[Cite as Szuch v. FirstEnergy Nuclear Operating Co.,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT OTTAWA COUNTY

Michael Szuch and Holly Szuch Court of Appeals No. OT-15-007

Appellants Trial Court No. 13CV396

v.

FirstEnergy Nuclear Operating Company, EPG2, LLC, and Erie Machine & Engineering, LLC DECISION AND JUDGMENT

Appellees Decided: February 19, 2016

*****

Erik J. Wineland, for appellants.

Denise M. Hasbrook and Emily Ciecka Wilcheck, for appellee, FirstEnergy Nuclear Operating Company.

*****

PIETRYKOWSKI, J.

{¶ 1} Appellants, Michael and Holly Szuch, appeal the decision of the Ottawa

County Court of Common Pleas, denying their request for a permanent injunction against

appellee, FirstEnergy Nuclear Operating Company (“FENOC”). For the reasons that

follow, we affirm, in part, and reverse, in part. I. Facts and Procedural Background

{¶ 2} In November 2010, appellants purchased approximately 62 acres of property

along Lake Erie in Ottawa County. Appellants do not reside on this property, but rather

use it for enjoying nature and hunting deer and waterfowl. Adjacent to appellants’

property on the east is Camp Perry, a National Guard training facility and the home of

several national marksman tournaments. To the northwest of appellants’ property is

ARES, Inc., which develops and tests weapons ranging from small weapons (.50 caliber

and below) to large arms (75 to 155 millimeter). Immediately to the west of appellants’

property is the land leased by FENOC, on which it constructed a firing range for the

purpose of training and qualifying, in accordance with federal regulations, the security

force for its nuclear power plant.

{¶ 3} The shooting range, which became operational in December 2012, consists

of three elements: (1) a 25-yard pistol range, oriented from the east to the west, (2) a

100-yard range, oriented from the south to the north, and (3) immediately to the east of

the 100-yard range, a 200-yard range, also oriented from the south to the north. At the

southern end of the 200-yard range is a 30-foot tower from which trainees shoot a .50

caliber weapon. The range was constructed with a 15-foot dirt backstop on the northern

end, and 8-foot dirt side berms on the east and west edges of the range. Later, FENOC

added a homemade 8-foot rubber bullet trap system to the front of the 15-foot backstop.

The parties differ on whether the east edge of the range itself is 66 feet or 283 feet away

from appellants’ property line.

2. {¶ 4} The range operates on a quarterly schedule. During the first quarter

(November through January), the range is used one day per week between 12:00 p.m. and

8:00 p.m. In the second quarter (February through April), the range is used one day per

week between 8:00 a.m. and 3:00 p.m. During the third and fourth quarters (May

through October), the range is used two days per week between 7:00 a.m. and 5:00 p.m.

The range is never used on the weekends. Notably, FENOC occasionally deviates from

the schedule due to the need to train new hires or qualify persons returning from military

or medical leave. In addition, the range is used by local law enforcement agencies

approximately twice per year.

{¶ 5} On October 11, 2013, appellants filed a nuisance action against FENOC.1

The complaint was subsequently amended twice to include claims of negligence,

trespass, property damage, public nuisance, private nuisance, absolute nuisance, qualified

nuisance, injunctive relief, punitive damages for intentional malice, and a claim that the

statutory limit on punitive damages was unconstitutional as applied. The second

amended complaint prayed for monetary damages as well as injunctive relief. Generally,

appellants alleged that FENOC’s construction of the firing range failed to meet the

required safety regulations, and FENOC’s operation of the firing range failed to comply

with the required noise and hours regulations, thereby interfering with appellants’ use and

enjoyment of their property.

1 The complaint also listed EPG2, LLC as a defendant. EPG2 owns the property that FENOC leased to build the firing range. The complaint was later amended to include Erie Machine & Engineering, LLC, as another defendant. EPG2 and Erie Machine & Engineering, LLC, are not parties to this appeal.

3. {¶ 6} The matter proceeded to a four-day bench trial beginning on October 29,

2014, on appellants’ claims seeking injunctive relief against FENOC.2 At the trial,

numerous witnesses testified, including range safety experts and noise experts for both

parties.

{¶ 7} Following the trial, the court entered judgment in favor of FENOC. The trial

court reasoned that FENOC was entitled to statutory immunity on both the noise and

safety nuisance theories. Further, the court found that even if FENOC was not immune,

appellants failed to show that the range created a public or private nuisance. Finally, the

court found that there was no basis to grant injunctive relief because there was no reliable

evidence showing that the range adversely affects any public or private interest, and there

was evidence showing that it does serve a critical public interest by allowing FENOC to

comply with mandatory training requirements for nuclear plant safety personnel.

Notably, at the end of its entry, the court concluded that “This decision is not intended to

decide and should not affect any issue for the remaining damage claims which are

properly triable by a jury.”3

II. Assignments of Error

{¶ 8} Appellants have timely appealed the trial court’s judgment, asserting six

assignments of error for our review:

2 The trial court bifurcated the injunction issues from the damage claims, stating that it “will schedule the damage issues trial after it concludes the injunction issues trial.” Neither party has objected to or appealed from the trial court’s bifurcation of the claims. 3 Appellants have not ascribed any error to this statement, and neither party has discussed its potential impact in their appellate briefs.

