-owned and operated business that was begun by three brothers in the late 1950’s. In 2000, D. Edward Vogel, son of one of the original brothers began operating the drive-in.
In 2004, to facilitate an intra-family transfer of ownership, Bengies entered into a Restrictive Covenant with the area community group wherein Bengies agreed to limit future expansions on their property in exchange for the community group foregoing opposition to a zoning reclassification necessary for the property transfer (from parent to son) to occur.
However, in 2003, prior to Bengies entry into the Restrictive Covenant, the owner of a property across the street from Bengies sought a special exception to the current zoning to construct a service station, carryout restaurant and car wash. The Zoning Commissioner ultimately granted the petition subject to the submission of a plan for review and approval by Baltimore County that would set forth proposed landscape and lighting of the new business such that the plans had sufficient screening to avoid light pollution to the Bengies environment.
This arrangement appeared sufficient based on the acts of the parties that followed, including entry into the Restrictive Covenant by Bengies, and the official transfer of property from parent to son in December of 2007. In October of 2008, the lighting plans for the new business werewere approved and subsequently, a Royal Farms service station opened across the street from Bengies in December of 2008.
However, the bliss of being able to purchase crispy, delicious fried chicken prior to driving across the street to catch a flick was short-lived. In June of 2010, after making complaints to Code Enforcement to no avail, Bengies Drive-In brought a nuisance action against a nearby Royal Farms location whose lighting, Bengies alleged, encroached on Bengie’s property and interfered with movie screenings.
The nuisance claim went to a jury who ultimately awarded Bengies over $800,000.00 for use to construct a fence to block the light. Upon the request of Royal Farms, the circuit court granted a Motion for Judgment Notwithstanding the Verdict (“JNOV”), and set aside the judgment in favor of Bengies.
JNOV is a rarely granted request. Essentially it operates as a way for a judge to set aside a determination of the jury where the judge determines that no reasonable jury could have reached such a verdict given the application of the facts, as they were shown at trial, to the law that exists. Here, the Court, perhaps finding that the jury’s love for the last iconic drive-in in Maryland outweighed their logic and fact-finding ability, granted JNOV and set aside the judgment. Bengies appealed.
In its consideration of the case, the Court of Special Appeals noted that, while there is no requirement of physical injury from a nuisance, a plaintiff must show that the defendant’s interference with the plaintiff’s property rights is both unreasonable and substantial in order to recover. Blue Ink, Ltd. v. Two Farms, Inc., 96 A.3d 810 (Md. Ct. Spec. App. 2014). Further, “[t]he nuisance must, in the judgment of reasonable individuals, create a condition that is naturally productive of actual physical discomfort to persons of ordinary sensibilities, tastes, and habits and, in light of the circumstances, is unreasonable and in derogation of the rights of the party. Id. (internal quotation marks and citation omitted). Thus, a two-step analysis was used to determine whether or not a private nuisance existed in this case, looking first at whether the Defendant’s activity created an unreasonable and substantial interference and second, whether the Plaintiff’s harm was objectively reasonable.
In reviewing the facts that were brought forth at trial, the Court of Special Appeals noted that there was little objective evidence presented regarding the intrusion, or lack thereof, of Royal Farms’ lights upon the drive-in. The lights were not directed at the drive-in, and there was no testimony that the lights were unreasonable based on location. While Bengies did establish that the drive-in is uniquely sensitive to the light, the Court noted that a private nuisance action cannot be maintained solely based upon special sensitivities. See Schuman v. Greenbelt Homes, Inc., 212 Md. App. 451, 456, 69 A.3d 512, 521-22 (2013). Thus, under the objective test, because there was no evidence to support a conclusion that light from Royal Farms would constitute a nuisance to an ordinary person or entity any more than commonplace light would to an ordinary person, it was correct for the lower court to find that the lights were not unreasonable and substantial, and the granting of JNOV by the lower court was affirmed.
Generally this case provides a succinct restatement of the law of private nuisances and reminds us that, on the whole, in a private nuisance light action, if the light from adjacent land is not strong enough to seriously disturb the sensibilities of a common person then there is no nuisance.
Contributed by Lauren Seldomridge