The Limitations of 'Sic Utere Tuo...': Planning by Private Law Devices

AuthorCharles M. Haar/Michael Allan Wolf
Page 45
Chapter Two
The Limitations of “Sic Utere Tuo . . .”:
Planning by Private Law Devices
I. Identifying Problems With Judicial Reconciliation of Discordant Uses of Land
As suggested in Chapter One, and demonstrated in the chapters that follow, since the 1920s, zon-
ing and planning have comprised the primar y system of land use regulation in America. Zoning
ordinances are local enactments, and the adoption of large-scale zoning changes is typically viewed
as a legislative act. ere is a large dose of administrative law in local land use law as well, especially
when landowners seeking variances ask boards of adjustment or zoning appeals to resolve their
plight. In fact, laissez-faire mythmaking to the contrary, statutes and ordinances regulating the use
of real property date back to early American history. In Colonial Land Use Law and Its Signicance
for Modern Takings Doctrine, 109 Harv. L. Rev. 1252, 1257 (1996), John F. Hart has shown us that
[c]ontrary to the conventional image of minimal land use regulation, government in the
colonial period often exerted extensive authority over private land for purposes unrelated
to avoiding nuisance. Colonial lawmakers often regulated private landowners’ usage
of their land in order to secure public benets, not merely to prevent harm to health
and safety. Indeed, the public benets pursued by such legislative action included some
that consisted essentially of benets for other private landowners. Legislatures often
attempted to inuence or control the development of land for particular productive pur-
poses thought to be in the public good. Legislatures compelled owners of undeveloped
land to develop it, beyond what was required by the original grants, and compelled
owners of wetlands to participate in drainage projects. Owners risked losing preexist-
ing mineral rights if they failed to conduct their mining with sucient promptness.
Owners of land suitable for iron forges risked losing their land if they declined to erect
such forges themselves. In towns and cities, landowners were constrained by measures
intended to channel the spatial pattern of development, to optimize the density of habi-
tation, to promote development of certain kinds of land, and to implement aesthetic
Despite this proto-regulation, the predominant form of land use regulation until the early decades
of the 20th century was common, that is, judge-made, law.
By the end of the 19th century, American judges and lawyers had developed ve common-law
tools to address or avoid conicts between competing property owners over the use and abuse
of land: (1) private nuisance; (2) trespass to land; (3) public nuisance; (4) defeasible fees; and (5)
1. Authors’ note: See also John F. Hart, Land Use Law in the Early Republic and the Original Meaning of the Takings
Clause, 94 Nw. Univ. L. Rev. 1099 (2000).
Page 46 Land Use Planning and the Environment: A Casebook
restrictive covenants. While these legal doctrines are often conceptually related, each is techni-
cally a discrete area of Anglo-American property or tort law for which judges and commentators,
over the course of decades (even centuries), have developed a separate set of doctrines, operating
rules, and exceptions. It became clear by the early decades of the 20th century that no one method
or even any combination of these ve methods could perform the important task of protecting
landowners from the negative impacts of their neighbors’ use of land while respecting all property
owners’ important constitutional, statutory, and common-law rights.
Private nuisance law—a tort action typically brought by one landowner against a neighbor-
ing or nearby owner who unreasonably and substantially interferes with the rst owner’s use and
enjoyment of real property—has in many instances provided neighbors with some protections
against actual or impending injuries and disturbances. A nother tort action—trespass to land—is
often confused with private nuisance. e key to recovering under a trespass theory is the physical
invasion of another’s property without the owner’s consent. e slightest invasion in theory can lead
a successful trespass action. Still, courts have long struggled to decide whether landowners whose
homes, stores, and other structures crack, break, and suer other physical damage because of the
activities of others should prevail in trespass in the absence of a demonstration of an actual physi-
cal intrusion. Chiey for this reason, trespass to land has not proved to be an eective device for
regulating competing land uses located in the same general vicinity.
Even before the existence of residential zoning, many new neighborhoods throughout America
were created as havens for single-family homes, and these enclaves were often protected by cov-
enants and equitable servitudes. Dolores Hayden, in Building Suburbia: Green Fields and Urban
Growth, 1820-2000, at 61-62 (2003), has noted:
When landscape designer Frederick Law Olmsted and his partner, Calvert Vaux, were
asked to design Riverside, Illinois, in 1869, they were already well known for their work
on New York’s Central Park. Olmsted held a critical view of many of the subdivisions
going up on the outskirts of cities after the Civil War. . . .
[A]t Riverside, Olmsted designed a small business district around the railroad station. . .
