Full opinion text
MEMORANDUM OPINION SUPPORTING PARTIAL SUMMARY JUDGMENT ALDON J. ANDERSON, Chief Judge. BACKGROUND FACTS This action was originally filed in the Third Judicial District Court for Salt Lake County, State of Utah, claiming jurisdiction over the defendant under Section 78-27-24, U.C.A. (1953), as amended. Defendant Hercules removed the case to this court pursuant to 28 U.S.C. Section 1446, claiming jurisdiction under 28 U.S.C. Section 1332. Plaintiffs Richard T. Pratt and Ladd Christensen hold graduate degrees in Business Administration. Plaintiff Evergreen Investment, Ltd., is a limited partnership established for the benefit of the wife and children of A. Blaine Huntsman, Jr. Mr. Huntsman holds a Ph.D. in economics. At the time of the purchase of the property now in dispute, Mr. Huntsman was the general partner of Huntsman/Evergreen Investment, Ltd. He is no longer involved in the limited partnership, nor is he a party to the suit. The plaintiffs have extensive experience in purchasing and developing real estate. Defendant Hercules is a corporation of the state of Delaware and maintains its principal place of business in Wilmington, Delaware. As a multi-national company it manufactures a diverse line of explosives, rocket fuels, insecticides and other chemical products. In 1913 Hercules, Inc. purchased property for its Utah operations in what was then the remote western portion of Salt Lake Valley. (Unless indicated to the contrary, the name Hercules as used hereinafter will refer solely to its Utah operations, which are named the Bacchus Works.) At present the manufacturing facility is spread over some 2,970 acres, of which Hercules owns 2,450 and the United States owns the remaining 520 acres. Defendant relates without contest that the United States Navy established a Naval Industrial Reserve Ordnance Plant (NIROP) on federal property within the Hercules facilities in 1960. Manufacturing processes involved in the manufacture of the Trident missile system are carried on jointly on both NIROP and Hercules property by Hercules and employees. At the Bacchus Works Hercules is a first-tier contractor in the Trident I, Pershing II and MX missile programs. There is no dispute that through the exercise of its constitutional authority to establish the political policy governing national defense and military appropriations, Congress has determined that the advancement of the missile programs is critical to the national defense of the United States. Defense contracts for the construction of these missiles must meet specific safety standards and operational requirements established by the Department of Defense Explosive Safety Board (DDESB). In addition to meeting these mandatory standards, Hercules has voluntarily met higher safety standards in certain areas of the manufacturing process. The United States is the only one who can modify compliance with safety standards after a project has begun. There is no indication that the United States has attempted to do so. In 1977 the plaintiffs purchased either outright or an option on approximately 183 acres of land lying to the north of the Hercules plant. At that time the land was zoned for agricultural use. Shortly after purchase the plaintiffs were successful in securing a rezoning of 93 acres for residential development and 90 acres for light industry. Thirty-six acres of the land rezoned for residential use were thereafter developed by the construction of 150 homes. Defendant Hercules had objected to the proposed change in zoning. Apparently immediately prior to the time that plaintiffs’ land was rezoned, the Salt Lake County Planning Commission asked defendant Hercules to provide it with detailed information relative to the type and degree of hazard that its operations presented to adjoining landowners. The duties of the Planning Commission most important in this case deal with zoning. 17-27-9. Planning commission—Zoning-Right to regulate.—The county planning commission of any county may, and upon order of the board of county commissioners in any county having a county planning commission, shall make a zoning plan or plans for zoning all or any part of the unincorporated territory within such county,... Section 17-27-9 U.C.A. (1953). (The Salt Lake County Planning Commission will hereinafter be referred to as the “Zoning” Commission to indicate its pertinent activities.) In April of 1980 Hercules submitted the requested report analyzing the risks of damage to the structures and persons on adjoining property. This report recommended that despite the fact that there were still some fifty-seven acres still zoned for residential use, future development of land not be permitted. The court has not been given any evidence of any formal action taken by the Zoning Commission or County Commissioners of Salt Lake County relative to the recommendations made by Hercules or on any request by the plaintiffs to allow further building. Plaintiffs’ complaint alleges eleven causes of action. These actions can be characterized within three basic categories. First, due to the hazard and risk associated with the manufacture of high-explosive rocket motors and other military hardware, the defendant’s operation constitutes a public and private nuisance. Second, the existence of this hazard and the high risk of explosion constitute an ultrahazardous activity and strict liability should be imposed for all damages that flow therefrom. Third, there are four related causes of action which deal with representations made by Hercules to the Zoning Commission which allegedly were fraudulent and damaged the plaintiffs. The plaintiffs claim they have been damaged because “the value of plaintiffs’ property, being held for investment purposes, has been greatly impaired, significantly damaging plaintiffs’ opportunity to resell the property for residential and industrial purposes." (Amended Complaint, Para. 26.) There is no allegation that an explosion or any actual trespass on the plaintiffs’ property by concussion or otherwise has occurred. It is also uncontested that the non-governmental work performed by Hercules at the plant does not involve explosive material in any way. Hercules has filed two motions for summary judgment. After the first motion was filed, plaintiffs amended their complaint to include charges of negligence, ultrahazardous operations, and misrepresentations before the Zoning Commission. The court has heard arguments on both motions and has reviewed in detail all of the memoranda, affidavits, depositions and accompanying exhibits submitted to the court. As a result of this review the court is convinced that except for the last four claims of misrepresentation the claims of plaintiffs will not stand, whether viewed under state or federal law. UNDISPUTED FACTS The Tenth Circuit has placed in proper perspective the singular importance of undisputed facts in motions for summary judgment. Summary judgment must be denied if a genuine issue of material fact is presented to the trial court. Exnicious v. United States, 563 F.2d 418, 423 (10th Cir.1977). In making this determination, the evidence must be viewed in the light most favorable to the party opposing the motion. National Aviation Underwriters v. Altus Flying Service, Inc., 555 F.2d 778, 784 (10th Cir.1977). Thus, summary judgment should be denied if inferences can be drawn from conflicting evidence. Madison v. Deseret Livestock