The NuisanceThe Nuisance

Lecture Series 2Lecture Series 2

John Keller – Plan 752 John Keller – Plan 752 Planning LawPlanning Law

The Ancient Law of NuisancesThe Ancient Law of Nuisances

With the title to all real property is With the title to all real property is passed an implied covenant of passed an implied covenant of enjoyment and quietude, therefore enjoyment and quietude, therefore let each use their own so as not to let each use their own so as not to injure othersinjure others

ConceptConcept The law of nuisance is traditionally concerned with the The law of nuisance is traditionally concerned with the

protection of property rights. In this sense it is protection of property rights. In this sense it is concerned with the enjoyment of land by the owner or concerned with the enjoyment of land by the owner or occupant. However, it is distinguishable from trespass occupant. However, it is distinguishable from trespass to land in that, first, it is not necessarily an intentional to land in that, first, it is not necessarily an intentional act; and second, a nuisance may occur even without act; and second, a nuisance may occur even without any physical incursion onto the plaintiff's land. The any physical incursion onto the plaintiff's land. The right protected is more the right to enjoyment of the right protected is more the right to enjoyment of the land than exclusive possession. The events giving rise land than exclusive possession. The events giving rise to a nuisance to a nuisance cancan be a physical interference with the be a physical interference with the plaintiff's land, but it may also be an interference with plaintiff's land, but it may also be an interference with what is frequently described as the plaintiff's right to what is frequently described as the plaintiff's right to enjoy the "amenities" of the land, eg, the enjoyment of enjoy the "amenities" of the land, eg, the enjoyment of one's land or domicile without excessive interference one's land or domicile without excessive interference by noise or smell.by noise or smell.

Two Types of NuisancesTwo Types of Nuisances

Public Nuisance – Unreasonable Public Nuisance – Unreasonable interference with a property right interference with a property right common to the public – local common to the public – local government establishes a sewer government establishes a sewer plantplant

Private Nuisance – Impact only one Private Nuisance – Impact only one or a small group of property owners – or a small group of property owners – your neighbor plays bagpipes at 4 in your neighbor plays bagpipes at 4 in the morningthe morning

Nuisance ClassificationNuisance Classification

Nuisance by accident (per accidens) Nuisance by accident (per accidens) is a nuisance only by reason of its is a nuisance only by reason of its location, surroundings, or method of location, surroundings, or method of operationoperation

Nuisance per se – A use of the land Nuisance per se – A use of the land or an activity which is generally or an activity which is generally considered to be a nuisance at all considered to be a nuisance at all timestimes

The Big PictureThe Big Picture

One cannot come to the nuisance One cannot come to the nuisance and expect relief!!! The converse is and expect relief!!! The converse is that when a person move to a quiet that when a person move to a quiet residential are there is a reasonable residential are there is a reasonable expectation of quiet livingexpectation of quiet living

This large ticket item is at the core of This large ticket item is at the core of the nuisance concept – it will be the nuisance concept – it will be discussed at length at a later timediscussed at length at a later time

Factual ConsiderationsFactual Considerations Harm v annoyanceHarm v annoyance TrivialityTriviality Give and takeGive and take LocalityLocality Abnormal sensitivityAbnormal sensitivity Time, duration and frequencyTime, duration and frequency Intrinsic nature of the activityIntrinsic nature of the activity Malice but not always necessary to show reckless Malice but not always necessary to show reckless

or negligent useor negligent use PrecautionsPrecautions Public benefit – utility of the activityPublic benefit – utility of the activity

Is This AIs This ANuisance?Nuisance?

CAR FARM

More ConceptsMore Concepts

Each nuisance case is unique and Each nuisance case is unique and turns on factual situations and turns on factual situations and thresholds. Court must consider all thresholds. Court must consider all relevant factors and balance the relevant factors and balance the gravity of harm to the plaintiff versus gravity of harm to the plaintiff versus the utility of the defendants’ the utility of the defendants’ conduct.conduct.

Some Local ColorSome Local Color

More ColorMore Color

Mrs. Bove Gets the ShaftMrs. Bove Gets the Shaft

Mrs. Bove purchases property in an Mrs. Bove purchases property in an established manufacturing area.established manufacturing area.

