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Audio Name: Zoning Duration: 92 Minutes NTP713

[00:00:01] CLASS DISCUSSION Nuisance Law ● Nuisance law assumes the average plaintiff rather than in contrast to tort law ● Remedies ○ If you have a successful business plan, you get damages ○ If you have an unsuccessful business plan, you get injunctive relief ○ In some circumstances, you can get both ● In the Honeywell case, the only option on the table was damages ○ The reason for that was that the source of the nuisance was not ongoing ○ There was no continued nuisance ○ The only question was whether the plaintiff was entitled to be made whole for the damage caused by the ongoing alleged nuisance in the past ● In a typical case, a lot of the time you don't want injunctive relief because maybe you want to be compensated ● If you're in a situation where it's the enjoyment of your home situation and the case itself and the thing that you want is for the nuisance to stop ● The first question to ask is whether you need injunctive relief for the nuisance to stop or whether it's possible that damages will also leave the nuisance to stop ● You might reach the same outcome regardless of what the court chooses to do ● The range of potential responses reflects the reciprocal nature of land use disputes ○ You have to property owners who are each trying to use their property in a way that serves their own interests, whether that's the business they want to try and make a profit or to enjoy the quiet of a rural area ● Nuisance law tries to strike the right balance between protecting both their interests ○ Striking the right balance is in a lot of these cases going to require prioritizing ● Nuisance law is deciding which of the two owners begins with an entitlement to continue their use ○ Once you decide who has the entitlement to continue their use, the other party is always free to try to buy that entitlement from that ● Dobbs v. Wiggins ○ It might be that the business is worth so much to Wiggins and he goes to Dobbs and offers to pay him in order to release the impediment ○ It's unlikely that Wiggins would be willing to pay enough for Dobbs to sell ○ It might be that you can see the profitability of a dog racing business is much higher and Wiggins could afford to pay enough to get Dobbs to move out ○ The business that Wiggins is operating is much more profitable and much more tied to that particular place where Wiggins would be able to pay enough and would want to pay enough to get jobs to sell the entitlement ○ Dobbs is also free to go and try and buy them ○ The same negotiation might happen in that context ○ This implies assigning the entitlement and the parties are then going to negotiate based on who has an entitlement ○ That allocation of the entitlement was strictly between Dobbs and Wiggins ■ The reason for that has to do with the nature of the nuisance test itself ○ In the second hypothetical, Dobbs wins

■ Wiggins can buy from him the right to continue raising the dogs In this case, it's very hard to negotiate if you don't know who has the entitlement The range of possible outcomes ■ There are two questions that a court needs to answer ● 1. Which of the two parties has the entitlement? ○ Is there a nuisance or not? ● 2. Is the entitlement going to be protected by a liability pool or by a property pool? ○ Damages are the liability rule and injunctive relief is the property rule ■ If there are two possibilities on who gets the entitlement and two possibilities on how you protect it, ● That means that there are four possible outcomes ■ Coase Theorem ○ All else being equal, what the outcome is going to be at the end of the day doesn't necessarily depend on who has that entitlement at the beginning ■ What you want the law to do is make it clear who has the entitlement and then the parties will freely negotiate with each other and you'll get to the optimal outcome ○ Regardless of whether you say there is a nuisance or there isn't a nuisance, you reach the same outcome in the Coase theorem ○ It assumes that there are no transaction costs ■ The transaction costs will be all of the costs that will make that negotiation hard ○ There could be unequal bargaining power ■ One party has a high powered lawyer and the other party doesn't have access to that Nuisance is a context to a specific inquiry ○ One of the factors is where is it ○ There's a certain percentage of the pollution that you're not going to be able to control ○ Pollution ■ Sometimes the dust is going to be a nuisance and sometimes it's not In these cases, the court is answering two questions ○ 1. Who should be prioritized? ■ Which of these two parties holds the entitlement? ○ 2. Who should pay the costs of prioritizing that use? ○ You are going to allocate costs either through the property rule or through the damage rule Entitlements are protected by a property rule to the extent that someone who wishes to remove the entitlement from its owner must buy from them in a voluntary transaction in which the buyer and seller negotiate the price ○ If you hold it with protection via property rule, that means you get to decide if you're going to buy it or sell it to them ■ If they are going to buy it from you, you have to agree to that Property rule for protection ○ The holder of the entitlement can sell it if they choose to at the price that they agreed to ○ You only have to sell it if you voluntarily agree to sell it ○ ○ ○