Co., 574 F.2d 1027, 1036 (10th Cir.1978). Ruhs v. Pacific Power & Light, 671 F.2d 1268 at 1270, (10th Cir.1982). In accord with this direction, the court will outline the undisputed and critical facts used by the court in granting defendant’s motions for summary judgment. As noted earlier, plaintiffs’ amended complaint may be divided into three basic categories of causes of action relative to nuisance, ultrahazardous operations and fraudulent misrepresentation. The court has decided relevant questions in the first two categories under Utah and federal law. The last category has been considered solely as a matter of state law. Defendant Hercules has claimed, inter alia, that plaintiffs’ state causes of action relative to nuisance should be dismissed by reason of Section 78-38-5 and Section 78-38-6, U.C.A. (1981). Notwithstanding plaintiffs’ arguments to the contrary, this court has found as a matter of law that the new statutes apply to this case. However, in accord with the new legislation, plaintiffs have attempted to demonstrate the possibility that Hercules has either (1) expanded operations since 1977 when their property was purchased or (2) negligently operated the manufacturing operations. A serious dispute as to either of these facts would prevent the court from applying the new legislation at this stage of the proceedings. The court does not find plaintiffs’ effort to place the question of Hercules’ expanding operations in dispute sufficient for two reasons. First, aside from general pleading based on information and belief, (Amended Complaint, Paras. 23, 35), the evidence of Hercules expanding its operations was only mentioned in oral argument on October 7, 1981. Counsel summarized statements he had allegedly recently read in the transcript of a second deposition taken of Ernest A. Mettenet, Jr. (Transcript of Oral Argument, October 7, 1981, at 39—40). (Hereinafter referred to as T.R.) However, this second deposition has not been filed with the court. The court may not take hearsay representations made by counsel in oral argument as being true for purposes of summary judgment. A statement by counsel in oral argument is not sufficient to place facts in dispute for purposes of a motion for summary judgment. Second, even if the sum effect of all “discovered material,” (including all material in plaintiffs’ possession but not yet before this court,) is accepted as characterized by plaintiffs’ lead counsel in correspondence requested by the court after oral argument, plaintiffs’ conclusions as to the significance of such material are insufficient as a matter of law to raise the issue of expansion of operations of Hercules for the purposes of this motion. Similarly, the bare assertions by counsel at oral argument as to the factual foundation of Hercules’ alleged negligence fails to raise a disputed question of fact for purposes of this motion. Even if tile court were to accept plaintiffs’ assertions that Hercules was negligent by failing (1) to maintain an adequate buffer zone around its operations and (2) to carry out its operations in such a manner as to safeguard adjacent property owners against the danger of explosion, (T.R. at 28), Hercules’ undisputed compliance with the minimum safety standards outlined by the DDESB (Department of. Defense Explosive Safety Board), 32 C.F.R. Section 186, 10 U.S.C. Section 172 (1956), compels the conclusion that as a matter of federal law no negligence, as pled by plaintiffs, exists. The fact that plaintiffs purchased their property adjoining the Hercules operations long after Hercules had been in existence compels a similar conclusion for a variety of reasons under Utah law. In all events, even if Section 78-38-5 and Section 78-38-6 were not applicable to the instant case, this court finds as a matter of law that under the unamended Section 78-38-1, et seq., U.C.A. (1953) plaintiffs have failed to indicate that the actions of Hercules have been unreasonable or that plaintiffs’ rights have been substantially invaded. Therefore, even accepting plaintiffs’ pleadings as true, plaintiffs have failed to state a public or private nuisance upon which relief can be granted. In addition to failing to state a claim of nuisance under Utah law, the court has found that several undisputed facts provide the basis for determining that federal law also bars plaintiffs’ claim of nuisance. The four undisputed facts relied upon by the court in making that determination are: 1. The siting requirements that Hercules and the Naval Industrial Reserve Ordnance Plant (NIROP) were required to follow by the Department of Defense Explosive Safety Board (DDESB) were promulgated pursuant to the specific constitutional powers given Congress in Article I, Section 6, Clause 17 as articulated in 10 U.S.C. Section 172. (McQueary v. Laird, 449 F.2d 608 [10th Cir.1971].) 2. Hercules has complied with the minimum siting requirements promulgated by the DDESB in accord with its statutory and regulatory requirements. (See Section IB, infra.) 3. No explosion has occurred by reason of the manufacturing operations at Hercules-NIROP since plaintiffs’ purchase of their property. 4. Hercules and NIROP have integrated manufacturing operations on property owned by each of them individually. (Mettenet Affidavit, para. 7.) By reason of these undisputed facts, the court has found as a matter of federal law that (1) plaintiffs’ request for declaratory and monetary relief by reason of defendant’s nuisance is barred by reason of absolute and derivative sovereign immunity and (2) defendant’s claim of derivative sovereign immunity as explained in this opinion must stand. Absolute sovereign immunity similarly prevents this court from issuing the injunctive relief also sought by plaintiffs. The court has based its legal conclusion that plaintiffs have failed to state a claim as to the liability of Hercules resulting from the ultrahazardous operations conducted by Hercules-NIROP on the following four, undisputed facts. 1. There has been no explosion at Hercules-NIROP since the plaintiffs purchased their property. 2. Hercules and NIROP have integrated manufacturing operations on property owned by each of them individually. (Mettenet Affidavit, para. 7.) 3. Title to all ultrahazardous materials used in the manufacturing process lies in the government. (Mettenet Affidavit, para. 9; MacPherson Affidavit, para. 5.) 