Regulation

Governing Magazine’s executive editor Alan Ehrenhalt has a thoughtful piece – “Torts for Tots” - on the problem of “regulation through litigation” (an issue previously blogged on this site).  Against the backdrop of public nuisance litigation against lead paint and pigment manufacturers, he raises serious questions about the role of courts in undertaking broad public policy determinations that more properly rest with legislatures.  Read More »

As noted in Section 3.b of the module on Defining the Tort, compliance with regulation can indicate that conduct is by definition reasonable, and, therefore, not a nuisance.  This issue is often addressed in the context of a public nuisance claim.  See Restatement (2d) of Torts, § 821B, comment f.  The law on private nuisance can also provide some insights, however.

Most of us are familiar with the "coming to the nuisance" and "pig in a parlor" concepts - that just because you were there first, and operating a legal business, doesn't necessarily mean that your business is immune from being found a nuisance.  See generally Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 388 (1926).  That said, what has happened historically?  When people started moving into such a "nuisance" - toward the pigs - legislatures started enacting right-to-farm laws.  See, e.g., Buchanan v. Simplot Feeders Ltd., 952 P.2d 610, 614 (Wash. 1998) (prohibiting a nuisance claim because of state "Right-to-Farm" statute).

Beyond legislation explicitly declaring certain activities not to be nuisances, legislatures also issue specific licenses and permits for activity.  Logically, the more specific the legislative expression as to what is allowed, the less likely the use can be deemed unreasonable.  Some case law from Massachusetts illustrates.

Many decisions from Massachusetts stand for the proposition that a license or permit can preclude activity from being deemed a nuisance.  E.g. Hub Theatres, Inc. v. Massachusetts Port Authority, 370 Mass. 153, 155 (1976) ("The operation and extension or enlargement of Logan by the Authority, the very activity of which the plaintiffs complain, being expressly authorized by the Legislature, the plaintiffs' action predicated on a nuisance theory must fail."); Flannery v. State Mut. Life Assurance Co., 339 Mass. 699, 700 (1959) (permit would protect landowner from being charged with maintaining nuisance if its terms and conditions were complied with); Czapski v. Sun Oil Co., 303 Mass. 186, 186 (1939) ("Since it is conceded that the defendants were licensed by the proper public authorities to maintain such a [gas] station, the plaintiff cannot restrain as a nuisance the doing in a reasonable and careful manner of the very act licensed"); Strachan v. Beacon Oil Co., 251 Mass. 479, 487 (1925) ("if the licensee has complied in all respects with the terms, what he does thereunder cannot be considered a nuisance or be restrained, even if without such licenses the acts done would be a nuisance); Sawyer v. Davis, 136 Mass. 239, 241-242 (1884) ("And when the Legislature directs or allows that to be done which would otherwise be a nuisance, it will be valid, upon the ground that the Legislature is ordinarily the proper judge of what the public good requires, unless carried to such an extent that it can fairly be said to be an unwholesome and unreasonable law.")

As the Massachusetts SJC further explained in Marshall v. Holbrook, 276 Mass. 341, 346 (1931), while an allowance for an activity in a general zoning ordinance may not exclude the particular operation of that activity in a particular spot a nuisance, a specific statute or permit can so immunize an activity:

A person may be protected by statute or by license issued under an ordinance enacted with legislative sanction in doing an act or conducting a business which apart from such authorization would be a nuisance. In Commonwealth v. Parks, 155 Mass. 531, 532, 30 N.E. 174, the court said:  "It is settled that within constitutional limits not exactly determined the legislature may change the common law as to nuisances, and may move the line either way, so as to make things nuisances which were not so, or to make things lawful which were nuisances, although by so doing it affects the use or value of property." In Levin v. Goodwin, 191 Mass. 341, 343, 77 N.E. 718, 114 Am. St. Rep. 616, the court said: "Nor can there be any doubt that a person carrying on a business may be licensed to make a noise, which but for the license would be a nuisance.")

In sum, whether regulation precludes a private nuisance claim may be a question of specificity.  The more explicit the legislature is as to what is allowed, and the more individualized the determination (e.g, through a permitting process), the more logical it is to conclude that the legislature intended that particular operation in that particular place, operated in compliance with its license, not to be deemed a nuisance about which neighbors can complain.

Given the broader nature of a public nuisance claim, not focusing on a specific individual property and property owners, the need for such locational specificity logically diminishes, perhaps explaining why general discussion of the interface between regulation and nuisance more often occurs in the public nuisance context.  But the fact that licensure is a defense in individual private nuisance claims reinforces a point common to both private and public claims:  within constitutional bounds, a legislative balance of social utility issues should be respected, precluding a nuisance findings that clashes with that balance.