. Lots were fairly regular and boosting the price of the lots was his job. He was sure some
owners would build ugly or unsuitable houses, but “they shall not be allowed to force
them disagreeably upon our attention.” He wrote a covenant requiring that houses be set
back thirty feet from the road and that each owner have one or two trees in the planting
strip between the house and the street. is was the rst of many restrictive covenants
for suburban communities drafted by the Olmsted oce over the next decades.2
Even after the triumph of zoning, these neighborhood restrictions have remained important com-
plementary tools.
Sometimes developers employed defeasible fees, with much less success in the long run.3 And,
in instances where an activity posed harms to the community at large, not just to an isolated set
of neighboring landowners, local and state governments resorted to public nuisance laws, which
threatened oenders with nes, abatement, or even imprisonment.
2. Authors’ note: See also R F, B U: T R  F  S (1987); E MK-
, P: H A   R  R P G (1994), M
A. W, T R   C B: T A R E I  U L P-
 (1987); R M. F, B N: S, 1870-1930 (2005); and Gerald Korngold,
e Emergence of Private Land Use Controls in Large-Scale Subdivisions: e Companion Story to Village of Euclid v.
Ambler Realty Co., 51 C W. R. L. R. 617 (2001).
3. See Timothy Stoltzfus Jost, e Defeasible Fee and the Birth of the Modern Residential Subdivision, 49 M. L. R. 695
Chapter Two: The Limitations of Sic Utere Tuo . . .” Page 47
In reality, zoning and planning never replaced private nuisance, servitudes, and public nui-
sance. Sometimes these common-law alternatives ll in the gaps of an improperly drawn zoning
map or of an unworkable comprehensive plan. At other times, neighbors choose to impose greater
restrictions on themselves than are deemed wise or permissible by government ocials. e rela-
tionship between zoning and its precursors is a complex one, rendered even more perplexing by
technological changes such as solar energy devices and by ideological shifts on courts charged with
balancing regulatory needs with private rights.
e primary concern of this chapter, then, is to illustrate the judicial treatment of conicts that
date from a time of unplanned urban life, when an increasing population pressed on diminishing
quantities of land. W here competing land interests vie to dominate, the court is the traditional
forum for decision. Realistically evaluated within the framework of the conventional syntax in
which the courts operate, such decisions may be regarded as planning and zoning by the judiciary.
e history of this process aords insight into the attempt by society to develop a coherent and
ecient ordering of land uses. In this eld of sharp human conict arising out of the interdepen-
dence of land, we can appreciate the contributions, as well as the limitations, of the judicial process.
It is apparent that protection of the environment can be enhanced by updating the com-
mon law, but there are limits to such tinkering. e doctrines and remedies of private and public
nuisance remain relevant to the contemporary lawyer who must pay careful attention to how
common-law devices dovetail with the “administrative” techniques of land use planning that are
widely available and with today’s extensive body of federal and state administrative law mandating
protection of the environment and preservation of scenic beauty.
e cases and materials included in this chapter raise some intriguing questions: How does a
court evaluate the pertinent factors in land use disputes? How does it ascertain the value placed by
the community on a particular land use in comparison with other uses? Is there a generally accepted
scale of social values relating to land uses to which courts can refer? Can some land use activities be
said to produce a direct public benet, while others are to be carried on primarily for the benet of
the individual? Does judicial resolution of conicts here reect, in its results, the social, economic,
and political convictions of the dominant class? How does a court become informed of the bases of
competing claims? How can it ascertain the existing land use pattern, or likely future development,
or the ideal development? How can it determine the suitability of a particular activity to a locality,
or the size of the neighborhood with which a use should be compatible? How often, in fact, have
judges’ decisions coincided with what we would today label “good land use planning”? How does
the process of judicial decisionmaking dier from that of the urban or suburban planner? Granting
the diculties, in our society, where courts are traditionally the rst-line institutions for adjusting
disputes, are there real alternatives? Should the vagaries and ambiguities of the common law yield
to the relative certainty of administrative rules and regulations? Are the problems instead attribut-
able to the adversarial mode of resolution?
II. Private Nuisance: Protecting the Use and Enjoyment of Private Land
No plot of land, to borrow John Donne’s phrase, is “intire of itselfe.” Its value depends upon its
physical location with respect to other land, and upon the line drawn by society between the privi-
lege of use and the interest of surrounding owners in the untrammeled use of their land. Private
nuisance doctrines, which have evolved case by case over the centuries, reveal those limitations on
a landowner’s freedom that the equal (and potentially competitive) rights of his or her neighbors
impose. Or, as the distinguished philosopher Morris R. Cohen, in Property and Sovereignty, 13
Cornell L.Q. 8, 21 (1927), phrased the converse:

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