Erin Mulvaney of the Houston Chronicle sent me the jury verdict slips in the Ashby Trial, which I blogged about yesterday. This is relevant because it gives meaning to how the jury determined what a private nuisance is.
Question No. 1
Is 1717 Bissonnett’s proposed Project abnormal and out of place in its surroundings such that it will constitute a private nuisance if built?
1717 Bissonnet creates a “private nuisance” if its Project substantially interferes with Plaintiff’s use and enjoyment of land.
“Substantial interference” means that the Project must cause unreasonable discomfort or unreasonable annoyance to a person of ordinary sensibilities attempting to use and enjoy the person’s land. It is more than a slight inconvenience or petty annoyance.
A nuisance, if it exists, is not excused by the fact that it arises from operation that is in itself lawful or useful.
The way the court defined a nuisance is indeed unprecedented. A nuisance will always consist of something interfering with the use and enjoyment of land. But what is that something? Anything? The questions suggest that a usage that is “abnormal and out of place in its surrounding” is a nuisance! Even if the construction is perfectly lawful, it can be a nuisance if it is “out of place.” Usually such questions are the provence of zoning laws. But, since we do not have such laws here in Houston, the neighbors turned to the old law of nuisance, and greatly expanded it.
The Ashby trial creates a precedent for backdoor zoning through nuisance litigation. I’ll have more thoughts on this soon, and will be in tomorrow’s Chronicle on this topic.
This is bound for a higher court. Stay tuned.