December 15, Opinion No Report and Recommendations regarding Nevada Rail Materials, Inc. (NLR Resolution No. 8645)

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1 C. Jason Carter City Attorney William M. Brown Daniel L. McFadden City Of North Little Rock, Arkansas Office Of The City Attorney 300 Main Street P.O. Box 5757 North Little Rock, Arkansas (501) Fax (501) December 15, 2014 Matthew W. Fleming Deputy City Attorney Tjuana C. Byrd Paula Juels Jones Honorable Members of the North Little Rock City Council c/o North Little Rock City Hall 300 Main Street North Little Rock, AR RE: Opinion No Report and Recommendations regarding Nevada Rail Materials, Inc. (NLR Resolution No. 8645) Honorable Members of the North Little Rock City Council: This report is submitted pursuant to Resolution No passed by the City Council on October 13, 2014 requesting the City Attorney to examine complaints and evidence regarding Nevada Railroad Materials, Inc. and submit recommendations to this Council. While it is unusual to report on the legal strategy of the City, the volume and persistence of citizen complaints demonstrate that this report is warranted. I. BACKGROUND Nevada Railroad Materials, Incorporated ( NRM ) is a corporation registered in the State of Arkansas as a foreign for-profit corporation. NRM, whose address is 601 North Broadway, North Little Rock, Arkansas, has a current business license in the City of North Little Rock and conducts its operations within the Union Pacific Railroad ( UP ) rail yard. The UP rail yard, including NRM s operation, is Zoned I-3 which is the highest and heaviest industrial zoning designation within the NLR Zoning Ordinance. 1 Because NRM has a permitted (also called by right ) use to operate within the I-3 zone, no conditional/special use permits are required. NRM operates as a contractor to UP and manufactures railroad cross tie assemblies (end plate assemblies) used by UP in the replacement of cross ties along UP s rail lines. NRM receives new cross ties and manufactures cross tie assemblies by affixing two (2) plates to each tie. These plates are affixed by rail spikes and are metal plates into which the rails are laid during cross tie replacement. NRM originally operated within the UP rail yard at a location near (under) the Main Street UP overpass located between 8 th and 13 th Streets. It moved to its current location in Since its relocation, complaints have arisen regarding the operation of NRM concerning excessive noise, foul odors (specifically creosote), the overall smell generally, and its hours of operation. City leaders have met numerous times with neighborhood groups and have tried to 1 North Little Rock Ordinance No. 7697, as amended, is known as the Zoning Ordinance.

2 A`q! mitigate the complaints while working with NRM to allow continued business operations at its current location. II. INVESTIGATION After meeting with the Argenta Neighborhood Group, the City conducted an investigation into the allegations made against NRM in July, Interviews with residents of the Argenta neighborhood and downtown area were conducted. Sixteen individuals agreed to be interviewed, and their statements were taken by NLR police investigators. In brief, all those interviewed said they had smelled the creosote odor from time to time, and most indicated the strength of the smell was dependent upon the weather (worse on humid, damp days or when the wind was out of the west/northwest). One half of those interviewed complained of eye irritation, sore throats, and/or sinus issues to some degree, while the other half indicated they had no health issues at all. Few complained about the noise from the hammering. No one indicated the smell and noise were constant and pervasive or were allday, every-day events. City officials performed sound metering tests to determine whether NRM operated in violation of the City s Code regarding noise violations (see NLRMC Ch. 12, Art. 2, Sec. 5; Ord. 7965). The results indicated that no violation existed. NRM furnished the City with a report from AquAeTer, Inc. which was related that company s calculations for air emission estimates and its opinion regarding regulation of the NRM operation. Using estimates that exceed the maximum number of cross ties that are at the NRM site (26k v. 8-12k), AquAeTer Inc. concluded, under Arkansas Department Environmental Quality (ADEQ) guidelines, the air emissions from NRM would be..a de minimus air release.that does not require a Minor Source Air Permit (or any other type of permit other than a notification). Based upon the emissions estimated and cited in Regulation No. 18, the Nevada Rail Materials, Inc. facility is classified as an insignificant source and does not require an ADEQ Air Permit. A copy of this report is attached as Exhibit A In response to the complaints made about NRM, Mayor Smith sought to negotiate a cooperative solution. NRM agreed to reduce the number of ties stocked at its work site from 20,000-22,000 to 8,000. NRM also agreed to use ties that are not fresh from the manufacturer as newer ties emit more odor than those that are not. NRM agreed to move the tie storage area on its site to a location further into the UP rail yard. NRM has built a cross tie wall around portions of its pavilion area that is closest to the Argenta neighborhood as a sound barrier. NRM has agreed to plant additional trees as screening for noise. Please note that the accommodations offered by NRM are gratuitous and should not be considered as legally binding. Between May and September, 2014, the NLR Police Department monitored smell and noise in the Argenta area at 6 separate locations: 500 block of N. Broadway Avenue 5 th and Willow Streets 6 th and Willow Streets 7 th and Willow Streets 5 th and Orange Streets 6 th and Orange Streets.

