Opinion
No. X01 CV 04 4001892 S
May 31, 2007
MEMORANDUM OF DECISION DEFENDANT METACON GUN CLUB, INC.'S MOTION FOR SUMMARY JUDGMENT
OVERVIEW OF THE CASE
The plaintiff, Simsbury-Avon Preservation Society, LLC (Society), is a group of homeowners residing adjacent to or near Nod Road in Simsbury, Connecticut. The plaintiffs, Greg Silpe and Gayle March, are Simsbury residents. The plaintiffs, Rinaldo Tedeschi, Diane Tedeschi and Sheldon Cherry, are Avon residents. The defendant, Metacon Gun Club, Inc. (Metacon), is a Connecticut corporation that owns and operates a private gun club on Nod Road. Metacon is located on and surrounded by wetlands. The shooting range at Metacon faces Talcott Mountain to the east. The plaintiffs' claim, generically, is that the shooting of firearms that discharge lead shot and/or lead bullets contaminates surrounding soil and water, creates hazardous waste and is a significant environmental hazard to the health of humans, fish, fowl and other area wildlife. Specifically, the claim is that the lead discharge has contaminated water resources that are classified as GAA or GA (the classification applicable to water resources of the highest quality in this state) and are therefore a source of drinking water for humans, horses and wildlife (count three, ¶ 8) and has contaminated and threatens to contaminate sediments and/or soils on and near Metacon's site (the site) (count three, ¶ 9). The Society is, within the meaning of General Statutes § 22a-16, a "person" who may maintain an action for declaratory and equitable relief "for the protection of the public trust in the air, water and other natural resources of this state from unreasonable pollution, impairment or destruction."
The only remaining counts of the dispositive complaint, the revised complaint filed on April 6, 2005, are counts three and four. Count three is brought under § 22a-16 of the Connecticut Environmental Protection Act (CEPA); it alleges that Metacon is liable to the plaintiffs for violation of the public trust in unreasonably polluting or impairing the air, water, soil and other natural resources. As to this count, the prayer for relief seeks, inter alia, declaratory and injunctive relief (¶¶ 3-6 of count three prayer for relief). Count four, sounding in private nuisance, alleges that the discharge of firearms at the site causes noise and lead contamination and that this contamination constitutes a private nuisance for which the prayer for relief seeks compensatory and punitive damages and temporary and permanent injunctions prohibiting Metacon from continuing its activities that are causing lead contamination and excessive noise.
BACKSTORY
Metacon is a private shooting club that has operated an outdoor rifle range (the range) at 106 Nod Road, Simsbury, since the 1960s. Metacon provides firearm training facilities for its approximately 650 members and 4 local police departments. Metacon's range is located on an approximately 137-acre site that is situated on a flood plain in the Farmington River Valley of Simsbury.
The site is bounded immediately to the north by the Connecticut state police pistol and rifle ranges (the state police range), which is used as a training facility for various municipal police departments and state troopers; to the west by Nod Road, the Farmington River and forested public land; to the south by a single residence not involved in this litigation, a golf course maintenance garage and golf course; and to the east by a high cliff that runs along the entire half-mile long eastern property boundary. Access to the site is restricted by a fence and warning signs around the perimeter of the approximately 137-acre site, a chain link fence and card key access system for the range itself, "No Trespassing/Private" signs posted at the entrance, and internal rules that restrict access to the site to members and invited guests.
In 1989, Metacon received an inland wetlands permit for the enhancement of the existing berm on the range and the construction of a covered firing line at the range from the Simsbury conservation commission under its authority as the inland wetlands and watercourses agency. The inland wetlands permit specifically requires the installation of groundwater monitoring wells and requires periodic monitoring to evaluate any lead impacts.
In 1990, Simsbury issued a permit to Metacon under the Ordinance Concerning Flood Damage Prevention, which in turn, references four additional permits held by Metacon for its range: (1) U.S. Army Corps of Engineers permit to fill wetlands at the range; (2) state water quality certificate; (3) local zoning permission; and (4) local inland wetlands and watercourses agency permit.
In 2002, the Simsbury town planner and the Simsbury conservation officer also reviewed activities at the site. Neither official raised any issues with respect to Metacon's activities. In 2002 and 2003, the Simsbury zoning enforcement officer also reviewed the activities at Metacon. In 2003, the zoning enforcement officer issued a report, finding that Metacon's activities at the site complied with local ordinances.
