Monday, June 19, 2017

Contemporary Issues in Teaching Land Use: Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet, by John Nolon

[While updating the recently released ninth edition to the casebook Land Use and Sustainable Development Law, the four co-authors engaged in numerous spirited discussions about teaching land use. We wanted to open this discussion to others to get their comments and thoughts as we continue to rethink the teaching of this important subject. Each month on this blog, we will introduce a new topic relevant to teaching land use. The topics will loosely follow our casebook chapters, beginning with Chapter 1. We'll explore each topic through four blog posts, one from each of us. We hope you find the discussion enriching, and encourage you to contribute to the conversation in the comments section below or off-line.  -- John Nolon, Patricia Salkin, Stephen Miller, & Jonathan Rosenbloom.]

Contemporary Issues in Teaching Land Use

Question 1:  Teaching the Crossroads Where Nuisance & Zoning Meet

by John Nolon

Our casebook reviews the law of nuisance and the advent of zoning in the same chapter for a reason.  In Euclid, the Court notes that zoning is rooted in the police power of the state, which is exercised to protect the public welfare. The scope of legitimate zoning regulation, the Court states, can be discerned by consulting the law of nuisance for "the helpful aid of its analogies in the process of ascertaining the scope of... the power." 

In introducing nuisance law on p. 5 of Chapter 1, we write: "Offensive intrusions included the effects of smoke, dust, noise, odors, heat, or other discernable effects that interfered with or diminished the normal uses of nearby property."  In Euclid, the Court justifies the separation of land uses, particularly multifamily buildings from single-family uses, by noting that apartments interfere with the free circulation of air, monopolize the rays of the sun, bring disturbing noises, cause traffic congestion, and thus detract from safety, depriving children of the privilege of quiet and open spaces for play, until the residential character of the single family neighborhood is utterly destroyed.  "Under such circumstances, apartment houses...come very near to being nuisances."

The Chapter also makes a useful point about the evolution of the law as circumstances change. The Euclid Court states that regulations that would be invalidated as arbitrary and oppressive a half a century ago "are now uniformly sustained."  "And in this, there is no inconsistency, for while the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.  In a changing world, it is impossible that it should be otherwise." 

This same principle arises in the nuisance cases in the Chapter, as does the continuing viability of nuisance law.  In Prah v. Marietti, the Wisconsin court holds that interference with solar access can be an actionable nuisance, reversing settled law because it was based on principles that "are no longer fully accepted or applicable. They reflect factual circumstances and social priorities that are now obsolete."  Today, in Wisconsin, nuisance law can be used to support the viability of solar power systems just as our society is turning toward renewable energy resources as a critical method of mitigating climate change. That nuisance law is still viable is demonstrated by the fact that, under Prah, nuisance remedies can trump land use regulation.  The neighbor, who proposed building in the plaintiff's solar space, was in full compliance with zoning and site plan regulations, yet, under the holding, could be subject to a court-ordered revision of the approved building plans.

The  ninth edition of Land Use and Sustainable Development Law, is now available for the 2017-18 academic year.  Feel free to contact any of the co-authors if you would like to discuss the book--or just teaching land use law in general.

Pages from Nolon Land Use and Sustainable Development Law 9e

Previous posts in the Contemporary Issues in Teaching Land Use series

Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet [Rosenbloom | Nolon | Salkin | Miller]

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The case of Prah v Meretti raises a question: Can the mounting evidence of the harm to public health, safety, security and welfare of chronically vacant housing where code compliance has been abandoned by all persons with a legal interest in the property be the basis for municipal laws requiring owner registration of such dwellings and the establishment of maintenance codes designed specifically to protect against the imposition of nuisance conditions poorly maintained vacant dwellings? While many municipalities have adopted some form of vacant property registration, many are wary of doing so fearing litigation from real estate and financial investors whose business practices include abandonment of maintenance of empty dwellings when mortgagors fail or refuse to do so. Just wondered if that private right to a nuisance action against foreseeable impediment of a property right has been extended successfully to property maintenance law in support of healthy and sustainable neighborhoods.

Posted by: Kermit Lind | Jun 19, 2017 8:46:18 AM