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But I Got The Permit

Posted on: August 29th, 2016
by David Ganje

Nuisance at law is a legal principal. It describes a wrong committed, and, in modern law, includes a remedy for the wrong. Nuisance is not what we think of when we describe what my Central High School principal expressed in describing my general deportment and behavior. The old English legal commentator Blackstone held that nuisance was an injury to one’ s lands. This is not accurate. A nuisance is not an injury to the land itself. Nuisance is an interference with one’s right to own or possess the land.

As Supreme Court Mr. Justice Sutherland once said, “A nuisance may be merely a right thing in the wrong place –like a pig in the parlor instead of the barnyard.” The law maintains two kinds of nuisances, private and public nuisances. A public nuisance is one that affects the community, neighborhood, or a considerable number of people in an area. All other nuisances are private. Nuisance law and Zoning law both protect property. Each principle relates to the use and enjoyment of property. No one may use his property in such a way as to injure the person or property of another. This is the underlying principle of the law of nuisance.

Now comes the rub for a perpetrator of a nuisance. A perpetrator of a nuisance cannot hide behind an existing zoning law or ordinance. “But I got the permit” won’t work. A property use which complies with a zoning ordinance or controlling statute may still be enjoined as a nuisance. The New York Court of Appeals, in a divided decision, made an important ruling on the matter of nuisance vs. an approved legal activity under the law. The right to sue in nuisance prevailed. Because an activity is an authorized use does not mean it may not also be a nuisance.

The Court stated,

“It is the contention of defendants that the [complained of activity] complies with the Building Code of the city, that the zoning regulations do not forbid the location on and use of the premises. . . , that defendants have procured a permit from the proper authorities for such location and use which constitutes a conclusive adjudication that neither is prohibited by the zoning law, that the issuance thereof is reviewable only by the Board of Standards and Appeals, and that [the relevant statute] makes the permit, subject only to such review, a conclusive adjudication that the erection of the building is in accordance with all provisions of the rules, regulations, ordinances and statutes applicable thereto. . . . Nevertheless, even so, the right of plaintiffs to challenge, in an action in equity, the location . . . and proposed use of the property on the ground that it constitutes a nuisance still remains.”

A use, although authorized by an approved permit or license, may thus be the basis of a suit to enjoin a private nuisance. A city, county or legislative body cannot legalize, that is, immunize, a use from a successful charge in court that the ‘use’ is a public or private nuisance to a harmed party. A court will admit evidence of relevant ordinances or law and will take their language into consideration in a nuisance case. But that information will not be controlling or determinative by the court in its decision. No perfectly drafted or administered zoning law or similar statute can create a bureaucratic environment in which a proper claim of nuisance could not be lodged. Nuisance versus authorized use of property is an area law that will always be in conflict. If one eliminated uncertainty in the law as written, think of all the unemployment that would occur among the bar. Property rights and the use of property are not absolute.

David Ganje practices law in the area of natural resources, environmental and commercial law.

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