Cooking smells spark Dyer strip mall fight

2013-11-30T06:00:00Z Cooking smells spark Dyer strip mall fightJoseph S. Pete joseph.pete@nwi.com, (219) 933-3316 nwitimes.com
November 30, 2013 6:00 am  • 

DYER | A dispute over the aroma of soup and fresh baked bread escalated into a legal battle that went all the way to the Indiana Court of Appeals in Indianapolis.

The owner of a Dyer strip mall sued a tenant over food smells he claimed annoyed neighboring businesses.

Dyer Plaza manager George Novogroder, who owns the Chicago-based Novogroder Cos., filed a lawsuit against the fruit and vegetable purveyor Produce Depot, which also has a location in St. John. He asked a Lake County judge to kick the grocery store out or force it to refrain from cooking until after installing ventilation.

Both a Lake County Superior Court Judge John Pera and the Indiana Court of Appeals sided with Produce Depot, a small grocer that focuses on healthy and organic fare, such as smoothies and antibiotic-free meats.

Produce Depot, which has rented a storefront in Dyer, bought the larger store it opened on Wicker Avenue in St. John earlier this year. Produce Depot plans to close the current Dyer location after the lease expires in July, owner Michael Massaro said.

Massaro said he would be happy to focus on just the St. John store, but may look for a new location in Dyer as well. He declined to comment on the lawsuit.

Novogroder's attorney also declined to comment on the case. Novogroder did not return messages for comment.

Produce Depot opened in 2009 on Joliet Street in Dyer. An issue cropped up two years later when new tenants – at the exercise studio Pro Fit and the pet groomer Posh Paws – complained about food smells, according to the Indiana Court of Appeals ruling. The gym owner complained cooking odors could be nauseating to gym-goers who were working out.

Massaro and Novogroder discussed installing ventilation, but could not agree on who should hire a contractor, according to the court document.

Pera ruled Produce Depot did not unreasonably annoy neighboring businesses and the smells of dog waste from the pet grooming facility next door were far worse than anything wafting from the grocery. The appeals court noted no one complained that the odors were foul, just that they could smell food.

"In context, the testimony of George and Massaro reveals the actual dispute, something more properly sounding in contract than in nuisance: who should bear the primary responsibility for installing ventilation," the judges wrote while declining the request to intervene.

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