Potential Nuisance Claims Against Capital Video
Posted by NPNAdmin at 12/12/2006 10:04 PM 
Categories: Legal Strategies, Capital Video Corporation, What You Can Do
Categories: Legal Strategies, Capital Video Corporation, What You Can Do
A private nuisance is a thing or activity that substantially and unreasonably interferes with a landowner's use and enjoyment of his property, or with his interest in that property. (Edward J. Kionka, Torts in a Nutshell, 3rd Edition [St. Paul: West Group, 1999], p.312.) The test is whether "normal persons living in the community would regard the invasion in question as definitely offensive, seriously annoying or intolerable" (Rattigan v. Wile, 445 Mass. 850 [2005], quoting Restatement [Second] of Torts §821F comment d). The trier of fact may issue an injunction when the harm to plaintiff is substantial, and a slight modification of defendant's conduct would let him effectively and profitably achieve his main objective without impairing his neighbors' property rights. Rattigan, p.857.
Even lawful uses may be deemed a nuisance. For instance, in Weltsche v. Graf, 323 Mass. 498 (1948), a freight terminal was lawfully operating in a district zoned for business, but was located on the boundary of a residential district, whose inhabitants brought a successful nuisance claim because the noise from late-night loading and unloading of trucks was distrurbing their sleep. Accordingly, the Supreme Judicial Court upheld an order enjoining operation of the terminal between 8 PM and 7 AM.
"The mere fact a business is operated in accord with various rules and regulations does not require a finding the use is reasonable. A determination of reasonableness of use in an action for nuisance depends upon the effect of the activity upon one's neighbors in the particular circumstances and locality, not merely upon whether one operates within the confines of particular authority." Sherk v. Indiana Waste Systems, 495 N.E.2d 815, 818 (Ind. App. 4th Dist. 1986). [emphasis added]Many courts have upheld nuisance claims against outdoor advertisements and commercial displays. "The courts have generally recognized a rule that billboards and other outdoor advertising signs erected on private property are not nuisances per se, but may become nuisances in fact where so located and maintained as to injure the business or property rights of an adjoining landowner." (J.W. Thomey, "Billboards and other outdoor advertising signs as civil nuisance," 38 ALR 3d 647, §2[a])
While most cases concern physical interference with land, as from a sign that blocks the visibility of or access to plaintiff's business, the tort is not thus limited. For instance, in Frandsen v. Mayer, 155 N.W.2d 294 (N.D. 1967), the court opined that large advertising signs did not constitute a nuisance per se if safely constructed, maintained in a clean and sightly manner, and bearing no objectionable advertisements. The offensiveness of a particular display is a legitimate consideration in a nuisance claim. "[I]n the appropriate case recovery will be permitted under the law of nuisance for an interference with visual aesthetic sensibilities," where the offending object or display is such as would inconvenience or annoy the average person, not just a particularly sensitive neighbor. Hay v. Stevens, 271 Or. 16, 20 (1975) (finding a wire boundary fence between the parties' property not a nuisance because it served a useful purpose). [emphasis added]
In Bloss v. Paris Township, 380 Mich. 466 (1968), the town enjoined as a public nuisance defendant's operation of an outdoor drive-in theater in such a manner that pictures which related to sex and human anatomy and were not appropriate for minors were viewable by children on public streets, on residential properties, and in private homes without the consent of property owners and parents. The Supreme Court of Michigan rejected defendant's freedom of speech and press claims under the First and Fourteenth Amendments, saying that the constitutional right to free expression does not encompass forcing one's speech on an unwilling audience, in violation of their property rights. Bloss, p. 471. [emphasis added]
And in Mark v. State Dep't of Fish & Wildlife, 158 Or.App. 355, 361, 974 P.2d 716 (1999), S.C., 191 Or. App. 563, 573-574, 84 P.3d 155 (2004), the court concluded that a finding of nuisance could be based on "uncontrolled and intrusive" human nudity at the defendants' wildlife area, occurring in a location immediately around the plaintiffs' property. "The harm to plaintiffs is that their use of their property and their social life have been restricted by their reluctance to expose themselves, family, friends, and guests to public nudity and open sexual activity, that they are fearful for their safety due to their proximity to the nude beach activities, that they are embarrassed, offended and angered by coming in contact with nude adult behavior, that their right to go for a walk and enjoy the public beaches adjacent to their home has been restricted by harassment from nude sunbathers, and that those things have greatly diminished the value of their property." Mark, 158 Or. App. at 358.