4. I. The trial court erroneously defined the “substantial compliance”

standard resulting in the failure to enter a permanent injunction.

II. The trial court did not adhere to the plain language of the noise

regulation, Ohio Adm. Code 1501:31-29-03(B)(1), resulting in the failure

to enter a permanent injunction.

III. The trial court erred in determining FENOC was entitled to

statutory immunity and failed to issue a permanent injunction based on the

noise levels when the evidence presented at trial demonstrated that FENOC

did not substantially comply with Ohio Adm. Code 1501:31-29-03(B)(1).

IV. The trial court erred in determining FENOC was entitled to

statutory immunity and failed to issue a permanent injunction when the

evidence presented at trial showed FENOC operated the shooting range

outside the allowable hours in violation of Ohio Adm. Code 1501:31-29-

03(C).

V. The trial court erred in determining FENOC was entitled to

immunity from the injunction claim when the evidence demonstrated that

FENOC did not substantially comply with the safety standards contained in

Ohio Adm. Code 1501:31-29-03(D) and the NRA Range Source Book.

VI. The trial court erred in denying injunctive relief.

5. III. Analysis

A. Whether FENOC is Entitled to Statutory Immunity

{¶ 9} Applicable here, R.C. 1533.85(C) provides:

Notwithstanding any contrary provision of law, the courts of

common pleas, municipal courts, housing divisions of municipal courts,

and county courts of this state shall not grant injunctive relief under

Chapter 3767. or any other section of the Revised Code, under an

ordinance, resolution, or regulation of a political subdivision, or under the

common law of this state against the owner or operator of a shooting range

in a nuisance action if the court determines that the owner’s or operator’s

actions or omissions that are the subject of a complaint substantially

complied with the chief’s noise rules or the chief’s public safety rules,

whichever apply to the nuisance action.

Thus, the threshold issue before us is whether FENOC “substantially complied” with the

applicable noise and safety rules,4 and is therefore entitled to immunity.

{¶ 10} Statutory immunity is an affirmative defense. State ex rel. Koren v.

Grogan,

,

(1994). “It is well settled in Ohio that

the defendant asserting an affirmative defense has the burden of proof in establishing

4 The parties do not dispute that the range operated by FENOC constitutes a “shooting range” as defined in the statute. R.C. 1533.83(B).

6. such defense.” MatchMaker Internatl., Inc. v. Long,

,

(9th Dist. 1995), citing Dykeman v. Johnson,

, 135,

(1910).

{¶ 11} In reviewing the trial court’s decision on immunity, we apply a de novo

standard of review to the trial court’s interpretation of the applicable noise and safety

rules. See State v. Consilio,

,

,

, ¶ 8

(interpretation of statutory authority is a question of law that is reviewed de novo).

However, the trial court’s determination of whether FENOC substantially complied with

those rules is a question of fact, which will not be reversed unless it is based on

insufficient evidence or is against the manifest weight of the evidence. See Olen Corp. v.

Franklin County Bd. of Elections,

,

(10th

Dist. 1988) (trial court’s determination of substantial compliance is generally a question

of fact that will not be reversed if it is supported by competent, credible evidence).

1. “Substantial Compliance”

{¶ 12} In their first assignment of error, appellants argue that the trial court erred

in defining “substantial compliance” for the purpose of determining whether FENOC was

entitled to immunity from the claims for injunctive relief.

{¶ 13} “Substantial compliance” is not defined in the statute. In conducting its

analysis, the trial court determined that “substantial compliance” “means that [FENOC]

generally complies even if it occasionally fails to comply.” Appellants argue that this

7. standard is an incorrect statement of the law, which tainted the trial court’s conclusion

that FENOC “substantially complied” with the noise rules. Appellants contend that

substantial compliance requires more than general compliance, citing State v. Burnside,

,

,

, for the proposition that errors

that are excusable under the substantial compliance standard are characterized as “minor

procedural deviations” or “clearly de minimis.” FENOC, on the other hand, argues that

the term “substantial compliance” is synonymous with the term “substantial

performance,” which is defined as, “[t]he rule that if a good-faith attempt to perform does

not precisely meet the terms of an agreement or statutory requirements, the performance

will still be considered complete if the essential purpose is accomplished.” State v.

Brooks, 11th Dist. Lake No. 2011-L-049,

, quoting Black’s Law

Dictionary (10th Ed. 2014).

{¶ 14} Upon review, we are not persuaded by appellants’ argument. Appellants

seek to establish a continuum of compliance wherein “general compliance” is less

onerous than “substantial compliance,” which is less onerous than “strict compliance.”

We decline to do so. The great weight of the case law suggests that “substantial

compliance” is only used as an alternative to “strict compliance,” thereby excusing

minor, technical deviations from the standard. See e.g., Burnside at ¶ 34; State v.

