That 'nuisance' was here before you were

It’s a classic conflict wherever town meets country: Long-time farming (or industrial) operation gets new neighbors. Neighbors first consider operation a rustic addition to general ambience, but ultimately tire of noise, dust, odors, etc. Neighbors get (or, since this is Bainbridge, are) lawyers. Neighbors squeeze operation out of existence.

As reported in this issue, that drama is playing out on the waters of Rich Passage. A commercial salmon farm – there since the early 1970s – wants to add two floating warehouse barges, allowing crews to haul in fish-food by sea, eliminate daily truck trips over Fort Ward Hill Road, and streamline handling procedures. But neighbors on the hill above and the beach below – in homes only built in the past six or seven years – take umbrage with the idea of visible, floating warehouses. The hyperbole suggests that such structures would blot out their views of the far shore and mountains, if not of the sun itself.

Need we mention that litigation has already been threatened if the plan is allowed to proceed?

The problem is not an easy one. The fish farm was there first, suggesting that neighbors should accept the situation as they found it. While this legal “coming to the nuisance” argument has considerable intuitive appeal, the counter-argument is that one landowner shouldn’t have unlimited rights to diminish the value of his neighbors’ land – “cast a perpetual servitude,” as the courts say – simply by being there first.

As the United States Supreme Court reiterated earlier this month, land-use conflicts are almost never amenable to hard-and-fast rules. The court rejected arguments that a temporary building moratorium around Nevada’s Lake Tahoe automatically constituted a “taking,” requiring compensation. Rather, the court found that temporary moratoria, like virtually all other land-use issues, have to be decided by looking at many factors – “who came first” being among them.

Nor is the Fort Ward situation a classic “coming to the nuisance” case, because the salmon farm isn’t just conducting business as usual, but is trying to add the two barges. That allows neighbors to argue that while they may have “bought into” a neighborhood with a fish-farming operation, they didn’t expect an expanded use. The farm, on the other hand, says it needs the improvements to stay competitive – to survive, even.

While not literally applicable, Bainbridge’s “right to farm” ordinance is instructive. Basically, it says that farming operations conducted according to “best management practices” cannot be deemed a “nuisance,” and places the burden on residential neighbors to provide necessary buffers.

But we’re also troubled that what’s at issue isn’t noise or odors, but rather, “the view.” We can see a whole lot farther than we can hear or smell, and it’s hard to see where claims of entitlement to a panorama – particularly as enjoyed by those overlooking the water – might end.

We won’t try to predict the outcome if this fight goes to court. It’s too bad, though, that we often lack the willingness to sacrifice our view of perfection – or in this case, perfection of view – to accommodate our neighbor, particularly one who got here first.

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