By MARIA PEROTTO
Los Alamos
Nuisance or Not
Each property owner as a resident of Los Alamos [town and county] has been required to use a county-issued container, the roll cart, which was instituted to control garbage dispersal and to eliminate physical injuries to collection staff. Garbage generation and collection are a part of everyday aggravation of regular life. Using roll carts is not a nuisance. Using roll carts is a sufficient solution to the town of Los Alamos for reasonable garbage collection. Anyone who has newly moved to Los Alamos has assumed the risk and conditions of roll cart use, and has no complaint having accepted the conditions. But when citizens of Los Alamos agreed to allow the placement of roll carts onto their property, they did not acquiesce to a dictum of specific location for storage of the roll carts. For the county government to specify location for storage of the carts on personal property is an overreaching control, and will generate tort suit.
Federal Nuisance Tort Law
The unfettered enjoyment and protection against intentional invasions of land and property is protected by the United States Common Law tort. Our Federal Common Law defers this tort jurisdiction to local government. Local governments address protection against nuisance in a court of equity and play a critical role in addressing nuisance.
In New Mexico, a nuisance is a type of tort that can be either private or public, and is defined as an unreasonable interference with the use or enjoyment of land. Dictating the storage location of solid waste management bins or roll carts on a person’s private property is an invitation to both a public nuisance claim, and a private tort nuisance claim against both Los Alamos County and the Los Alamos County Solid Waste Management Division. In the state of New Mexico, no statute of limitations exists in this tort.
Public tort nuisance is when a person/entity unreasonably interferes with a right that the general public shares in common, affecting a considerable number of people. For example, when residents freely decide the location on their property of a stored garbage bin, there is harm when government removes that freedom and dictates exact storage location.
Private nuisance covers the invasion of the private interest in the use and enjoyment of land. Since private tort nuisance by definition results in particular harm distinct from that suffered by the public in general, it is apparent that in certain cases it can meet the test needed
for compensatory recovery in a private tort action for a public nuisance, such as when a topographical land anomaly prevents compliance with an ordinance. In New Mexico, plaintiffs can seek damages for annoyance, discomfort, and inconvenience in private nuisance cases.
The two law fields of trespass and nuisance frequently overlap and are not inconsistent with common law tort. Plaintiffs may choose a trespass theory, by verity of the presence of cart or persons managing the cart on private property.
Overreaching government
It is a nuisance, a public nuisance, when the Los Alamos County Council entertains a hearing and vote allowing The County to dictate roll cart placement on private land. Hearing a petition of the nature of roll cart placement is a nuisance because it threatens the peaceful enjoyment by property owners of an established process agreed upon. It borders on inducing communist utopian system by erosion of private freedom and by creating fear. Let those who wish to hide roll carts develop a local HOA with like-minded others. A reasonable person would refuse to hear the roll cart complaint. If not, then initiate grandfather clauses or waivers or variances for individual properties, by review. How much will that review process cost tax payers?
Private tort compensation
The owner of a residence or dwelling house occupied by him/her as a home is entitled to just compensation for annoyance, discomfort and inconvenience. Some residents will experience harm greater than one ought to be required to bear under the circumstances, and it will be permanent, weekly harm. That harm can also extend to non-neighborly roll cart storage causing a nuisance on adjoining property. In addition to depreciation in the market or use value of the realty, the plaintiff may recover the damages suffered from deprivation of the comfortable enjoyment of the property, and inconvenience and discomfort suffered by self and family, including injury to health, expenses incurred by reason of illness
caused by the nuisance, costs for snow removal such other special damages as may be proved. I don’t want my taxes to increase to pay for lawsuits against the county. 30. Id. at 731-732, 449 P.2d at 333.134 [Vol. 4]
Trespass
Private nuisance can be defined as trespass on private land by roll carts belonging to the government. Let The County provide easement storage and collection on public land.
Has The County provided or considered appropriate areas of topography for safe roll cart? The townsite is not flat.
Attractive Nuisance
The likelihood of increased risk for attractive nuisance both to children and wildlife, when roll carts are hidden away could cause damages by negligence, costing clean up and legal fees.
Social Value
One’s conduct is reasonable when its social utility outweighs the harms and risks it causes. Land owners being neighborly will manage the morality of garbage storage themselves, not look to policing and tyranny like in Russia or Germany.
I shall thank The Network for Public Health Law for inspiring my editorial.