In 2003, following up on the plaintiffs' noise complaints, town and state regulatory agencies looked into noise issues at the site. (Def. Ex. 15, Letter from T. Vincent of 4/15/04); (Def. Ex. 15, Letter from L. Whitten of 8/1/03); (Def. Ex. 6, Letter from Comm'r Rocque to Atty. Gen. Blumenthal of 4/23/04); (Def. Ex. 13, Letter from Comm'r Spada to R. Patricelli of 11/07/03.) During this review, Simsbury, the Connecticut department of public safety (DPS) and the Connecticut department of environmental protection (DEP) all reviewed whether the noise was unreasonable. (Def. Ex. 6, Letter from Comm'r Rocque to Atty. Gen. Blumenthal of 4/23/04); (Def. Ex. 13, Letter from Comm'r Spada to R. Patricelli of 11/07/03.) Each of the reviewing government officials declined to take action with respect to noise on the basis that Metacon's range is immune from civil liability for noise under General Statutes § 22a-74a.
The U.S. Environmental Protection Agency's (EPA) manual contemplates that lead will be left on the range and in the berm for a period of time before being collected for recycling. ( Ex. 1, EPA's Best Management Practices for Lead at Outdoor Shooting Ranges, p. I-8, III-1.) Metacon has formally adopted an environmental stewardship plan based on the EPA's Best Management Practices for Lead at Outdoor Shooting Ranges. (Def. Ex. 2, Environmental Stewardship Plan); (Def. Ex. 4, M. Palmer Testimony, p. 15-17.)
In 1990, the U.S. Army Corps of Engineers issued a permit to Metacon authorizing it to fill wetlands at the site so as to allow the expansion and improvement of the range. (Def. Ex. 12, Department of the Army Permit, MA-LAWR-882368-R-90 of 5/29/90.) The EPA did not oppose the permit, and the U.S. Army Corps of Engineers issued the permit to Metacon. (Def. Ex. 12, Department of the Army Permit, MA-LAWR-882368-R-90 of 5/29/90.)
Since shortly after September of 2001, certain of the individual plaintiffs and the Society's members have complained to local and state officials about, inter alia, shooting noise in the valley during operation of the Metacon and adjacent state police ranges. (Def. Ex. 18, M. Palmer Aff., ¶ 13.) These individuals were informed by the Connecticut commissioner of the DPS that shooting ranges in Connecticut are now protected by state law from noise complaints; (Def. Ex. 13, Letter from Comm'r Spada to R. Patricelli of 11/07/03); and were informed by the Simsbury zoning enforcement officer that Metacon was in compliance with the town's noise ordinances. (Def. Ex. 15, Letter from L. Whitten of 8/1/03.) These individuals also complained to other government officials about alleged violations of safety, zoning and environmental laws at the Metacon site. (Def. Ex. 18, M. Palmer Aff., ¶ 13.)
In response to these noise complaints, Simsbury, the Connecticut attorney general, the DPS and the DEP investigated these allegations. (Def. Ex. 6, Letter from Comm'r Rocque to Atty. Gen. Blumenthal of 4/23/04); (Def. Ex. 13, Letter from Comm'r Spada to R. Patricelli of 11/07/03); (Def. Ex. 15, Letter from T. Vincent of 4/15/04); (Def. Ex. 15, Letter from L. Whitten of 8/1/03.) Simsbury's investigation, while acknowledging that certain people object to shooting noise, concluded that Metacon is operating in compliance with applicable local ordinances. (Def. Ex. 15, Letter from T. Vincent of 04/15/04); (Def. Ex. 15, Letter from L. Whitten of 08/01/03.)
In response to the complaining individuals' requests, the Connecticut attorney general asked the DEP to investigate any threats to public safety allegedly posed to hikers in the Talcott Mountain State Park. (Def. Ex. 6, Letter from Comm'r Rocque to Atty. Gen. Blumenthal of 4/23/04, in response to attorney general's request.) The attorney general also asked the DEP to evaluate any threats to human health from lead at the range. (Def. Ex. 6, Letter from Comm'r Rocque to Atty. Gen. Blumenthal of 4/23/04, in response to attorney general's request.) In response, in 2004, the DEP asked Metacon to sample surface water and groundwater at the site for lead. ( Ex. 7, Report from Leggette, Brashears Graham, Inc. RE: Ground-Water and Surface-Water Testing for Lead of 4/8/04 (LBG report), providing test results requested by the DEP.) Metacon retained Leggette, Brashears Graham (LBG) to evaluate any impact from lead at the site to groundwater and surface water and to report the results to the DEP. (Def. Ex. 7, LBG report, p. 1.) LBG sampled and then issued its report, finding that no lead in any groundwater sample exceeded the 0.015 mg/l protection criteria except one and that no lead in any surface water sample exceeded the 0.015 mg/l protection criteria. (Def. Ex. 7, LBG report, p. 3.) The lead level detected in that single groundwater sample was within acceptable state parameters. (Def. Ex. 7, LBG report, p. 3, tbl. 1: MW-1.)
