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LAND USE CONTROLS (PART 1): BY THE COURTS

Comment:
b. Determining utility. … The amount of utility that the particular conduct has depends primarily upon the amount of social value that the law attaches to its primary purpose …, and this is necessarily indefinite because of the fact that there is often no uniformly acceptable scale or standard of social values to which courts can refer. The court will consider in each case the community standards of relative social value prevailing at the time and place, and also what courts have traditionally regarded as the relative social value of various types of human activity.

g. Suitability to character of locality. … The character of a locality depends upon the type of activity to which it is primarily devoted. The suitability of a particular activity or inactivity to the character of a locality depends upon its compatibility with the predominant activities there carried on. The more exclusively a locality is devoted to one type of activity, the more distinctive its character and the more apt a different activity is to be unsuited to it. … [B]ut the mere fact that the activity or inactivity is suitable to the particular place does not mean that the invasion it causes is thus made reasonable and justified. It may or may not be reasonable, depending on the gravity of the harm involved.

h. Impracticability of preventing or avoiding the invasion. … It is only when an intentional invasion is practicably unavoidable that one can be justified in causing it; and even then, he is not justified if the gravity of the harm is too great. An invasion is practicably avoidable if the actor by some means can substantially reduce the harm without incurring prohibitive expense or hardship…. Thus, if the actor can carry on his activity with more skill or care or in a different manner or at a different time and thereby avoid a substantial part of the harm without substantially diminishing the value of his own enterprise, the invasion is practicably avoidable.

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