4. Plaintiffs purchased the property after Hercules had begun manufacturing rocket motors and use of ultra-hazardous materials. Based on these facts, the court has found as a matter of law that plaintiffs have failed to state a claim upon which relief can be granted under Utah law. As a matter of federal law, absolute sovereign immunity bars plaintiffs from bringing this action. Upon analysis of Utah law, which follows hereinafter, the court will deny defendant’s motion for summary judgment as to. the final four causes of action dealing with alleged fraudulent misrepresentation. For all of the foregoing reasons, the court finds that with respect to the issues disposed of there are no disputed facts, or inferences therefrom, that would prevent this court from reaching the legal conclusions outlined below. Any additional discussion of “facts” in the body of the opinion similarly appear to this court to be “undisputed,” but are not in and of themselves critical in reaching the legal conclusions and result announced hereafter. ANALYSIS I. Given the circumstances of defendant’s operation, under applicable Utah statutes have plaintiffs stated a cause of action this court can hear in diversity? A. Application of current Utah law to the claim of public and private nuisance, under the facts established, provides no basis for this court’s exercise of diversity jurisdiction. After this lawsuit was filed in 1981, the Utah Legislature passed Section 78-38-5, et seq., which effectively eliminated any common law cause of action for a nuisance against a manufacturer which had been in existence for three years or more, and was not a nuisance during that time period. It is undisputed that Hercules clearly comes within the broad definition of “manufacturing facility” contained in the law. Section 78-38-6, U.C.A. (1981). The plaintiffs’ original claim of nuisance was filed under Section 78-38-1, U.C.A. (1953). Section 78-38-5 indicates that (1) Notwithstanding sections 78-38-1 and 76-10-803, no manufacturing facility or the operation thereof shall be or become a nuisance, private or public, by virtue of any changed conditions in and about the locality thereof after the same has been in operation for more than three years when such manufacturing facility or the operation thereof was not a nuisance at the time the operation thereof began; provided, the manufacturing facility does not increase the condition asserted to be a nuisance and that the provisions of this subsection shall not apply whenever a nuisance results from the negligent or improper operation of any such manufacturing facility. (2) The provisions of subsection (1) of this section shall not affect or defeat the right of any person to recover damages for any injuries or damage sustained on account of any pollution of, or change in the condition of, the waters of any stream or on account of any overflow of the lands of any person. (3) Any and all ordinances now or hereafter adopted by any county or municipal corporation in which such manufacturing facility is located, which makes the operation thereof a nuisance or providing for an abatement thereof as a nuisance in the circumstances set forth in this section are null and void; provided, however, that the provisions of this subsection shall not apply whenever a nuisance results from the negligent or improper operation of any such manufacturing facility. The passage of this law raised two issues. First, did the Utah Legislature intend to apply the provisions of Section 78-38-5 to cases in the posture of this one? Second, did the passage of the act comport with relevant constitutional and statutory requirements of Utah law? An answer to these questions will assist the court in deciding if it can assume jurisdiction over the claims under controlling state law. 1. Did the Utah Legislature intend the. limitations of Section 78-38-5 to apply to the instant case? This initial issue must be analyzed from two viewpoints. First, did the Utah Legislature intend Section 78-38-5 to apply to Hercules? Second, did the Utah Legislature intend that application to occur in this litigation between plaintiffs and defendant Hercules? This court finds that the legislative history indicates a clear intent to apply Section 78-38-5 to Hercules in the present litigation. There is no dispute about this fact. a. Did the Legislature intend Section 78-38-5 to apply to Hercules? An examination of the language of Section 78-38-6 and debates in the Utah House clearly indicate that this bill was intended to apply to Hercules. Section 78-38-5 was to apply to a “manufacturing facility” which has been in operation for more than three years. Section 78-38-6 defines “manufacturing facility.” As used in this act, “manufacturing facility” means any factory, plant, or other facility including its appurtenances, where the form of raw materials, processed materials, commodities, or other physical objects is converted or otherwise changed into other materials, commodities, or physical objects or where such materials, commodities, or physical objects are combined to form a new material, commodity, or physical object. It is obvious that Hercules’ operation comes within this definition. The bill was passed by the Senate on the consent calendar with no mention of its application to Hercules. However, Representative Harmer, sponsor of the bill in the Utah House, indicated in his opening address that it was to apply to, inter alia, Hercules. Senate Bill 226 is a bill which is designed to protect manufacturing facilities from nuisance lawsuits, and protect their basic property rights, based on the duration they have been in that particular state. ¡ft $ * * * * [T]his bill covers such manufacturing as Kennecott, the smelter, refinery and the mill. U.S. Steel at Geneva. Hercules, Thiokol, Sperry, National Semiconductor. Those types of manufacturing facilities. (Transcript of Proceedings of the Utah House at 2-3, hereinafter referred to as HP.) The clear intent of the Legislature, as evidenced by the express provisions of Section 78-38-6 and the legislative debates, indicates that this bill was to apply to Hercules. b. Did the Utah Legislature intend that Section 78-38-5 apply to the instant case? An examination of the clear provisions of Section 78-38-5 and the legislative debates in both the Senate and House of the Utah Legislature give clear indication that the bill was intended to be applied in the instant case. (1) The intent to remove jurisdiction is evident on the face of the bill. The intent of the Utah Legislature to remove jurisdiction in this case is evident in the express language of Section 78-38-5 in three different ways. First, relevant language in the statute indicates that no manufacturing facility or the operation thereof shall be or become a nuisance, private or public, by virtue of any changed condition in or about the locality thereof after the same has been in operation for more than three years when such manufacturing facility or the operation thereof was not a nuisance at the time the operation began. Section 78-38-5 (emphasis added). The phrase “shall be” clearly denotes a present application. Inasmuch as it is the court that determines when a manufacturing operation is a nuisance, the present denial of the right to determine that something is, or at the present, constitutes a nuisance, removes the jurisdiction of the court to do so. Second, paragraph three of Section 78-38-5 provides that “any and all ordinances now or hereafter adopted by any county or municipal corporation in which such manufacturing facility is located,” in conflict with the provisions of the act, “are null and void.” The court knows of no principled distinction, absent allegations of a deprivation of alleged constitutional rights, that would allow individuals to seek legal relief against the manifest intent of the Legislature when all local ordinances contrary to that intent are, by law, null and void. Third, there is no enabling provision in the bill that indicates its implementation is to be held in abeyance. Therefore, the bill becomes effective as soon as the statutory waiting period on all bills has run. For these three reasons, there is no question that the express intent of the Legislature was to insure that the provisions of Section 78-38-5, U.C.A. (1953) be made applicable to all nuisance-related ordinances and legal actions not in harmony with the express and implied intent of the statute. (ii) The