Zoning laws vs. Common law "nuisance"

Economics Political Theory
1

I just want to start a discussion of the common law definition of nuisance.

Nowadays people use the local town government to vote on all sorts of restrictions and regulations on each others property. For instance in the town that I grew up in it is against the law to rent out a portion of your house to a tenant since this is a violation of certain zoning districts. It is also illegal in MANY towns for you to live in the same building as your business, unless special exemptions are given to you by the local Zoning board of appeals but only after a costly process that takes almost two years at minimum. This drives up the cost of housing and therefore drives up the amount of gross property tax dollars you have to pay which both in turn keeps lower income people stuck in the cities or other depressed areas.

In the past before the advent of zoning laws certain common law rules subject to revision by the courts use to determine if a nuisance had taken place. So if I bought a parcel of real estate next to an apartment building or residential area and proceeded to build a loud factory there the court would most likely say that due to the nature of the area I had caused a nuisance and needed to shut down and go to another area, maybe a different more industrial part of the same town. This did not cause urban sprawl like zoning does today since it allowed the concentration of certain activites in specific areas (zoning tries to limit concentration of any commercial activity so it tends to lead to spreading the activity out more) and was not arbitrary since it was reasonably decided by the facts at hand in stark contrast to the political and often emotionally charged town meetings. Also the common law precedents leads to a far larger range of acceptable and free activity that you can pursue on your property since the whole basis is property rights PROTECTION and not preemptive statutory regulations.

So what I am getting at is in the lack of a private neighboorhood association or a private restrictive covenant I think the customary common law as a legal system works well at balancing the property rights of abutting lots in the absence of government. What do you guys think about this?

2

Fits the homesteading theory of property perfectly.

If you homestead land near a factory you are homesteading the land as is, including the noise of the factory. If you homestead in a neighborhood you are homesteading the land as is, complete with those noises typical of a neighborhood. Resident are allowed to make, and must live with, those types of noises typical of a neighborhood. However, if I build a factory in this neighborhood I am introducing a new type of noise pollution that infringes upon the homestead of the prior residents.

3

Isnt it typical how the first thing statists do is to try and regulate the common law out of existence. I mean how could they allow psuedo impartial courts (in the case of government tribunals) to weigh the facts on a reasonable basis using common sense. I mean that is the anithesis to the political will to power.