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Liability rule ○ An entitlement is protected by a liability rule of the person wishing to destroy the entitlement can do so by agreeing to pay and objectively determine the value for it ○ You hold the entitlement, but it's only protected by a liability rule ○ You still are the entitlement holder, but they can destroy your entitlement if they are willing to pay the price ○ Someone can come and take it from you, but then they're going to have to compensate you for it 4 Categories ○ Rule 1 ■ The resident has the power to decide if the polluter gets to keep going ○ Rule 2 ■ You're forced to pay the damages if you continue the activity ○ Rule 3 ■ The polluter hold the entitlement ■ The polluter holds that entitlement by property rules ● The resident is free to try to buy clean air from the polluter ○ Rule 4 ■ When this article was written for was the thing that was considered to be innovative ■ The polluter holds the entitlement, but it's only protected by a liability rule ● You can force them to stop the pollution, but you have to pay the cost of that injunction ■ There is a nuisance but if you want it to stop, you have to pay the cost of it stopping ■ You're choosing to prioritize the residence use, but also forcing them to pay the cost of prioritizing them ○ This is about allocating ○ Applying the nuisance test is going to help you allocate rules one, two, and three ○ Rules 1 and 2 has fairly typical outcomes and nuisance cases in both cases ○ In Rules 1 and 3, the price is determined by a negotiation between the parties ○ In Rules 2 and 4, the price will be determined by the court ○ This is a theoretical framework that an academic author put on the nuisance case law ○ It is a framework that you have to understand

Zoning ● Covenants ○ They are former private land-use regulations ● There's almost always the opportunity to apply for a variance ● Whether or not you get the variance, one of the things that often turn on is what your neighbors think of your plan ● You do want to do something that's not what zoning law allows if your neighbors are all on board with the plan to make it a whole lot easier. ● Until the 20th-century, land-use decisions were viewed primarily as a private matter ● The legal systems are treated as part of properties inherent nature ● US land-use law ○ There was a kind of consensus view that land was something that we had in abundance ● There is an increasing urbanization

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That means that there is more population density The more people living close together using their land in lots of different kinds of ways, that is also going to increase the extent to which we have that incompatible land uses Urbanization, increased density, and industrialization are happening at rapid rates in the late 19th and early part of the 20th century ○ Zoning law emerges as one solution to this issue It is a legislative response to restrict the rights of private owners in order to avoid these incompatible uses and to promote general health, safety, and welfare Zoning law emerges then to 2 things ○ 1. Separate and regulate uses ■ Used zoning ■ Zoning law separate nuisance ■ Often this is done in a cumulative way ■ There are often industrial areas where residential is not permitted access ○ 2. Regulating Form ■ How tall can a building be? ■ How many stories can you have on your building in this zone? ■ What is your set requirement? ■ How far back from the property line does the edge of your building have to be made? ■ Other elements related to the size of a building, called the floor area ratio which means that there's a ratio between the footprint and the total height ● The bigger the footprint, the more height you're allowed Local governments have no inherent power to enact zoning ordinances ○ They need some kind of delegation from the state to have that power The first thing that the city has to do is to create a comprehensive plan ○ The comprehensive plan is a policy statement Area Zoning ○ Area zoning is very much grounded ○ It concerns about health and safety ○ It is also about aesthetics Building Code ○ The building code is much more focused on technical requirements for how to make sure you're building buildings that are safe It can rise to often a fairly complicated set of relationships between a bunch of different local public bodies that are created in order to develop a comprehensive plan and write and implement the building zoning codes ○ Often, the local legislature will set up a planning commission, and the planning commission's job is to create that comprehensive plan Board of Adjustments ○ They will rule on individual exceptions Community Boards ○ They play a complicated and limited role in zoning change decisions about New York City communities You don't want to build things that are going to fall down or burn down Apartment buildings can generate or contribute to a legitimate safety concern You do see subsequently are challenges to zoning as it applies to individual properties we see taking place at regulatory takings plans They can separate the single-family residential from ○ The multiunit

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○ The larger apartment building ○ Commercial use ○ Industry Exclusionary Zoning ○ The zoning is done in a way to exclude lower-income people or often to exclude non-white people from them Residential areas and restaurants ○ There can be noise issues ○ There might be rat issues...