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Nuisance laws started just after the Norman Conquest and have been heard in the English courts since the 12th century. The basic assumption is that everyone has the right to the use and enjoyment of his or her land. Nuisance laws were for centuries the major method of regulating land use. When an action or inaction affects that use or enjoyment, it can be identified as a nuisance.
A nuisance can be categorized as either private or public. A private nuisance is a situation that affects the enjoyment or use of an individual’s property without a trespass or physical invasion. A public nuisance is a condition endangering public health, morals, safety, comfort, convenience, or welfare of community members. The same nuisance, however, may be enforceable in both situations.
Nuisance laws or ordinances are generally defined at the local government level with a broader description at the state or province level. In some situations, there may be a fine distinction between nuisance and pollution law relative to the definition of the activity, standards, amounts, and location.
Nuisance laws concerned with the environment can be classified into three general categories: public health and well-being, environmental protection, and land use. Public health nuisance laws are designed to protect and preserve the public and infractions can range from smoking in nonsmoking areas to maintaining a yard that could breed infectious insects or vermin.
Well-being is a broad term and has many definitions; however, it generally relates to the perception of safety, comfort, happiness, and convenience. Nuisance laws protect that perception in several ways; one example is by controlling the use of land and structures that conduct illegal activities. An example of impinging on our convenience is to regulate activities that obstruct traffic and thus create traffic congestion.
Nuisance laws that protect the environment are generally associated with land, water, and air pollution. The laws vary and may regulate the dust or erosion from a construction site, the limits of sediment in a stream, or the amount of light emittance skyward. Overall, the nuisance laws protecting the environment are the regulations that control activity at the local level and reflect the community’s environmental concerns.
Production and services are needed to sustain a local economy and these activities are conducted in factories, processing plants, and power stations. In addition, food and livestock production are necessary to feed the population. Nuisance laws attempt to mitigate the impacts of factory and agricultural production to the surrounding landholders as these activities can cause discomfort, inconvenience, and visual blight to neighboring landholders.
Nuisance laws endeavor to support these activities and at the same time provide protection to residential and commercial lands. These land uses are generally not a nuisance if conducted in suitable locations and following proper management procedures.
Nuisance law pertaining to land use is a balancing act between economic activity and community quality of life. Each community defines its quality of life and what is a suitable area for different land use activities. Thus, there are no standards to define minimum or maximum for land use interactions.
A nuisance is an unreasonable interference with the use or enjoyment of land. A frequent paradigm for determining whether a nuisance exists is the weight of the gravity of the harm to the landowner or public against the utility of the use or the nuisance. The main points to consider are the character of the harm, the social value of the use, the suitability of that use to the character of the area, and the impracticality of avoiding the harmful invasion. In other words, is it reasonable for the action or inaction to take place in that location or does it impede the individual landowner or the public from using or enjoying the land?
- L. Callies, R.H. Freilich, and T.E. Roberts, Cases and Materials on Land Use (West Group, 1999);
- C. Juergensmeyer and T.E. Roberts, Land Use Planning and Control Law (West Group, 1998);
- D.R. Mandelker and J.M. Payne, Planning and Control of Land Development: Cases and Materials, (Lexis Nexis, 2002);
- R. Wright and M. Gitleman, Land Use in a Nutshell (West Group, 2000).