CONTROLLING USES OF LAND I. Background: A. Private Controls:
? Nuisance suits
? Covenants B. Public Controls:
? Zoning
? Regulations
? Nuisance II. NUISANCE: An unreasonable non-trespassory interference with reasonable (not idiosyncratic) use or enjoyment of property. A. Goals of Nuisance a. Separate out net socially beneficial activities from socially harmful ones. Ban the bad ones. b. Compensate people who are harmed, even if by net-beneficial activities. B. Different from trespass. Trespass is for physical invasion, and is treated like other intentional torts. D is liable for damages w/o any reasonableness balancing. Intentional nuisance, however, is sometimes subject to balancing. a. What's the policy justification for treating intentional physical invasion from intentional activity that leads to invasion via smoke particles?
C. Public and Private a. Public Nuisance: Affects the rights enjoyed by citizens as a part of the public. Only the state, a representative of general public, or someone with a special interest can sue. b. Private Nuisance: One affecting a single individual or a definite small number of persons in the enjoyment of private rights not common to the public. D. Tests: a. Balancing tests (restatement) i. Balancing the utilities (Prah)

1. Gravity of harm: extent and character of harm, social value of P's use, suitability to location, burden on P of abating it)

2. Utility of conduct: social value of P's use, suitability to location, impracticality of D abating it a. Courts are supposed to weigh the total social harm (not just to this plaintiff, but many courts get it wrong) b. Prof thinks courts are terrible at making these kinds of calculations. Its not their job or expertise. ii. Balancing the equities---once a nuisance is found, some courts use this test at the remedies phase.

1. If net positive social utility, make D pay damages, but continue

2. If net negative, no damages, just issue injunction.

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I. 3. Restatement: if net social benefit, but not profitable enough to pay for the harm, then no damages (positive externalities, e.g., jobs). We want the activity to continue. b. Threshold test---some courts just look at reasonableness of the use in question and see if it crosses a threshold, without weighing it against the costs. Damages or injunction. (Morgan v High Penn Oil)---Morgan bought land for a residence and restaurant. Penn Oil later opened an oil refinery next door?intentionally and unreasonably caused noxious gases and odors to escape onto Morgan's property. Court enjoins the refinery. a. Rule: Use is unreasonable?injunction. If court had used balancing here, Penn Oil probably would have won. Estancias Dallas Corp v Schultz---Schultz had a home and Estancias built an apt complex w/ central A/C unit next door. Noise from A/C was like a jet engine or helicopter. Health concerns + 50% diminution in value?court finds nuisance and issues injunction. a. Cost of replacing central A/C unit w/ individual units is greater than diminution of value of house, but court says its unreasonable so issues injunction. i. Can still lead to efficient use if D buys out injunction. Forced Sale (Boomer v Atlantic Cement)---Neighbors of cement yard sued for dust. Court finds a nuisance, but the economic consequences of injunction are much greater than injunction. a. Forced Sale of injunctive relief: Court grants injunction, but will vacate the injunction if cement company pays Boomer an amount equivalent to permanent damages. This is equivalent to denying injunction after balancing the equities. i. this is where Coase theorem would get us. Court is overcoming trasnactn costs. ii. But Boomer might have sentimental value not capture in damages; and not clear that the court would take harm to third parties into account from the environmental pollution in calculating damages iii. Also, paying permanent damages up front would leave cement yard w/ no incentive to upgrade to cleaner equipment later, if available. Indemnification (Spur Industries v Del Webb)--Spur operated cattle feedlot in agricultural area of AZ. Del Webb bought up the cheap land and built retirement community. As they both grow, court finds that Spur manure poses health hazard. Issues injunction b/c public health requires it, but forces DW to pay indemnification to Spur. i. Coming to the Nuisance: Different from Hadacheck b/c the retirement home wasn't the natural growth of Sun City. Del Webb foreseeably created the nuisance by bringing people to the cheap industrial /agricultural land (cheap b/c of proximity to Spur). DW must pay Spur reasonable costs of shutting down. ii. Developer: Court has this option b/c Del Webb has deep pockets. If they had to just tax all the residents to repay Del Webb, it would never happen. Subjacent support---ordinarily, neighboring landowners digging under land just need to maintain the support that land would need under natural conditions. Liability runs to original excavator, even if he no longer lives there. No liability for removing groundwater.

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III. ZONING A way of using planning to prevent nuisance from arising in the first place. Options for preserving space for some use or character: Just buy the land (costs $) Use eminent domain and compensate (costs $) Historic landmark / preservation laws Zoning ---easiest way to do it, and doesn't cost anything

B. Background on Zoning: State delegates police power to local political entities a. Arose to meet congestion, overcrowding, pollution, other outgrowths of industrialization that were hard to tackle w/ nuisance law b. Since it traces back to state police powers, must be in furtherance of the general welfare of the state as a whole, not just of that locality. c. Plan must be comprehensive d. Helps give property owners certainty in the value of their property C. Problems of Rigidity in Zoning

1. Pre-existing non-conforming uses (e.g., Vealencis' trash-hauling) i. Amortization---give the uses a reasonable amount of time before they have to conform ii. Grandfathering---zoning only applies to new uses or adaptable uses (nude dancing can become dancing) iii. Leaseholds: if non-conforming use is a leasehold, just prevent tenant from renewing the lease if for that use iv. Other options: buy out the uses through eminent domain; just let it be; bring public nuisance suit

2. Legislative exceptions or permits built into zoning ex ante

3. Variances (administrative) v. Variances are petitions to exempt a certain use from the ordinance (often just requires the neighbor's permission) vi. They're required when the ordinance would amount to a taking, but also sometimes granted even when ordinance would be less than a taking

4. Amend the ordinance (legislative)

5. Planned Use Development (Administrative) a. Adds flexibility to a zoning plan. The developer buys a whole area and you set some requirements (build some roads, maybe build a school, etc) b. Decision to make it available in the ordinance is legislative, but deciding whether to grant it is administrative. D. Euclidian Zoning (Euclid v Ambler Realty)---Village adopted zoning splitting into various zones of certain uses, height restrictions, etc. P's property lies across several zones, it claims
3/4 diminution of value from the zoning since it can't use it for industrial, attacks entire ordinance. Court upholds ordinance---not a taking, and it's a proper use of police power b/c commercial buildings bring traffic, confusion, noise and the other hazards, and apartment buildings are parasites. So keeping these separate from homes promotes general welfare.

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