Smithville Municipal Judge Hilton Conger, following a lengthy hearing Tuesday, dismissed a citation against Seth Billingsley alleging that he was in violation of city property maintenance regulations and creating a nuisance for neighbors in the community by having horses on his property.
Seth and his wife Janohn Billingsley reside at 857 Anthony Avenue and the horses are kept in an adjoining pasture between Anthony and Luttrell Avenue on Waycross Way.
Had Billingsley been found in violation, Judge Conger may have only imposed a $50 fine. He apparently had no authority to force Billingsley to remove the horses from the property as City Attorney Vester Parsley, Jr. pointed out during his closing statement before the judge’s ruling.
“I really don’t think the city has the authority or the court to ask that the Billingsley’s move their horses. I don’t think that is provided for in the ordinance. It does provide for a fine and that’s all. It can be a violation for each time but we’re only asking about this one violation and not for each day or each occasion that it occurred.”
Billingsley was cited into city court by the police department. Chief Richard Jennings says he surveyed the property on Friday, November 23rd and found probable cause to issue the citation after smelling the odor of horse manure coming from the property. Lieutenant Steven Leffew was with Chief Jennings at the time of the investigation and also smelled the odor but said he did not find it noxious or offensive.
Five of the closest neighbors to the horse pasture were among those who testified Tuesday for the city claiming that they could smell the odors from their homes.
Thomas Smith, who resides at 857 Luttrell Avenue, said that last summer he experienced a problem with flies and the smell of horse manure which made it hard for him to cook out.
Russell Watson, of 847 Anthony Avenue, testified that he could not detect the scent from his home but that he did smell the odor on the lots he owns next to his home, where he grows a garden and Irises each year.
Jean Hayes, of 849 Luttrell Avenue, said the odor has been bad at times. “I don’t set on my front porch as much in the summer time. The flies are worse and I can’t cook out sometimes because of the smell.” She said blowing winds and the drought last summer seemed to intensify the odor problem..
Brenda Foster, of 570 Miller Road, also complained about the odors and flies, which she testified were very offensive to her. Foster said her husband, Walter Foster, who died last week, had also been concerned about this problem and tried for the past two or three years to get something done about it. Foster added that she often visits and helps take care of Mary Turner, who lives across the street from her, and she can smell the scent there too.
Carolyn Thomas, of 854 Luttrell Avenue, testified that she and her husband Willie Thomas can’t cook out or entertain company outside because of the smell and the flies. She said it was worse in the summer time and when the wind was blowing. Thomas testified that this has been a problem ever since the horses have been there and that there is no way to avoid the smell.
However, Janohn Billingsley, during her testimony, produced a photograph she had taken, showing the Thomas’ at an outside gathering at the their home with some people in December 2007, on a day when the weather was nice. Billingsley said the Thomas’ were outside for at least an hour.
Others who testified for the city were Wendy Bain and Thomas Vaughn. Bain, daughter of Willie and Carolyn Thomas said she visits her parents daily and has noticed the odors and flies, which she finds offensive. She added that the smell seems to be worse during the heat of the day.
Vaughn, who lives at 801 Luttrell Avenue, said he has been walking regularly for the past couple of years since having heart surgery in 2005 and smells the horse manure each time he walks by the property.
Several neighbors were also called to testify for the defense including Wallace and Carolyn Caldwell of 866 Anthony Avenue, Jesse and Patsy Drury of 862 Anthony Avenue, W.J. Page of 826 Anthony Avenue, Dwayne Page of 841 Luttrell Avenue, Frankie Caldwell of 920 Earl Avenue, Efrain Rivera of 846 Anthony Avenue, Bill Phillips of 842 Luttrell Avenue, Jill Watson of 847 Anthony Avenue, Tina Rowland of 839 Anthony Avenue, Tiffany Huggins of 827 Anthony Avenue, and Wendy McCoy of 846 Anthony Avenue. All stated that they could either smell no odors from the horse pasture or that it wasn’t strong enough to be offensive to them.
Three city officials testified for the defense, Mayor Taft Hendrixson, Alderman Steve White, and City Building Codes Inspector Eugene O’Neal.
Mayor Hendrixson said he owned property on Kendra Drive and would often pass by the horse pasture when he was in the area, especially after this became an issue, but he never detected any odors.
Alderman White, who was already familiar with the area as a mail carrier, said he has driven by the horse pasture on several occasions since the complaints have surfaced and has never smelled any odors.
O’Neal testified that he has inspected the property six times since July, 2006 and has never detected any offensive smells from horse manure there.
Gerald England, former pastor of the Temple Baptist Church on Miller Road, and Thurman Hudson, a deacon at the church, testified that they have never experienced any problems with flies or offensive odors during church fellowship cookouts and meetings. The fellowship hall is only a few feet from the Billingsley’s horse stalls.
Sandy Brown, President of the DeKalb County Humane Society, testified that she has inspected the horse pasture about six times since September, 2007 and found the property and the horses well kept, with no major problems with flies or manure.