Francis,

,

,

, ¶ 46-48 (applying

substantial-compliance standard instead of a strict-compliance standard to recitation of

immigration-related consequences of entering a plea as provided in R.C. 2943.031(A)).

8. Indeed, we have found no cases attempting to draw a distinction between “compliance”

and “substantial compliance.” To the contrary, where a party has not substantially

complied with a standard, that party is found to be not in compliance. But see, State v.

Clark,

,

,

(requiring a

reviewing court to look for partial compliance where a trial court does not substantially

comply with Crim.R. 11 regarding non-constitutional rights for purposes of determining

if a plea should be vacated without a showing of prejudice). This is so because the issue

of substantial compliance is “whether the purpose of the statute has been served.” Olen

Corp,

,

. Where the purpose of the statute has not

been served, it follows that the party has not complied with the standard. Therefore, we

hold that the trial court did not err when it articulated the substantial compliance standard

as general compliance with occasional noncompliance, which is akin to minor or de

minimis deviations.

{¶ 15} Accordingly, appellants’ first assignment of error is not well-taken.

2. Whether FENOC Substantially Complied with the Noise Rules

{¶ 16} Appellants’ second and third assignments of error are interrelated, thus we

will address them together. In their second assignment of error, appellants argue that the

trial court misinterpreted the applicable noise regulation, while in their third assignment

of error, appellants argue that the trial court’s finding that FENOC complied with the

noise rules was not supported by the evidence.

9. {¶ 17} R.C. 1533.84 requires that the chief of the division of wildlife adopt rules

establishing generally accepted standards for shooting ranges. The statute specifies that

“These rules shall be no more stringent than national rifle association standards, and

include standards for the limitation and suppression of noise, standards for the hours of

operation of shooting ranges of the various types and at the various locations of ranges,

and standards for public safety.” R.C. 1533.84. The applicable noise rules are found at

Ohio Adm. Code 1501:31-29-03, which provides,

(B) Private and public shooting ranges in Ohio should substantially

comply with the listed noise or sound levels that are set to prevent hearing

damage and eliminate nuisance noise complaints. Noise or sound level

guidelines are described or explained in great detail in the (sic) “The NRA

Range Source Book, Section I, Chapter six, (1999 Edition).” For the

purpose of the chief of the division of wildlife’s standards for shooting

ranges, the following noise or sound levels apply:

(1) Unacceptable: If the sound level exceeds ninety decibels dB(A)

for one hour out of twenty-four hours or eighty-five decibels dB(A) for

eight hours out of twenty-four hours and the sound measuring receiver is

located at the boundaries of the range property.

{¶ 18} At issue between the parties is the question of what constitutes “one hour

out of twenty-four hours.” The trial court, in its decision, determined that the regulation

“defines an unacceptable noise level as 90 dBA for the average noise level for one

10. continuous hour during a 24 hour period.” Appellants disagree, and argue that the one

hour standard is not one continuous hour. Thus, they contend that FENOC violated the

standard when appellants’ expert averaged the noise over 10-minute intervals and found

more than six such intervals that exceeded ninety decibels in a 24-hour period. FENOC,

on the other hand, agrees with the trial court that the noise must be averaged over a

continuous one-hour period, and since its expert found that the maximum sound level at

the range during any one-hour period was 77 decibels, it therefore was in compliance

with the noise rules.

{¶ 19} The interpretation of an administrative regulation is subject to the same

canons as statutory interpretation. McFee v. Nursing Care Mgt. of Am., Inc.,

,

,

. Where the language used in a

regulation or statute is clear and unambiguous, the statute or regulation must be applied

as written, and no further interpretation is necessary. Vaughn Industries, Inc. v. Dimech

Servs.,

,

,

(6th Dist.), citing

Columbus & Franklin Cty. Metro. Park Dist. v. Shank,

,

(1992). If, however, the statute is subject to various interpretations, “a court

called upon to interpret its provisions may invoke rules of statutory construction in order

to arrive at legislative intent.” Cline v. Ohio Bur. of Motor Vehicles,

,

(1991).

11. {¶ 20} Here, we find Ohio Adm. Code 1501:31-29-03(B)(1) to be ambiguous as

the “one hour out of twenty-four hours” language could be interpreted to mean one

cumulative hour, or one consecutive hour.

{¶ 21} To resolve this ambiguity, we rely on the rule of statutory construction that

“words in statutes should not be construed to be redundant, nor should any words be

ignored.” E. Ohio Gas Co. v. Pub. Util. Comm.,

,

(1988). “Statutory language ‘must be construed as a whole and given such interpretation

as will give effect to every word and clause in it. No part should be treated as

superfluous unless that is manifestly required, and the court should avoid that

construction which renders a provision meaningless or inoperative.’” D.A.B.E., Inc. v.

Toledo-Lucas Cty. Bd. of Health,

,

,

, ¶

26, quoting State ex rel. Myers v. Bd. of Edn. of Rural School Dist. of Spencer Twp.,

Lucas Cty.,

, 372-373,

(1917).