After conducting its inquiry, the DEP responded by letter to the attorney general's request for an investigation of activities at Metacon that are alleged by certain individuals to pose hazards to the public. (Def. Ex. 6, Letter from Comm'r Rocque to Atty. Gen. Blumenthal of 4/23/04.) The DEP commissioner stated in his letter that he has "no reason to believe that continued operation of the range represents an unreasonable threat to the safety of visitors to Talcott Mountain State Park." (Def. Ex. 6, Letter from Comm'r Rocque to Atty. Gen. Blumenthal of 4/23/04, p. 1.) The DEP commissioner also noted in his letter that water sampling at the Metacon site indicates that "lead was not detected or was present at concentrations in groundwater and surface water below action levels." (Def. Ex. 6, Letter from Comm'r Rocque to Atty. Gen. Blumenthal of 4/23/04, p. 1.) Finally, the DEP commissioner's letter acknowledges that Metacon is managing lead at its range under EPA shooting range guidance. (Def. Ex. 6, Letter from Comm'r Rocque to Atty. Gen. Blumenthal of 4/23/04, p. 2.)
After extensive voluntary discussions with the complaining individuals and the town concerning possible voluntary noise mitigation measures and after Metacon made voluntary modifications to its range and range operations in an effort to accommodate the complaining individuals' stated concerns, these same individuals formed the Society and brought three separate lawsuits against Metacon. (Def. Ex. 18, M. Palmer Aff., ¶ 23.) These lawsuits consisted of a citizen suit in federal court under the federal hazardous waste and clean water laws and two separate actions in state court alleging "unreasonable pollution" under state law and nuisance based on noise, safety, zoning and environmental conditions. Subsequently, the plaintiffs were ordered by this court to withdraw one of their state suits against Metacon since the plaintiffs had merged all claims from that action into the instant action. At this time, the instant suit against Metacon is the only one of the two state lawsuits remaining.
PROCEDURAL HISTORY
On October 4, 2006, Metacon filed a motion for summary judgment as to counts three and four of the revised complaint, accompanied by a memorandum of law in support thereof. Metacon's ground for moving for summary judgment as to count three of the revised complaint is that "on the basis of the undisputed material facts the presence of lead at [its] range is not unreasonable." Metacon moves for summary judgment as to count four "on the grounds that [its] lead ammunition at the range does not interfere with the use of any property owned by a Plaintiff and, as to noise, on the grounds that [it] is immune from civil liability." On December 11, 2006, the plaintiffs filed a memorandum in opposition. On January 8, 2007, Metacon filed a shortened reply to the plaintiffs' objection. Oral argument on this motion was heard on February 26, 2007. On March 8, 2007, the plaintiffs filed a supplement to their objection. On March 9, 2007, Metacon filed a supplemental memorandum of law in support of its motion for summary judgment.
APPLICABLE LAW
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law . . ." (Internal quotation marks omitted.) Brown v. Soh, 280 Conn. 494, 500-01, 909 A.2d 43 (2006). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact . . . A material fact . . . [is] a fact that will make a difference in the result of the case . . ." (Internal quotation marks omitted.) Deming v. Nationwide Mutual Ins. Co., 279 Conn. 745, 757, 905 A.2d 623 (2006). "[A]lthough the party seeking summary judgment has the burden of showing the nonexistence of any material fact . . . a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue . . . It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court [in support of a motion for summary judgment]." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252-53, 819 A.2d 773 (2003). " [T]he existence of the genuine issue of material fact must be demonstrated by counteraffidavits and concrete evidence . . ." (Emphasis in original; internal quotation marks omitted.) Little v. Yale University, 92 Conn.App. 232, 235, 884 A.2d 427 (2005), cert. denied, 276 Conn. 936, 891 A.2d 1 (2006).
