Monday, July 3, 2017

Stephen R. Miller on Contemporary Issues in Teaching Land Use: Question 1: Teaching the Crossroads Where Nuisance & Zoning Meet

[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 Stephen R. Miller

In rounding out this discussion of how to teach the interplay between nuisance and zoning, I thought I would focus on the case of Shore v. Maple Lane Farms (p.14), a 2013 Tennessee Supreme Court case that is probably the least well known case in this chapter.  I may be the biggest proponent of this case in the country:  according to Westlaw, the case has only been cited twice in academic literature, and both times by me.  I want to explain why I think it is such a good teaching case.

First, I like Maple Lane Farms because, unlike many nuisance cases, the facts are simple, fun, and I find my students relate to them easily.  The basics of the case are essentially this:  an elderly woman moves from the hubbub of the city and settles in what she believes is the bucolic Tennessee countryside.  However, the farm next door, in an effort to supplement its income from traditional agricultural operations, begins operation of a pumpkin patch.  That operation became increasingly popular over the years and, in time, the diversified agritourism operation is accompanied by weekend amplified music concerts that are so loud that Ms. Shore must leave her home when they occur.  These facts invite a discussion of suburban and exurban development issues.  Teaching in a rural, fast growth state, every time I have taught the case, students have loved the facts and supplemented class discussion with their own experiences of the externalities of living near agricultural uses that are often noisy, smelly, and not always bucolic.  (Many times, my students are sons and daughters of farmers and ranchers that can speak firsthand to the complexity of farming and ranching adjacent to residential areas.)

Second, I like the case because it is a tour de force of nuisance doctrine.  The excerpt in the casebook, which was expertly edited by Jon Rosenbloom, provides just the highlights.  But it must be said that the Tennessee Supreme Court outdid itself in clearly presenting the basic tenets of nuisance law.  There is plenty of Prosser and Keeton, Restatements, and even a shout-out to Dean Salkin’s treatise on zoning.  If you want a black letter definition of nuisance, which is really how we use the case here, Maple Lane Farms is a great option.  In addition, Tennessee nuisance law hews close to national norms.  This is helpful for me because Idaho nuisance law is filled with some quirky provisions.  Maple Lane Farms is a useful comparison to illustrate the general rules from which I can then discuss the idiosyncrasies of local law.  I supplement with Idaho law in class and we discuss how certain provisions of local law differ from the norms stated in the Tennessee case.

Third, I like this case because it involves the interplay between common law nuisance and state right to farm statutes.  Most, if not all, states have adopted a right to farm statute, and the Tennessee statute at issue in this case is the model language that was adopted by most states.  These right to farm statutes are generally believed to protect farmers from nuisance claims, but the facts of this case present a chance to closely read a statute with relation to common law.  Close investigation discovers that the statute only provides a “presumption” of an agricultural operation not being a nuisance, and moreover, that the presumption only applies to those activities that relate to the “land, buildings and machinery” used in “farm operations.”  Is an amplified music concert a “farm operation”?  The court here holds no, which permits the common law nuisance claim to proceed.

But the Tennessee Supreme Court’s decision to permit the nuisance claim to advance invites other questions about “use” that take us into the question of what constitutes “zoning,” which is the fourth reason I love this case.  What is “agriculture” in the state right to farm statute, and what is “agriculture” as it might be defined by local zoning codes?  For instance, many agricultural nuisance cases discuss noise, but they typically have to do with farmers getting up early and using their tractors at hours when most residential dwellers are asleep.  In this case, if the noise were generated from tractors or the agricultural operation, it would clearly be preempted by the right to farm statute.  But we are not simply regulating “noise,” but a “use.”  Here, the noise comes from an amplified music concert.  That difference in the use matters because it explains why the nuisance claim is not preempted by the right to farm statute.

There is another aspect of “use” at issue here.  The lower appellate court had held that amplified music concerts were “farming operations” sufficient to permit protection under the right to farm statute.  The appellate court noted that the changing nature of agriculture meant that most farmers did not make their livings anymore exclusively from traditional farming.  Indeed, Maple Lane Farms made 75% of its income from its agritourism operations.  If non-traditional operations are necessary for most farmers to survive financially these days, should we come to view such operations as tantamount to an “agricultural use,” or are these “accessory uses,” or are they wholly incompatible uses that should not be permitted here?  What is the relationship between regulating uses and changing business models of traditional industries?

In short, Maple Lane Farms provides a professor the chance to open numerous avenues of discussion that will be picked up later in the course with greater detail.

Note:  in another part of the case not excerpted in the casebook, the Tennessee Supreme Court also interprets the local county zoning code and determines that amplified music concerts do not fit within the definition of “agricultural” uses in that code.  The analysis is similar and virtually redundant to the right to farm statute analysis, which is why it is not provided.  However, a professor that wanted to illustrate uses in the zoning code could also supplement the excerpt with that section of the case.

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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... businesses and financial institutions where collectable fines are acceptable business costs. Equitable relief here, a tool that can often be effective, is novel and rarely thought of in municipal courts.

Posted by: Kermit Lind | Jul 3, 2017 9:02:21 AM

[Second try] “What is the relationship between regulating uses and changing business models of traditional industries?” Great question, Stephen. The use of residential property as a commodity for manufacturing securities out of batches of mortgage-backed debt securities includes the practice by financial institutions of disclaiming ownership responsibilities when they take control of and title to defective houses abandoned by debtors, sometimes at the demand or due to threats of creditors. I have heard lawyers for financial institutions holding recorded title to properties condemned for nuisance conditions plead that their clients are not subject to local housing and environmental codes because they are not occupying the vacant property and they hold title for purposes other than occupancy. Their business plan doesn’t include code compliance. Use, the argument goes, is flexible so as to have code compliance not required of banks make of foreclosure judgments and REO property. This alleged exemption results in houses being vacant without maintenance by any person for indefinite periods (often for years), leading to the property being reduced to waste and to it harming surrounding property interests, the property tax base and the lives of persons nearby. When the bank-owners determine their wasted property has no profitable use, the bank may abandon its legal interest, sell the debt as junk to another debt collector and let the public deal with the remaining nuisance conditions. This view of law would create a “right to maintain a nuisance”—a privilege of noncompliance with public laws protecting property rights and public rights to health, safety and welfare expressed in local anti-nuisance regulations for the benefit of private profit-making trumps the legal rights of other land users and occupiers. Keeping the question of this business practice from being litigated has been fought and avoided by big banks. So we are still faced with the question of how to regulate residential property use in the context of business models that produce property blight, especially in weak markets.

Posted by: Kermit Lind | Jul 5, 2017 8:34:39 AM