{¶ 22} In applying this rule, we reject the trial court’s interpretation that the statute

requires one continuous hour of noise in excess of 90 dB(A). Such interpretation renders

the phrase “out of twenty-four hours” meaningless as one continuous hour of excess

noise will always violate the standard regardless of whether the reference period is 6

hours, 12 hours, 24 hours, or 48 hours. Similarly, less than one continuous hour of

excess noise will never violate the standard regardless of the reference period. Therefore,

to give effect to the phrase “out of twenty-four hours,” we conclude that the regulation

contemplates one cumulative hour of noise above 90 dB(A).

12. {¶ 23} The question then becomes how to measure the sound such that individual

periods can be added to determine whether the noise exceeds the threshold for one hour.

Notably, neither the administrative rules nor the NRA Range Source Book provide any

guidance on this issue. FENOC’s sound expert offered two methodologies. The first was

to record all of the sound over one hour, and then find the average decibel level for that

hour. In so doing, FENOC’s expert found that on April 23, 2014, the energy equivalent

sound level (LAeq) was 77 dB(A) between 10:15 a.m. - 11:00 a.m., 42 dB(A) between

11:00 a.m. - 12:00 p.m., 74 dB(A) between 12:00 p.m. - 1:00 p.m., 76 dB(A) between

1:00 p.m. - 2:00 p.m., and 68 dB(A) between 2:00 p.m. - 3:00 p.m. However, the

methodology of averaging the sound level over one-hour increments effectively results in

requiring an average sound level above 90 dB(A) for one continuous hour, which we held

is not the proper interpretation of the regulation. Furthermore, appellants’ sound expert

testified that averaging the sound level over one hour would “probably rarely, if ever,”

result in a reading above 90 dB(A) in a firing setting, rendering the regulation nugatory.

Therefore, this methodology is not persuasive.

{¶ 24} Alternatively, FENOC’s sound expert recorded the number of individual

seconds throughout the day during which the noise from the range exceeded 90 dB(A).

The expert reported that the range exceeded the 90 dB(A) threshold for 0.17 hours, or

approximately 10 minutes. Averaged over the firing period, FENOC’s range exceeded

the 90 dB(A) threshold approximately once every 28 seconds. Because the sound when

13. measured in one-second increments did not cumulatively exceed one hour, the expert

concluded that FENOC substantially complied with the standard.

{¶ 25} We also find this methodology unpersuasive. This approach would lead to

the absurd result that a shooting range would be in compliance with the noise rules even

though it averaged one instance above 90 dB(A) every 15 seconds continuously during

the day and evening hours from 7:00 a.m. - 10:00 p.m. Furthermore, similar to averaging

the sound over a one-hour period, recording the sound in one-second increments would

also lead to the practical reality that a shooting range could never violate the noise

regulations.

{¶ 26} In contrast to FENOC’s methodologies, appellants’ sound expert recorded

sound levels averaged over 10-minute intervals. During a three-hour period on January

14, 2014, appellants’ expert recorded 14 such intervals (2 hours and 20 minutes) in which

the energy equivalent sound level exceeded 90 dB(A).5

{¶ 27} However, we cannot subscribe to this methodology either. While the

methodology is reasonable in that, under it, a shooting range may actually be able to

violate the noise regulation, thus giving the regulation some utility, the selection of 10-

minute intervals appears to be arbitrary. We are given no reason why the sound should

5 Appellants’ expert recorded sound for two days in October 2013, and for several weeks in January 2014, yielding similar results. However, FENOC’s expert criticized the data from those recordings, particularly the recordings from January 2014, because the ambient temperature was below the sound meter manufacturer’s recommendations and because the wind speed was in excess of the recommended 12 mph. January 14, 2014, was a day in which the temperature and wind speed were within acceptable ranges. FENOC’s expert also criticized appellants’ expert’s placement of the meter and failure to calibrate the meter during the testing period, among other things.

14. not be averaged over 1-minute, 5-minute, 15-minute, or even 30-minute intervals. This is

clearly an area of opportunity for the Chief of the Division of Wildlife to promulgate

rules which would lend greater clarity to the standard, and the means by which the sound

can be measured to test compliance with that standard. To that end, the NRA Range

Source Book notes that some states, such as New Jersey, Illinois, and Connecticut, have

very clear noise laws regarding impulse sounds.6 See also Columbus Code of Ordinances

2329.11 (establishing maximum hourly average sound levels based on receiving land use

categories, measured during a period of no less than “sixty (60) consecutive minutes”).7

{¶ 28} Moreover, we do not feel compelled by necessity to embark upon an ill-

advised and un-informed attempt at crafting an appropriate sound level measurement

methodology to resolve the question of immunity. Here, FENOC has presented evidence

limited to the one-continuous-hour equivalent sound level measurements and the

cumulative one-second increments. Because we have determined that both of those

methodologies are incongruous with a reasonable interpretation of the noise regulation,

we hold that FENOC has failed to present any evidence supporting its affirmative defense

6 For example, Connecticut prohibits impulse noise in excess of 80 dB peak sound pressure level during the night to any Class A Noise Zone, and 100 dB peak sound pressure level at any time to any Noise Zone. Regs. Conn. State Agencies 22a-69-3.2. For comparison, appellants’ expert reported that FENOC’s expert’s measurements showed that the noise levels sometimes exceeded 115 dB(A). 7 Columbus prohibits one hour average sound levels above 65 dB(A) during the daytime for residential properties, 75 dB(A) during the daytime for commercial properties, and 80 dB(A) at any time for manufacturing properties. The maximum one-hour average recorded by FENOC’s expert on April 23, 2014, was 76 dB(A).

