G.R. - you must use your property so as not to injure the property of another.

(tort - nuisance liability = negligence or misconduct)

(property - liability is for interfering with the use and enjoyment of land) 

substantial AND intentional and unreasonable OR

unintentional but result of negligent, reckless, or abnormally dangerous acts

Restatement: Cost benefit analysis, gravity of the harm outweigh the utility of the actors conduct.

(courts are more stringent when trespass involved)

- fear/loathing if public fears the use

- spite/spam easily find violations

-aesthetics: generally not enough

-Injunctive relief: forcing a party to stop nuisance; balancing of equities

-Permanent Damages: grant permanent damages, and allow cont. use of nuisance, can't ever sue again.

-Coming to the nuisance, can still get injunctive relief, but must pay indemnity.

Private: affects a small # of people and is not common to the public.

Public: affects a lot of people or an entire community.

(if one moves to a nuisance, the can enjoin, but will have to idemnify, (pay damages, to the one causing the nuisance)

1. does it significantly interefere with public health, safety, peace, comfort, or convienience?

2. statute or ordinance prohibit it?

3. temporary or ongoing?

4. is the effect permanent or long lasting?

1. Injunctive relief

2. allow conduct to cont. and def. pay damages

3. deny all relief and let it cont.

4. abate the activity only if the harmed parties pay to remove it.

1. high rise v low rise

2. private yards v public parks

3. separate uses: homes, greenbelt, industrial

4. high v mid v low density

(zoning developed to deal with these issues)

1. clearly arbitrary

2. unreasonable

3. And have NO substantial relation to public health, safety, morals, or general welfare.

Enabling act - state grants power

-permits cities to enact their own zoning legisl.

-regulations must be consistent with comprehensive plan(only about 1/2 states).

1. Must have a zoning commission

2. Must have a zoning board of appeals

-amortization and discontinuance of a lawful preexisting nonconforming use is violative of the const.

-lawful non-conforming property use is a VESTED PROPERTY RIGHT. cannot be destroyed unless... It is a nuisance; abandoned; or extinguished by eminent domain.

Zoning: relevant factors for dertermining reasonable amortization period?

1. nature of the use.

2. amount invested

3. scope of improvements

4. public detriment caused by use

5. character of neighborhood

6. time needed to amortize the investment

forever, they run with the land

including change of ownership

-most likely will not survive change of use

1. Destruction: by act of god or otherwise

2. abandonment (requires intent)

3. discontinuation (some jurisdictions)

4. eminent domain

detrimental reliance may save a non-conforming use that would otherwise not have arisen

also note: vested rights when proposed use is protected by sufficient commitments before zoning change but use not yet operational

- administratively authorized departure from the zoning ordinance

1) must not be a substantial detriment to the public good and doesn't substantially impair the intent and purpose of the zoning plan and ordinance. 2) undue hardship: no effective us can be made of the property if variance is denied A: hardship cannot be self imposed

1) may impose resonable conditions when granting 

(cannot be that it doesnt run with land)

2) burden of proof greater with use than with area variance (unecessary hardship (use) v. practical difficulties (area))

3) existing violations/variances are not a basis for granting additional

4) cannot get a variance for personal convenience

5) grant of a variance is reversed far more often than a denial

An ammendment to zoning plan that is invalid as a legislative act because it is unsupported by a rational basis related to promoting public welfare

Common Red Flags: 

1) small parcel singled out for special treatment 2) singling out for owners benefit

3) inconsistent with comprehensive plan

land uses the city ordinance will permit when it is compatible

(predefined criteria must be met which is written in the ordinance unlike a variance)

if zoning ammendments are legislative: need only rational basis to health, safety, or welfare.

If zoning decision of a board of appeals that are appointed: Quasi Judicial and strict scrutiny

property owner and zoning authority come to an agreement about rezoning, each do something for the other. i.e. re-pave the road.

can be a sign of corruption

not in literal compliance with zoning restriction. 

ex) zoning says that each home needs 50 ft of yard, developer builds townhomes next to a park or green space with all the yards aggregated.

promoting general welfare including protecting values of nearby property, neighborhood character, and value (incl. spiritual, physical, aesthetic and monetary)

ugly homes are rarely a nuisance

- regulation is considered content neutral, because the regulation is aimed at the unwanted secondary effects.

- upheld ordinances regulating space, distance, setoff of adult bus. from churches and schools

- if zone is single family dwelling, can restrict the number of un-related people

- if ordinance not aimed at maximum occupancy rather to restrict a specific group, it becomes an FHA protected group