Reconceptualizing the law of nuisance through a theory of economic captivity.

• Author: Smith, George P., II

1. INTRODUCTION: COMING TO THE NUISANCE OR BECOMING AN ECONOMIC CAPTIVE?

   Ann and Conrad Riedi lived in the same rent-controlled apartment in Manhattan for forty years. (1) Despite this long-term entrenchment, the Riedis and many of their neighbors are being forced to move to make way for a new subway construction. (2) Due to their relatively low income and inability to pay typical Manhattan rent because of their age and status as retirees, the Riedis may very well be forced to relocate out of the neighborhood and out of a borough in which they have lived most of their lives. (3) The Riedis have, in essence, become "economic captive[s]" for, put simply, their economic situation severely limits their choices as to where to relocate. (4) An economic captive, then, is someone whose housing choices are determined detrimentally by his socio-economic status, providing him with extremely limited options for places to live. (5) Further, the housing available to an economic captive is often in poor repair, in blighted and/or high crime areas, and far from the person's current neighborhood. (6)

   The classical situation defining the forces of economic captivity is illustrated when relocation by a landowner thereby subjects the mover directly to a nuisance or a nuisance-like activity. For example, acquisition of real property in an industrial area may almost necessarily burden, significantly, the new owner with smog or noise, while relocation to an agricultural community may subject other homeowners to putrefying odors. (7) If the economic captive asserts a nuisance claim, the defendant may then raise an affirmative defense that the plaintiff came to the nuisance; in other words, the defendant and the injurious activity were established prior to the plaintiffs arrival. (8) Whether the plaintiffs status should be considered a countervailing factor or argument to the defendant's affirmative defense that the plaintiff actually came to the nuisance is the central policy issue which must be resolved: specifically, the manner in which society (be it governmental units or private entities) deals with these inherent conflicts presented by a recognized theory of economic captivity.

   The phenomenon of the economic captive is a reality of modern capitalistic society. (9) Notwithstanding this reality, the question still remains whether a person's socioeconomic status can serve as an effective counter to the defense that the plaintiff came to the nuisance. An examination into how the law should treat economic captives whose presence in a location is inconsistent with a higher use for the land will yield the answer to this question. Examining the efficacy of a variety of approaches leads to the conclusion that the best approach is through the working of managed growth and bonus zoning in tandem in order to achieve some level of harmony amongst a range of demographic groups. (10) The employment of amortization provisions, where the economic captive is allowed to remain in his home for a reasonable period of time, is a necessary component of this solution. (11) Concluding that this approach is the most efficacious leads to the determination that one's status as an economic captive deserves to be included as a factor in the requisite balancing under which a nuisance cause of action is tested initially. (12) However, such a status is not automatically dispositive in dealing with a coming to the nuisance defense and must be viewed in light of the desired goal of protecting the common good. (13) The fact remains, importantly, that there is a place for the economic captive and that individual is not left defenseless in the world of nuisance law. If recognized, the plaintiffs' status as an economic captive should offset, or at least neutralize, the fact that he came to a nuisance and thereby provide him with an avenue for relief.

   This article will begin with an analysis of nuisance law and its purpose. At the heart of a nuisance action is a fact-specific balancing of competing interests that this article will organize into a general framework for nuisance inquiries. Furthermore, this article will examine the affirmative defense of "coming to the nuisance" and what the appropriate application of such a defense entails.

   The evolving land use principle that mandates a balance, or "fair share," of low and moderate income (i.e., affordable) properties in any legal zoning plan (14) will then be analyzed within the context of its effect on recognition of a theory of economic captivity. (15)

   Subsequently, the economic captive will be introduced through description of examples of this economic captivity, ranging from a socioeconomically homogenous inner-city enclave to a college student with limited resources. Thereafter, this article will examine a variety of approaches for dealing with the relocation of economic captives in light of their displacement. Through this evaluation of efficacy, some amalgamation of solutions will yield the ideal approach that should be taken toward the economic captive, and a determination will be made as to exactly what role the notion of economic captivity should play in contemporary nuisance law.

