LAND USE PLANNING
Professor Anthony Schutz
Spring 2007
I. Land Use Litigation in the Absence of Planning
A. Trespass/Nuisance Law (Ampitheaters, Inc. v. Portland Meadows)
1. Trespass
a. Elements:
i. Intent
ii. Causation
iii. Physical Entry
b. It is generally easier to prove trespass over nuisance.
c. Trespass is an entitlement claim to be free from physical entry onto your
property which strongly favors the Π.
i. Basically, all the Π has to prove is physical entry.
2. Nuisance
a. Elements
i. Intentional
ii. Causation
iii. Unreasonable (Standard in NE for Remedy at Law (damages) and
iv. Substantial interference with the use and enjoyment of property
a. Substantial Interference—standard in equity action (injunction) NE; “physical discomfort to a person of ordinary sensibilities.”
v. Damages
a) Regarding an actionable private nuisance, we note that the Restatement’s provisions pertain to
an action for damages. Denial of injunction is not always grounds for denying damages.
b) Abating the Nuisance – Equity bringing the harm causing conduct down to an acceptable level.
c) Even in an equity action –court may award permanent damages under same sort of rational as 2. (balancing test for reasonableness)
x. First element—Intent: purpose or substantial certainty/knowledge that harm would result from conduct
b. Third Element—Unreasonableness (Damages in NE—not used for equity]
i. Balancing Test—utility of Δ’s use versus Π’s use of his property, and social implications
a) 1. Gravity of harm outweighs utility, 2. harm is serious but financial burden is manageable for perpetrator (allows operates to give compensation to a plaintiff even when the utility of the conduct outweighs the gravity of harm that it causes the defendant)
b) As expressed in the Restatement, supra, § 827:
i) Gravity of Harm–Factors Involved
In determining the gravity of the harm from an intentional invasion of another’s interest in the
use and enjoyment of land, the following factors are important:
(a) The extent of the harm involved;
(b) the character of the harm involved;
(c) the social value that the law attaches to the type of use or enjoyment invaded;
(d) the suitability of the particular use or enjoyment invaded to the character of the locality;
and (e) the burden on the person harmed of avoiding the harm.
ii) Restatement, § 828: Utility of Conduct–Factors Involved
In determining the utility of conduct that causes an intentional invasion of another’s interest in
the use and enjoyment of land, the following factors are important:
(a) the social value that the law attaches to the primary purpose of the conduct;
(b) the suitability of the conduct to the character of the locality; and
(c) the impracticability of preventing or avoiding the invasion. (Due Care)
iii) Resatement §933 comment a) The availability of injunction against a tort. .. depends upon a comparative appraisal of all the factor in the case. These factors include the relative adequacy to the plaintiff of an injunction and of the other remedies, plaintiff’s laches or unclean hands, the relative hardship likely to result to defendant if an injunction should be granted and to plaintiff if it should be denied, the interests of 3ps and of the public, and the practicability of framing and enforcing the order or judgment. (pg 40,n1)
A) Restatement §942 comment c) The local community sometimes has a public interest at stake. For example, it will suffer loss of taxes and purchasing power of workers if an industrial plant that has been found to be nuisance is ordered to be shutdown or moved to another location.
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4. Restatement of the Law § 822: General Rule for Private Nuisance—
i. (a) conduct has to be intentional and unreasonable OR
ii. (b) unintentional and otherwise actionable (negligence law or dangerous activity law)
*this is explaining a private nuisance in regard to the interest of the Π that has been affected, not in
regard to the elements that you HAVE to prove
iii. § 821D—looking at the definition of private nuisance, you have to include negligence in the definition b/c you have a negligence claim based on the invasion of another’s enjoyment of property in § 822
iv. § 826: Unreasonableness of Intentional Invasion—an intentional invasion of another’s interest in the use \ and enjoyment of land is unreasonable if:
(a) the gravity of the harm outweighs the utility of the actors conduct (you’ll only see an injunction
when the harm > utility, but you may still see damages if the utility > harm) OR
(b) the harm caused by the conduct is serious AND the financial burden of compensating for this and
similar harm to others would NOT make the continuation of the conduct NOT feasible.
i) if balance of the equities from (a) requires payment, then the damages are awarded under b)
iii. this is based upon English CL where there is no analysis of fault on the part of the Π
iv. if the Π could prove there was an invasion of the private use and
enjoyment of land, then the tort is established.