intent to eliminate nuisance causes of action of the type in question is evident from the legislative debates in the House and Senate. Senator Barton’s one paragraph explanation of S.B. 226, prior to its passage by consent in the Utah Senate, indicates an intent that jurisdiction not be maintained in the instant case. He indicated the bill very strictly stipulates that manufacturing firms, that have been in business for three years or more that do not expand their operations nor change their operations in any great extent, cannot be declared a nuisance. (Transcript of Senate Proceedings at 1, emphasis added.) This language—cannot—is direct, complete and clear. One way to insure that such operations not be declared a nuisance is for the Legislature to define the situation in question as not a nuisance and thus preclude a court from considering it. The discussion of the bill by the Utah House of Representatives indicates with similar clarity that the courts would have no jurisdiction where it related to nuisance actions against the designated class of manufacturers. Discussion focused on the problems caused Hercules by nuisance lawsuits. Representative Free indicated that nuisance suits would have to be removed as to Hercules. People that have been there for a long, long time, and then some Johnny-Lately comes in next door and immediately starts to evict the permanent resident that has been there for a long time. This is exactly the same thing is true with a manufacturer. He comes to this area, he provides us with jobs, provides for the better economy and a well being of this state, and if we do not protect him from this sort of harassment we will move manufacturers out of this state. Hercules’ name has been thrown to us. Hercules, if they are going to have to put up with consistent, persistent nuisance suits and so forth, will eventually move to Texas, as will a lot of other manufacturers, and this will be a very important factor in bringing industry which we badly need into this state. I urge your support of this bill. (HP 7) Speaking to an amendment designed to change the requirement of three years’ residency to five, the relevance of concern over pending and future actions became clearer. Representative Reese spoke against the amendment noting that “[t]his is a grave situation which we have got out here on the west side of the [Salt Lake] Valley [where Hercules is located], and people who are talking against it don’t live in the Valley.” (HP at 17.) A reasonable inference from this language, taken in the light of the other comments, is that it referred specifically to Hercules. Speaking more broadly, Representative Harmer, sponsor of the bill in the House, addressed the nuisance lawsuit problem as it related to the state’s efforts to attract manufacturers in the future. [W]hen we are trying to attract industry to come into this state and you tell them that they are on their own for five years after they select a site—over three years—that’s two more years they have to live with opportunists, and any time a new industry goes in it’s prospect for commercial and residential development around it in order to provide facilities for the employment that the industry needs, and two years may not seem like a long time, but it only takes an opportunist with a nuisance lawsuit ten minutes to create a lawsuit and create that opportunist lawsuit.... (HP at 17-18.) These representative comments of legislators, coupled with the clear indications in the language of the bill, compel the conclusion that the Utah Legislature intended that the provisions of Section 78-38-5 apply to the instant case. 2. Is there precedent in Utah law for concluding that the Utah Legislature’s intent to remove subject matter jurisdiction over nuisance actions against manufacturers such as Hercules is tantamount to removing jurisdiction over the action? It is clear under Utah law that by removing subject matter jurisdiction, a statute effectively ousts a court of jurisdiction over the action. In State v. Third Judicial District Court, 36 Utah 68, 104 P. 750 (1909), the Utah Court found that the removal of subject matter jurisdiction was sufficient to remove jurisdiction over the action. In this regard is there any distinction between ousting the court of jurisdiction of the subject matter and in ousting it of jurisdiction of the subject of the action? We think not. In either case, the statement is made that the test of jurisdiction is the power to act, and with this test the courts may not arbitrarily interfere. Id. at 758 (on re-hearing). The dispute in the above case was in relation to the nature of the evidence which could be accepted in state courts to determine the court’s jurisdiction. Similarly, in the instant case, the Legislature restricted jurisdiction as to the type of defendant against which evidence of nuisance may be proffered. The power that can restrict jurisdiction based on certain evidence submitted can also limit jurisdiction as to a particular cause of action to a properly defined constitutionally permissible class of defendants. In addition, under Utah law, the actions of the Legislature are dispositive insofar as they relate to jurisdiction. The question with regard to conferring or withholding jurisdiction is always and everywhere legislative, and not judicial. Courts are created, and their jurisdiction and powers are determined either by the Constitution or by statute. A court cannot create its own powers; they must be conferred, either generally or specifically. Id. This position has been reaffirmed in State v. Johnson, 100 Utah 316, 114 P.2d 1034 (1941). There the Utah Court interpreted Article VIII of the Utah Constitution to mean that jurisdiction of all courts inferior to the Supreme Court must be apportioned as the Legislature directed. There being no constitutional inhibitions, the legislature may define and prescribe the forum in which actions may or must be commenced, and the procedure necessary to pass from one court to another. Although there are certain constitutional limitations on the exercise of some powers by certain courts, the framers of the Constitution wisely refrain from conferring exclusive original jurisdiction upon any of them, vesting original jurisdiction in all courts inferior to the Supreme Court, to be apportioned and exercised as the legislature may direct. Mill v. Brown, 31 Utah 473, 88 P. 609, 120 Am. St.Rep. 935. Id. at 1039. Therefore, it seems clear that under the Utah Constitution, the Utah Legislature may define the jurisdiction of lower courts as it sees fit. The court’s role is only to interpret that intent and then apply it to cases pending and thereafter arising. In light of this court’s earlier interpretation of the express and implied legislative intent in Section 78-38-5 as to this case, Utah precedent recognizes the power of the Utah Legislature to remove court jurisdiction over the case at bar by removing subject matter jurisdiction. 