"In ruling on a motion for summary judgment, the court must decide whether there is a genuine issue of material fact. If there are issues of fact, the court may not resolve them without giving the parties a full hearing." Gould v. Mellick Sexton, 66 Conn.App. 542, 556, 785 A.2d 265 9001), rev'd on other grounds, 263 Conn. 140, 819 A.2d 216 (2003). Summary judgment "is appropriate only if a fair and reasonable person could conclude only one way." (Internal quotation marks omitted.) Dugan v. Mobile Medical Testing Services, Inc., 265 Conn. 791, 815, 830 A.2d 752 (2003). "The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts . . ." (Internal quotation marks omitted.) Neuhaus v. Decholnoky, 280 Conn. 190, 199, 905 A.2d 1135 (2006). "[A] directed verdict may be rendered only where, on the evidence viewed in the light most favorable to the nonmovant, the trier of fact could not reasonably reach any other conclusi on than that embodied in the verdict as directed." (Emphasis in original.) Dugan v. Mobile Medical Testing Services, Inc., supra, 815.
DISCUSSION COUNT THREE — LIABILITY UNDER § 22a-16
General Statutes § 22a-16 provides in relevant part: "[A]ny person, partnership, corporation, association, organization or other legal entity may maintain an action in the superior court for the judicial district wherein the defendant is located, resides or conducts business . . . for declaratory and equitable relief against the state, any political subdivision thereof, any instrumentality or agency of the state or of a political subdivision thereof, any person, partnership, corporation, association, organization or other legal entity, acting alone, or in combination with others, for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . ." § 22a-16 is part of CEPA, which has a stated policy "that there is a public trust in the air, water and other natural resources of the state of Connecticut"; General Statutes § 22a-15; and "it is in the public interest to provide all persons with an adequate remedy to protect the air, water and other natural resources from unreasonable pollution, impairment or destruction." General Statutes § 22a-15.
"Traditionally, citizens seeking to protect the environment were required to show specific, personal aggrievement to attain standing to bring a legal action . . . The Connecticut Environmental Protection Act; General Statutes § 22a-1 et seq.; however, waives the aggrievement requirement in two circumstances. First, any private party . . . without first having to establish aggrievement, may seek injunctive relief in the court for the protection of the public trust in the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction . . . General Statutes § 22a-16." (Emphasis added; internal quotation marks omitted.) Connecticut Coalition Against Millstone v. Rocque, 267 Conn. 116, 129, 836 A.2d 414 (2003). "§ 22a-16 continues to provide redress for all unreasonable pollution, impairment or destruction of the air, water and other natural resources of the state, in that it allows any person to maintain an action against any person who . . . directly engages in such activity." (Emphasis added; internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 509, 815 A.2d 1188 (2003). "The Connecticut Supreme Court has described § 22a-16 as a legislative enactment expanding the concept of private attorney generals empowered to institute proceedings to vindicate the public interest. Greenwich v. Connecticut Transportation Authority, 166 Conn. 337, 344-45 [ 348 A.2d 596] (1974).
"Section 22a-16 provides relief from unreasonable pollution. The Connecticut Supreme Court has determined that what is unreasonable under § 22a-16 is that which is not in compliance with the regulatory and legislative scheme established by CEPA. Waterbury v. Washington, 260 Conn. 506, 557 [ 800 A.2d 1102] (2002); see also Durham Mfg. Co. v. Merriam Mfg. Co., 294 F.Sup.2d 251, 271 (2003) (release of contaminants in excess of Connecticut Department of Environmental Protection's Remediation Standards Regulations [RSRs] is prima facie evidence of unreasonable pollution or impairment of natural resources)." (Internal quotation marks omitted.) 50 Day Street Associates v. Norwalk Housing Authority, Superior Court, Complex Litigation Docket at Stamford, Docket No. X08 CV 02 0191396 (May 17, 2005, Adams, J.).
