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The Nuisance Lecture Series 2 John Keller – Plan 752 Planning Law.

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Presentation on theme: "The Nuisance Lecture Series 2 John Keller – Plan 752 Planning Law."— Presentation transcript:

1 The Nuisance Lecture Series 2 John Keller – Plan 752 Planning Law

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

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

4 Two Types of Nuisances Public Nuisance – Unreasonable interference with a property right common to the public – local government establishes a sewer plant Public Nuisance – Unreasonable interference with a property right common to the public – local government establishes a sewer plant Private Nuisance – Impact only one or a small group of property owners – your neighbor plays bagpipes at 4 in the morning Private Nuisance – Impact only one or a small group of property owners – your neighbor plays bagpipes at 4 in the morning

5 Nuisance Classification Nuisance by accident (per accidens) is a nuisance only by reason of its location, surroundings, or method of operation Nuisance by accident (per accidens) is a nuisance only by reason of its location, surroundings, or method of operation Nuisance per se – A use of the land or an activity which is generally considered to be a nuisance at all times Nuisance per se – A use of the land or an activity which is generally considered to be a nuisance at all times

6 The Big Picture One cannot come to the nuisance and expect relief!!! The converse is that when a person move to a quiet residential are there is a reasonable expectation of quiet living One cannot come to the nuisance and expect relief!!! The converse is that when a person move to a quiet residential are there is a reasonable expectation of quiet living This large ticket item is at the core of the nuisance concept – it will be discussed at length at a later time This large ticket item is at the core of the nuisance concept – it will be discussed at length at a later time

7 Factual Considerations Harm v annoyance Harm v annoyance Triviality Triviality Give and take Give and take Locality Locality Abnormal sensitivity Abnormal sensitivity Time, duration and frequency Time, duration and frequency Intrinsic nature of the activity Intrinsic nature of the activity Malice but not always necessary to show reckless or negligent use Malice but not always necessary to show reckless or negligent use Precautions Precautions Public benefit – utility of the activity Public benefit – utility of the activity

8 Is This A Nuisance?

9 CAR FARM

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

11 Some Local Color

12 More Color

13 Mrs. Bove Gets the Shaft Mrs. Bove purchases property in an established manufacturing area. Mrs. Bove purchases property in an established manufacturing area. She runs a small convenience in her home and also rents out upper rooms She runs a small convenience in her home and also rents out upper rooms She claims nuisance based on the allegation that nearby uses have rendered her property, home and livelihood nearby untenable. She claims nuisance based on the allegation that nearby uses have rendered her property, home and livelihood nearby untenable.

14 Bove Site Abby Street Barage Street Coke Ovens Donner Hanna Copr Gasoline Storage Railroad Lines Bove

15 Only Know Picture of Mrs. Bove Taken in 1937

16 Findings The law will not allow a person to be put in positive distress and be driven from their home The law will not allow a person to be put in positive distress and be driven from their home When a nuisance conflict arises the object is to balance the rights of both parties, so far as possible, and preserve to each their just claim and rights When a nuisance conflict arises the object is to balance the rights of both parties, so far as possible, and preserve to each their just claim and rights

17 Findings 2 One living in a large urbanized and industrial area cannot expect the quiet benefits of the country. One living in a large urbanized and industrial area cannot expect the quiet benefits of the country. Donner Hanna is not a nuisance per se Donner Hanna is not a nuisance per se Mrs Bove caused her own distress by coming to this well established industrial area. She is not entitled to relief Mrs Bove caused her own distress by coming to this well established industrial area. She is not entitled to relief

