Potential Nuisance Claims Against Capital Video

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.