Taking, Nuisance, or Theft?

I originally wrote this during the heat of debate over the King County CAO amendments. It is still applicable as the rest of the state bears the brunt of their own CAOs and Shoreline Master Plans. There are two broad principals of law in the United States under which government may take or restrict the use of private property. Government may take private property for public benefit but must, in turn, compensate the owner of the property for its value. Government may also take or restrict the use of property via its police powers to regulate nuisances. Just as a property owner possesses rights to use his property, he also holds rights to prevent others from using their land in a manner that harms him or his property. “Nuisance” describes a situation in which one landowner is using his property in a way that unreasonably limits the use of his neighbor’s land or directly harms his neighbor. A “private nuisance” interferes with a relatively small number of people in their use of land. For example, if one neighbor plays her radio very loudly, especially during times that others sleep, that may constitute a private nuisance. A “public nuisance” causes distress to a large number of persons (an entire neighborhood or community) in the use of their land. For example, a cement factory, which discharges large amounts of smoke and dust, may amount to a public nuisance. Under the police power a court of equity with proper legislative authorization can assume jurisdiction to abate a nuisance. It is difficult to determine which of these two concepts is being employed in these proposed ordinances. On one hand, we are told that “Best Available Science” says we must put these restrictions in place for the public benefits of cleaner water and improved habitat for wildlife. We are told we must limit sprawl to  reduce the costs of providing services in the rural areas. If a court agrees that those are worthwhile public benefits, then government is required to compensate the owners. We would never allow government to simply take any other type of property (medicine, clothing, bricks and mortar) because it was to be used for some public benefit. Why do we even think of it when talking about even more valuable land uses? On the other hand, can we really call this a preemptive injunction against “public  nuisance” use of rural properties? Remember that nuisance requires that one neighbor’s use of her property must interfere unreasonably with a neighbor’s use of her property or directly harm her. The ordinances as written would have us believe that rural landowners’ use of more than 35% of their property interferes with the reasonable use of their properties by urban landowners. Using that logic, if anyone has a legitimate action based on their neighbors’ overuse of property, it is the rural property owners. Perhaps the science being touted as “Best Available” would best be used to enjoin urban property owners from the continued destruction of our environment by overclearing. Mixing these two separate legal concepts may seem to give the urban members of the King County Council the opportunity to obtain benefits for their urban constituents without those constituents having to pay anything, but that is not the case. Doing so is neither legal nor moral. It is simply theft, and serves only to broaden the conflict between the urban and rural residents of King County.

April 7, 2010