The plaintiffs assert that one can make a prima facie case of unreasonable pollution by establishing the release of contaminants in excess of the applicable RSRs. The plaintiffs further argue that in order to make a prima facie case of unreasonable pollution, one need only establish that 1 soil sample exceeds the applicable RSR criteria for lead levels in soil, which is 500 ppm. The plaintiffs maintain that of nineteen soil samples taken at the site on September 1, 2004, fourteen exceeded the levels set forth in the RSRs. The plaintiffs further contend that the lead RSR criteria for wetland sediments is 500 ppm, and 3 wetland sediment samples taken at the site exceeded the applicable RSR levels. The plaintiffs also argue that the protection level for surface water and groundwater is 0.015 mg/l, and lead levels in samples of both surface water and groundwater at the site have exceeded those amounts. Therefore, it is the plaintiffs' position that they have successfully set forth a prima facie case of unreasonable pollution.
Metacon argues that in the present case the mere exceedance of RSR criteria is insufficient to establish a prima facie case of a violation of CEPA. Metacon contends that the exceedance of applicable RSR criteria only establishes a prima facie case of a CEPA violation in cases where remediation is required pursuant to a DEP order or pursuant to the underground storage tank regulations. Therefore, Metacon distinguishes the facts of the present case, where no remediation was required, from the facts of 50 Day Street Associates, where remediation of releases from underground storage tanks was required under General Statutes § 22a-449 and the regulations adopted thereunder, and Durham Manufacturing Co., where remediation was required under orders from the DEP and EPA.
At present, the court need not decide which test to utilize to determine whether CEPA was violated, because if the court adopts the plaintiffs' interpretation, there remains an issue of material fact as to whether Metacon violated CEPA. If the court is to decline to adopt the exceedance of applicable RSR criteria to determine whether a prima facie case was made that CEPA was violated, and the court is to utilize an alternative test, there still remains a genuine issue of material fact as to whether there is "unreasonable pollution" at the site so as to implicate § 22a-16. Metacon's motion for summary judgment as to count three is denied in its entirety.
FOURTH COUNT — PRIVATE NUISANCE
"A private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land. 4 Restatement (Second), Torts § 821D (1979); see also Herbert v. Smyth, 155 Conn. 78, 81, 230 A.2d 235 (1967). The law of private nuisance springs from the general principle that [i]t is the duty of every person to make a reasonable use of his own property so as to occasion no unnecessary damage or annoyance to his neighbor. Nailor v. C.W. Blakeslee Sons, Inc., 117 Conn. 241, 245, 167 A. 548 (1933). The essence of a private nuisance is an interference with the use and enjoyment of land. W. Prosser W. Keeton, Torts (5th Ed. 1984) § 87, p. 619." (Internal quotation marks omitted.) Pestey v. Cushman, 259 Conn. 345, 352, 788 A.2d 496 (2002).
A principle of private nuisance law is that "in determining unreasonableness, [c]onsideration must be given not only to the interests of the person harmed but also [to] the interests of the actor and to the interests of the community as a whole. 4 Restatement (Second), supra, § 826, comment (c); see also Walsh v. Stonington Water Pollution Control Authority, 250 Conn. 443, 456-57, 736 A.2d 811 (1999). Determining unreasonableness is essentially a weighing process, involving a comparative evaluation of conflicting interests . . . 4 Restatement (Second), supra, § 826, comment (c); Walsh v. Stonington Water Pollution Control Authority, supra, 456; Maykut v. Plasko, CT Page 7715 170 Conn. 310, 314, 365 A.2d 1114 (1976); O'Neill v. Carolina Freight Carriers Corp., 156 Conn. 613, 617-18, 244 A.2d 372 (1968). Unreasonableness cannot be determined in the abstract, but, rather, must be judged under the circumstances of the particular case. Wetstone v. Cantor, 144 Conn. 77, 80, 127 A.2d 70 (1956)." (Internal quotation marks omitted.) Pestey v. Cushman, supra, 259 Conn. 352-53.
"[A] plaintiff must prove four elements to succeed in a nuisance cause of action: (1) the condition complained of had a natural tendency to create danger and inflict injury upon person or property; (2) the danger created was a continuing one; (3) the use of the land was unreasonable or unlawful; [and] (4) the existence of the nuisance was the proximate cause of the plaintiffs' injuries and damages . . . Walsh v. Stonington Water Pollution Control Authority, supra, 250 Conn. 449 n. 4, quoting Filisko v. Bridgeport Hydraulic Co., 176 Conn. 33, 35-36, 404 A.2d 889 (1978); State v. Tippetts-Abbett-McCarthy-Stratton, 204 Conn. 177, 183, 527 A.2d 688 (1987); see also Kostyal v. Cass, 163 Conn. 92, 99-100, 302 A.2d 121 (1972)." (Internal quotation marks omitted.) Pestey v. Cushman, supra, 259 Conn. 355-56.
