The Antidote for Zoning: The “Coming to the Nuisance” Doctrine (Part 4)

The Coming to the Nuisance Doctrine is the only objective means of determining who has the right to continue using his property in the event of a nuisance. If zoning is to be replaced, therefore, it must be replaced with the Coming to the Nuisance doctrine. Since it is the only objective means of determining who has the right to continue using property in the event of a nuisance, the Coming to the Nuisance doctrine must be regarded as an absolute in all nuisance cases where it is at issue, determining the rights of the parties without being watered down by less important doctrines.

Unfortunately, this is not the present state of American law. Although it is still used in nuisance cases, Coming to the Nuisance is not regarded as an absolute, but rather as merely “one factor among many” by the courts.

For example, courts today very often determine the rights of property owners in nuisance cases not solely by who started his use first, but rather by factors such as the “trend of development in an area” — meaning that, if there is a farm or factory in an area that previously was agricultural or industrial but which is becoming residential, the government will force the farmer or factory owner to shut down.2 This opens the door to unjust decisions in nuisance cases, and provides an excuse for government intrusions on property rights such as zoning.

Replacing zoning with the Coming to the Nuisance doctrine as an absolute would mean the end of the government’s initiation of physical force in the land development process due to zoning. This is because the government would not be able to tell anyone how to use his land prior to the creation of a nuisance. Once a nuisance occurs, however, the government may use force to stop it, as the result of a lawsuit. The government is justified in doing this because it is the nuisance (rather than the government’s remedial actions) which, since it is a violation of the right to use property, constitutes the initiation of force — and the government’s remedial measures are simply force used in retaliation.

Ending the initiation of force brought about by zoning will greatly help to restore objectivity to the land development process.

This is because decisions regarding land use will no longer be in the hands of the government but rather will be handled by the owners of the property to be developed.

Instead of being forced to design projects to conform to the whims of bureaucrats, developers will be free to design their projects to conform to reality — in this context, to the rights of other property owners who started using their properties previously, and who might be adversely affected by the developer’s proposed project.

This would necessarily involve figuring out which property owners might be affected by a proposed project and what uses these owners are already making of their properties, so that the developer can design his project to be compatible with these uses. (Unfortunately there isn’t space to go into the mechanics of this here; it will have to be the subject of future work.)

Finally, replacing zoning with the Coming to the Nuisance Doctrine should bring the prices of homes and building space down dramatically because the design criteria for development projects will be objective rather than arbitrary, and development costs will thus become more predictable and manageable.

In conclusion, because property rights are a necessity if men are to live together, it follows that they must be respected in every area of one’s life, including land development. Humans must develop land; we can not live, as the environmentalists insist we do, in the world “as it is” without creating the buildings, roads, and utility systems we need in order to live. But these must be built with total respect for everyone’s rights. This means ending zoning — and its only antidote is the Coming to the Nuisance doctrine.

References:

1. If a nuisance results solely because a use is being improperly operated, then there is no Coming to the Nuisance issue and the doctrine doesn’t apply. For example: if the feedlot caused odors only because of improper operation, and proper operation would end the odors and thus the nuisance, a court would simply order the owner of the feedlot to take measures to end the odors, and would not apply Coming to the Nuisance.

2. See Hadacheck v Sebastian, 239 U.S. 394; Spur Industries, Inc. v. Del E. Webb Dev. Co., 494 P.2d 700.