3. Does the action taken by the Utah Legislature in removing jurisdiction over the instant case violate the Utah Constitution or applicable statutory provisions? Counsel for plaintiffs has argued that the requirements of Section 68-3-3, U.C.A. (1953) and the Utah Constitution, VI, Section 26, prevent the court from determining that Section 78-38-5 as to apply to the instant case. The court finds these two objections to be without merit. a. Does Section 68-3-3, U.C.A. (1953) defeat the application of Section 78-38-5, U.C.A. (1953) to the instant case? Section 68-3-3 states that “no part of these revised statutes is retroactive, unless expressly so declared.” The court does not believe that this language bars application of Section 78-38-5 to the instant case for three reasons. First, the removal of jurisdiction of the courts over nuisance actions against three-year manufacturing operations is not retroactive. It is present. This court has not determined that under state law it never had jurisdiction over this case; rather, it merely finds that now, after the passage of the act, prior to trial and entry of a final judgment, it does not have jurisdiction. Second, the Utah Supreme Court has indicated that [a] remedy may be provided for existing rights, a new remedy added to or substituted for those which exist. Every case must, to a considerable extent, depend on its own circumstances. General words in remedial statutes may be applied to past transactions and pending cases, according to all indications of legislative intent, and this may be greatly influenced by considerations of convenience, reasonableness and justice. Boucofski v. Jacobsen, 36 Utah 165, 104 P. 117, 119-120 (1909) (emphasis added). While the rule announced in Boucofski, supra, was not specifically followed in Industrial Commission v. Agee, 56 Utah 63, 189 P. 414 (1920), a clarification of the apparent inconsistency was harmonized in Petty v. Clark, 113 Utah 205, 192 P.2d 589, 593 (1948). Under Clark, the Utah Court opined that Agee did not require the 1919 act to be applied to claims under the 1917 act because it was contrary to legislative intent and would have worked an injustice on the plaintiff. Industrial Commission v. Agee, supra, 189 P. at 416. Plaintiffs’ claims do not follow (1) legislative intent as they did in Agee nor (2) constitute an injustice upon plaintiffs if the court dismisses them for lack of jurisdiction. All the evidence of legislative intent gives clear indication that the Legislature intended to completely prohibit and strongly discourage claims similar to those brought by the plaintiffs. There can’be no injustice in applying the provisions of Section 78-38-5 to this case because this court also finds, infra, that the court does not have jurisdiction of plaintiffs’ claims under Section 78-38-1, U.C.A. (1953) and federal law. In addition, plaintiffs’ claims have no constitutional implications relative to a taking as did the claim in Agee. Therefore, under the Boueofski-Agee standard announced in Petty v. Clark, supra, plaintiffs cannot claim an improper application of Section 78-38-5 to the instant case. Third, a similar rule of statutory construction requires that both the statute and legislative intent be liberally construed. Section 68-3-2, U.C.A. (1953) provides that [t]he rule of the common law that statutes in derogation thereof are to be strictly construed has no application to the statutes of this state. The statutes establish the laws of this state respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed with a view to effect the objects of the statutes and to promote justice.... (Emphasis added.) The Utah Supreme Court has noted that this section is to be applied when questions of first impression as to the construction of a statute are brought before it. Houston Real Estate Inv. Co. v. Hechler, 44 Utah 64, 138 P. 1159, 1160-1162 (1914). Therefore, in light of the clear intent of the Utah Legislature to not only address the problem of recurring nuisance suits against manufacturers in general, but also in particular the dilemmas faced by Hercules with expanding residential development in the vicinity of its plant, the court feels similarly compelled to give the provisions of the statute a liberal construction. There is evident in the Legislature’s actions a significant interest and concern to encourage industry of the type defined and in question here, and to protect its economic contribution to the community in terms of employment and tax base. Therefore, because of the express provisions of Section 78-38-5, Utah case law and Section 68-3-2, the court is persuaded that the provisions of Section 68-3-3 do not defeat the application of Section 78-38-5 to the case at bar. b. Does Article VI, Section 26 of the Utah Constitution prevent application of Section 78-38-5 to the instant case? Plaintiffs claim that the apparent and significant involvement of Hercules in the passage of this bill violates the constitutional prohibition against a “private or special law [being] enacted where a general law can be applicable.” This provision, approved at a general election on November 7, 1972, has been interpreted in four different cases by the Utah Supreme Court. The most recent interpretation, Hulbert v. State, 607 P.2d 1217 (Utah 1980), is dispositive of plaintiffs’ claim. Section 26 of Article VI of the Utah Constitution is not violated by the Legislature’s removal of jurisdiction under state law in this case. While Hercules was mentioned several times in the House debates as being a primary, moving force behind the passage of the bill, there were numerous references as to the impact of Section 78-38-5 on (1) manufacturers as a general class in the state, (2) those manufacturers the state desired to attract to Utah and (3) on local governments with jurisdiction over manufacturing facilities. Arguments of counsel that the involvement of Hercules made this bill “special” or “private” have been rejected in similar cases by the Utah Supreme Court. [T]his Court has set forth the general definitions of general and special laws. In Utah Farm Bureau Insurance Co. v. Utah Insurance Guarantee Ass’n, [564 P.2d 751, 854 (1977) ] this Court explained “... A general law applies to and operates uniformly upon all members of any class, places, or things requiring legislation peculiar to themselves in matters covered by the laws in question. On the other hand, special legislation relates either to particular persons, places, or things or to persons, places or things which, though not particularized, are separated by any method of selection from the whole class to which the law might, but for the legislation, be applied. "... [A] law is general when it applies equally to all persons embraced in a class founded upon some natural, intrinsic or constitutional distinction. It is special legislation if it confers particular privileges or imposes peculiar disabilities, or burdensome conditions on the exercise of a common right; upon a class of persons arbitrarily selected from the general body of those who stand in precisely the same relation to the subject of the law. The constitutional prohibition of special legislation does not preclude legislative classification, but only requires the classification to be reasonable.” Id. at 1223-1224 (emphasis added). Application of the Utah Supreme Court’s standard that a general law is one where a reasonable classification applies equally to all persons in a class founded upon some natural, intrinsic, or constitutional distinction compels the conclusion that the law in question here is constitutional. The law addresses the interests of manufacturers as a whole. It is to protect past property and future production interests. These operations, as defined in Section 78-38-6, are clearly based on a natural and intrinsic distinction. The bill provides that as to