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Brooklyn Law Review

Abstract

If you are a prospective resident of neighborhoods like Brooklyn’s Bushwick or Chicago’s Bronzeville, being close to a hip music venue may sound like a never-ending party—that is, until you discover that the hip music venue is your downstairs neighbor, and the party really never ends. Similarly, newcomers to gentrifying neighborhoods are often drawn by a sense of authenticity and vibrancy. But the sights, sounds, and smells that make neighborhoods “authentic” or “vibrant” may not be a good fit for the lifestyles those newcomers bring with them. In these cases, should a plaintiff be able to successfully sue in nuisance? Though it seems like this question ought to have a clear answer, courts have frequently struggled to define what counts as a nuisance in the urban context. Most theories of nuisance assume that these kinds of conflicts occur by happenstance, with no connection between plaintiffs and defendants other than that they happened to choose to live or work in the same place. As both Bushwick and Bronzeville illustrate, however, that is far from accurate. A defendant’s interference, even if it did not specifically draw the plaintiff to the neighborhood, nevertheless contributes to the dynamism which makes that specific neighborhood desirable. This insight, though seemingly minor, has sweeping consequences, as it calls into question both the efficiency and justice of prior approaches to nuisance, including those endorsed by most courts today. By refocusing nuisance on what this Article calls the “urban growth principle,” it is possible to address those efficiency and justice concerns while also making this notoriously unwieldy area of law more administrable. An interference should only be deemed unreasonable based on its fit with the surrounding locality when the underlying activity is not part of an established pattern of land use and more likely to deter others from locating near it than to attract them. Through this approach, courts can “urbanize” private nuisance, removing yet another obstacle in the way of vibrant, flourishing cities.

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