3 Monitoring dates include, 5/15, 5/16, 5/19, 5/30, 6/30, 8/19, 8/26, and 9/22/14. Copies of these reports on the noise and smell are attached as Exhibit B. A review of these reports indicates that the only area where there was a slight odor of creosote was at the 500 block of N. Broadway. Noise levels are shown to be close to the levels of the ambient noise of the neighborhood activity such as traffic noise, railroad sounds, lawn mowers, construction, and some banging from the rail yard. Mr. Patrick Stair, 411 West 5 th Street, North Little Rock, AR has prepared a report that tells a very different story. His report is compiled from reports to an account he and others have set up and monitored. A copy of the report is attached as Exhibit C. Mr. Thomas Crnko, 509 West 5 th Street, North Little Rock, AR has forwarded this list of complaints to the City and to Council members as recently as December 8, III. CITY AUTHORITY City governments have the duty to abate public nuisances within their jurisdictions. 2 Nuisance is defined as conduct by one landowner that unreasonably interferes with the use and enjoyment of the lands of another and includes conduct on property that disturbs the peaceful, quiet, and undisturbed use and enjoyment of nearby property. 3 However, not every disturbance is a nuisance and not every nuisance is a public nuisance. Conduct is only deemed a nuisance when it is consistent, recurring and permanent in nature, and causes substantial, tangible harm. 4 The difference between private and public nuisance is the extent of the injury, i.e. the number of persons suffering the effects of the nuisance. 5 The Arkansas Constitution prohibits cities in this state from abating private nuisances, since public funds may not be appropriated for private purposes. 6 Persons aggrieved by a private nuisance may petition the judicial branch of government for relief, but the executive and legislative branches should not intervene, as this would be tantamount to lending the power and purse of the government to one side of a private conflict. In summary to this point, a city s authority to abate a public nuisance has been said to predate the birth of our country. 7 But a city has no role in abating nuisances that do not affect the public at large. City governments generally have two avenues to abate public nuisances. First, cities may adopt ordinances of general applicability and enforce those ordinances in the same manner as other laws. 8 State laws specifically discuss this authority in Ark. Code Ann , 104, 901, and The City of North Little Rock exercised this authority in the adoption of the Nuisance Abatement Ordinance. 9 This ordinance is very thorough and has been used by many other Arkansas cities as a model for code enforcement. Second, cities may rely upon the 2 Springfield v. Little Rock, 226 Ark. 462, 290 S.W.2d 620 (1956). 3 Goforth v. Smith, 338 Ark. 65, 991 S.W.2d 579 (1999). 4 Gus Blass Dry Goods Company v. Reinman, 102 Ark. 287, 143 S.W.1087 (1912). 5 Milligan v. General Oil Company, Inc., 293 Ark 401, 738 S.W.2d 404 (1987). 6 Arkansas Constitution, Article 12, Section 5. 7 Guerin v. Little Rock, 203 Ark. 103, 155 S.W.2d 719 (1941). 8 There is also a third path that is narrow, but often traveled by the City of North Little Rock. The authority of a city to remove unsafe structures is separate and specifically provided by Ark. Code Ann This authority has no relevance to the case at hand. 9 North Little Rock Ordinance No. 8001, as amended, is generally referred to as the Nuisance Abatement Ordinance. 3

4 common law to seek abatement through the court, without regard to a previously adopted ordinance. Each course of action has both advantages and disadvantages. A. Violations of City Ordinances Before a city official may issue a citation to any person for violating an ordinance, the official must reasonably believe that the person is guilty of the offense charged. 10 Likewise, city prosecutors are ethically prohibited from prosecuting a charge unless they reasonably believe that the defendant is guilty. 11 If charges are submitted to the court, the government must prove beyond a reasonable doubt that the defendant has, in fact, committed each element of the stated offense. 12 The issuance of a citation is normally the shortest path to resolve a public nuisance, but this option may be blocked by evidentiary burdens. In the present case, North Little Rock officials charged with enforcing our ordinances have expressed the belief that NRM s conduct does not rise to a violation. The City Council has heard repeated complaints about excessive noise, but there is no evidence that noises emitted from NRM violate the Noise Ordinance. 13 The City Council has heard repeated complaints about disagreeable smells emitting from NRM, but there is no objective standard within the Nuisance Abatement Ordinance against which odors could be measured and determined to be in violation. I doubt it is possible to craft an objective standard that would be acceptable to the community. An additional problem in prosecution of the case would be to prove beyond a reasonable doubt that the offensive odors emanated from NRM. The source of the smell is believed to be chemically treated railroad ties. NRM certainly has many railroad ties, but there are many more located throughout the rail yard. Without an objective standard and a method to prove that NRM violated the standard, the City should not issue a citation. B. Public Nuisance Abatement Public nuisance abatements are civil cases that have a lower burden of proof, since the defendant is not subject to fines or incarceration. In order to prevail, the City must prove by clear and satisfactory evidence that the defendant has caused a nuisance to exist. 14 Before seeking to abate a nuisance in court, the city should evaluate the strength of its case in light of the defenses that will be raised at trial. For example, as mentioned earlier, conduct that affects a small number of residents is only enforceable as a private nuisance, not a public nuisance. Conduct that has been authorized by city ordinances or general consent may also impede a city s case under the doctrine of estoppel. 15 Lastly, a city must consider the strength of witnesses and their testimony to establish that a nuisance exists. 10 Arkansas Rule of Criminal Procedure Arkansas Rule of Professional Conduct Ark. Code Ann North Little Rock Ordinance No. 7695, as amended, is generally referred to as the Noise Ordinance. 14 Flippin v. McCabe, 228 Ark. 495, 308 S.W.2d 824 (1958). The facts in Flippin are interesting in that they are somewhat analogous to the facts at hand. 15 Tankersley Bros. v. City of Fayetteville, 227 Ark. 130, 296 S.W.2d 412 (1956) 4

