Nuisance Law Applied to Land Use Control. North Side Neighborhood Preservation Study

摘要

Part of Iowa City, Iowa's, North Side Neighborhood Preservation Study, this paper attempts to give the nuisance law a greater role in land - use control. Control of neighborhood externalities is the major rationale for zoning, yet zoning is least effective in older, mixed neighborhoods, such the north side, where land - use spillovers are greatest. Nuisance law concepts are ideally suited to dealing with externalities, yet this branch of torts has developed in ways that seem to minimize its utility for controlling land - use spillovers. However, its potential in land - use control remains. In legal terms, a nuisance is an interference with the use or enjoyment of property, especially land. This is a form of negative externality, of a type which requires some measure of physical proximity for the effects to be transmitted. A negative externality, in turn, is one of several kinds of market failure; that is, a negative aspect of a market action (e.g., the construction of an apartment building adjacent to single family homes) that, in the absence of public intervention, will go uncorrected. Where market failure can be demonstrated and intervention is warranted, public policy should seek, using nuisance law, to either create a situation as close as possible to what an ideal market would create, or else establish a public purpose which overrides the market solution. For example, if it can be shown that apartment construction among existing single family homes will sufficiently erode the quality of the neighborhood environment to depress property values, then a nuisance suit may provide relief to adjacent property owners, either directly through cash compensation or indirectly by forcing the apartment developer to eliminate the nuisance through additional capital expenditures on design improvement (e.g., underground parking, litter and garbage control scheme, etc.). Guidelines for resolving nuisance conflicts are provided. References are included, along with footnotes.