Thursday, February 28, 2008
The most remarkable thing about nuisance law is its flexibility -– conduct that might be perfectly reasonable in a rural area isn’t acceptable when the area becomes more crowded. NPR ran a story today about – no, not a pig in a parlor, but about a donkey amidst sprawl. In Golden Valley, Nevada, just north of Reno, the population boom in the Silver State has brought homeowners to an area that was once rural. A resident successfully sued to enjoin the braying of a donkey on an adjoining 4-acre lot on land that is zoned as agricultural. Although the donkey has been on the corral for seven years, most of the surrounding land is now residential.
Should the claimant have lost because he “came to” the nuisance? Golden Valley responded with an ordinance that affirmatively informs new residents of the existence of animal noises and smells in the community. Relying on the famous Arizona precedent of Spur Industries v. Del E. Webb Development Co., perhaps a reasonable solution would be for courts to recognize the changing character of an area and put the donkeys out to more distant pasture, while requiring neighbors (or perhaps the town as a whole?) to compensate the animal owners. NPR’s story comes complete with the donkey’s braying.
Tuesday, February 26, 2008
What’s less popular with suburban neighbors than a small mobile home? Why, a large mobile home, of course! In an interesting decision handed down today, a Connecticut court held that old mobile homes in a nonconforming mobile home park could not be replaced with new and larger homes, because to do so would work an unlawful “expansion” of the nonconforming use. (The case is Wiltzius v. Zoning Board of Appeals of the Town of New Milford, Nos. 27787, 27788, 27789 (Conn. App Ct. Feb. 26, 2008)).
The mobile home park argued both that the park itself (not the homes themselves) was the conforming use, and that a state statute enacted while the case was pending supported this argument. The Court reasoned however, that the new law didn’t apply retroactively, that larger mobile homes would constitute an unlawful “expansion” of nonconforming buildings, and that public policy argues for abolishing nonconforming uses as soon as possible.
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