Reconceptualizing the Law of Nuisance through a Theory of Economic Captivity

Article excerpt


Ann and Conrad Riedi lived in the same rent-controlled apartment in Manhattan for forty years. (1) Despite this long-term entrenchment, the Riedis and many of their neighbors are being forced to move to make way for a new subway construction. (2) Due to their relatively low income and inability to pay typical Manhattan rent because of their age and status as retirees, the Riedis may very well be forced to relocate out of the neighborhood and out of a borough in which they have lived most of their lives. (3) The Riedis have, in essence, become "economic captive[s]" for, put simply, their economic situation severely limits their choices as to where to relocate. (4) An economic captive, then, is someone whose housing choices are determined detrimentally by his socio-economic status, providing him with extremely limited options for places to live. (5) Further, the housing available to an economic captive is often in poor repair, in blighted and/or high crime areas, and far from the person's current neighborhood. (6)

The classical situation defining the forces of economic captivity is illustrated when relocation by a landowner thereby subjects the mover directly to a nuisance or a nuisance-like activity. For example, acquisition of real property in an industrial area may almost necessarily burden, significantly, the new owner with smog or noise, while relocation to an agricultural community may subject other homeowners to putrefying odors. (7) If the economic captive asserts a nuisance claim, the defendant may then raise an affirmative defense that the plaintiff came to the nuisance; in other words, the defendant and the injurious activity were established prior to the plaintiffs arrival. (8) Whether the plaintiffs status should be considered a countervailing factor or argument to the defendant's affirmative defense that the plaintiff actually came to the nuisance is the central policy issue which must be resolved: specifically, the manner in which society (be it governmental units or private entities) deals with these inherent conflicts presented by a recognized theory of economic captivity.

The phenomenon of the economic captive is a reality of modern capitalistic society. (9) Notwithstanding this reality, the question still remains whether a person's socioeconomic status can serve as an effective counter to the defense that the plaintiff came to the nuisance. An examination into how the law should treat economic captives whose presence in a location is inconsistent with a higher use for the land will yield the answer to this question. Examining the efficacy of a variety of approaches leads to the conclusion that the best approach is through the working of managed growth and bonus zoning in tandem in order to achieve some level of harmony amongst a range of demographic groups. (10) The employment of amortization provisions, where the economic captive is allowed to remain in his home for a reasonable period of time, is a necessary component of this solution. (11) Concluding that this approach is the most efficacious leads to the determination that one's status as an economic captive deserves to be included as a factor in the requisite balancing under which a nuisance cause of action is tested initially. (12) However, such a status is not automatically dispositive in dealing with a coming to the nuisance defense and must be viewed in light of the desired goal of protecting the common good. (13) The fact remains, importantly, that there is a place for the economic captive and that individual is not left defenseless in the world of nuisance law. If recognized, the plaintiffs' status as an economic captive should offset, or at least neutralize, the fact that he came to a nuisance and thereby provide him with an avenue for relief.

This article will begin with an analysis of nuisance law and its purpose. At the heart of a nuisance action is a fact-specific balancing of competing interests that this article will organize into a general framework for nuisance inquiries. …


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