|Legal Opinion: |
Text of Document: May 20, 1991
This is in response to your question whether the City is entitled to enforce its nuisance ordinance against a property owner where the activity amounting to a nuisance existed prior to the property becoming a part of the City.
As you described the situation, a property owner, in a residential area, is keeping bees, which the neighbors complain are swarming and causing a health hazard. The property owner claims his bee-keeping was "grandfathered" when his property was annexed and, because of the preexisting use, he may not be enjoined from continuing to keep bees on the property.
The first question to answer is whether the activity is, in fact, a nuisance, actionable under your code of ordinances. Your code makes it unlawful to:
"...allow the breeding of flies, rodents, or other vermin on the premises to the menace of the public health or the annoyance of people residing within the vicinity." § 8-407. Health and sanitation nuisances.
Whether a bee qualifies as "vermin" is not entirely clear. Webster's defines vermin to be: "1:noxious, mischievous, or disgusting animals of small size, of common occurrence, and difficult to control." I cannot say whether bees would fall into this definition, but it is probably worth the effort to attempt to enforce this code provision given the number of complaints, and the close proximity of these bees to nearby residences.
While I cannot find any Tennessee cases directly on point, other state courts have determined that the keeping of bees may, depending on the circumstances, constitute a nuisance. McQuillen, Municipal Corporations, 3d Ed. Vol.7, § 24.298, p.222. Citing 88 ALR 3d 992. Apparently, beekeeping is not a nuisance per se, but may become a nuisance depending on the specific facts.
If the presence of beehives in this residential neighborhood is found by a court to constitute a nuisance, the law is clear that there is no right to maintain a public nuisance based upon prescription. That is, the fact that such an activity has been going on for a long period of time, with no objection from either the city or the residents, does not prevent the city from prosecuting the property owner under the code provisions declaring such an activity a nuisance. McQuillen, Municipal Corporations, 3d Ed., Vol 6A, § 24.58 p.175. Thus, this property owner has no "grandfather" (pre-existing) or other rights to operate a nuisance. Regardless of when his property was annexed, he must get rid of the bees if a court determines them to be a nuisance.
If you have any further questions about this or any other matter please do not hesitate to contact me.