18 Powell v Tayor or No Funerals Here Only Dead Bodies

19 The Facts The defendant had purchased a property known as the Taylor place and had intended to remodel the property into a combined residence and undertaking parlor. The planned parlor was to be used strictly as a preparatory facility for the deceased, without performing funeral services. The defendant had purchased a property known as the Taylor place and had intended to remodel the property into a combined residence and undertaking parlor. The planned parlor was to be used strictly as a preparatory facility for the deceased, without performing funeral services. The plaintiffs were residents located within the sixteen City- block Square surrounding the proposed parlor. After the intent for the property was announced, the plaintiffs objected and offered to reimburse the defendant for any incurred expenses. The defendant rejected the offer The plaintiffs were residents located within the sixteen City- block Square surrounding the proposed parlor. After the intent for the property was announced, the plaintiffs objected and offered to reimburse the defendant for any incurred expenses. The defendant rejected the offer

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

21 The Appeal Until the end of the nineteenth century, limitations on property use were designed strictly to prevent injury to the physical senses of neighbors in residential districts. Types of businesses banned in residential districts included slaughterhouses, livery stables, blasting operations Until the end of the nineteenth century, limitations on property use were designed strictly to prevent injury to the physical senses of neighbors in residential districts. Types of businesses banned in residential districts included slaughterhouses, livery stables, blasting operations Modern law has expanded to include actions that would affect equity in regards to aesthetics and mental health. Inhabitants of a neighborhood may take prompt action to bar the establishment of funeral parlors and cemeteries in residential districts under the premise that such establishments create continual reminders of death and dead bodies. This can affect the mental balance of inhabitants as well as equity in surrounding properties Modern law has expanded to include actions that would affect equity in regards to aesthetics and mental health. Inhabitants of a neighborhood may take prompt action to bar the establishment of funeral parlors and cemeteries in residential districts under the premise that such establishments create continual reminders of death and dead bodies. This can affect the mental balance of inhabitants as well as equity in surrounding properties

22 Mental Balance

23 Mentally Unbalanced

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

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

26 The Real Neighborhood

27 The Anticipatory Nuisance Justice Millwee noted “The rule is well settled that no injunction should be issued in advance of the construction of a legal structure, or in advance of the operation of a legal business, unless it be certain that the same will constitute a nuisance Justice Millwee noted “The rule is well settled that no injunction should be issued in advance of the construction of a legal structure, or in advance of the operation of a legal business, unless it be certain that the same will constitute a nuisance The proper action of the plaintiffs would to have been to allow the parlor to begin operation. If after operation the parlor was demonstrated to produce a nuisance to the neighborhood, the plaintiffs could then have followed established avenues of complaint to abate the nuisance or remove the parlor from operation. The proper action of the plaintiffs would to have been to allow the parlor to begin operation. If after operation the parlor was demonstrated to produce a nuisance to the neighborhood, the plaintiffs could then have followed established avenues of complaint to abate the nuisance or remove the parlor from operation.

28 Seen Outside the Funeral Parlor

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

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

31 Spur Industries v Del Webb

32 Background Youngstown AZ is founded in 1954 as a retirement community. Located about 15 miles west of the Phoenix Area. It is now part of the Phoenix Metropolitan Area Youngstown AZ is founded in 1954 as a retirement community. Located about 15 miles west of the Phoenix Area. It is now part of the Phoenix Metropolitan Area Welborn opens a cattle feeding area several miles south of Youngstown in 1956. He begins by feeding about 7000 head of cattle Welborn opens a cattle feeding area several miles south of Youngstown in 1956. He begins by feeding about 7000 head of cattle

33

34 Webb Comes to Town In 1959 Del Webb acquires about 20,000 acres next to Youngstown for and retirement community In 1959 Del Webb acquires about 20,000 acres next to Youngstown for and retirement community At first the odor was not detected in the Webb community but as he began to expand south the odor became so bad in 1963 that some of the lots could not be sold At first the odor was not detected in the Webb community but as he began to expand south the odor became so bad in 1963 that some of the lots could not be sold