A nuisance may arise when an advertising display interferes with plaintiff's neighboring business by disturbing his customers or employees. For instance, in Stodder v. Rosen Talking Machine Co., 241 Mass. 245 (1922), defendant business was a seller of record players, and had placed a continually playing machine in its doorway to attract customers. Plaintiff, who owned a retail shoestore next door, successfully enjoined this practice as a nuisance. Balancing the equities, the court found that "if the machine were played in such a manner that it could not be heard in the places of business of the plaintiffs it would have practically all of its present advertising value; and that the injury or discomfort caused them and their employees is 'out of proportion to the advantage accruing to the respondent in the playing of the machine as it is played over what would accrue to it if it were played in such a way that it could not be heard or appreciably heard in the petitioner's place of business.'" (p.251)
Similarly, in Herbold v. Hardy, 104 Cal. App. 2d 417 (1951), the owner of an apartment building was able to enjoin one of his tenants, a movie theater, from maintaining a flashing neon marquee that shone into the windows of the other residential tenants. A billboard on a main highway abutting a residential subdivision was deemed a nuisance in Woodburn v. Russell, 213 Ill. App. 553 (1919) because it would block the view from the homes and thereby reduce the property values in the subdivision.
In Bruskland v. Oak Theater, 42 Wash. 2d 346 (1953), the Supreme Court of Washington ruled that although defendants' drive-in theater was in compliance with the zoning ordinance, the way they conducted the business was a private nuisance to their residential neighbors. Instead of allowing patrons to enter and exit via the public highways, the theater constructed a driveway next door to plaintiffs' home, which created constant noise and traffic congestion and reduced the house's market value. The relevant issue, the court held, was not whether the business was an unreasonable or unlawful use of the land per se, but whether it unreasonably interfered with adjacent landowners' quiet enjoyment. Bruskland, p.350.
Similarly, in McQuade v. Tucson Tiller Apartments, 25 Ariz. App. 312 (1975), the plaintiffs' apartment building adjoined defendants' shopping center, which had been hosting rock music concerts to attract customers. Over a two-year period, there were 5-10 concerts that attracted 3,000-7,000 people. This was deemed a nuisance because the defendants' property could not accommodate such large crowds without subjecting plaintiffs to "long days of loud noise, parking problems, trespass, and other annoyances."4 McQuade, p.314. Since defendants had many other ways to advertise their shopping center, and the concerts were not necessary to operate their business, they were forbidden to hold such events in the future.
"[A] business may be liable for the acts of its customers or others if acts by them upon the business property or in going to or leaving it obstruct a neighbor's use of his property." Sherk, p.818. See also Commonwealth v. Graver, 461 Pa. 131, 334 A.2d 667 (1975) (affirming injunction against bar due to patrons' loud, boisterous, and violent conduct, including urinating on and littering neighboring property, and abusive and obscene language directed to neighborhood residents).
Courts are especially sympathetic to a nuisance claim when it appears that defendant deliberately designed the advertising display in a way that would annoy plaintiff, beyond what is necessary for defendant's business purposes. For example, in Hutcherson v. Alexander, 264 Cal. App. 2d 126 (1968), plaintiff and defendant operated adjoining drive-in restaurants. As part of a harassment campaign, defendant erected a 15-foot "menu board" on the property line that blocked the view of plaintiff's competing store, though defendant had not seen any need for such a display at a similar restaurant he owned at a different location. The court ordered him to remove the sign.
PUBLIC NUISANCE
Under Massachusetts law, a building used for "prostitution, assignation or lewdness" is deemed a public nuisance under Mass. Gen. L. Ch. 139, §4. Penalties include fines and imprisonment.