15. of statutory immunity based on substantial compliance with that regulation. Therefore,

the trial court’s finding to the contrary is based on insufficient evidence.

{¶ 29} Accordingly, appellants’ second and third assignments of error are well-

taken.

3. Whether FENOC Substantially Complied with the Rules Concerning Hours of Operation

{¶ 30} As an initial matter in their fourth assignment of error, appellants argue that

the Ohio Revised Code does not afford immunity to shooting ranges against claims based

on the hours of operation. Furthermore, they contend that the regulation requires strict

compliance, not substantial compliance. We disagree.

{¶ 31} As stated above, R.C. 1533.85(C) provides immunity from injunctive relief

to shooting range operators if the shooting range “substantially complied with the chief’s

noise rules or the chief’s public safety rules, whichever apply to the nuisance action.”

Importantly, R.C. 1533.83(D) defines “the chief’s noise rules” as “the rules of the chief

of the division of wildlife that are adopted pursuant to section 1533.84 of the Revised

Code and that pertain to the limitation or suppression of noise at a shooting range or to

the hours of operation of shooting ranges.” (Emphasis added.) Thus, R.C. 1533.85(C)

must be read as providing immunity if the shooting range “substantially complied with

the [hours of operation of shooting ranges].”

{¶ 32} We will now turn to appellants’ argument that the evidence did not support

the trial court’s finding that FENOC substantially complied with the hours of operation

regulation. We note that, unlike the noise regulation, the regulation concerning hours of

16. operation is simple and easily applied. Ohio Adm. Code 1501:31-29-03(C) provides,

“The hours of operation for shooting ranges shall be from seven a.m. to ten p.m. daily,

except for indoor or archery ranges.”

{¶ 33} Appellants contend that FENOC violated this regulation on one day in

August 2013. On that day, Michael Szuch heard gunfire coming from the range between

4:00 a.m. and 5:00 a.m. Szuch testified that he contacted Jose Vidal, who works in site

protection as a security trainer for FENOC, about the shooting, and Vidal stated that they

had to requalify some people for low light shooting. Regarding this incident, Vidal

testified that they do not operate the range outside of the hours of 7:00 a.m. - 10:00 p.m.,

and that while he remembers a conversation about shooting early for low light

qualification, he does not remember that the times 4:00 a.m. and 5:00 a.m. were

discussed. Vidal stated that he could not believe that they shot before 7:00 a.m., but he

does not remember what time they shot that morning. No investigation was conducted by

FENOC to determine whether they shot outside of the permitted hours in August 2013.

Nonetheless, Gregory Cramer, the manager of site protection, testified in an affidavit that

“I am aware that the shooting range does not operate outside of the hours of operation set

forth in

:31-29-03(C).”

{¶ 34} Concerning the issue of immunity for violation of the hours of operation

rules, the trial court found, among other things, that “that single incident would not deny

FENOC’s immunity to sound injunction claims, even if it had been the source of that

noise.” We agree. Even assuming that FENOC did in fact fire between 4:00 a.m. and

17. 5:00 a.m. on one morning in August 2013, such solitary violation is de minimis.

Therefore, we hold that the trial court’s conclusion that FENOC is entitled to statutory

immunity from appellants’ nuisance claims based on the hours of operation is not based

on insufficient evidence nor is it against the manifest weight of the evidence.

{¶ 35} Accordingly, appellants’ fourth assignment of error is not well-taken.

4. Whether FENOC Substantially Complied with the Safety Rules

{¶ 36} In their fifth assignment of error, appellants argue that the trial court erred

when it determined that FENOC was entitled to immunity based on its substantial

compliance with the safety rules.

{¶ 37} Ohio Adm. Code 1501:31-29-03(D) provides,

Private and public shooting ranges should substantially comply with

safety guidelines generally recognized and accepted by the national rifle

association (NRA). Suggested safety guidelines are described or explained

in great detail in “The NRA Range Source Book, Section I, Chapter 2,

(1999 Edition.)”

The administrative regulation also includes a requirement that a shooting range have an

implemented safety plan that substantially includes approximately 20 different items in

the categories of gun handling rules, general range rules, and specific range rules. Ohio

Adm. Code 1501:31-29-03(D).

{¶ 38} In finding that FENOC substantially complied with the safety regulations,

the trial court referenced the presence of trained instructors to monitor, supervise, and

18. direct all firearms use, the presence of 15-foot backstops with rubber bullet entrapments,

side berms, and the physical locking mechanism restricting the direction that the .50

caliber rifle can be aimed. The court acknowledged appellants’ concern that Holly Szuch

heard a bullet whiz past her on their property, but commented that appellants have never

found any bullets or bullet marks on their property. The court also found that FENOC’s

expert was more reliable than appellants’ expert, and accepted FENOC’s expert’s

testimony that “its 15-foot backstops with rubber bullet entrapments, adequate side

barriers, and rigorous supervision by trained instructors substantially comply with the

NRA safety guidelines and the Wildlife Chief’s regulations.”

