In Kempton v. Southern Flavor Real Estate, L.P.[1], the Georgia Court of Appeals affirmed a summary judgment order in favor of a commercial greenhouse operator and against a residential neighbor’s claim of nuisance due to excess light emitted from the greenhouse.

The greenhouse business was located on rural land zoned for agricultural use. The greenhouse used automated lights mounted near the glass roof and pointed down toward the floor. A significant amount of the light reflected upward and was emitted through the roof.

The neighbor owned the adjoining land with a house located about 1,000 feet from the greenhouse. The neighbor asserted that light from the greenhouse is like sunrise and awakened him in the middle of the night, affected his natural balance, and diminished his quality of life.

The trial court granted the greenhouse operator’s motion for summary judgment and the neighbor appealed.

Citing O.C.G.A. § 41-1-1, the appeals court noted that a nuisance is anything that causes hurt, inconvenience, or damage to another and the fact that the act done may otherwise be lawful shall not keep it from being a nuisance. However, the appeals court also noted case law holding that matters which the law authorizes to be done, if done as the law authorizes, cannot be a nuisance. The court held that acts that are lawful in themselves become a nuisance only when conducted in an illegal manner to the hurt, inconvenience, or damage of another person.[2]

In this case, the undisputed facts showed that the business was authorized by law to operate the greenhouse and did so in a lawful manner. The business obtained all necessary permits and licenses to operate a greenhouse on a site zoned for agricultural use. There was no evidence that the greenhouse was operated in an illegal manner. Thus, the greenhouse could not have been a nuisance.

Notwithstanding these facts, the neighbor argued that the greenhouse should be deemed a nuisance because of its location. The neighbor cited precedent for the proposition that a lawful act done in a particular place is a nuisance when it tends to damage someone else’s property.

The appellate court distinguished the neighbor’s precedent as applying to the operation of alleged nuisances that are inconsistent with the area. Here, the greenhouse was not located in the wrong place or operating in a manner inconsistent with the rural area. Further, the greenhouse business was not performing any action that would not otherwise be performed by a greenhouse.

Of note, the concurring opinion pointed out that existing precedent appears to be in conflict with the plain language of OCGA §41-1-1, which specifically recognizes that a lawful act may be a nuisance. The concurring opinion further stated that it is difficult to understand how the court is affording the statutory text its plain and ordinary meaning when the court ignores the inclusion of lawful acts. The concurring opinion suggested that the apparent conflict between the statute and precedent is a job for the Georgia Supreme Court.

The neighbor has since filed a petition for writ of certiorari to the Georgia Supreme Court.[3] We will have to wait and see if the Georgia Supreme Court grants certiorari to address this apparent conflict in nuisance law.

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[1] 362 Ga. App. 137, 866 S.E.2d 862 (2021).

[2] Id., citing McBrayer v. Governors Ridge Office Park Assn., 359 Ga. App. 741, 744-745, 860 S.E.2d 58 (2021) (citations and punctuation omitted).

[3] Supreme Court of Georgia, Case No.: S22C0507.