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 suer 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. Chiey for this reason, trespass to land has not proved to be an eective 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 oce over the next decades.2
Even after the triumph of zoning, these neighborhood restrictions have remained important com-
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 oenders with nes, abatement, or even imprisonment.
2. Authors’ note: See also R F, B U: T R F S (1987); E MK-
, 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