Notre Dame Law Review

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Noah Austin*

This Note presumes the rise of mixed-use development, upzoning, and other deregulatory zoning schemes.  It sets aside the question of whether the costs of exclusionary zoning outweigh its benefits to society.[24]  And it characterizes the return-of-nuisance problem as something to be mitigated while pursuing land use deregulation, not as a cause for slowing that deregulation.

To this end, this Note offers three possible solutions towards mitigating conflicts between competing land uses in deregulated regimes.  This Note contends that where today’s deregulated developments do generate conflicts between conflicting use types, society would reap net benefit by weakening judicial protection of nuisance of action, recognizing that some conflicts are necessarily incidental to the perceived benefits of the modern mixed-use, upzoning, and deregulatory regimes.  Legislators and private actors can also weaken nuisance protection in pursuit of these same goals.  This Note proposes solutions that each type of actor can implement.

First, and most simply, judges can choose to weaken nuisance common law when different types of land uses in a mixed-use regime occur.  This solution offers a case-by-case basis for resolving conflicts ex post, requires less complex implementation, and permits the common law to adapt naturally as changing societal circumstances demand.

Second, and best from a democratic standpoint, legislatures can implement laws which make nuisance causes of action more difficult to bring between competing uses in mixed-use regimes.  Procedural protections can offer buffers against legal liability between competing users without affecting the substance of the nuisance doctrine.

Third, private developers can opt to provide contractual solutions for users of their mixed-use developments in the form of covenants not to sue for specified inter-use nuisances.  This offers a market-based way for developers to avoid liability conflicts.  This also has the benefit of being (like the legislative proposal) an ex ante solution.

The primary objection to each of these proposals is that changes in legal rules of liability might not, in fact, solve the underlying conflicts between different property users.  According to this argument, reductions in liability for any instance excluded from the judicial, legislative, or private definitions of nuisance will be reflected in reduced property values on the market as these properties come with a built-in inability to take action against certain interferences.  This Note considers this argument and other objections in Part IV.

Part I of this Note summarizes the status of zoning, nuisance, and private covenants as competing ways to deal with conflict between neighboring land uses.  Part II sets up the problem: where deregulatory zoning regimes permit varying land uses, conflicts between neighbors will necessarily occur at a higher rate and in less resolvable ways.  This problem makes mixed-use regimes less desirable.  Part III turns to this Note’s main argument: where mixed-use zoning necessarily entails conflicting land uses between neighbors, judges, law, and policymakers should soften nuisance and covenant enforcement by permitting each type of land use to engage in its own “normal” level of activity within the mixed-use zone.  Part IV considers objections from law and economics and normative perspectives, and Part V offers a brief conclusion.

*J.D. Candidate, Notre Dame Law School.  Thanks to Professor Dan Kelly for his guidance; to my parents, Rob and Jill Austin, for their support throughout law school; and to Abby Ulman, Sarah Brown, Jamie Mitchell, Scott Hamann, and Elijah Drake for their support, comments, and inspiration.  Thanks also to the incredible Law Review team (especially Jack Ferguson and Anne Bennett Osteen) for spending many hours editing this piece.  Any errors that remain are my own.

[24]Defenders of exclusionary zoning offer various justifications for keeping the system or at least slowing transitions away from it.  See Serkin, supra note 14, at 752–54; Schleicher, supra note 10, at 1320–23.  Whether or not these justifications are convincing, the merits of this debate are nonessential to (though they are occasionally invoked by) this Note, which examines instead the consequences of a world where mixed-use and other deregulatory zoning regimes triumph in fact over exclusionary zoning.