"Despite its grounding in public nuisance law, this four factor analysis has since been applied without distinction to both public and private nuisance causes of action." Pestey v. Cushman, supra, 259 Conn. 356. "Public nuisance law is concerned with the interference with a public right, and cases in this realm typically involve conduct that allegedly interferes with the public health and safety." Id., 357. "Private nuisance law, on the other hand, is concerned with conduct that interferes with an individual's private right to the use and enjoyment of his or her land. Showing the existence of a condition detrimental to the public safety, or, as the first two elements of the four factor analysis discussed previously require, showing that the condition complained of had a natural tendency to create a continuing danger, is often irrelevant to a private nuisance claim." Id.
"[I]n order to recover damages in a common-law private nuisance cause of action, a plaintiff must show that the defendant's conduct was the proximate cause of an unreasonable interference with the plaintiff's use and enjoyment of [its] property. The interference may be either intentional; Quinnett v. Newman, [ 213 Conn. 343, 348, 568 A.2d 786 (1990)] (nuisance is created intentionally if defendant intends act that brings about condition found to be nuisance); or the result of the defendant's negligence. Id., 348-49. Whether the interference is unreasonable depends upon a balancing of the interests involved under the circumstances of each individual case. In balancing the interests, the fact finder must take into consideration all relevant factors, including the nature of both the interfering use and the use and enjoyment invaded, the nature, extent and duration of the interference, the suitability for the locality of both the interfering conduct and the particular use and enjoyment invaded, whether the defendant is taking all feasible precautions to avoid any unnecessary interference with the plaintiff's use and enjoyment of his or her property, and any other factors that the fact finder deems relevant to the question of whether the interference is unreasonable. No one factor should dominate this balancing of interests; all relevant factors must be considered in determining whether the interference is unreasonable.
"The determination of whether the interference is unreasonable should be made in light of the fact that some level of interference is inherent in modern society. There are few, if any, places remaining where an individual may rest assured that he will be able to use and enjoy his property free from all interference. Accordingly, the interference must be substantial to be unreasonable. See 4 Restatement (Second), supra, § 822, comment (g); W. Prosser W. Keeton, supra, § 88, p. 626.
"Ultimately, the question of reasonableness is whether the interference is beyond that which the plaintiff should bear, under all of the circumstances of the particular case, without being compensated. See Walsh v. Stonington Water Pollution Control Authority, supra, 250 Conn. 458-59; see also 4 Restatement (Second), supra, § 822, comment (g), and § 826, comment (e); W. Prosser W. Keeton, supra, § 88, p. 629." Pestey v. Cushman, supra, 259 Conn. 361-62.
"Private nuisance law . . . is concerned with conduct that interferes with an individual's private right to the use and enjoyment of his or her land. Showing the existence of a condition detrimental to the public safety, or, as the first two elements of the four factor analysis discussed previously require, showing that the condition complained of had a natural tendency to create a continuing danger, is often irrelevant to a private nuisance claim. In light of the fundamental differences between these two distinct causes of action, we conclude that further attempts to employ the four part test discussed previously herein in the assessment of private nuisance causes of action would be imprudent; private nuisance claims simply do not fit comfortably within the same analytical rubric as public nuisance claims. [The court] must restate, therefore, the elements that a plaintiff must prove to prevail on a claim for damages in a common-law private nuisance action.
"In prescribing these specific elements, [the court] look[s] to the leading authorities in the field of common-law private nuisance for guidance. According to the Restatement (Second) of Torts, a plaintiff must prove that: (1) there was an invasion of the plaintiff's use and enjoyment of his or her property; (2) the defendant's conduct was the proximate cause of the invasion; and (3) the invasion was either intentional and unreasonable, or unintentional and the defendant's conduct was negligent or reckless. 4 Restatement (Second), supra, § 822. Although the language used in this third element does not make the point clearly, under this test, showing unreasonableness is an essential element of a private nuisance cause of action based on negligence or recklessness. See id., § 822, comment (k). Professors Prosser and Keeton define the plaintiff's burden in a similar manner. According to their view, a plaintiff in a private nuisance action must demonstrate that: (1) the defendant acted with the intent of interfering with the plaintiff's use and enjoyment of his or her property; (2) the interference with the use and enjoyment of the land was of the kind intended; (3) the interference was substantial; and (4) the interference was unreasonable. W. Prosser W. Keeton, supra, § 87, p. 622-25. In the context of a private nuisance, they define a defendant's intent as meaning merely that the defendant has created or continued the condition causing the interference with full knowledge that the harm to the plaintiff's interests are occurring or are substantially certain to follow. Id., 625.
