nuisance doctrine. nuisance nuisance actions are an extension of the private tort of trespass to...

Nuisance Doctrine

Nuisance

• Nuisance actions are an extension of the private tort of trespass to land– Trespass – physical invasion of property

– Nuisance – non-physical invasion

• “An unreasonable and substantial interference with the use or enjoyment of one’s property without physical trespass or unlawful entry”

Nuisance

• History of nuisance doctrine goes back to Middle Ages– Law courts had little control over land disputes

– Noblemen often appealed to King for justice or equity

– Eventually a system developed to provide equitable remedies (equitable to all parties)

Nuisance

• Currently– Nuisances are controlled via nuisance ordinances

– Nuisances are prevented, mitigated & regulated through zoning & development ordinances

• Here, nuisance ordinances operate concurrent with zoning ordinances

Nuisance and Externalities

• Externality– An “extra-territorial” effect of a property owner’s action that

does not involve a physical extension of that activity

– Positive Externality

– Negative Externality

From: Stacy Tolbert [mailto:stolbert@co.rockingham.nc.us] Sent: Thursday, January 29, 2015 9:46 AM To: NCPlan mailing list Subject: [ncplan] Shooting in Residential Districts

Good Morning, Do any of you have regulations in your zoning ordinance regarding recreational shooting, shooting pits, target shooting, etc. in residential districts? Specifically any restrictions such as acreage requirements or buffers? We have a situation of a property owner wanting to construct a shooting pit (mainly berms) in his back yard for personal shooting only - no public use, no fees charged. However, this property is less than 1 acre and in a major subdivision. We already have requirements for shooting ranges on a much larger scale that are for profit, we'd like to see what other Counties are regulating.

Thanks, Rockingham County Planning Department PO Box 105 Wentworth, NC 27375 (336) 342-8117

Nuisance and Externalities

• Positive Externalities– Beautiful landscaping

– Artful façade

– Additions and renovations

– Enhanced economic activity

Nuisance and Externalities

• Negative Externalities– annoyance, inconvenience, discomfort, damage

• Smoke

• Noise

• Activity

• Traffic

• parking

Nuisance

• Generally in the eyes (or ears) of the beholder

Nuisance

• Public Nuisance– A criminal act that interferes with the community at large

• Private Nuisance– A civil action between two parties

Nuisance

• Nuisance per se– A nuisance wherever it is located

• Nuisance per accidens– A nuisance only in the areas in which its location would

detrimentally affect surrounding property

Nuisance

• Implicit heirarchy– But there are exceptions!

R

R C

R C I

Nuisance

• Anticipatory Nuisance– Preventing a nuisance that may happen

• It may also not happen, so what are you preventing?

– Courts generally view the abatement of this type of nuisance favorably if plaintiff can show with certainty that a nuisance can occur

Nuisance

• Priority of Occupation– Did the nuisance come to you, or did you come to the

nuisance?

• Who was “first in time”?

• The nuisance was not a nuisance until someone came to it

• Don’t want to fault someone for another’s bad decision

Nuisance

• Attractive Nuisance– Refrigerators

– Natural climbing walls

– Creating a situation that draws people to a situation that ultimately creates a nuisance or damage to property & person

Nuisance

• Aesthetic Nuisance– Junkyards, Junk Cars

• Visually offensive

• Physically passive

– “Yard Art” “Yard Furniture”

• Reduction in economic value to other properties

Nuisance Remedies

• Remedies (just and equitable)

– How does this situation get resolved?

• Injunction

• Payment

Nuisance Remedies

• Injunction– Court order halting obnoxious activity

– Balances equities accruing to all parties involved

• Typically works against plaintiff (especially in a “David vs Goliath” action

Nuisance Remedies

• Payment– Compensation

• To plaintiff

• To defendent