{¶ 39} Appellants argue that the trial court’s findings were not supported by the

evidence, citing several physical components that failed to meet the NRA’s standards.8

{¶ 40} First, they note that the backstop at the range is only 15-feet high, but in the

NRA Range Source Book, Section I, Chapter 1, Article 3.04.5.1(C), the suggested height

is 20 feet. According to FENOC’s expert, the height of the backstop is important because

“the lower back stops permit more frequently deflected bullet escapement.” The trial

testimony indicates that the initial plans called for a 20-foot backstop, but the height was

lowered to 15 feet after Robert Karr, FENOC’s shooting range project manager,

“Googled something saying range backstop height.” Notably, appellants point out that

8 Appellants also cite FENOC’s failure to utilize a “surface danger zone” and absence of a posted safety plan as additional reasons that FENOC does not substantially comply with the safety rules. Because of our resolution based on the shooting range’s physical characteristics, we need not reach those issues.

19. the three FENOC employees responsible for the range construction project had no

experience in shooting range design, and no consultant was hired.

{¶ 41} Appellants’ range safety expert testified that the lower height was not

substantially compliant with the applicable guidelines. In contrast, FENOC’s expert,

while acknowledging that he would recommend that the backstop height be increased to

20 feet, nonetheless testified that the backstop substantially complied because of the

eight-foot homemade rubber bullet trap system. However, appellants contend that

FENOC’s expert’s opinion is faulty because the 1999 edition of the NRA Range Source

book that is cited in the regulation only recognizes rubber bullet trap systems for indoor

ranges, and even then discourages range operators from building their own bullet trap

systems.

{¶ 42} In addition to the height of the backstop, appellants cite the presence of

rocks and debris on the face of the backstop and side berms as further non-compliance

with the NRA guidelines. The NRA Range Source Book, Section I, Chapter 1, Articles

3.04.5.1(A) and 3.04.5.3(A) state that the surface area of the backstop and side berms

must be free of rocks and debris to a depth of 18-24 inches and 12 inches, respectively.9

Both experts agreed that the side berms and the backstop above the rubber bullet trap

system contained rocks and gravel on their surface, although FENOC’s expert contended

that in various parts of the NRA Range Source Book only large rocks were prohibited.

9 Article 3.04.5.1(A) states surface areas must be “rock free soil.” Article 3.04.5.3(A) states surface areas must be “rock and debris-free.”

20. The presence of rocks can lead to bullet deflections, which may result in bullets escaping

from the range. Vidal confirmed that bullets have ricocheted at the range.

{¶ 43} Appellants also mention that the shooting range is not in compliance with

regard to its use of range flags. The NRA Range Source Book, Section II, Chapter 2,

Article 4.01.2 notes that range flags are used as a means of communicating with shooters

and those who frequent the area. The flags indicate when the range is active. Vidal

testified that FENOC leaves its flags up constantly. Appellants’ expert also reported this,

noting that the flag was left up even after he was given a safety brief and told that the

range was clear and he was safe to go. Appellants’ expert opined in his report that “[b]y

constantly flying this flag, non-users may frequently see flag flying when range is

inactive and be lulled into inattentiveness/disregard.”

{¶ 44} In response, FENOC argues that there is no evidence that a single bullet

has ever escaped the range. FENOC attacks Holly Szuch’s testimony that she heard a

bullet whiz past her as not credible because she never disclosed the incident to FENOC

prior to the lawsuit, did not report it to her safety expert even though he was studying the

issue of bullet containment, nor did she mention it at her deposition, instead waiting until

the trial to bring it to light for the first time. Further, FENOC points out that it is the trial

court’s role to determine what testimony is credible and convincing, and in this case, the

trial court found FENOC’s expert to be more reliable. Thus, because FENOC’s expert

testified that the shooting range substantially complies with the NRA Range Source Book

guidelines, the trial court’s finding to that effect is supported by the evidence.

21. {¶ 45} We disagree, and hold that the trial court’s finding that FENOC

substantially complied with the safety rules is against the manifest weight of the

evidence. It is undisputed that the backstop at the range is five feet shorter than the

guidelines recommend. Where the purpose of the backstop is to keep bullets contained

within the range, a five-foot deviation is not clearly de minimis. Although FENOC’s

expert relies on the presence of the rubber bullet trap system to bring the range into

compliance, such a system is not provided for in the controlling guidelines of the 1999

NRA Range Source Book. The height of the backstop, in addition to the presence of

rocks in the face of the back stop and side berms and the improper use of the range flags,

militates the conclusion that the shooting range does not substantially comply with the

safety guidelines contained in the NRA Range Source Book.

{¶ 46} Accordingly, appellants’ fifth assignment of error is well-taken.

