Irwindale is a sleepy little town in Los Angeles County in southern California that’s home to about 1,500 residents and a brand-new manufacturing facility for the world-famous Sriracha hot sauce manufactured by Huy Fong Foods Inc.
This spicy hot Thai chili sauce is popular the world over. It’s so popular Bon Appetit magazine named it the ingredient of the year; Lay’s now makes a Sriracha-flavoured potato chip; and, believe it or not, one of the most popular Halloween costumes this year was based on the distinctive Sriracha sauce bottle and rooster logo. And almost all of this Sriracha sauce — some 200,000 bottles a day — came from the plant in Irwindale.
That was the case until the City of Irwindale sued the makers of Sriracha sauce for an injunction related to nuisance. It complained the pungent smells of chili and garlic emanating from the plant every day were so intense they were interfering with the reasonable use and enjoyment of neighbouring properties.
Sriracha sauce only scores 2,200 on the Scoville scale for chili pepper heat. This is spicier than Frank’s RedHot that barely registers on the Scoville scale at a measly 450 but milder than, say, Tabasco sauce at 3,500 and positively impotent compared to Blair’s Reserves. It dominates the world of hot pepper sauces at around 13,500,000 on the Scoville scale. Be that as it may, it’s hard to imagine what it must be like to live downwind from a factory, no matter how modern, that turns out, from scratch, a million bottles of Sriracha sauce per week.
Typically, municipal zoning bylaws will prevent cases like the Sriracha dispute from ever arising in most communities with industrial, agricultural or manufacturing facilities zoned far enough away from more sensitive uses like residential ones to avoid nuisance complaints. However, that’s not always the case. Sometimes, whether because of legal non-conforming uses or some other reason, residential development finds itself legally coexisting right beside, or at least close to, incompatible competing uses, a situation that gives rise to the potential for the tort of nuisance.
The Huy Fong Foods matter affirms the general proposition that existing residential uses will almost always succeed in nuisance whenever the residential owners were the first to be there and the nuisance use moves into the neighbourhood some time later. In the Irwindale case, Huy Fong was clearly the newcomer, having moved in to the neighbourhood and building its massive, state-of-the art sauce facility within breeze-accessible distance of existing residential developments. What may come as a surprise to many practitioners, however, is that, in general, the same rules apply even if the nuisance use was there first and the surrounding lands were subsequently redeveloped for residential use. In other words, the downwind homeowners in Irwindale might still have been successful in curtailing production at the Sriracha plant even if the factory was the incumbent and those homeowners had been the ones moving to the nuisance.
The English courts have always held that, even if the nuisance was there first, it doesn’t allow it to continue if a neighbour complains. In the 1879 case of Sturges v. Bridgman, a doctor moved into a home that was adjacent to that of a candy maker operating a candy factory out of the back of his house. The doctor complained shortly after moving in, not so much about the smell of the candy but rather about the sound of the candy-making machinery. The English Court of Appeal held that even though the doctor was the one who was moving to the nuisance, that didn’t allow the candy maker to continue to be a nuisance. The doctor had a legitimate right to stop the candy maker from interfering with his reasonable enjoyment of his property.
About 100 years later in Miller v. Jackson, the English Court of Appeal again affirmed that just because a homeowner is the one moving to the nuisance, the newcomer could still have an action available with respect to the nuisance. Actually, the tortious landowner in Miller was neither industrial nor commercial; instead, it was the cricket club whose members kept hitting balls into the backyards of newly built houses at the edge of the cricket grounds. In Miller, the homeowners were clearly the newcomers, but like in Sturges, the court again held that moving to the nuisance was no defence to the tort of nuisance (although in Miller, the court denied injunctive relief with damages payable in lieu for the loss of the enjoyment of the affected backyards).
It’s likely the English line of cases is also the law in Canada, although there are a number of lawyers, mainly practising in rural communities, who staunchly maintain that city-slicker homeowners shouldn’t be able to move to the countryside and then sue to try to stop the sounds and smells of agricultural uses emanating from neighbours. Of course, what constitutes nuisance in a given scenario will vary on a case-by-case basis depending on the surrounding neighbourhood and will change over time. The sounds and smells that constitute a nuisance in Rosedale or Point Grey may not interfere with the reasonable use of property in, say, the industrial heartland of Hamilton.
Time will tell if Huy Fong Foods will appeal the decision. Until then, fans of Sriracha sauce should probably start hoarding bottles. The injunction, although just interlocutory, is likely to severely curtail production until alternative production facilities come on line. With a production run of a million bottles a week, that might not happen right away.
Jeffrey W. Lem is a partner in the real estate group at Miller Thomson LLP. His e-mail address is [email protected].