She runs a small convenience in her She runs a small convenience in her home and also rents out upper roomshome and also rents out upper rooms

She claims nuisance based on the She claims nuisance based on the allegation that nearby uses have allegation that nearby uses have rendered her property, home and rendered her property, home and livelihood nearby untenable.livelihood nearby untenable.

Bove SiteBove Site

Abby Street

Barage S

treet

Coke Ovens

Donner Hanna Copr

Gasoline Storage

Railroad

Lines

Bove

Only Know Picture of Mrs. Bove Only Know Picture of Mrs. Bove Taken in 1937Taken in 1937

FindingsFindings

The law will not allow a person to be The law will not allow a person to be put in positive distress and be driven put in positive distress and be driven from their homefrom their home

When a nuisance conflict arises the When a nuisance conflict arises the object is to balance the rights of both object is to balance the rights of both parties, so far as possible, and parties, so far as possible, and preserve to each their just claim and preserve to each their just claim and rightsrights

Findings 2Findings 2

One living in a large urbanized and One living in a large urbanized and industrial area cannot expect the industrial area cannot expect the quiet benefits of the country.quiet benefits of the country.

Donner Hanna is not a nuisance per Donner Hanna is not a nuisance per sese

Mrs Bove caused her own distress by Mrs Bove caused her own distress by coming to this well established coming to this well established industrial area. She is not entitled to industrial area. She is not entitled to reliefrelief

Powell v Tayor or No Funerals Powell v Tayor or No Funerals Here Only Dead Bodies Here Only Dead Bodies

The FactsThe Facts The defendant had purchased a property known as The defendant had purchased a property known as

the Taylor place and had intended to remodel the the Taylor place and had intended to remodel the property into a combined residence and undertaking property into a combined residence and undertaking parlor. The planned parlor was to be used strictly as parlor. The planned parlor was to be used strictly as a preparatory facility for the deceased, without a preparatory facility for the deceased, without performing funeral services.performing funeral services.

The plaintiffs were residents located within the The plaintiffs were residents located within the sixteen City-block Square surrounding the proposed sixteen City-block Square surrounding the proposed parlor. After the intent for the property was parlor. After the intent for the property was announced, the plaintiffs objected and offered to announced, the plaintiffs objected and offered to reimburse the defendant for any incurred expenses. reimburse the defendant for any incurred expenses. The defendant rejected the offerThe defendant rejected the offer

First HearingFirst Hearing

The plaintiffs filed suit with the local The plaintiffs filed suit with the local District Court, seeking an injunction District Court, seeking an injunction against the development of the Taylor against the development of the Taylor property under the premise that property under the premise that properties surrounding the parlor properties surrounding the parlor would suffer loss of value due to would suffer loss of value due to impact to the aesthetic quality of the impact to the aesthetic quality of the residential neighborhood. The court residential neighborhood. The court denied relief to the plaintiffs on the denied relief to the plaintiffs on the grounds that the area in question was grounds that the area in question was not strictly residentialnot strictly residential

The AppealThe Appeal Until the end of the nineteenth century, limitations on Until the end of the nineteenth century, limitations on

property use were designed strictly to prevent injury property use were designed strictly to prevent injury to the physical senses of neighbors in residential to the physical senses of neighbors in residential districts. Types of businesses banned in residential districts. Types of businesses banned in residential districts included slaughterhouses, livery stables, districts included slaughterhouses, livery stables, blasting operationsblasting operations

Modern law has expanded to include actions that Modern law has expanded to include actions that would affect equity in regards to aesthetics and would affect equity in regards to aesthetics and mental health. Inhabitants of a neighborhood may mental health. Inhabitants of a neighborhood may take prompt action to bar the establishment of take prompt action to bar the establishment of funeral parlors and cemeteries in residential districts funeral parlors and cemeteries in residential districts under the premise that such establishments create under the premise that such establishments create continual reminders of death and dead bodies. This continual reminders of death and dead bodies. This can affect the mental balance of inhabitants as well as can affect the mental balance of inhabitants as well as equity in surrounding propertiesequity in surrounding properties

Mental BalanceMental Balance

Mentally UnbalancedMentally Unbalanced

The NeighborhoodThe Neighborhood

The majority opinion for the The majority opinion for the court found for the plaintiff, as court found for the plaintiff, as the neighborhood in question is the neighborhood in question is “so essentially residential in “so essentially residential in character” as to entitle the character” as to entitle the appellants to the relief askedappellants to the relief asked