5 The present case has several significant challenges, which I describe below: (1) Proof that a nuisance exists. Citizens have claimed that the noise and smell emanating from NRM is periodic. This may not be deemed to rise to the level of a nuisance of any kind. There are also notes in the investigation indicating that no nuisance exists. These documents would be used against our case. (2) Proof that NRM caused the nuisance. As stated above, NRM is located on property that is part of a larger railroad parcel. It would be difficult to prove that the offensive smells came from NRM, versus another entity. (3) Public v. Private. The complaints about NRM come from a relatively small group of citizens in a limited area of the City. It would difficult to demonstrate that the condition constituted a public nuisance, thus justifying government action. (4) Estoppel. The business conducted by NRM within the UP rail yard is conduct that has been authorized by the City s Zoning Ordinance. The railroad has been in that location for over 100 years and has conducted its business activity continuously and with the knowledge of the City for that entire time. (5) Strength of testimony. The primary complainant in this case is Mr. Thomas Crnko, who has repeatedly sent caustic s to badger the City into action. These s are discoverable documents that will undermine his credibility as a witness. Any civil case brought by the City against NRM as a public nuisance would have major hurdles. It is my opinion that the likelihood of success is nominal. 16 A suit by the City of North Little Rock to abate any alleged nuisance by NRM would not be in the best interest of this city, and should not be pursued. Nevertheless, the conflict between some of the residents of the Argenta community and NRM could be litigated between the parties where evidence could be developed to address and resolve their complaints. That is a private matter between neighbors, not a public matter requiring action by the City. IV. CITIZEN AUTHORITY Aggrieved persons who feel affected by the operations of NRM could bring a lawsuit against NRM seeking relief as either a private or public nuisance. In proving private nuisance, there is no need to demonstrate that the harm affected the community at large. Common law also allows private citizens to sue in public nuisance when they have been specifically injured. 17 Citizens who prevail in public nuisance cases may be awarded their costs of litigation; however, 16 After the issuance of this opinion, the likelihood of success is further diminished, as this opinion would certainly be used against the City. 17 Hickinbotham v. Corder, 227 Ark S. W. 2d 30, cert. denied 355 U. S. 841, 2 L. Ed 2d 48, 78 S. Ct. 61 (1957) 5

6 if the court determines that the case has no merit, the citizen who filed the suit may be liable for the defendant s costs of defense. 18 Thus, the citizen complainants are authorized, as a matter of law, to pursue this case in court as they choose and would not be inhibited by the same challenges as the City that are described above. In addition to bringing suit against NRM, aggrieved persons could bring an action against the City of North Little Rock ordering the enforcement of the law. This process is usually characterized by a Writ of Mandamus, which is an order of the circuit court commanding an executive, judicial, or ministerial officer to perform an act or omit to do an act. 19 In short, aggrieved persons could sue the City seeking an order from the Court to the City commanding the City to pursue a nuisance action against NRM. However, Mandamus will not be used to control a public official in a discretionary act. A mandamus action enforces performance of a legal right after it has been established; its purpose is not to establish a right. 20 It is my opinion that the decision to prosecute this case, or not, is discretionary and not subject to mandamus. V. CONCLUSION and RECOMMENDATIONS It is my opinion that city officials should not issue public nuisance citations to NRM based upon the facts presented. It is further my opinion that a civil case against NRM is too flawed to proceed. I doubt that the City could meet its evidentiary burden and, even if met, I doubt the City could prevail against the affirmative defenses that will undoubtedly be presented by NRM. In accordance with the Freedom of Information Act 21, this opinion and our files will be available for use by any party in litigation of this matter. Sincerely, CJC/bh Attachments Exhibits A, B and C C. Jason Carter City Attorney 18 Ark. Code Ann , et seq. In addition to granting injunctive relief, section 1507 authorizes the court to assess a civil penalty not to exceed $5, Ark. Code T. J. v. Hargrove, 362 Ark. 649, 210 S. W. 3d 79 (2005). 21 Ark. Code Ann , et seq. 6

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