2. NUISANCE LAW AND COMING TO THE NUISANCE AS A VALID DEFENSE

   1. Ad Hoc Balancing Quantifies Reasonableness in Furtherance of the Common Good

      The basic definition of any nuisance is the "unreasonable interference with ... the use and enjoyment of' one's real property. (16) When analyzing whether some action constitutes a nuisance, most courts employ a balancing test. (I7) The Restatement (Second) of Torts broadly provides that at the heart of the resolution of a nuisance action is a balancing of the utility of certain conduct with the gravity of its harm. (18) In fact, in demonstrating that a balance must be struck between a defendant's right to reasonably use his property and the plaintiffs right to enjoy his property, Prosser has stated that "[these] two [rights] are correlative and interdependent, and neither is entitled to prevail entirely, at the expense of the other." (19) This balancing of a defendant's rights and the utility of the action with a plaintiffs rights and the harm caused, serves as a judicial tool by which a court can establish whether one's conduct was unreasonable, in which case a nuisance would be found. (20) The results of this balancing test are not uniform irrespective of locality. (21) Rather, what may be reasonable in one area could be unreasonable in another. (22)

      A nuisance can be either private or public. (23) A private nuisance occurs when one individual violates the maxim, sic utere tuo ut alienum non laedas, (24) and uses their land so as to injure another individual or small group of individuals--the legal equivalent of unreasonableness. (25) In contrast, a public nuisance occurs when there has been an unreasonable interference with a group of citizen's rights as a community. (26) Often the difference is a matter of degree and depends upon the number of individuals affected by the nuisance. (27)

      The utility of a nuisance cause of action is that it helps to reinforce and preserve the common good through a codification of what conduct a society deems to be a reasonable use of real property in relation to the rights of others. (28) The common good can be described as achieving a social benefit that is greater than any individual citizen's personal concerns. (29) Stated otherwise, the common good is the achievement of the greatest good for the greatest number. (30) It is through a balancing test that the courts determine which use of property furthers the common good or, in other words, which use is more reasonable. (31)

      Examining the common good through the lens of economics seems to be an almost inescapable enterprise. (32) The alternative is to place social justice, manifested in a fair share approach to legal solutions, as the main consideration for defining the common good. (33) Yet, economics and social justice are not necessarily two different and distinct notions. (34) The same efficiency that is a desired goal of an economic approach also embodies elements of social justice. (35) Engaging in such an "economic analysis of the law" serves to reinforce the common good through an attempt to maximize society's aggregate wealth. (36) It is clear then, that economics is inevitably at the fulcrum of any balancing test that the courts must employ when analyzing the merit of a nuisance claim. It follows that the desired goal in resolving any nuisance claim is to permit that use which will best help to maximize the common good (37) or economic viability.

   2. Coming to the Nuisance: From Absolute Bar to But a Factor

      1. Recognition of the Coming to the Nuisance Defense

         Early common law, dating back to the Nineteenth Century, recognized "coming to the nuisance" as a valid defense to a nuisance claim. (38) The concept stemmed from the ancient maxim volenti non fit injuiria, meaning "no legal wrong is done to him who consents." (39) In a "coming to the nuisance" defense, in which timing is the key, an established resident who has been carrying on the complained of activity for some time seeks favorable treatment over a new inhabitant. (40) It also entails a presumption that the plaintiff understood and accepted the conditions of the area. For this reason, "coming to the nuisance" could be likened to the defense of assumption of the risk. (41) An early case often cited as recognizing "coming to nuisance" as an affirmative defense to a nuisance claim is Rex v. Cross. (42) In that case, an English court held that:

         [i]f a certain noxious trade is already established in a place remote from habitations and public roads, and persons afterwards come and build houses within the reach of its noxious effects; or if a public road be made so near to it that the carrying on of the trade becomes a nuisance to the persons using the road; in those cases the party would be entitled to continue his trade, because...