a specific group of manufacturers nuisance suits could not be brought. The selection of this group cut back the scope of actions available under Section 78-38-1, the statute under which the instant case was brought. Those manufacturers who had been in existence for three years and were not increasing what was claimed to be a nuisance, or negligently operating their facility so as to cause or continue a nuisance, were protected by the bill. The Legislature passed this bill in an effort to address the concerns of present and future manufacturers who fear that urban or residential encroachment near their facilities will give rise to lawsuits such as this one. In addition to protecting the property rights of present manufacturers, the Legislature also sought to (1) preserve current jobs, (2) encourage new manufacturers to come into the state and (3) make the law on nuisance actions relative to manufacturing in harmony with those of agricultural operations. These goals are all reasonable. The means chosen to achieve these goals, e.g., removing jurisdiction of the courts and local governments as to these special manufacturing facilities, are clearly related to the attainment of the stated objectives of Section 78-38-5. Since plaintiffs have not alleged any deprivation of constitutional rights, there is no justification for applying a stricter standard of scrutiny to the bill than that previously announced by the Utah Court. Therefore, Section 78-38-5, et seq. U.C.A. (1953) is constitutional under Section 26, Article VI of the Utah Constitution. 4. Does Hercules come within the two exceptions under Section 78-38-5 which allow for jurisdiction of nuisance actions under Section 78-38-1 when the action arises from an expansion of the condition alleged to be a nuisance or the alleged nuisance is negligently caused? Under Section 78-38-5, a manufacturer is included in its protection against nuisance lawsuits “provided, the manufacturing facility does not increase the condition asserted to be a nuisance and that the provisions of this subsection shall not apply whenever a nuisance results from negligent or improper operation of any such manufacturing facility.” (Emphasis added.) The provisions, then, of Section 78-38-5 only remove the application of Section 78-38-1 when certain criteria do not occur. Plaintiffs have alleged that both an expansion of the nuisance and negligent operations have caused the nuisance complained of. The court finds that plaintiffs’ claims must fail as a matter of law. a. The plaintiffs’ claim of the existence of a nuisance must fail as a matter of law. To qualify as a nuisance under Utah law, a claim must come within the provisions of Section 78-38-1, U.C.A. (1953) which provides that [a]nything which is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance and the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by nuisance; and by the judgment the nuisance may be enjoined or abated, and damages may also be recovered. The Utah Court has interpreted this statute narrowly. It has never interpreted the first word of the statute to mean “anything at all which (is) any person considers to be offensive to the senses,” etc. Rather it has been held that the term “nuisance” is applied to “the unreasonable, unwarrantable or unlawful use by a person of his property,” and that “every person has a right to the reasonable enjoyment of his property. As to what is reasonable use of one’s property must necessarily depend upon the circumstances of each case, for a use for a particular purpose and in a particular way, in one locality, that would be lawful and reasonable might be unlawful and a nuisance in another. 1 Wood on Nuisances (3d Ed.) Sections 1 and 2. The test of whether the use of property constitutes a nuisance is the reasonableness of the use complained of in the particular locality and in the manner and under the circumstances of the ease.” Dahl v. Utah Oil Refining Co., 71 Utah 1, 262 P. 269, 273. (Emphasis added.) A stricter construction of the statute would make community living almost impossible.... Cannon v. Nueberger, 1 Utah 2d 396, 268 P.2d 425, 426 (1954). (Emphasis is in original.) Later case law has indicated that a nuisance must be an unreasonable interference with substantial rights to come within the purview of Section 78-38-1. It is recognized that every person has a right to use his own property as he sees fit so long as that use does not invade the rights of his neighbor unreasonably and substantially. Absolute quiet and repose is impossible and everyone must assume some burden of ordinary activities of others in the vicinity. The plaintiffs are only entitled to recover if the record supports the conclusion that the conduct of defendant’s business unreasonably and substantially interfered with the quiet enjoyment of the plaintiffs’ premises by themselves or of their tenants. Johnson v. Mount Ogden Enterprises, Inc., 23 Utah 2d 169, 460 P.2d 333, 336 (1969). (Emphasis added, footnote omitted.) In determining whether an invasion is both unreasonable and substantial, the question is not whether a reasonable person in the plaintiff’s or defendant’s position would regard the invasion as unreasonable, but whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable. Hatch v. W.S. Hatch Co., 3 Utah 2d 295, 283 P.2d 217, 220 (1955). The question then becomes two-fold: 1) Are the actions of the defendant unreasonable? 2) Is the injury complained of by the plaintiffs substantial? It is clear that the negative response which must follow each question removes the plaintiffs’ complaint from the scope of Section 78-38-1. (i) Are the actions of the defendant Hercules unreasonable? Plaintiffs allege that Hercules, regardless of the standard of care used, is causing a nuisance because its operations require there be a high risk of explosion and possible future damage to adjoining property or property owners. These acts allegedly deprive the plaintiffs from full employment of their land and prevent its complete development as residential or industrial property. Even assuming arguendo that the plaintiffs have properly alleged that Hercules has negligently caused this nuisance, this court finds as a matter of law that plaintiffs’ claim of nuisance cannot stand for three reasons. To hold Hercules’ action is unreasonable would be to rule as a matter of law that the determinations of the Armed Forces Safety Board and the Zoning Commission are unreasonable. Furthermore, it would similarly require this court to create a new cause of action of nuisance not presently recognized by Utah law and ignore clear Utah precedent to the contrary. As will be discussed in section IB(1) of this opinion, the operations at Hercules are governed by standards and requirements established by the DDESB. All buildings and manufacturing processes are required to come within safety standards designed to protect inhabitants and buildings within the vicinity of the manufacturing operations. The determinations made by this Board are discretionary, having been entrusted to the Board’s high level of expertise. McQueary v. Laird, 449 F.2d 608, 610, 612 (10th Cir.1971). The standards have been incorporated into all of the contracts that Hercules has with the Department of Defense. (Mettenet affidavit, para. 6; MacPherson affidavit, para. 4.) The safety standards assume that there is an inhabited house on the edge of the Hercules property