The antidote for zoning: the "Coming to the Nuisance" doctrine

By David Wilens
web posted May 8, 2000

Real estate developers have good reason to feel cannibalized when they attempt to develop something today. Building permits for their projects are often exceedingly difficult to secure, requiring thousands of dollars in architect's and attorney's fees, and months (if not years) of submitting plans to boards and commissions, sometimes a repeat number of times. Many projects end up abandoned because the developers simply run out of money for the holding costs involved, not to mention spiritual energy to fight the psychological battles. Even if the developer is lucky enough to eventually get the project built, the costs to sell or lease the space end up far higher than they should be due to all of the red tape involved. This in turn means needlessly higher rents and prices for homes, apartments, and commercial space. (For the sordid details of the land development approval process, read Dr. Gary Hull's article "The Collapse of Building" in The Intellectual Activist, Summer 1989.) The cause of this mess is, in a word, zoning.

Zoning creates the problem by subjecting development to the arbitrary whim of government, which can virtually make or break a project on any basis the bureaucrats wish. Zoning operates as follows: a local government, either a city or county, breaks its jurisdiction up into zoning districts. The government then drafts an ordinance stating which types of land uses are allowed in each district. For example, a city may have an ordinance which has several zoning districts, some of which allow only residential uses, a few more allowing only commercial uses (i.e., stores, offices, etc.), a couple which allow industrial uses, etc. But zoning involves more than merely the specific use to which the property may be put; considerations such as the size, height, and architectural style of the development, setback distances from the lot lines, the amount of ground it covers, how much parking is required, and a myriad of other aspects of a project's design are also among the arbitrary rules found in zoning ordinances.

When a developer proposes a project and applies for a building permit, before he can build he must first obtain approval from the local government in whose jurisdiction the project is planned, which comes only if the project conforms to the local zoning ordinance. If it does not, then he must change the project to conform or receive the government's permission to deviate from the ordinance; if he can not do either of these, he must then try to persuade the public, in an open hearing, to allow him to change the ordinance. These moves are subject to political pressure from constituents (such as competing real estate developers) of the elected officials from whom approval must be sought; if local politics are against him, the developer may have to give up on the project altogether.

Zoning is an evil because it is a violation of the property owner's right to develop and use his property for purposes of his choosing. It is a gun pointed at the head of anyone who wants to develop his land in any way, before such a person has used any force himself against anyone else-i.e., before he has used his property in any way, constructed anything, or harmed anyone through his use; and, it is being wielded by an entity which has no ownership interest in the property and thus no right to set the terms of its use. If someone wants to develop his property, thanks to zoning he no longer has any real right to do so. With zoning a developer may only develop by the government's permission, which, though it may not be de jure withheld arbitrarily under the law, may still be de facto withheld for so long through stonewalling and political maneuvering that the developer may run out of money merely trying to get the permit.

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.

‘Coming to the Nuisance' means exactly what it sounds like: if a property owner is using his property so as to cause a nuisance to another property owner, then the property owner who was the earlier to start his particular use is the one who has the right to continue his use. The other property owner, who started his use subsequently on his own property, has lower priority and thus must either yield or quit complaining, since he came to the nuisance and therefore could have stayed away. For example: if a farmer has on his property a feedlot for his animals that is being properly operated [1] and yet which still causes bad odors, a developer who later constructs single-family residences on a nearby parcel can't complain about the feedlot's odor, effluent, or other negative attributes (nor can the purchasers of the residences); if he does, he won't prevail in a nuisance action against the farmer because of Coming to the Nuisance-i.e., because the feedlot was there first.

It is important to emphasize that the Coming to the Nuisance Doctrine does not give a property owner priority to engage in any and all uses of his property; it only gives him priority to engage in particular uses of property-namely, only those uses which one starts prior to the uses made by other property owners. For example, if I purchase a piece of land and use it solely as a residence, I have a right to continue using it as a residence as against the rights of all newcomers. Let's assume that, subsequent to my purchase and commencement of use as a residence, someone moves in next door to me on a vacant piece of land and uses it as his residence. Then, subsequent to that, I open a hog farm on my land which causes a nuisance to my neighbor. I do have the right to use my property as a residence as against the rights of my neighbor, since my residence was there first, before his residence was. However, I do not have the right to use my property as a hog farm as against the rights of my neighbor if doing so causes him a nuisance, since his residence was there before my hog farm was. When I opened the hog farm, I started a new use-and thus my hog farm has lower priority than the uses of other property owners which commenced before my hog farm. (Other factors, such as when I bought my property, etc., are for the most part irrelevant. It is when I started my particular use which matters.)

‘Coming to the Nuisance' is a corollary of the right to keep and use property. One must have the ability, without permission from others, to use property indefinitely (unless, of course, one voluntarily agrees to use it only for a specific time period, such as with a lease). If one does not have such an ability – meaning, in essence, that someone can come along at any time and arbitrarily demand that one no longer may use his property – then all use of property in effect ends up being by permission of those who have the power to stop its use, and the right to property in effect vaporizes. For example, if the government decides to stop a particular owner's use of his property simply because a majority of people in the area find it offensive for one reason or another, then ultimately everyone's use of property is no longer by right but rather by permission.

Because the right to property means the right to use it indefinitely, it follows that, once a property owner has started using his property in a particular fashion, he has the right to stop others from interfering with that particular use. This is the rationale behind the Coming to the Nuisance doctrine's requirement that, when uses of two properties conflict with each other, the use which has priority is the one started first, and the owner has the right to stop others from interfering with this prior use (the ‘first in time, first in right' rule).

Since the right to property necessarily implies the right to use it indefinitely, and since the right to use property indefinitely implies the first in time, first in right rule, it follows that respecting property rights ultimately means respecting the Coming to the Nuisance doctrine too. The two are inseparable. Also, because the only objective means by which men can properly deal with one another is for them to respect each other's rights, then in the appropriate context the Coming to the Nuisance doctrine is the only objective means for men to deal with one another as well. To summarize: 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. And, 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.

Copyright ©2000 by David Wilens Mr. Wilens is a real estate attorney in South Florida.

[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.

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