Seth Billingsley testified that he has kept from two to four horses on this property since 2005. During his testimony, Billingsley said he keeps the horses and property well maintained. He claims the stalls are cleaned out once or twice daily depending on the need and that the manure from the pasture is usually collected weekly and provided to others for use as fertilizer. He said fly control products are also used in his operation along with a bedding of pine pellets in the stalls to help maintain a cleaner environment for the horses.
The citation against Billingsley alleged that he was in violation of a city ordinance in regard to:
“Health and Sanitation nuisances.”
The ordinance states that “It shall be unlawful for any person to permit any premises owned, occupied, or controlled by him to become or remain in a filthy condition, or permit the use or occupation of same in such a manner as to create noxious or offensive smells and odors in connection therewith, or to allow the accumulation or creation of unwholesome and offensive matter or 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.”
The ordinance also states that “No animal or fowl shall be kept in such a place or condition as to become a nuisance either because of noise, odor, contagious disease, or other reason.”
In his closing argument, City Attorney Parsley said the burden of proof had been met to find Billingsley in violation of the city ordinances. “What we have heard today is that those who live very close by all said that at times the smell is offensive to them. The ordinance doesn’t say how many people have to consider it offensive. I think one would not be sufficient, maybe even two, but we’ve got at least four folks who have come up here and testified about being neighbors. That they consider it offensive and it’s interfering with their peaceful enjoyment of their property and because of that we feel that we’ve carried the burden of proof which is only by the preponderance of the evidence.”
Sarah Cripps, attorney for the Billingsley’s, disagreed. “Even two witnesses from the police department who visited the property don’t agree on what they smelled, whether they smelled anything, or whether it was a nuisance to them. I cannot believe this statute should be interpreted to mean that one, two, or a few people in an entire neighborhood can be held to change the character of that neighborhood. Some people said they saw more flies, some people said they didn’t. But I do not believe in any way, shape or form, the city has carried it’s burden to prove that there exist a nuisance on this property. The city’s own officials could not even support the city’s conclusion or the assertions of the citation that there exists a nuisance pursuant to these statutes. I think the citation ought to be dismissed and I’m asking the court to do that.”
In dismissing the citation, Judge Conger, said the city’s reliance on the “Health and Sanitation nuisances” regulation in this case is “misplaced”.
“I do not find by the preponderance of the evidence that the condition of the property or the use made of the property here amounts to a health or sanitation nuisance. Then we’re left with the city ordinance which deals with keeping animals in such a place as to become a nuisance, either because of noise, odor, contagious disease or other reason. I think basically from the proof I’ve heard here today, we’re confined to whether or not the maintenance of this property and these horses on this property constitute a nuisance by reason of odor. I do not find by the preponderance of the evidence that maintenance of the horses has contributed or caused a nuisance because of contagious disease or other reasons.”
Judge Conger added, “The court is then confronted with the issue of whether this conduct on behalf of Mr. Billingsley arises to the level of a nuisance. The court would observe that none of us live in a bubble. There are sights, sounds, and smells that may offend one person and not another. All of our sensibilities are different. What I have to judge this by is what would offend a reasonable person. The city has not, thus far, chosen to ban keeping animals in the city limits. It hasn’t chosen to ban the keeping of livestock. That is within the authority and power of the city to do so. Up to this date, the city has not chosen to do that. So, the mere keeping of livestock within the city limits is not a violation of the city ordinance.”
“This court cannot determine this case by the number of witnesses who have testified. All the witnesses who have testified have been sincere and genuine and the court does not feel that there is a credibility issue here. Some people said they smelled manure. Others say they didn’t. I don’t think one is telling the truth and one is not telling the truth. We have two chief complainants, Brenda Foster and Carolyn Thomas who said that the odors emanating from the Billingsley property has affected the use of their property. One of the things that the court has noted is an exhibit showing the Thomas’ using their property outdoors on December 11th, which was approximately 20 days after this citation was written, having some sort of gathering in their back yard. That is persuasive to the court to observe those photographs.”
“The court must be swayed by a preponderance of the evidence. After hearing all the testimony in this case, I haven’t been swayed. The proof is in favor of the defendants in this case. It sounds like from all indications they have done a rather admirable job of keeping things under control there with the horses. It sounds like they’ve done what they could do.”
During the hearing, Billingsley’s attorney Sarah Cripps tried to point out that there were no official complaints about the horses until after Willie Thomas was elected to the city council last summer, even though the horses have been on this property since 2005. Thomas lives across the street from the horse pasture.
Judge Conger didn’t buy that argument. “I don’t put any great weight on the fact that this citation was issued and the complaints started coming after a particular person (Willie Thomas) was elected to the city council. Maybe that’s why he ran for city council. That’s a way you get things done sometimes is through the political process. I don’t put any great weight on the fact that the complaints did not rise to the level of an investigation until after Mr. Thomas was elected. And I don’t put any great weight on the fact that no one ever came to the Billingsley’s and complained. That’s just not persuasive.”
“I find that the city has not carried the burden by a preponderance of the evidence in this case.”
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