Wednesday, December 6, 2006
How should the law of “nuisance” respond to modern times? If one creates excessive noise, smells, or other annoyances that cross property boundaries, neighbors have a chance of convincing a court that the conduct is a “legal nuisance” that justifies either an injunction or money damages. Should more types of disturbing actions be considered nuisances? When the annoyance may bother public property –- or perhaps simply bother those trying to enjoy public property –- should the law be even tougher?
From south-central Pennsylvania comes a controversy about an application to open a gambling casino within a couple of miles of the Gettysburg battlefields, much of which are on a National Military Park. Should the supposed inappropriateness of a casino near America’s bloodiest battlefield be a ground for barring the casino in some manner?
Two past controversies jump to mind: First, In Minnesota v. Block, 660 F.2d 1240 (8th Cir. 1982), a U.S. Court of Appeals upheld the federal government’s authority to ban motorboat use on state-owned property that was near federally owned property in Minnesota’s Boundary Waters Canoe Area, because the law permissibly “protected” the federal property (designed for canoe travel) from noise “interference” that came from off federal property. Less successful was an effort to stop construction of large private buildings in Arlington, Va., that in effect “overshadow” the National Mall, when seen from places such as the west Capitol porch.
Should or could the Pennsylvania authorities deny the permit because of the psychological or social effect of a casino near the battlefields? Could or should the federal government attempt to control such a local land use because of its “effects” (broadly defined) on federal land? Could federal or state courts enjoin such as casino as a common-law social “nuisance”?