"This requirement of unreasonableness, a part of the third element in the test set forth in the Restatement (Second) and the fourth element in the test enunciated by Professors Prosser and Keeton, often has been stated, not in terms of whether the interference was unreasonable, but, rather, in terms of whether the defendant's conduct was unreasonable. See, e.g., Walsh v. Stonington Water Pollution Control Authority, supra, 250 Conn. 446 (determining whether defendants' operation of wastewater treatment plant was unreasonable use) . . .
"Although similar, [t]he two concepts — unreasonable interference and unreasonable conduct — are not at all identical. W. Prosser W. Keeton, supra, § 87, p. 623. Confusion has resulted from the fact that the . . . interference with the plaintiff's use of his property can be unreasonable even when the defendant's conduct is reasonable . . . Courts have often found the existence of a nuisance on the basis of unreasonable use when what was meant is that the interference was unreasonable, i.e., it was unreasonable for the defendant to act as he did without paying for the harm that was knowingly inflicted on the plaintiff. Thus, an industrial enterprise who properly locates a cement plant or a coal-burning electric generator, who exercises utmost care in the utilization of known scientific techniques for minimizing the harm from the emission of noxious smoke, dust and gas and who is serving society well by engaging in the activity may yet be required to pay for the inevitable harm caused to neighbors. Id., § 88, p. 629. As this example amply demonstrates, while an unreasonable use and an unreasonable interference often coexist, the two concepts are not equivalent, and it is possible to prove that a defendant's use of his property, while reasonable, nonetheless constitutes a common-law private nuisance because it unreasonably interferes with the use of property by another person. That was the situation in Walsh v. Stonington Water Pollution Control Authority, supra, 250 Conn. 443.
"In Walsh, this court rejected the defendants' argument on appeal that their operation of the wastewater treatment plant in question could not constitute a nuisance since the operation of such a plant was clearly a reasonable use of property. Id., 457. [The] court held that the production of odors by the defendants' plant could constitute a nuisance, notwithstanding the fact that operating a wastewater treatment plant was clearly a reasonable use of the property in question. Id. Although the proposition was not stated expressly in Walsh, our holding in that case demonstrates that, while the reasonableness of a defendant's conduct is a factor in determining whether an interference is unreasonable, it is not an independent element that must be proven in order to prevail in all private nuisance causes of action. The inquiry is cast more appropriately as whether the defendant's conduct unreasonably interfered with the plaintiff's use and enjoyment of his or her land rather than whether the defendant's conduct was itself unreasonable. Quinnett v. Newman, supra, 213 Conn. 348 (nuisance refers to condition that exists and not to act that creates it). The proper focus of a private nuisance claim for damages, therefore, is whether a defendant's conduct, i.e., his or her use of his or her property, causes an unreasonable interference with the plaintiff's use and enjoyment of his or her property. Herbert v. Smyth, supra, 155 Conn. 81-82; see also Scribner v. Summers, 84 F.3d 554, 559 (2d Cir. 1996); Copart Industries, Inc. v. Consolidated Edison Co. of New York, Inc., 41 N.Y.2d 564, 570, 362 N.E.2d 968, 394 N.Y.S.2d 169, reconsideration denied, 42 N.Y.2d 1102 (1977)." (Emphasis in original; internal quotation marks omitted.) Pestey v. Cushman, supra, 259 Conn. 357-60.
The plaintiff Society has admitted that it owns no real property within 100 feet of Metacon's site. (Def. Ex. 28, Pls.' Responses to Request for Admissions of 2/__/05, ¶¶ 1-2.) The Society has presented no evidence to show that it has any legally cognizable interest in any property whatsoever. The Society is not a property owner and there can be no interference with that in which one has no ownership interest. See Pestey v. Cushman, supra, 259 Conn. 357-58. Therefore, summary judgment as to the private nuisance count with regard to both lead and noise contamination is granted as to the Society.
