Yes to infill, no to nuisance.

• Author: Lewyn, Michael
• Position: Common-law nuisance claims on neighborhood apartment houses

Introduction I. Factual and Legal Background of Nuisance A. Factual Background of Loughhead B. Legal Background: No Case Law on Point II. Policy: Arguments for Nuisance Liability A. Increased Traffic B. Neighborhood Character III. Policy: Arguments Against Nuisance Liability A. Infill Development, Walkability, and Transit 1. Walkability and Infill a. Why Infill Is Usually More Walkable b. Why the Public Interest Favors Walkability 2. Infill and Transit a. More Infill Means More Transit b. Housing Near Transit Benefits the Public B. The Public Interest Favors More Rental Housing C. Zoning Is a Less Harmful Remedy Than Nuisance IV. A Proposed Rule Conclusion INTRODUCTION

In the recent case of Loughhead v. 1717 Bissonnet, L.L.C., a group of Houston, Texas homeowners filed a common-law nuisance suit to exclude an apartment building from their neighborhood. (1) Plaintiffs argued that the apartment building would reduce their property values by (among other things) increasing traffic and changing their neighborhood's character. (2) In December 2013, a jury awarded the plaintiffs damages, and the defendants plan to appeal the verdict. (3) The question of whether multi-family housing near single-family housing may constitute a nuisance is apparently one of first impression.

If the Loughhead verdict is upheld on appeal, anti-development activists may seek to raise similar nuisance claims even in cities which have zoning codes, (4) unlike Houston. (5) If courts endorse such claims, apartment buildings throughout the United States could be found to constitute nuisances whenever litigious neighbors might object.

Part I of this Article describes the background of nuisance law and the Loughhead litigation. Part II then criticizes the arguments in favor of the plaintiffs' claim. Part III suggests that public policies in favor of walkable infill development and affordable housing support the rejection of similar claims, and adds that even if neighborhood concerns should be weighed against these policies, such balancing should occur during the zoning process, rather than through jury trials (at least in cities with zoning). Part IV then proposes a rule that draws a line between appropriate and inappropriate nuisance actions.

1. FACTUAL AND LEGAL BACKGROUND OF NUISANCE

   As noted above, the Loughhead plaintiffs alleged that the apartments

   at issue constituted a common-law nuisance because they would increase nearby traffic and otherwise harm neighborhood character. This Part explains nuisance law, describes the relevant facts of Loughhead in more detail, and then discusses the most relevant case law.

   Nuisance is a "nontrespassory invasion of another's interest in the private use and enjoyment of land." (6) Nuisance suits generally involve allegations that a defendant's use of its land has caused unreasonable odor, pollution, or noise. (7)

   At common law, a nuisance exists whenever a person uses his land in a manner that causes substantial harm to another owner or possessor of land. (8) As industrialization increased the number of polluting land uses, courts tried to accommodate industry by limiting nuisance claims to "unreasonable" land uses. (9) Thus, petty annoyances (such as telephone calls (10) or an ugly swimming pool (11)) may not constitute nuisances. (12)

   More recently, some courts have adopted a "balance of utilities test," where a use is found to be "unreasonable unless the utility of the actor's conduct outweighs the gravity of the harm." (13) For example, one Idaho decision adopted this balancing test on the ground that the state's "economy depends largely upon the benefits of agriculture, lumber, mining and industrial development." (14) This statement suggests that in Idaho, nuisance claims against these industries will be met with skepticism, as the court will weigh any harm to nuisance plaintiffs against the economic benefits of such development.

   1. Factual Background of Loughhead

      In 2007, Buckhead Investment Partners began plans to build a mixed-use, twenty-three-story building on a tract of land that had previously been used for a two-story, sixty-seven-unit apartment complex. (15) The land in question was near the Boulevard Oaks Historic District in Houston, Texas, (16) a wealthy historic district with many single-family houses. (17) Neighborhood residents vigorously opposed the project, primarily because of concerns about traffic. (18) Despite such neighborhood opposition, the city could not reject the project merely due to its alleged incompatibility with the surrounding neighborhood, because Houston has no zoning code to separate houses from multifamily dwellings. (19)