B. Whether Appellants’ are Entitled to a Permanent Injunction

{¶ 47} Having determined that FENOC is not entitled to immunity on appellants’

noise and safety nuisance theories, we now turn to appellants’ final assignment of error,

in which they argue that the trial court erred when it failed to grant a permanent

injunction.

{¶ 48} “An injunction is an extraordinary remedy in equity where there is no

adequate remedy available at law.” Garono v. State,

,

(1988). “The grant or denial of an injunction is solely within the trial court’s

22. discretion and, therefore, a reviewing court should not disturb the judgment of the trial

court absent a showing of a clear abuse of discretion.”

{¶ 49} The party requesting a permanent injunction must prove the existence of a

nuisance and demonstrate by clear and convincing evidence that (1) the plaintiff will

suffer irreparable injury if the injunction is not granted, (2) the rights of third parties will

not be unjustifiably harmed if the injunction is granted, and (3) the injunction will serve

the public interest. Novy v. Ferrera, 11th Dist. Portage No. 2013-P-0063, 2014-Ohio-

1776, ¶ 55; Procter & Gamble Co. v. Stoneham,

,

(1st Dist. 2000).

{¶ 50} A nuisance is “the wrongful invasion of a legal right or interest.” Taylor v.

Cincinnati,

,

(1944). Nuisance may be designated

as “public” or “private.” A public nuisance is “an unreasonable interference with a right

common to the general public.” Kramer v. Angel’s Path, L.L.C.,

,

,

(6th Dist.), quoting Brown v. Scioto Cty. Bd. of

Commrs.,

,

(4th Dist. 1993). In contrast, a

“private” nuisance is “a nontrespassory invasion of another’s interest in the private use

and enjoyment of land.”

. Nuisance may be further divided into

“absolute” and “qualified.” “An absolute nuisance, or nuisance per se, is based on

intentional conduct or an abnormally dangerous condition that cannot be maintained

without injury to property, no matter what precautions are taken.” Id. at ¶ 19. A

23. “qualified” nuisance, on the other hand, “is a lawful act ‘so negligently or carelessly done

as to create a potential and unreasonable risk of harm, which in due course results in

injury to another.” Id. at ¶ 21, quoting Metzger v. Pennsylvania, Ohio & Detroit RR. Co.,

,

(1946), paragraph two of the syllabus. “For there to be

an action for nuisance, the injury must be real, material, and substantial.” Banford v.

Aldrich Chem. Co., Inc.,

,

,

.

“Damages for nuisance may include diminution in the value of the property, costs of

repairs, loss of use of the property, and compensation for annoyance, discomfort, and

inconvenience.” Id.

1. Whether Appellants Have Proven the Existence of a Nuisance Based on Noise Emanating from the Range

{¶ 51} In determining that a noise nuisance did not exist, the trial court examined

the surrounding conditions, such as the fact that there are no nearby residences and that

other shooting activities affect appellants’ property, including Camp Perry, the Toussaint

Hunt Club, which it found was within “projectile and/or sound range” of appellants’

property, and ARES, Inc. In addition, the court found that appellants failed to support

their claim that FENOC’s shooting range frightens away deer or waterfowl. Finally, the

court found that there was no reliable evidence that the FENOC range adversely affects

any public interest, or that it unreasonably impairs appellants’ expected use for their

property.

24. {¶ 52} Appellants, while commingling their noise and safety nuisance claims in

their assignment of error, argue that the evidence demonstrates both a public and private,

absolute and qualified nuisance. Relative to the public nuisance theories, we hold that the

trial court’s decision is not against the manifest weight of the evidence as there was no

testimony that other properties, individuals, or the general public were impacted by the

noise from the range.

{¶ 53} Turning to the private nuisance theories, appellants contend that FENOC’s

violation of the noise regulations constitutes a nuisance per se. See Metzger,

,

, at paragraph one of the syllabus (a nuisance per se consists of “an

act involving culpable and unlawful conduct causing unintentional harm”). FENOC

disagrees, arguing that the noise regulations are not required “safety statutes,” but instead

are merely criteria for determining whether a shooting range is entitled to immunity. We

concur with FENOC’s position. Violation of the noise regulations strips the shooting

range of its immunity from nuisance claims, but it does not categorically mean that the

shooting range is unlawful. Thus, we find appellants’ contention that the FENOC

shooting range constitutes a private, absolute nuisance to be without merit.

{¶ 54} Alternatively, appellants argue that the operation of the range above the

noise regulations is evidence of negligence sufficient to establish a qualified nuisance.

We agree, and hold that the trial court’s finding that the shooting range does not

unreasonably impair appellants’ expected use for their property is against the manifest

weight of the evidence. Although the trial court references appellants’ failure to prove

25. that the shooting activities have scared away deer or waterfowl available for hunting, the

court’s decision does not consider the testimony from both land appraisal experts that the

presence of a gun range adjacent to a property has a negative influence on that property’s

value. Further, appellants’ land appraisal expert testified that hunting and recreation is no

longer the best and highest use of the land, and that its best use would be limited to a

“buffer zone” because of its proximity to the shooting range and the severe deed

restrictions on the land, which provide:

The Property shall be used for hunting purposes (including bow

hunting and gun hunting) and the storage of commercial equipment and

fishing nets owned by Grantee only (“Permitted Uses”). Under no

circumstances shall any industrial activities or manufacturing occur on the

Property. Without the consent of the Grantor, which consent may be

without in its sole discretion, no portion of the Property shall contain wind

turbines, solar panels or similar energy producing devices. No portion of

the Property or any building therein shall be used or permitted to be used

for any purpose (other than Permitted Uses) which may endanger the health

of the neighborhood.

