Built to Suit the Retail Real Estate Industry PlainVanillaShell US Edition You are signed in as  
guest  

Sign in now  

Logout  
topnav
Home News Archive Featured Stories Retail Real Estate Marketplace Contact Us Subscription Info
legal  

legal

Print Page Trucked-Up Property
by Ron Davis

Nuisance charges leveled at a California shopping center by a neighbor have gained the sympathy of that state’s courts–but nothing more.

The shopping center is Airporter Square in Ontario, and the neighbor owns an undeveloped tract adjacent to the center. That tract is apparently destined for a mixed-use retail and residential complex called Ontario Festival.

Meanwhile, the owners of Airporter Square have encouraged their patrons–especially truckers–to park their vehicles on the neighbor’s property. The center’s owners have even posted signs along the perimeter of Airporter Square inviting trucks to park there. The signs are printed with the words “Truck Parking,” and directional signs point to the neighbor’s property.

In response, the adjacent property owners have erected temporary barriers and chain-link fences. But the truckers simply park on the street surrounding the property, and their traffic and noise continue unabated.

The neighboring property owner has protested, claiming that the truck activities promoted by the center have caused their property values to drop. The neighbor added that some potential investors in Ontario Festival have already expressed dismay about the parking and traffic situation, thus discouraging their investment.

The neighbor eventually sued the shopping center’s owners on grounds that they had created a public nuisance.

The courts agreed that the center’s owners have violated local laws. Explained one judge, “They are constructively operating the shopping center as a truck stop, a use for which the shopping center is not zoned.”

However, the courts also found that “nuisance” is defined as an interference with the use and enjoyment of land and that such a definition limits nuisance claims. Added the judge, “The property in this case is vacant land proposed for future development, and there is no current use and enjoyment being made by anyone. Further, the judge noted, “Diminution of value...is simply an element of damage, not the present interference of use or enjoyment required to state a cause of legal action for nuisance.... As such, it does not state the essential element of a current injury for nuisance.”

On appeal, a California appellate court agreed that the charges of noise, fumes, and pollution from trucks visiting Airporter Square “pertain to future harm and therefore cannot establish nuisance.... Because the land is now vacant, no one is present to hear any noises, to smell any fumes, or to inhale any pollution.”(MCP Ontario Festival v. Aden, 2006 WL 2692862 [Cal.App. 4 Dist.])

Decision: October 2006
Published: November 2006

Privacy Policy | Terms & Conditions | Contact | About Us