35 Webb Files Suit In 1969 Webb filed suit against for an injunction against Spur because he could not sell 1,500 of his lots In 1969 Webb filed suit against for an injunction against Spur because he could not sell 1,500 of his lots Spur is now feeding about 20,000 – 30,000 head of cattle at his operation site or, put in another way, about 1.05 pounds of wet cow shit per day Spur is now feeding about 20,000 – 30,000 head of cattle at his operation site or, put in another way, about 1.05 pounds of wet cow shit per day Many of the residents at the wrinkle ranch complain about odor and flies – they can’t even go outdoors Many of the residents at the wrinkle ranch complain about odor and flies – they can’t even go outdoors

36 The Trial The trial court finds that Spur constitutes both a public and a private nuisance. Webb is allowed to sue alone since he was also injured in loss of lot sales The trial court finds that Spur constitutes both a public and a private nuisance. Webb is allowed to sue alone since he was also injured in loss of lot sales The appeals courts affirms but also notes that Webb encroached on what is otherwise a lawful business The appeals courts affirms but also notes that Webb encroached on what is otherwise a lawful business

37 The Conclusion Del Webb, on the other hand, is entitled to the relief prayed for (a permanent injunction), not because Webb is blameless, but because of the damage to the people who have been encouraged to purchase homes in Sun City. It does not equitably or legally follow, however, that Webb, being entitled to the injunction, is then free of any liability to Spur if Webb has in fact been the cause of the damage Spur has sustained. Del Webb, on the other hand, is entitled to the relief prayed for (a permanent injunction), not because Webb is blameless, but because of the damage to the people who have been encouraged to purchase homes in Sun City. It does not equitably or legally follow, however, that Webb, being entitled to the injunction, is then free of any liability to Spur if Webb has in fact been the cause of the damage Spur has sustained. Spur must move and Webb must pay for the cost of closing and relocating Spur must move and Webb must pay for the cost of closing and relocating

38 The Great “When Junk is Not Junk Case” Roell owns a vacant lot in Boise that contains scrap materials, junk, litter, wrecked autos and so forth Roell owns a vacant lot in Boise that contains scrap materials, junk, litter, wrecked autos and so forth Roell and Roell’s son are given notice by the City for a litter and nuisance violation Roell and Roell’s son are given notice by the City for a litter and nuisance violation Roell ignores and Boise sends a city clean up crew to remove some materials Roell ignores and Boise sends a city clean up crew to remove some materials

39 Roell, Wife and Son

40 The Clean Up City crews and inspectors separate what they believe is the valuable scrap for the junk and the liter City crews and inspectors separate what they believe is the valuable scrap for the junk and the liter Roell mysteriously returns and claims that some of the material hauled off by the city was not litter or debris but of valuable to him Roell mysteriously returns and claims that some of the material hauled off by the city was not litter or debris but of valuable to him

41 The Law Suit Roell sues asking for restitution and claims the city did not have the authority to (1) enter his property and (2) the right to distinguish between what is litter and debris and what is of value Roell sues asking for restitution and claims the city did not have the authority to (1) enter his property and (2) the right to distinguish between what is litter and debris and what is of value The trial court grants summary judgment for the city The trial court grants summary judgment for the city

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

43 The Outcome What is one person’s junk is another's treasure. What is one person’s junk is another's treasure.

44 Anticipatory Nuisance? Nicholson v Conn. Halfway House Nicholson v Conn. Halfway House

45 Anticipatory Nuisance A parole half-way house is established in a small urban neighborhood A parole half-way house is established in a small urban neighborhood The parole house does not house those convicted of violent crimes, sex crimes, drug sales. The parole house does not house those convicted of violent crimes, sex crimes, drug sales.

46 The Site Map

47 The Case One of the residents files suit and requests and injunction against the operation of the house. One of the residents files suit and requests and injunction against the operation of the house. The claim is based on the fear that this will introduce criminal activity in the neighborhood. The house will constitute a nuisance because it is an unreasonable use of the land and will reduce property values The claim is based on the fear that this will introduce criminal activity in the neighborhood. The house will constitute a nuisance because it is an unreasonable use of the land and will reduce property values The district courts rules for the residents of the neighborhood The district courts rules for the residents of the neighborhood

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

49 Some of the New Neighbors


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