FENOC’s expert testified that the best and highest use for the land was, and has always

been, conservation, not hunting and fishing, but that the land is unlikely to be suitable for

a park because of the gun ranges around it, and “people would not be inclined to go to an

area where there is potential gun fire.” Finally, there was testimony from several of the

26. experts who visited the range that the noise was so loud that it could be felt on appellants’

property. Therefore, we hold that the trial court erred in not finding a private, qualified

nuisance based on the noise from FENOC’s range.

2. Whether Appellants Have Demonstrated a Nuisance Based on Bullets Escaping the Range

{¶ 55} As with their noise nuisance theories, appellants argue that the safety

conditions at the shooting range constitute both a public and private, absolute and

qualified nuisance because they result in bullets escaping the range. To support their

position, appellants rely on Vidal’s testimony that ricochets occur at the range, and Holly

Szuch’s testimony that she has heard bullets travelling past her while she was on her

property. The trial court, however, found appellants’ claims of bullet escapement to be

unwarranted. In its discussion of immunity on the safety conditions, the trial court noted

that there is no direct evidence that any of the more than 300,000 bullets fired have ever

escaped FENOC’s shooting range, as no bullets or bullet marks were ever found on

appellants’ property. While we recognize the practical difficulty of finding evidence of

bullet escapement on appellants’ 62-acre property, we nevertheless cannot hold that the

trial court’s decision is against the manifest weight of the evidence. Compare Battelle

Mem. Inst. v. Big Darby Creek Shooting Range,

,

,

(12th Dist.) (employees heard whistling of bullets, eight bullet impact

areas were found on a building, and a car and air conditioning unit were found to have

been struck by bullets).

27. 3. Whether the Trial Court Abused Its Discretion in Denying the Request for an Injunction

{¶ 56} Finally, having held that the noise from FENOC’s shooting range

constitutes a private, qualified nuisance, we turn to the question of whether the trial court

abused its discretion in denying the injunction. To be entitled to an injunction, appellants

must demonstrate by clear and convincing evidence that (1) the plaintiff will suffer

irreparable injury if the injunction is not granted, (2) the rights of third parties will not be

unjustifiably harmed if the injunction is granted, and (3) the injunction will serve the

public interest. Novy, 11th Dist. Portage No. 2013-P-0063,

.

Here, the court found that there is no reliable evidence demonstrating that the shooting

range affects any public interest, but that the range does serve a critical public interest by

complying with the mandatory training requirements for nuclear plant safety personnel.

{¶ 57} In arguing that the court abused its discretion, appellants cite the

diminution of property value as the irreparable harm sufficient to grant an injunction.10

Appellants next argue that an injunction will not harm third parties because FENOC

could use, and has used in the past, other shooting ranges to qualify its security personnel.

Further, appellants contend that an injunction would serve the public interest because it

would ensure that shooting ranges abide by NRA guidelines, which have as their goal the

development of good relationships between range operators and the neighboring property

owners and community at large.

10 Appellants also cite their fear of using the property because of the potential for bullet escapement. However, that justification is applicable only to the safety nuisance claim, not the noise nuisance claim.

28. {¶ 58} Notwithstanding appellants’ arguments, we hold that the trial court did not

abuse its discretion in denying the injunction. First, we note that the diminution of

property value is remediable in law through damages that may be proven and

compensated for in money. Antonik v. Chamberlain,

,

(9th Dist. 1947). Thus, that injury is not irreparable. Furthermore, the harm is

mitigated by the fact that appellants do not reside on the property, only using it for

recreation (and the occasional storage of fishing equipment) instead, and FENOC only

fires once or twice during the week, and never on the weekends. Finally, we cannot

disagree with the trial court that the continued operation of the shooting range is in the

public’s interest as it provides the required training for security officers at a nuclear

power plant.

{¶ 59} Accordingly, appellants’ sixth assignment of error is not well-taken.

III. Conclusion

{¶ 60} For the foregoing reasons, the judgment of the Ottawa County Court of

Common Pleas is affirmed, in part, and reversed, in part. The portions of the judgment

finding that FENOC is entitled to statutory immunity from appellant’s noise and safety

nuisance claims, and that appellants have not proven a noise nuisance are reversed. The

rest of the trial court’s judgment is affirmed. The matter is remanded to the trial court for

further proceedings on appellants’ claims for damages. Pursuant to App.R. 24(A)(4),

costs of this appeal are to be shared evenly by the parties.

Judgment affirmed, in part and reversed, in part.

29. OT-15-007 Szuch v. Firstenergy Nuclear Operating Company, EPG2, LLC, and Erie Machine & Engineering, LLC

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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