Tuesday, March 16, 2010

Smith & Fernandez on Aesthetic Nuisance

George P. Smith II (Catholic) and Griffin W. Fernandez have posted The Price of Beauty: An Economic Approach to Aesthetic NuisanceHarvard Environmental Law Review, Vol. 15, No. 1, p. 1991.  The abstract:

This Article advocates a wider judicial recognition of nuisance actions based on aesthetic considerations. Contrary to the majority of legal opinion to the contrary, it is argued that a right to enjoy property should include a right to be free from non-invasive aesthetic or visual nuisances. With modern real estate appraisal methods making it possible to express community aesthetic preferences in monetary terms, courts are now no longer prevented from using these tools in assessing injuries to real estate. Thus, determinations of aesthetic nuisance actions are not any more subjective than the current task of courts in the context of aural and olfactory nuisance disputes. Indeed, the judiciary should resolve conflicts emanating from the unaesthetic uses of land through the Restatement of Torts “objective” balancing test in order to determine what, according to prevailing community standards, is reasonable under the circumstances.

The expanded popularity of aesthetic zoning in many municipalities demonstrates anew the social value of aesthetics and thereby illustrates with clarity a very conscious relationship which exists between economic development and American nuisance law. Judicial recognition of police powers to enforce zoning regulations of this order contradicts - clearly - the heretofore seen reluctance of the Common Law to confront aesthetics in the realm of nuisance and thus invites a more contemporary and enlightened judicial response to this legal issue.

Matt Festa

http://lawprofessors.typepad.com/land_use/2010/03/smith-fernandez-on-aesthetic-nuisance.html

Aesthetic Regulation, Local Government, Nuisance, Scholarship, Zoning | Permalink

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