The DissentThe Dissent

Come on people, the neighborhood is Come on people, the neighborhood is not just 4 blocks. The overall not just 4 blocks. The overall neighborhood contains many neighborhood contains many commercial usescommercial uses

The Real NeighborhoodThe Real Neighborhood

The Anticipatory NuisanceThe Anticipatory Nuisance Justice Millwee noted “The rule is well Justice Millwee noted “The rule is well

settled that no injunction should be issued in settled that no injunction should be issued in advance of the construction of a legal advance of the construction of a legal structure, or in advance of the operation of a structure, or in advance of the operation of a legal business, unless it be certain that the legal business, unless it be certain that the same will constitute a nuisancesame will constitute a nuisance

The proper action of the plaintiffs would to The proper action of the plaintiffs would to have been to allow the parlor to begin have been to allow the parlor to begin operation. If after operation the parlor was operation. If after operation the parlor was demonstrated to produce a nuisance to the demonstrated to produce a nuisance to the neighborhood, the plaintiffs could then have neighborhood, the plaintiffs could then have followed established avenues of complaint to followed established avenues of complaint to abate the nuisance or remove the parlor from abate the nuisance or remove the parlor from operationoperation..

Seen Outside the Funeral ParlorSeen Outside the Funeral Parlor

Dissent’s ConclusionDissent’s Conclusion The parlor in question does not constitute a The parlor in question does not constitute a

nuisance as it will not be performing the nuisance as it will not be performing the functions of a funeral home that create functions of a funeral home that create public nuisances; those being the holding of public nuisances; those being the holding of actual funerals and the movement of actual funerals and the movement of ambulances to and from the parlor. The ambulances to and from the parlor. The physical form of the parlor would remain physical form of the parlor would remain that of a residence and would not affect that of a residence and would not affect property equity or the aesthetic nature of property equity or the aesthetic nature of the district in question. Additionally, the the district in question. Additionally, the presence of other such in-home businesses presence of other such in-home businesses precludes the argument of the district’s precludes the argument of the district’s residential natureresidential nature

The Drive-Thru Funeral Home The Drive-Thru Funeral Home and the Funeral Web Camand the Funeral Web Cam

Spur Industries v Del WebbSpur Industries v Del Webb

BackgroundBackground

Youngstown AZ is founded in 1954 as a Youngstown AZ is founded in 1954 as a retirement community. Located about 15 retirement community. Located about 15 miles west of the Phoenix Area. It is now miles west of the Phoenix Area. It is now part of the Phoenix Metropolitan Areapart of the Phoenix Metropolitan Area

Welborn opens a cattle feeding area Welborn opens a cattle feeding area several miles south of Youngstown in several miles south of Youngstown in 1956. He begins by feeding about 7000 1956. He begins by feeding about 7000 head of cattlehead of cattle

Webb Comes to TownWebb Comes to Town

In 1959 Del Webb acquires about In 1959 Del Webb acquires about 20,000 acres next to Youngstown for 20,000 acres next to Youngstown for and retirement communityand retirement community

At first the odor was not detected in At first the odor was not detected in the Webb community but as he the Webb community but as he began to expand south the odor began to expand south the odor became so bad in 1963 that some of became so bad in 1963 that some of the lots could not be soldthe lots could not be sold

Webb Files SuitWebb Files Suit

In 1969 Webb filed suit against for an In 1969 Webb filed suit against for an injunction against Spur because he could injunction against Spur because he could not sell 1,500 of his lotsnot sell 1,500 of his lots

Spur is now feeding about 20,000 – 30,000 Spur is now feeding about 20,000 – 30,000 head of cattle at his operation site or, put head of cattle at his operation site or, put in another way, about 1.05 pounds of wet in another way, about 1.05 pounds of wet cow shit per daycow shit per day

Many of the residents at the wrinkle ranch Many of the residents at the wrinkle ranch complain about odor and flies – they can’t complain about odor and flies – they can’t even go outdoorseven go outdoors

The TrialThe Trial

The trial court finds that Spur The trial court finds that Spur constitutes both a public and a constitutes both a public and a private nuisance. Webb is allowed to private nuisance. Webb is allowed to sue alone since he was also injured sue alone since he was also injured in loss of lot salesin loss of lot sales

