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LAND USE CONTROLS (PART 1): BY THE COURTS

    The Law of Nuisance (a/k/a Judicial Zoning):

    Courts will protect a property owner or occupant where a third party unreasonably interferes with that owner’s use and enjoyment of their land.

    The actor’s state of mind need not be one of “intent” in the sense of acting with malice or with a desire to cause the harm. It is sometimes said, however, that the actor must intend to do the act or to bring about the conditions which ultimately cause the harm (or willfully fail to act where action is required). Most nuisances today are “intentional”, thus implicating the Restatement analysis set forth below. Of course, even if this were not the case, the conduct itself might be deemed negligent and thus result in liability under general tort standards (e.g., was the conduct negligent, reckless, or unreasonable). Perhaps the best way to alleviate confusion on this point (and as you read the material below) is to emphasize that nuisance is at its core a condition, and is most dependent upon the danger, interference, indecency, etc. – rather than upon the particular degree of care exhibited by the actor.

    A nuisance at law (or a nuisance per se) is an act, occupation, or structure which is a nuisance at all times and under any circumstances, regardless of location or surroundings. Nuisances in fact or per accidens are those which become nuisances by reason of circumstances and surroundings, and an act may be found to be a nuisance as a matter of fact where the natural tendency of the act is to create danger and inflict injury on person or property. Since the greater number of nuisances are nuisances per accidens, whether or not a particular thing or act is a nuisance is generally a question of fact. Some of the relevant concepts and facts are described below.

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