Judicial Land Use Control: Nuisance

Question 1

The Forms of Land Use Control

Answer 1

1. Private Restrictive covenants or other servitudes, in which parties agree to limit us
2. Judicial: Common law, primarily through nuisance doctrine, controls unreasonable uses
3. Governmental: Federal, state, or local laws, such as zoning, that limit land use. Governmental controls are in turn constrained by constitutional limitations

Question 2

Private Nuisance

Answer 2

It exists when a landowner substantially and unreasonably interferes with the use and enjoyment of the land of another.

• In essence, every person should use his own property as not to injure that of another
• The Restatement of Torts specifies a nuisance must be non-trespassory- to distinguish a cause of action of nuisance from the physical intrusions handled under trespass law.
  
  • Often the line is difficult to distinguish
• A private nuisance affects one landowner or at most a small number of neighboring properties
• Private nuisance is only available to another landowner- the plaintiff must show a nuisance of her own land

Question 3

Analyzing Nuisance Cases

Answer 3

Does a nuisance exist?

If a nuisance exists, what should be the remedy- damages or an injunction?

Question 4

Older approach to nuisance law: Substantial harm approach; Many American jurisdictions continue to use this test

Answer 4

• If A’s use of her land substantially interfered with B’s use and enjoyment of his land, A’s use was a nuisance and must be enjoined. B should not have to put with noise, dust, stench or other consequences of A’s activities
• The courts used the term unreasonable interference mostly to refer to the degree of harm caused
• This approach focuses on the degree of harm caused by the offending use, rather than examining the comparative social utility of the competing uses
• Some courts implementing this test at least consider the utility of the conduct, but do not explicitly balance the harm v. utility
• Courts implementing the substantial harm approach often refer to a category of harms:
  
  • Nuisances per se: which are always nuisances regardless of the circumstances
  • Nuisance per accidens: actionable only because its location, its manner of operation, or other circumstances

Question 5

Balance of the utilities test

Answer 5

Modern courts implement the balance of utilities test adopted by the Restatement of Torts that only an unreasonable interference should be actionable, but the test for unreasonableness takes into account the conduct of both the plaintiff and defendant

Balance of the utilities test:

• An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable if
  
  • The gravity of the harm outweighs the utility of the actor’s conduct, or
  • The harm caused by the conduct is serious and the financial burden of compensating for this and similar harm to others would not make the continuation of the conduct not feasible.
• In determining the gravity of the harm from an intentional invasion of another’s interest in the use and enjoyment of the land, the following factors are important:
  
  • The extent of the harm involved;
  • The character of the harm involved;
  • The social value that the law attaches to the type of use or enjoyment invaded
  • The suitability of the particular use or enjoyment invaded to the character of the locality; and
  • The burden on the person harmed of avoiding the harm
• In determining the utility of the conduct that causes an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important:
  
  • The social value that the law attaches to the primary purpose of the conduct;
  • The suitability of the conduct to the character of the locality; and
  • The impracticability of preventing or avoiding the invasion

The balance of the utilities test applies only to intentional interference

• Intentional in this context means the conduct was purposeful
• Restatement defines intentional in this context:
  
  • An invasion of another’s interest in the use and enjoyment of land is intentional when the actor a) acts for the purpose of causing it, or b) knows that it is resulting or is substantially certain to result from his conduct

Question 6

Effect of Zoning or Covenants on Nuisance Analysis

Answer 6

General rule: a nuisance suit is not precluded merely because a particular activity is allowed by law (such as zoning) or by private restrictions on land use, such as covenants, or home-owner’s association bylaws.

• Nevertheless, because nuisance rests on a determination of unreasonableness, compliance with zoning or other restrictions can be good evidence of the social utility of the defendant’s conduct
• Additionally, a statute that directly addresses the conflicting uses may displace the common law, due to the concept of legislative supremacy
• Courts are reluctant to become involved where an HOA has specifically addressed a particular conflict

* Argue both sides *

Question 7

Remedy for Nuisance

Answer 7

Common law: nuisance would be enjoined

Modern trend: Many courts have moved away from automatic imposition of an injunction, reasoning that damages may be a more appropriate remedy in some cases

• These courts use a liability rule rather than a property rule
• In these cases, the D’s activity causing the harm might be so valuable to society that enjoining it would be undesirable
• The Restatement states the decision to award injunctive relief should be based on a balance of the equities:
  
  • The hardship to the plaintiff if an injunction is denied weighed against the harm to the defendant if an injunction is granted

In considering the equities, the court will also weigh the impacts on third parties and the public in general.

The Coase Theorem: suggests that in the absence of transaction costs, the parties will bargain to reach an efficient outcome regardless of the legal rule adopted. This approach avoids having the court attempt to assess the real harm to the plaintiff, including personhood harms, which are difficult to quantify.

Question 8

Public Nuisance

Answer 8

It is an unreasonable interference with a right common to the general public. Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:

• Whether the conduct involves a significant interference with the public health, public safety, public peace, public comfort, or public convenience, or
• Whether the conduct is proscribed by a statute, ordinance, or administrative regulation, or
• Whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has reason to know, has a significant effect upon the public right

The doctrine of public nuisance is available for conduct that affects the public in general.

Generally brought by government authorities

• Municipalities are given broad authority to take abatement action
  
  • Could include going to court to seek injunctive relief, or simply ordering landowners to cease activity

Many courts hold public nuisance actions may be brought only by governmental authorities, unless an individual plaintiff can show she suffered special harm, of a kind different from that suffered as a member of the general public

Some modern courts: moving away from the special harm requirement, especially in cases seeking injunctive relief only. Otherwise, in many cases, a public nuisance claim could be brought only by a public official

Question 9

Uses of public nuisance

Answer 9

• Tool to achieve social reform goals
  
  • Climate change
  • Litigation against firearms and lead paint manufacturers