The proponents of zoning claim that such initiation of force is necessary against developers to prevent the occurrence of nuisances.

A “nuisance” is defined as the effect from an activity on others which unreasonably interferes with another’s lawful use of property, or causes undue inconvenience, hardship, or discomfort to another person.

Examples aren’t hard to visualize. For example, a factory which emits harmful fumes that cause breathing problems for nearby residents is a nuisance, as is a restaurant which does nothing to prevent bad odors emanating from its dumpster to the properties nearby. A college fraternity house near a residential neighborhood which plays loud music late into the evenings might also be considered a nuisance, if it affects the ability of neighboring residents to sleep.

But nuisances may work the other way as well: for example, a house in a noisy industrial district may be a nuisance there — if the residents’ desires to sleep affect the ability of the factory owners to operate their businesses.

Because one has a right to use his property, and because nuisances unreasonably interfere with one’s use of property, it follows that nuisances are a violation property rights and, as such, must be addressed objectively by a proper legal system.

While the need to do this hasn’t escaped western intellectuals, unfortunately the means of doing this for the most part has.

What has thrown thinkers for centuries regarding nuisances is that they are different from other forms of force because there is nothing inherently unlawful about the acts which constitute the nuisance; all that is unlawful is their effect on other property owners.

In contrast, almost all other forms of force have some act associated with them which, because the act itself represents a forcing of the arbitrary on another person, is clearly unlawful. For example, consider the physical attacks or threats associated with assault, battery, or manslaughter. Then consider whether it is unlawful merely to use one’s house to sleep, or to play loud music. Both activities, by themselves, would be legally fine, so long as they do not affect anyone else’s ability to use property.

Because the acts which contribute to nuisances are not in themselves unlawful the way acts constituting other forms of force are, there is confusion about the principles regarding whom to hold accountable for the creation of a nuisance.

The proponents of zoning claim that there are no objective principles for doing so and that, without the initiation of force, there would be no means in the event of a nuisance to determine which of the two contributing uses would have the right to continue and which would have to yield. Nuisances would therefore proliferate everywhere, with the government powerless to enjoin them.

The zoning proponents, however, are wrong.

There is an objective means by which the rights of two property owners can be determined in the event of a nuisance, without the initiation of physical force against anyone: by means of a doctrine called Coming to the Nuisance. This is the subject of my next article.

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David Stanley Willenski

Mr. Willenski is an attorney in South Florida. He has also lived in Hertfordshire, England.

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