Nuisance Law

Remedies for Nuisance

Balance between value of harm/individual compensation and a desire to allow continued economic development.

Classifying a Nuisance

*A nuisance is:* Unreasonable conduct/Which substantially interferes with or disturbs Use and enjoyment/Of land. *Example:* Pollution that crosses property lines, hazardous conditions that threaten neighboring property.

Conduct can be

*Intentional and unreasonable* Conduct is intentional if it is undertaken to cause the harm in question or if the result was known or reasonably should have been known. Usually an intentional act that continues over time and interferes with another's enjoyment of land. Unreasonableness of the interference is the primary factor.

Village of Euclid v. Amber Realty Co. (1924) *[Pig in a Parlor/Zoning Ordinance]*

*Rule:* A zoning ordinance is constitutionally valid under the police power when there is justification for the assertion of police power to protect the public welfare. *Test:* As long as the legislation pursues a valid public purpose and so long as the legislative means are rationally related to that purpose, it is constitutional.

Spur Industries, Inc. v. Del E. Webb (1972) *[Cattle Feedlot]*

*Rule:* In the proper circumstances, an owner of a lawful business that is enjoined from operating because his business is found to be a nuisance can seek indemnification from the individual successful in claiming the nuisance. "In addition to protecting the public interest, however, courts of equity are concerned with protecting the operator of a lawful, albeit noxious, business from the result of a knowing and willful encroachment by others near his business".

Prah v. Maretti (1982) *[Solar Energy]*

*Rule:* When a landowner utilizes solar energy and the construction of a new structure will unreasonably hinder the solar powered property, the construction of the new structure may be enjoined under the theory of private nuisance

Boomer v. Atlantic Cement Co. (1970) *[Cement Factory]*

*Rule:* When a nuisance is of such a permanent and unabatable nature that a single recovery can be had, there can be only one recovery. The court grants permanent damages to the plaintiffs after engaging in a balancing of the equities, where it found that the costs of closing the company would grossly exceed the significant damages to plaintiffs.

Scenarios for thinking about how the court might decide a remedy

*• Low transaction costs, and the court has perfect information about the costs → the ideal remedy: an injunction* *• High transaction costs, and the court has perfect information about the costs → the ideal remedy: damages* *• High transaction costs, and the court has incomplete information about the costs (the court has information about either the harms to the plaintiff or the costs to the defendant of avoiding the nuisance → the ideal remedy: damages (for the party that the court does have information on)*

Public Nuisance

A public nuisance affects the general public. It is widespread in its range and indiscriminate in its effects. Includes: gambling, prostitution, nude sunbathing, air pollution, and rock festivals.

Public v. Private Nuisance

A public nuisance involves an interference with a right common to the general public. A private nuisance involves a substantial interference with the private use and enjoyment of one or a number of nearby properties.

Nuisance Law

A way of regulating land use by the judiciary that takes place when individuals themselves cannot agree on land use regulation. *o Two steps* • The test for finding a nuisance • Remedies for nuisance

Nuisance Case Law *[BSVP]*

Boomer v. Atlantic Cement Co. (1970) [Cement Factory] Spur Industries, Inc. v. Del E. Webb (1972) [Cattle Feedlot] Prah v. Maretti (1982) [Solar Energy] Village of Euclid v. Amber Realty Co. (1924) [Pig in a Parlor/Zoning Ordinance]

Why were these options to a remedy available?

Court doesn't want to allow holdouts to stifle economic development. Could encourage company to make changes to pollute less. *Issue:* Monetizing non-economic factors such as noise, vibration, etc. This case shows the move from strict damages under property rules to a mix of property and liability remedies. A court should refuse injunctive relief when there is a large disparity in economic consequences of the nuisance and the injunction.

Substantial Interference considerations

Depreciation of property value might help to show that there is a substantial injury to the P. Serious discomfort and inconvenience from odors, smoke, objectionable noise, etc. (measured by sensibilities of the average person). Blocking sunlight in general has not been held to be a nuisance, BUT blocking sunlight from solar collector has. Spite fences that have no social utility have also been held a nuisance.

Arguments against damages

Discretion Can't live in a world in which everything is compensated.

Gravity of the harm

Extent of the harm Character of the harm Social value of the use or enjoyment invaded Suitability of the use invaded to the locality, AND Burden on the person harmed of avoiding the harm.

Gravity of the harm v. utility of the actor's conduct

Gravity of the harm must outweigh the utility of the actor's conduct

*Available Remedies*

Injunction Monetary damages Do nothing- D holds entitlement to preexisting use. P contributes to clean up or leave Occurred in Spur Industries. This can be a way to address "coming to the nuisance." Recognizes entitlement to preexisting use while also recognizing change in time/circumstances.

Social values of the conflicting uses

Priority in time- conflicting use that came first gets priority. Coming to the Nuisance- if the D's use was first, P has a less appealing case because he could have avoided the harm. However, this will never be a determinative fact. Other factors will be considered. Economic Analysis is becoming increasingly important.

Character of the neighborhood

Residential areas have lower standards regarding what qualifies as a nuisance. What qualifies as a nuisance might change with the neighborhood. Conduct that was once reasonable can become unreasonable.

Utility of the conduct

Social value Suitability of the conduct to the locality Impracticability of preventing or avoiding the invasion

Substantial Invasion Test

Some courts have used the "substantial invasion" requirement to deny recovery for environmental degradation like aesthetic impairment that does not result in tangible physical changes in land or easily-measured economic harm.

Coase Theorem

The market determines whether the activity will continue, not the initial allocation of rights by the courts. The initial allocation only makes one party richer and will not stop pollution.

Remedies for nuisance are broader than traditional property remedies

Traditionally, there is only an injunction or there is not. In Boomer v. Atlantic Cement Co., non-traditional remedies were awarded. P lived close to a cement plant and sued for nuisance based on dirt, smoke, noise, etc. P was awarded monetary damages for the permanent nuisance. Opens the option of both a liability and a property rule: If D didn't pay, an injunction would be imposed. If D paid, it could continue to operate.

Arguments for damages

Transaction costs are lowered. Accountability Could reduce pollution by forcing internalization of harm.

Circumstances that create a public nuisance

Whether the conduct involves significant interference with public health, safety, peace comfort, or convenience, 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.

Factors relevant to judicial determinations of what is a nuisance

o Who was there first o Public interest in preserving way of life o Idiosyncratic value/personhood o Property value o Community norms - you are more likely to say that an activity is a nuisance if it is incompatible with community values.