As the court noted, the difference between a permanent nuisance and a continuing nuisance continues to be one of the most baffling areas of the law. A nuisance is permanent if the damage it causes is complete when the action creating the nuisance first occurs, and gives rise to a single cause of action that initiates the running of the statute of limitation. On the other hand, a nuisance is not permanent if it causes continuing damage, and is one which can and should be abated by the person erecting or maintaining it. If it is continuing, every continuance of the nuisance is a fresh nuisance for which a fresh cause of action arises and a fresh statute of limitation runs. Thus, the category of nuisance controls the application of the statute of limitations.
The Sewell Creek plant is a gas fired power plant that began operating in 2000. Thus, if it is a permanent nuisance the 2007 lawsuit would be time barred. The facility does not operate continuously, but is designed to generate power only when energy usage exceeds the capacity generated by base and intermediate plants, such as on hot summer days. The plant is powered by four gas turbine engines similar to jet airplane engines, used because they can be turned on and off quickly.
Shortly after the plant opened in 2000 the neighbors complained of the noise and vibrations from the turbines. Before the 2002 operating season Sewell Creek added took action to reduce the noise and vibrations. The noise died down but in 2004 it returned, becoming louder with more of a rumbling sound. In 2005 the noise became even louder, in 2006 a booming noise arose, and in 2007 a high-pitched squeal began, with the plant operating more often and later at night. One neighbor testified that at times the plant was so loud that even indoors the family "could not basically function." An expert testified that the noise at the Sewell Creek plant could in fact be reduced by retrofitting the plant at a cost ranging from $2-8 million.
Sewell Creek argued that the noise was a permanent nuisance and thus time barred by either one of two statutes of limitations: (1) the 12 month statute of limitation for certain claims against EMCs under OCGA § 46-3-204, or (2) the four year statute for trespass or damage to realty under OCGA § 9-3-30. The plant moved for summary judgment. The landowners stated that the plant was not a permanent nuisance because the noise and vibrations have changed during the plant's operations, and that the problems can be abated. As to the EMC statute of limitations, the court rejected Sewell Creek's argument that the statute of limitation applies to all property rights claims against EMCs. Instead, the court found that the statute applied only to rights of way or easements or the occupying of lands of others, not to nuisance cases.
As to the claim of continuing versus permant nuisance, the court found that summary judgment was inappropriate. The defendants argued that because the plant is a public enterprise, the nuisance can only be continuing if it is caused by a minor feature and can be remediated at slight expense. They claimed that the exhaust stacks would have to be completely demolished and rebuilt to retrofit them as the landowners demanded, at great expense. The plant also argued that the 2002 modifications of the plant did not toll the running of the limitations period since 2000. The court affirmed the denial of summary judgment, noting that the landowners did not complain about the mere presence of the plant, but only the operation, which produced variable noise that increased markedly after 2004. As to whether the noise could be abated, the court agreed with the trial court that there was a sharp conflict in the evidence, with the plant arguing that it would have to be shut down and completely rebuilt to end the noise, while the landowners contended that the plant could be repaired at a small percentage of the $200 million cost to build it.
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