It happens all the time. People move into a neighborhood and know there is a polluting or noxious business in the neighborhood. But they LOVE the home, or they get a good deal, or they believe the offender will not bother them? Can they complain afterwards?

Historically, there has existed a legal doctrine that provides that one cannot move to a nuisance and complain about the nuisance. If the nuisance was there and you knew or could have known about it, usually it has been held that you are out of luck.

There is a good reason for this accepted position. Specifically, it is unfair to the establishment for people to move next to it knowing full well that it is an operating establishment, and then complain that they cannot tolerate the noise, odor or other problems relating to the establishment.

Factories and industrial establishments after all have a right to exist. So do operating farms, churches (whose bells bother some people) and firehouses. It is unfair for the newest resident on the block to harass these institutions by complaining that he or she cannot tolerate the noise and other normal problems associated with regular operating establishments.

My favorite scenario occurs when people move out to the country. With residential development generally at a premium (albeit there has been a slight slow down as of late), it has been common for large home developers to construct subdivisions consisting of McMansions in what used to be pure farm land. Indeed, many farmers have sold property to these large national developers making huge profits.

As it sometimes turns out, persons accustomed to living in suburbia who purchase these McMansions in farm country are not always accustomed to the smell of manure, the sight of farm runoff, or the occasional spraying of necessary pesticides that have forever accompanied rural life in this country. You have to chuckle when these displaced suburbanites ask whether they have any legal recourse to try to prevent neighboring working farms from conducting traditional farming operations.

As a general rule, the answer is and should be no, there is no legal relief for these people. If they did not want to live next to an operating farm, they should not have purchased a house in the vicinity of an operating farm. And as a general rule, the same applies to operating factories, operating night clubs, etc.

However, this is a GENERAL RULE. Sometimes, the new guy on the block has a right to file litigation and obtain relief from the courts. For example, neighbors may sue if an industrial establishment over intensifies its use after the houses are constructed, resulting in increased levels of noise, odor, traffic, pollution, and other issues that frequently arise in mixed land use disputes.

Illustrative of this are airports that for decades served small propeller aircraft. They are not at all the same kind of operation when the use of the airport intensifies to now accommodate 727 sized private jets. In such a case, neighbors surrounding the airport certainly have a right to object.

They are not objecting to the sounds and smells associated with small propeller aircrafts that used the airport for decades, but to the thunderous sounds generated by the huge jet aircrafts.

In addition, people surrounding an industrial establishment have a right to complain when the industrial establishment ceases to comply with its own legal obligations. For example, persons who reside next to an operating dairy processing facility, may not be able to complain so long as operations remain consistent with local noise ordinances. However, when noise levels exceed legal levels the neighbors may very well have a legitimate right to complain and pursue legal recourse.

Sharp increases in industrial activity may also constitute a sufficient change in use so as to entitle neighbors to relief. For example, an establishment that for decades only had business operations that coincided with a traditional work day, might be considered to be an entirely different operation if it becomes an around the clock facility.

Fraud claims may also entitle newcomers to a day in court. For example, if a national builder constructs a subdivision in the vicinity of a meat processing facility and the sales representative makes verbal commitments to would be purchasers that the noise levels are minimal and only occur during the hours of 8-5, neighbors may very well have a right to legal redress when it turns out that the noise is louder during the winter when the trees that shielded the noise during the summer lose their leaves and when operations continue until the middle of the night.

In short, where the intensity of site operations changes, or where there have been material misrepresentations made about the nature of site operations, or where other material changes take place, it is possible for neighbors to complain and have their day in court. While you cannot move to a nuisance and complain about the nuisance, the nuisance may not be able to significantly expand or change without losing protection from nuisance complaints.

The information provided in this column is written by Stuart Lieberman,a practicing environmental attorney, and is for general information purposes only. It is not legal advice and should not be used in place of legal advice.

Stuart Lieberman, Esq., and IRED.Com, Inc., will not accept any responsibilty for any reliance on the information in this column or any damages whatsoever resulting from reading this column.