Next, the court will turn to whether summary judgment should be granted as to the individual plaintiffs' private nuisance count based upon alleged lead contamination. The individual plaintiffs, March, Silpe, Rinaldo Tedeschi, Diane Tedeschi, and Cherry, all own residential real estate that is located some distance from the site. (Def. Ex. 18, M. Palmer Aff. ¶ 26.) No evidence has been presented to the court that lead from the site is impacting any offsite areas. (Def. Ex. 11, G. Lenk Aff., ¶ 19); ( Ex. 22, G. March Dep., 37, 57, 62, 66-68); (Def. Ex. 21, G. Silpe Dep., 27-32); (Def. Ex. 23, R. Tedeschi Dep., 71-73, 96-98, 113, 144-46); (Def. Ex. 24, D. Tedeschi Dep., 18-19.) Each of the individual plaintiffs has admitted that his or her property has not been impacted by lead or that he or she does not know whether his or her property has been impacted by lead. (Def. Ex. 21, G. Silpe Dep. 30-32); (Def. Ex. 22, G. March Dep. 36-37); (Def. Ex. 23, R. Tedeschi Dep. 96-97, 113); (Def. Ex. 24, D. Tedeschi Dep., 18-19); (Def. Ex. 25, S. Cherry Dep. 7, 40, 43-45.) The individual plaintiffs' claims of nuisance from lead are based solely on their allegations of the theoretical threat of potential and speculative future harm plead from Metacon's range were to someday travel offsite and impact their distant properties. (Def. Ex. 22, G. March Dep. 57); (Def. Ex. 23, R. Tedeschi Dep. 71-73, 91-94, 98, 144-46); (Def. Ex. 24, D. Tedesehi, Dep. 18-19); (Def. Ex. 25, S. Cherry Dep. 36-38.)
The individual plaintiffs have neither tested their properties for lead nor tested areas between the site and their properties for lead. (Def. Ex. 21, G. Silpe Dep. 30-32); (Def. Ex. 22, G. March Dep. 36-37); (Def. Ex. 23, R. Tedeschi Dep. 96-97, 113); (Def. Ex. 24, D. Tedeschi, 18-19); (Def. Ex. 25, S. Cherry Dep. 43-45.) Since the individual plaintiffs have presented no evidence that lead from the site has interfered with their respective properties, they are unable to make the necessary showing of unreasonable interference with their property interests. See Pestey v. Cushman, supra, 259 Conn. 358-61. Therefore, summary judgment as to the private nuisance count with regard to lead contamination is granted as to the individual plaintiffs.
Next, this court will examine whether summary judgment should be granted as to the private nuisance count with regard to noise contamination as to the individual plaintiffs. General Statutes § 22a-74a provides in relevant part: (a) "Any owner, operator or user of a firing or shooting range operating on October 1, 1998, shall be . . . immune from civil liability with respect to noise or noise pollution resulting from shooting activity on such range provided the range was, at the time of its construction or operational approval by the municipality in which it is located, in compliance with the provisions of this chapter and regulations adopted hereunder."
Metacon is entitled to the immunity under § 22a-74a because it is a shooting range that was operational prior to October 1, 1998, and. was in compliance with the provisions of chapter 442 of the General Statutes and the regulations adopted thereunder. The individual plaintiffs' noise-related nuisance and CEPA claims are claims that would impose a civil liability. The allegations based on noise or noise pollution included in the complaint are based on shooting activities at the site. Metacon operates an outdoor shooting range at the site and has operated an outdoor shooting range for at least the past seventeen years. (Def. Ex. 11, G. Lenk Aff. ¶ 8); (Pls' Revised Complaint of April 4, 2005, Count 3 ¶ 4, Count 4 ¶ 4.)
At no time has Metacon been issued any notice by Simsbury or the DEP that Metacon is not in compliance with chapter 442 of the General Statutes or the regulations adopted thereunder. (Def. Ex. 18, M. Palmer Aff. ¶ 27.) The DEP and DPS have both stated that Metacon is immune from liability under § 22a-74a for noise and noise pollution emanating from the site. (Def. Ex. 6, Letter from A. Rocque, dated April 23, 2004); (Def. Ex. 13, Letter from A. Spada, dated November 7, 2003.) Therefore, summary judgment as to the private nuisance count with regard to noise contamination is granted as to the individual plaintiffs. In conclusion, Metacon's motion for summary judgment as to count four is granted in its entirety.
CONCLUSION
In conclusion, the motion for summary judgment is denied in its entirety as to count three and granted in its entirety as to count four.