Tuesday, September 23, 2008

CM PRESS # 493


SOME STILL DON'T GET IT ABOUT PARKS

We continue to read nonsense from the usual cast of characters who write things such as: "If you move next to a park, you shouldn't complain about soccer in that park."

What such people are usually trying to elucidate, but not very well, is a "coming to the nuisance"defense found in nuisance law.

Here's how this works without getting into the fine points of public vs. private nuisances and other matters:

1800's PIG FARM
Say the year is 1800 and you own a huge pig farm out in a deserted prairie and then someone builds his home right next to your pig farm even though that person had miles of empty land as an alternative.

Then, this person who built his home next to your pig farm says you should shut down your pig farm because the smell bothers him.

Well, under the totality of the above facts, the courts would probably rule that the homeowner "came to the nuisance." He knew there was a pig farm there when he built his home so he's out of luck.
Modern courts
Modern courts use more of a balancing test and they consider various factors in weighing the rights of the parties.

Today, for example, as our population grows and more and more people move out to once barren prairies, the courts, depending on many factors, may rule that the pig farm is such a lousy neighbor that the pig farmer has, in effect, condemned all the land around his pig farm--within smelling range--to similar lousy uses forever.

In other words, the pig farmer has in effect taken, without paying for them, all the surrounding properties in a sort of private citizen pocket eminent domain fashion, because he has made them all unsuitable for anything except pig farms.

In such a case (in simplest terms) the pig farmer may be asked to move his pig farm or take some action to abate the nuisance (the smell, for example), so adjoining properties can be used for higher and better uses. If this happens, he is compensated so that he may find and acquire another desolate spot for his pig farm or for the cost of doing something to lessen the smell.

A TWIST
Put a twist into this. Suppose you're the guy who built your home next to the pig farm and you did it because you like the smell of pigs. In fact you love pigs. You wanted to live near the pigs.

The problem, however, is that you soon discover that the pig farmer isn't just raising pigs. He is also raising crocodiles that he lets roam his property and all properties nearby. Well, you had no way of knowing that the guy was also raising crocodiles. That's not what you'd expect on a pig farm. Those crocodiles are ruining the quiet enjoyment of your property. You can no longer just enjoy the smell of pigs.

So, now you argue that the nuisance is the crocodiles and that the pig farmer should stop raising them. The pig farmer will again argue that you came to the nuisance. In this case, however, his argument is weak and you may prevail.
CROCODILES IN OUR PIG FARMS
Now, how does this relate to the use of various parks in Costa Mesa?

Well, the answer is that if you buy a home next to a soccer field, you probably shouldn't complain if soccer breaks out. Soccer is the intended purpose of a soccer field. It is designed for soccer.

However, if you buy a home next to a postage stamp size piece of grass with trees, rolling hills and a tot lot with no bathroom and no soccer fields, and the quiet enjoyment of your property is impacted by large, intense and very competitive soccer games being played by beer drinking adults from an adjoining city who urinate and defecate in the park, break your windows with their soccer balls, force you out of the park, leave the park full of trash, destroy the turf that you, as a taxpayer will have to pay to repair, and endanger themselves and others in such a way that it is foreseeable that someone will eventually bring a lawsuit against the city that your taxes will have to be used to defend, you have a right to complain.

And, even if intense soccer games are played by kids and younger adults in such a postage stamp size park, as described above, that park is not a soccer field and it is foreseeable that someone will be injured at some time either by running into a tree, hitting a toddler with a soccer ball, running over a toddler, tripping on weak turf or sprinkler holes, falling on a sidewalk in the middle of the soccer field, kicking a ball into traffic on a nearby street and possibly causing an automobile accident, running into the street chasing a ball and being hit by a car, or any number of other situations.

And it is also foreseeable that such activity may ruin the quiet enjoyment of homeowners on nearby properties. They willingly chose to move next to a small postage stamp park, but they didn't sign on to be next to a soccer field a baseball field or a football field.

If you are one of these folks living near the park, your argument is this: "I bought my home next to this small grassy, hilly area full of trees and with a tot lot because I wanted to enjoy low intensity activities with my kids and my toddlers--maybe throw or kick a ball, run around and do similar things, use the tot lot, and relax, but now I can't use the park because it has been turned into a soccer field with opposing teams taking over the whole park.

"It was not reasonably foreseeable that anyone would turn such an area into a soccer field. It's unsafe for the players and other users of the park and makes the park unusable by others. I moved next to a small park with no sports field and I have a reasonable expectation that it would not be a soccer or a football or a baseball field because it is not adequate for such uses."

That's the situation we have in Costa Mesa with some of our postage-stamp size parks.

Each park and each situation is different

As we've written many times, all of our parks are different. Some are not suitable for intense sports, and a home buyer looking at such a park would not reasonably believe that huge soccer games would be played on rolling hills, on a sidewalk and around trees and through a tot lot right next to a busy street with nothing to keep balls from going into traffic.

Soccer games in such parks are like crocodiles raised at a pig farm.

Each park in each neighborhood must be evaluated individually. Blanket passive or blanket active rules are a mistake.
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Those are our opinions. Thanks for reading them.

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