v. Social Policies supported by this rule:
a) equality
b) distributive justice
c) everybody has the same rights in his/her property
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c. Fourth Element – Substantial Interference;
i. landmark cases
ii. Use and enjoyment is an objective standard—you have to show a
reasonable person would have been affected by the interference
a) it is not a clear objective standard—at some level, what you use your
property for will affect how you frame the objective standard
b) this decision is normally a question of fact, but in Ampitheaters it was
decided in the form of a series of judicial decisions, questions of law
d. Fifth Element—Remedy/Damages
i. Injunction—abating the nuisance; ONLY the judge can grant this
ii. Damages—calculating the damage done to the property owner
a) Rental Value—calculated in terms of time.
b) Depreciation and Fair Market Rental Value
iii. Nebraska—
x) Regarding nuisance: Ordinarily, a legitimate business enterprise is not a nuisance per se, but it may
become a nuisance in fact. It may become such by reason of the conditions implicit in and unavoidably
resulting from its operation or because of the manner of its operation.
a) Types of Damages
1) depreciation in market/rental value of property and/or
medical expenses and/or psychological expenses may be recovered in nuisance actions (special damages)
2) damages for non-quantifiable things like annoyances, inconveniences, (general damages)
b) Arguments
1) these are double damages – special damages for FMV already take
into account inconveniences, etc.
2) award special damages in the past and the future decrease in
the FMV
3) Maximizing Π’s Recovery
(A) plead for only damages (majority of the time); this way the
case will be decided by a jury.
(B) when you ask for an injunction, only the judge can grant it
(C) when you ask for damages and an injunction, the judge will
usually decide both
4) NE courts do not require intent, or reasonableness of nuisance conduct for injunction
i) The harm need only be substantial, regardless of reasonableness of conduct
ii) But in a damages action, reasonableness should be considered
iii) Thus, in a law action, liability for tortious private nuisance arises if D’s conduct is proximate cause of an invasion of another’s interest in private use and enjoyment of land, and if the invasion is intentional and unreasonable or is otherwise actionable under rules controlling liability for negligence or abnormally dangerous acts
5) Summary of Nebraska Analysis
i) *Equity = injunction/abate (can include damages)
1) intent, causation, substantial interference (“actual physical discomfort to one of ordinary sensibilities”)
2) for a nuisance in the context of an equity action, the invasion of or int
cts.
(1) It shall be unlawful for any person:
(a) To cause pollution of any air, waters, or land of the state or to place or cause to be placed any wastes
in a location where they are likely to cause pollution of any air, waters, or land of the state; or
(b) To discharge or emit any wastes into any air, waters, or land of the state which reduce the quality of
such air, waters, or land below the air, water, or land quality standards established therefor by the
council. Any such action is hereby declared to be a public nuisance. An animal feeding operation
is NOT a nuisance if:
(i) Reasonable techniques are employed to keep dust, noise, insects, and odor at a minimum;
(ii) It is in compliance with applicable regulations adopted by the council and zoning regulations
of the local governing body having jurisdiction; and
(iii) The action is brought by or on behalf of a person whose date of lawful possession of
the land claimed to be affected by an animal feeding operation is subsequent to the issuance
of an appropriate permit by the department for such operation or is subsequent to the
operation of the feedlot and an onsite inspection by the department is made, before or after
filing of the suit, and the inspection reveals that no permit is required for such operation.
*The statutes mentions nuisance and coming to the nuisance
*THUS, per RTFA, farms are protected from cities growing around them and then suing for nuisance
c) Uses in Conflict with Rural Residential use
1) Cunningham v. Feezell (anticipatory nuisance)—crematory to be built in residential area; court cannot enjoin yet b/c pleading do not provide enough info
i) Factors to consider: depreciation of property values, mental depression from having an undertaking place in the neighborhood, locations of crematory, traffic around place
ii) Most states have rejected mental anguish as an injury here, must have physical discomfort
iii) Anticipatory nuisance must usually be a nuisance per se—this is very high burden
iv) Nuisance Per se v. Per accidens:
1) Per se or at law: an act, occupation , or structure which is a nuisance at all times and
under any circumstances, regardless of location or surroundings
a)some things are just nuisances, esp. after repeated adjudication of the issues
2) Per accidens or in fact: those which become nuisances by reason of circumstances and surroundings and an act may be found to be a nuisance as a matter of fact where the natural tendency of the act is to create danger or inflict injury on person or property
2) Friendship Farms v. Parson—band camp makes noise
i) balancing utility of band camp vs. private enjoyment
ii) the essence of private nuisance is the fact that one party is using his property to the detriment
of the use and enjoyment of others
iii) Public interest of band camp does not outweigh the injury to private interests
cc) Uses in conflict with part time, recreational residences
3) Clark v. Wambold—NE pig case—“one man’s enjoyment of property cannot be the controlling
factor, but must be considered in connection w/ the reasonable/lawful use of the property by his
neighbors”
ii) Manner of the operation is not a defense to a nuisance action