line and require safety specifications to be enforced so as to protect this imaginary house. Hence, it cannot be held that such standards are unreasonable as a matter of law. The fact that Hercules has, in some instances, exceeded the requirements established by the Armed Forces Safety Board only gives greater support to this conclusion. Second, the Zoning Commission has made the operations at Hercules a subject of intense study and examination because of pressure from land developers seeking approval to expand residential housing closer to Hercules. The Zoning Commission has not found the operations to be so unsafe as to prevent the plaintiffs from building 150 homes on about twenty percent of their property. The determination by the Zoning Commission, when approved by county commissioners, is endowed with a presumption of validity; and it is the court’s duty to resolve all doubts in favor thereof and not to interfere with the Commission’s actions unless it clearly appears to be beyond its power; or is unconstitutional for some such reason .... Gayland v. Salt Lake County, 11 Utah 2d 307, 358 P.2d 633, 636 (1961). The court assumes the County Commissioners gave ministerial approval to plaintiffs’ request to build the first 150 homes. Section 57-5-3, U.C.A. (1953). A decision by this court that the operations of Hercules create such an unreasonable risk to land immediately adjoining these homes that Hercules’ operations constitute a nuisance would, in effect, be a prima facie determination that the earlier approval was unreasonable. Such a holding under Utah law would be contrary to the presumptive validity accorded determinations by the Zoning Commission as approved by the County Commissioners. Without significant, specific allegations and evidence to the contrary, the reasonableness of the Commission’s actions must stand. Third, in light of the legislative intent, it would be unreasonable to create a new cause of action under nuisance which could be applied as to any manufacturing operation in the state. In reviewing a claim by a church congregation that a nuisance was created by the noise from a train running by their building during their meeting hours, the Utah Supreme Court denied the request and ruled that the effect of such a ruling on other enterprises in the state would be an important factor in determining the reasonableness of the complaint. If, therefore, it should be held that noises arising out of the present industrial pursuits and business activities shall give a right of action, all enterprises from which annoyances arise must be held liable in action for damages. There is, there can be, no middle ground; and under our theories of government, grounded upon the fundamental principle of equality before the law, all must either suffer some annoyance, or all who cause them must be held liable for damages. The law seeks for practical as well as just results whenever such are obtainable. The practical way, therefore, out of such a difficulty is that interferences and annoyances which are common to all—that is, where all suffer from the same kind of interference and annoyance, and the difference of annoyances as between communities or individuals is one of degree merely, and not of kind, and the annoyance is caused by something which is a necessary, part of some lawful enterprise which is in its nature public and cannot be shifted from place to place—all must bear the annoyance as best they may. Twenty-Second Corp. v. Oregon Short Line R. Co., 36 Utah 238, 103 P. 243, 249-250 (1909, emphasis.added). The practical ramifications of holding such to be a nuisance was obvious to the Utah Court. If mere annoyances from noises which are necessarily incident to the conduct of a lawful business in its nature public can be made the subject of damage suits, then we can see no point at which a line may be drawn when such actions may and may not be maintained. If mere annoyances from noises give a right of action for damages, then every one who is annoyed must be permitted to sue for and recover damages to the extent to which he is affected. The questions, therefore, in each case, would depend upon the intensity of the noises and the extent of the annoyance. Every one who may live within the radius to which the noises may extend would have a right of action, and the amount of recovery would be graduated from the source of the noise, unless the noise was diminished by some artificial means. Id. at 249 (emphasis added). The Court found basic practicality—both in terms of the impact on like plaintiffs and in terms of judicial administration—required that the claimed nuisance be borne “as best they [the plaintiffs] may.” Id. at 250. The same rationale applies in this case. Were the court to find that the risk of possible explosion attendant manufacturing operations—absent any actual explosion— were to state a claim for nuisance, it would, of necessity, have to find the potential for similar claims as to all others who were within a possible radius of damage from an explosion at Hercules or any other manufacturing plant in the state. Such a result would not comport with the mandate from the Utah Court to “seek practical as well as just results whenever such are obtainable.” Id. at 250. Such a law would not be practical from a judicial administration point of view, nor from the clear public policy articulated in Section 78-38-5, et seq. U.C.A. (1981), favoring the rights of established manufacturers. Therefore, because of the determinations by the DDESB, extra compliance by Hercules with federal safety standards, approval by the Zoning Commission and County Commission of plaintiffs’ construction of 150 homes adjoining the disputed property and the clear public policy enunciated by the Legislature in Section 78-38-5, this court rules as a matter of law that under the facts and pleadings of this case the claimed nuisance caused by the actions of Hercules are not unreasonable and therefore do not constitute a nuisance under Section 78-38-1. (ii) Even if the actions of Hercules were unreasonable, can the plaintiffs be substantially injured? Plaintiffs claim they have been damaged because the value of plaintiffs’ property being held for investment purposes has been greatly impaired, significantly damaging plaintiffs’ opportunity to resell the property for residential and industrial purposes. (Amended Complaint, para. 26.) The loss of speculative profits on land development has not been recognized as a legal injury in Utah. While the claim has not arisen in a nuisance action, it has been clearly treated in two different actions seeking to overturn zoning classifications. In Dowse v. Salt Lake City Corp., 123 Utah 107, 255 P.2d 723 (1953), the Court found that [t]he fact that plaintiffs one-half lot might be more profitably used for commercial than residential purposes does not show discrimination or reveal arbitrary action. The character of the district as a whole must be kept in mind in determining whether the health, safety, morals or general welfare of the district and hence of the community would be promoted by permitting encroachment into the residential area of commercial or industrial establishments. [Citations omitted.] Id. at 724. The plaintiff claimed, inter alia, that confiscation had occurred. The Court found that there was no cause of action stated. It can be inferred, then, that there was no substantial injury subject