A similar provision was at issue in Mitchell v. Superior Court, 49 Cal. 3d 1230, 1238 (1989), where the trial court found that a strip club routine involving oral sex and masturbation could be enjoined as "lewdness," and was not a theatrical performance protected by the First Amendment, since it was "calculated to arouse sexual desires and release inhibitions rather than to express emotion and dramatic feeling." (Defendants' objection to that determination was deemed waived on appeal.) In People v. Adult World Bookstore, 108 Cal. App. 3d 404 (3d Dist. 1980), the California Court of Appeal, while recognizing defendant's First Amendment right to operate an adult bookstore, allowed the county district attorney to bring a nuisance abatement claim because customers entering the store were unwillingly exposed to the sight of other patrons having sex in viewing booths, and solicited for sex themselves:
"Defendants here claim that there is no evidence that anyone was or could be offended by the happenings within the bookstores, which happenings did not 'involve or affect innocent third parties.'...[However] in entering such a store, a member of the public exercises his or her own right of privacy and the First Amendment right to see, read, and observe on film sexually explicit, even sordid, activities. This is what the store purports to offer. To attribute to each incoming customer the concurrent expectation inter alia that he or she will be solicited to perform sexual acts through the 'glory hole' of an adjoining motion picture booth would have a chilling effect upon such fundamental rights. It follows that those who perform sexual acts within view of neutral customers of the stores, or who expose themselves to them or solicit them to perform or participate in sexual activity, undeniably do so in a place open to the public and with the reasonable expectation that the customers (at least certain of them) are likely to be offended." Adult World, p.410.
APPLICATION TO CAPITAL VIDEO
Capital Video's proposed window display, featuring nearly-nude mannequins in bondage outfits and sexually suggestive poses, constitutes a nuisance to its immediate neighbors, which include many residences, a mental health counseling center, a church and a dance school attended by young children. This is true regardless of whether Capital Video is in compliance with the new signage ordinance (PDF) or the new adult business zoning ordinances. (See Weltsche, supra.) The store's First Amendment right to sell explicit materials does not include the right to foist those materials on unwilling members of the public, including minors, for whom Capital Video's merchandise is unquestionably inappropriate. (See Bloss, supra.) The dance school will lose customers who are understandably reluctant to walk with their children past a blatant sexual display. (See Mark, supra.) Similarly, ServiceNet cannot expect victims of domestic violence to feel safe seeking help when the center's next-door neighbor flaunts images of women being handcuffed and menaced with whips.
These businesses will be most severely affected, but all of Capital Video's neighbors will find their property values impaired by the perception of the neighborhood as a "red-light district". If even adult businesses with unremarkable exteriors have been known to cause secondary effects, what could damage public perceptions of King Street more than a large adult business storefront whose identity as such (not to mention lack of respect for its neighbors) is immediately obvious to passersby?
Capital Video has numerous franchises in New England which have no provocative display on their exterior. Stores we visited in Kittery, Springfield, Meriden and Wethersfield all had blank outer walls (examples). Moreover, Capital Video's attorney, Leslie Rich, writing on TalkBackNorthampton in October, acknowledged that the store had "an obligation to present itself in a mature and non-offensive manner" and averred that "the company does not display sexual explicit signage, nor are there any depictions of sexual conduct that are visible from the stores." Clearly, this proposed window display is not necessary to the operation of Capital Video's business, and appears to have been designed solely to harass and punish the community for having passed a restrictive zoning law last month. As in Stodder and Hutcherson, supra, the balance of equities would favor banning the display, since the utility of the display to Capital Video is greatly outweighed by the harm to adjacent landowners--namely, being forced to view unwelcome sexually suggestive materials, and the depreciation of their property values.
As Capital Video prepares its revised site plans, it should also consider whether the parking at 135 King Street will be adequate for its expected customer volume, and whether the shared driveway onto King Street can safely accommodate the constant flow of cars to and from the store. Potential nuisance claims could arise if the increased traffic congestion and noise affected neighboring properties or the street corner became less safe for pedestrians.
Are you still kicking that dead horse?
Are you on the payroll of Cap Video? Because your indignation is only making their wares seem that much sweeter. I was indifferent to the store before, but now I'm planning to patronize it regularly!
PS: There was a topless mannequin in the window of Wee Ping today, and I think some kids saw it. Where were you?
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These issues have already been extensively discussed at
http://nopornnorthampton.org/2006/12/11/...Comment
and elsewhere. And nope, we're not on the payroll of Capital Video.
It's interesting that many of our opponents claim these issues are not important, yet appear to be monitoring our blog closely and commenting frequently.
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Yes, when you are intent upon invalidating people by invalidating their sexuality, as society previously invalidated gays and lesbians by invalidating their sexuality, you are going to get a lot of attention. Much of it unfriendly, as you know.
See, the gist of what antagonizes so many of us is that you are advocating intolerance of our heterosexual, graphically orientated sexuality, and therefore us.
Yours/Ac
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Lumping abuse with sexuality is wrong and harmful.
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Sexually explicit poses?All I see are mannequins dressed in leather bondage gear as was on display on lower Pleasant Street for many years and was never seen as "out of line."
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People are commenting frequently because your arguments are a utter trainwreck.
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