      Instead, the city's Public Works Department denied the developers a permit to build a driveway on the ground that the project would create too much traffic. (20) The developer then agreed to scale back the project by eliminating all of the project's commercial uses and reducing the number of apartments in the building, among other things. (21) The Public Works Department then granted the permit, but an appellate panel made up of city employees reversed that decision. (22) The developers filed suit, and the city settled the case by agreeing to grant the permit if the developers reduced the number of stories from twenty-three to twenty-one and made additional concessions to reduce traffic. (23)

      A group of Boulevard Oaks homeowners responded by filing a nuisance suit against the developers in May 2013. (24) The plaintiffs alleged, among other things, that the building would unreasonably interfere with their property because it would cause "[diversion of] traffic onto their small residential streets, and caus[e] substantial additional congestion at the intersections they use for ingress and egress." (25) In addition, they claimed that the building "would be abnormal and out of place in its surroundings thereby altering the character of the neighborhood [and] would substantially decrease the value of Plaintiffs' houses." (26)

      At a hearing held in June 2013, a trial court decided that the plaintiffs' case could go to a jury based on Texas nuisance case law. (27) The trial commenced in November 2013, and ended with a jury verdict in December. (28) The jury found a nuisance and awarded damages to the owners of twenty of the thirty nearby homes. (29) The trial court rejected the defendants' motion for a judgment notwithstanding the verdict, (30) and the developers have appealed. (31)

   2. Legal Background: No Case Law on Point

      In 1926, the Supreme Court, in a decision upholding the constitutionality of zoning, wrote that apartments intermingled with a neighborhood of houses "come very near to being nuisances." (32)

      However, the Court did not state that apartment buildings were nuisances, and in any event this statement was dicta because the decision addressed the constitutionality of zoning rather than a common law nuisance claim. (33)

      Since then, no case has directly addressed the question of whether a large apartment building near single-family homes is a nuisance. However, two nuisance cases involve a somewhat analogous situation: hotels and motels near single-family homes. The Loughhead plaintiffs relied on Spiller v. Lyons. (34) In Spiller, a group of homeowners alleged that a nearby motel would create a nuisance. (35) A Texas appellate court upheld a jury verdict for the plaintiffs, partially because the motel violated restrictive covenants that burdened the defendant's land, (36) but also because "the increased traffic would be a danger to children walking to and from nearby schools ... and the influx of strangers and transients would be an offense to normal sensibilities." (37) The court also stated, without any explanation, that "the present water and sewage services were already strained and that operation of a motel would further impair those services." (38)

      Spiller is not directly on point for the issue at hand because the motel violated restrictive covenants. (39) Moreover, the motel residents in Spiller would presumably have been more transient than the apartment residents in Loughhead. (40) But some of the arguments raised by the Spiller court could apply to any apartments near an already-settled neighborhood, or indeed to any additional housing in such areas. Nearly any new residential development will bring additional residents to a neighborhood, some of whom will be driving automobiles. (41) Thus, the "increased traffic" argument raised by the Spiller court might make any new apartments (or even houses) a nuisance if they are near an existing neighborhood. Since new residents of a neighborhood are by definition "strangers" at first, the court's suggestion that "strangers and transients" create a nuisance might also justify a similar finding as to new housing. And new residents may also increase the demand for infrastructure, as in the Spiller case. (42)

      On the other hand, at least one court has rejected a similar claim. In California Tahoe Regional Planning Agency v. Jenkins, (43) the plaintiffs asserted that high-rise hotel-casinos near Lake Tahoe were a nuisance (44) because they would attract "more people and cars" (45) to the area, thus harming the regional environment. (46) The U.S. Court of Appeals for the Ninth Circuit rejected the claim, stating, "not every threatened injury can be enjoined as a potential nuisance. The line is not a bright one, but we cannot consider high rise hotels and their occupants as indistinguishable from untreated sewage, noxious gases, and poisonous pesticides." (47) Thus, California Tahoe suggests that even hotels (and by implication houses and apartments) are so different from traditional nuisances that they should generally not be treated as such.

      A nuisance plaintiff might argue that the Spiller court's decision that a motel near single-family houses was a nuisance supports a similar finding as to apartments, because hotels and motels, like apartments, involve temporary residents. But...