to confiscation. The facts of this case and the claim of loss of more profitable use fall within the precedent of Dowse. The additional claim of injury because of continued recognition by zoning authorities of the viability of ongoing businesses similarly has not been recognized as stating a substantial claim of confiscation. In Chevron Oil Company v. Beaver County, 22 Utah 2d 143, 449 P.2d 989 (1969) the Utah Court found that [p]laintiffs are not deprived of their property. They bought grazing land, and they still own grazing land. It may well be that should their holdings be zoned for highway services they would prosper, and it also may well be that other established highway services • would be put out of business. Id. at 991. The Utah Supreme Court clearly recognized that a preference for existing business is sufficient to deny a claim of confiscation when the only effect of damage to “new” businesses is a loss of speculative profits. Even though confiscation is a doctrine applicable in zoning challenges and claims of eminent domain, such holdings offer clear precedent indicating that the Utah Supreme Court would not recognize plaintiffs’ particular claims as being substantial. An examination of the facts evidenced in plaintiffs’ depositions also indicates that they have received sufficient profits solely from the sale of nearly 36 acres of land for development purposes to pay for the additional 57 acres of undeveloped land that is the subject of this lawsuit. The fact that more profits are not immediately available does not give rise to any claim of substantial economic injury. The plaintiffs knowingly took a calculated risk when they bought agricultural land adjoining a manufacturing operation and sought to develop it as residential property. The loss of speculative profits because the assumed risk was more potent than anticipated does not justify a claim that the speculative loss was caused by the operations of Hercules. Therefore, plaintiffs have failed to state a claim of nuisance under Section 78-38-1. Having failed to state a nuisance, as a matter of Utah law, supra, plaintiffs do not come within the exceptions stated in Section 78-38-5. b. Even if plaintiffs had stated a cognizable claim of nuisance under Section 78-38-1, they fail to state a claim of nuisance arising from a claimed increase in the condition asserted to be a nuisance or the operator’s negligence. Having failed to state a claim under Section 78-38-1, there is no “nuisance” which could be caused by negligence or expanded operations and thereby be removed from the protection offered resident manufacturers under Section 78-38-5. However, because counsel have fully addressed the application of these exceptions to the instant case, the court will assume, arguendo, that a cause of negligence has been pled under Section 78-38-1 and rule on the arguments. (i) Hercules has not expanded its operations in accord with legislative intent so as to come outside Section 78-38-5. The Utah Legislature intended that a manufacturer accused of maintaining a nuisance would have to (1) expand his facilities on land not owned by him when he began operations or (2) expand the facilities on existing land to a great extent. The Utah House clearly intended the expansion requirement to be construed against the person alleging the nuisance rather than the manufacturer. During debate, the following colloquy took place between Representative Harmer, sponsor of Section 78-38-5 in the House, and Representative Christensen. REPRESENTATIVE CHRISTENSEN: Has the bill got enough for enlargement of facility? Hopefully when they come to our area they are going to grow and develop and expand, and it just says “Does not increase the condition of the nuisance.” Is that enough to make them have the protection they need? REPRESENTATIVE HARMER: Yes, I believe so. Most of their protection comes from their future planning when they buy land that they can expand properly in the future. But I do believe it does cover it. REPRESENTATIVE CHRISTENSEN: They are comfortable with it then? REPRESENTATIVE HARMER: Yes, sir. (HP at 7-8.) The court believes Representative Christensen’s asking as to how “they” felt regarding the bill had reference to manufacturers in the state, including Hercules, who were obviously interested in the outcome of the debate. The allegations of the plaintiffs that the nuisance complained of will increase due to “work about to commenee involving substantially larger rocket motors,” does not come within the intent expressed by the Utah House. It is clear that the House intended the expansion to focus on the acquisition of more property upon which the same manufacturing facility expanded. There is no allegation that Hercules has acquired or is attempting to acquire more property on which to expand; in fact, plaintiffs appear to desire Hercules to purchase portions of their land so as to serve as a buffer zone around the plant and thereby protect surrounding residents who may purchase potentially new homes placed on the remainder of plaintiffs’ property. The only use of additional property by Hercules since beginning missile contracts in 1960 has been the use of Dugway Proving Grounds for the testing of certain rocket motors. This new testing site is located in adjoining Tooele County. Therefore, under the intent of the Utah House, the actions of Hercules alleged by the plaintiffs do not constitute an expansion of the alleged activity causing a nuisance. The standard announced in the Senate called for the exception to mean “expand[ing] their operations [or] changpng] their operations in any great extent.” [Transcript of Senate Proceedings at 1 (emphasis added)]. The alleged activities of Hercules do not fall within this standard. First, there is no expansion of facilities onto adjoining property as noted in the discussion relative to the intent of the House. Second, increasing the size of one’s rocket motors which are being produced on a 3,000 acre manufacturing facility, where testing of said rockets is occurring at a remote location from the plant and plaintiffs’ property, does not constitute “changpng] ... operations in any great extent.” Id. Therefore, Hercules has not acted in such a manner as to bring itself within an exception of Section 78-38-5 as intended by the Utah Legislature. In addition to general allegations of expansion in plaintiffs’ complaint, counsel for plaintiffs indicated to the court that “[w]hile discovery in this case is far from complete, completed discovery demonstrates overwhelmingly that the nature of Hercules’ operation (a) has changed substantially since 1970, and (b) is going to change even more substantially in the near future as a result of work about to commence involving substantially larger rocket motors. This claim of future expansion does not come within the exception of Section 78-38-5 for two reasons. First, the evidence of a substantial change in rocket motor assembly in 1970 is not relevant to this case. Plaintiffs did not purchase their property until 1977. Therefore, any evidence that substantial changes occurred in manufacturing operations in 1970 only undercuts the claim that present or future changes will change operations in “any great extent.” (Transcript of Senate Proceedings at 1.) Second, under Utah law injunctive relief against the future possibility of nuisance arises only when “there is a reasonable apprehension that