Friday, October 21, 2005

The Nettlesome Nuisance

WHEN A NUISANCE IS MORE THAN A PAIN IN THE NECK


“Barking dogs and crowing hens often come to bad ends” Old saying


The Problem

Your neighbor’s son is starting a rock band in his garage. He’s put egg cartons on the ceiling and old blankets on the walls, to muffle the sound, but it’s still ear piercingly loud at 1 o’clock in the morning.

Another neighbor is fixing old cars in his driveway for fun and profit, causing unpleasant smells to waft through the air and gooey substances to puddle in the street, sometimes oozing into your well tended front yard.

And next door, the man with the prize winning azaleas is spraying untended irrigation water over the fence causing rivulets to undermine your own drought resistant garden.

These, along with barking dogs, tree roots surfacing in your yard, loud parties and other aggravations to your peace of mind, are classic nuisances.

What is a Nuisance?

Anything that interferes with your use and enjoyment of your property is called a nuisance. In legal speak: “ Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.” (California Civil Code, section 3479.)

Nuisances can be either public or private.

California law states: “A public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal. Private nuisances affect only one property owner, and are the typical cases we see where one neighbor takes on another.” (Civil Code section 3480.) All other nuisances are private.

Public nuisances affect general public, by unreasonably interfering with the public health, safety, peace, or well being. Toxic waste, dangerous activities and the like are examples of public nuisances.

Some activities that look like nuisances may be permitted activity. The San Rafael Rock Quarry which blasts neighbors out of bed in the early hours has been the subject of much controversy and many lawsuits over the years. To the neighbors, it’s a nuisance and then some. In these cases, the issues revolve around whether the operation is in violation of its permits or whether circumstances have so change that the permitted activity is no longer a beneficial one.

But changed circumstances don’t always mean annoying activities are now nuisances. Because of the proliferation of residential development in farming areas, and the recognition of the importance of agriculture to the state economy, the Legislature has officially proclaimed that agricultural operations which were in existence prior to residential development cannot be considered a nuisance due to changed circumstances. (See California Civil Code section “Prior Agricultural Activity Not Nuisance.”)

It’s usually the garden variety nuisance that plagues the average neighborhood, barking dogs, loud motorcycles, debris from nearby trees.

What can you do?

After you’ve politely approached the neighbor and asked him to curb his son’s enthusiasm, or move his car repair activity to a more appropriate location, and the nuisance persists, what can a law abiding citizen do? Many towns have procedures for dealing with certain types of nuisances, for instance interference with views are addressed through local procedures in towns such as Belvedere, Tiburon and Corte Madera. Other towns have their own specific tree ordinances.

If none of these apply to your case, you might ask the neighbor to go to mediation. Marin County has a low cost mediation services and even specialists in the barking dog problem. Both parties have to be willing to take this route, however.

There may be local or state regulations that apply. Most jurisdictions have ordinances, prohibiting loud or incessant noises, especially late at night. In the case of the car repair activity, most towns forbid such work in residential areas, without a use permit and allowing motor oil and other substances to escape into the street and possibly the storm drains is definitely prohibited and can result in a hefty fine if not criminal prosecution.

If you are personally affected in more specific way than the general public, you may have a cause of action for a public nuisance. For instance, the oil that seeps onto your property causes specific damages. Otherwise, you can go the Town, County or other agency to abate the nuisance.

If mediation doesn’t work, and there is no recourse through a public agency, you should consult a land use attorney to find out what your best options are. Sometimes an attorney can help you negotiate with the neighbor involved. The attorney can also help you determine whether the nuisance is a permanent or continuing one. (A permanent nuisance is one that is complete at the time of its occurrence, and is governed by a three years statute of limitations. A continuing one is one that is ongoing or repeated and may be abated at any time.)

Before you resort to costly legal action, consider appealing to the neighbor’s interest in maintaining good relations in the neighborhood. You may be surprised that when the problem is brought to the offending party’s attention, it can be resolved amicably.

Dotty E. LeMieux. Dotty E. LeMieux practices tree, land use and environmental law in Marin County and may be reached at coastlaw@earthlink.net.