Posted by: Patricia Salkin | March 15, 2020

CA Appeals Court Finds Condominium Owners Failed to Allege Any Conduct That Was Actionable as a Nuisance Against Memorial Park for Rooftop Installation of a Mausoleum

This post was authored by Matthew Loescher, Esq.

Appellants, 32 owners of condominiums in a complex directly across from a mausoleum operated by respondent Green Hills Memorial Park, sued Green Hills and the City of Rancho Palos Verdes for nuisance and related claims concerning Green Hills’s installation of a rooftop interment area on the mausoleum. Appellants alleged that the rooftop facility caused noise from burials, mold and pests from the rooftop green area, and invasion of privacy from mourners peering into their homes. Green Hills filed a motion for judgment on the pleadings, arguing that the City had expressly approved the rooftop facility through permits and resolutions. The trial court granted the motion without leave to amend.

Specifically, the trial court held that the nuisance claims were precluded as a matter of law under section 3482, as the City authorized the rooftop interments and other conduct related to the Mausoleum that Appellants challenged. Pursuant to Section 3482, “nothing which is done or maintained under the express authority of a statute can be deemed a nuisance.” Here, the Complaint did not allege that Green Hills violated any of the conditions that the City established in its maintenance of the Mausoleum rooftop or in its conduct of the burials and funerals that were performed there. Instead, the Complaint merely challenged the proximity of the Mausoleum to Appellants’ condominiums and Green Hills’s ability to maintain any rooftop interments on the Mausoleum. As such, the court found Section 3482 explicitly precluded these types of claims.

Next, appellants argued that the number of rooftop interments on the Mausoleum constituted a nuisance. Appellants further contended that the City’s November 17, 2015 Resolution permitted an “unspecified number of roof-top interments,” which opened the door to “the possibility that excessive use would create a nuisance.” The court determined that this argument ignored the conditions that the City imposed on rooftop use. The record reflected that the City limited Mausoleum rooftop burials and funerals to five hours per day, between the hours of 10:00 a.m. to 3:00 p.m., with specific restrictions on noise and requirements for screening. Therefore, the City’s approval of rooftop interments addressed both the amount and the manner of use. Moreover, by the City imposing limits, the court found the City necessarily approved use within those limits.

Appellants lastly claimed that the trial court erred in failing to grant their motion for a new trial based on newly discovered evidence. In support, Appellants cited a resolution that the City adopted on August 7, 2018, concerning a grading permit for the development of new interment sites in a different area of the Green Hills facility not involving the Mausoleum. Counsel for Appellants actually referred to the August 7, 2018 Resolution during oral argument on the motion for judgment on the pleadings, arguing that it showed the City had never authorized a “specific number of allowed interments.” Regardless of whether the Green Hills master plan was advisory or mandatory with respect to the question of density, the City’s resolutions themselves specifically authorized rooftop interments on the Mausoleum and imposed conditions on their use, including the hours in which services and burials may be performed. The record reflected that the City approved use within the scope of those conditions, and Appellants did not allege any failure to comply with those conditions and therefore have not identified any conduct that was actionable as a nuisance. Accordingly, the judgment was affirmed.

Loveys v Green Hill Memorial Park, 2020 WL 1270777 (CA App. unrep. 3/17/2020)

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