The appeals courts affirms but also The appeals courts affirms but also notes that Webb encroached on what notes that Webb encroached on what is otherwise a lawful businessis otherwise a lawful business

The ConclusionThe Conclusion Del Webb, on the other hand, is entitled to the Del Webb, on the other hand, is entitled to the

relief prayed for (a permanent injunction), not relief prayed for (a permanent injunction), not because Webb is blameless, but because of the because Webb is blameless, but because of the damage to the people who have been damage to the people who have been encouraged to purchase homes in Sun City. It encouraged to purchase homes in Sun City. It does not equitably or legally follow, however, that does not equitably or legally follow, however, that Webb, being entitled to the injunction, is then Webb, being entitled to the injunction, is then free of any liability to Spur if Webb has in fact free of any liability to Spur if Webb has in fact been the cause of the damage Spur has been the cause of the damage Spur has sustained.sustained.

Spur must move and Webb must pay for the cost Spur must move and Webb must pay for the cost of closing and relocatingof closing and relocating

The Great “When Junk is Not The Great “When Junk is Not Junk Case”Junk Case”

Roell owns a vacant lot in Boise that Roell owns a vacant lot in Boise that contains scrap materials, junk, litter, contains scrap materials, junk, litter, wrecked autos and so forthwrecked autos and so forth

Roell and Roell’s son are given notice by Roell and Roell’s son are given notice by the City for a litter and nuisance violationthe City for a litter and nuisance violation

Roell ignores and Boise sends a city clean Roell ignores and Boise sends a city clean up crew to remove some materialsup crew to remove some materials

Roell, Wife and SonRoell, Wife and Son

The Clean UpThe Clean Up

City crews and inspectors separate City crews and inspectors separate what they believe is the valuable what they believe is the valuable scrap for the junk and the literscrap for the junk and the liter

Roell mysteriously returns and claims Roell mysteriously returns and claims that some of the material hauled off that some of the material hauled off by the city was not litter or debris by the city was not litter or debris but of valuable to himbut of valuable to him

The Law SuitThe Law Suit

Roell sues asking for restitution and Roell sues asking for restitution and claims the city did not have the claims the city did not have the authority to (1) enter his property authority to (1) enter his property and (2) the right to distinguish and (2) the right to distinguish between what is litter and debris and between what is litter and debris and what is of valuewhat is of value

The trial court grants summary The trial court grants summary judgment for the cityjudgment for the city

The AppealThe Appeal

The appeals court rules that Roell is The appeals court rules that Roell is right – the City did not have the legal right – the City did not have the legal authority, under the nuisance authority, under the nuisance statute, to enter and clean up or statute, to enter and clean up or discard materials. If the city were to discard materials. If the city were to have used its litter ordinance there have used its litter ordinance there would have been no problem. would have been no problem. However, the proper remedy for a However, the proper remedy for a nuisance is abatement, injunction, or nuisance is abatement, injunction, or fine (or all three)fine (or all three)

The OutcomeThe Outcome

What is one person’s junk is What is one person’s junk is another's treasure.another's treasure.

Anticipatory Nuisance?Anticipatory Nuisance?

Nicholson v Conn. Halfway HouseNicholson v Conn. Halfway House

Anticipatory NuisanceAnticipatory Nuisance

A parole half-way house is A parole half-way house is established in a small urban established in a small urban neighborhoodneighborhood

The parole house does not house The parole house does not house those convicted of violent crimes, those convicted of violent crimes, sex crimes, drug sales.sex crimes, drug sales.

The Site MapThe Site Map

The CaseThe Case

One of the residents files suit and requests One of the residents files suit and requests and injunction against the operation of the and injunction against the operation of the house.house.

The claim is based on the fear that this will The claim is based on the fear that this will introduce criminal activity in the introduce criminal activity in the neighborhood. The house will constitute a neighborhood. The house will constitute a nuisance because it is an unreasonable nuisance because it is an unreasonable use of the land and will reduce property use of the land and will reduce property valuesvalues

The district courts rules for the residents The district courts rules for the residents of the neighborhoodof the neighborhood

The ConclusionThe Conclusion

The plaintiff did not produce facts – The plaintiff did not produce facts – only fears of what might happen. only fears of what might happen. They are speculative and are They are speculative and are insufficient for granting an injunctioninsufficient for granting an injunction

Some of the New NeighborsSome of the New Neighbors