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The Price of Beauty: An Economic Approach to Aesthetic Nuisance

32 Pages Posted: 17 Feb 2010 Last revised: 25 Mar 2010

George P. Smith II

Catholic University of America (CUA) - Columbus School of Law

Griffin W. Fernandez

affiliation not provided to SSRN

Date Written: 1991

Abstract

This Article advocates a wider judicial recognition of nuisance actions based on aesthetic considerations. Contrary to the majority of legal opinion to the contrary, it is argued that a right to enjoy property should include a right to be free from non-invasive aesthetic or visual nuisances. With modern real estate appraisal methods making it possible to express community aesthetic preferences in monetary terms, courts are now no longer prevented from using these tools in assessing injuries to real estate. Thus, determinations of aesthetic nuisance actions are not any more subjective than the current task of courts in the context of aural and olfactory nuisance disputes. Indeed, the judiciary should resolve conflicts emanating from the unaesthetic uses of land through the Restatement of Torts “objective” balancing test in order to determine what, according to prevailing community standards, is reasonable under the circumstances.

The expanded popularity of aesthetic zoning in many municipalities demonstrates anew the social value of aesthetics and thereby illustrates with clarity a very conscious relationship which exists between economic development and American nuisance law. Judicial recognition of police powers to enforce zoning regulations of this order contradicts - clearly - the heretofore seen reluctance of the Common Law to confront aesthetics in the realm of nuisance and thus invites a more contemporary and enlightened judicial response to this legal issue.

Suggested Citation

Smith, George P. and Fernandez, Griffin W., The Price of Beauty: An Economic Approach to Aesthetic Nuisance (1991). Harvard Environmental Law Review, Vol. 15, No. 1, pp. 53-83, 1991; CUA Columbus School of Law Legal Studies Research Paper No. 2010-7. Available at SSRN: https://ssrn.com/abstract=1553919

George P. Smith II (Contact Author)

Catholic University of America (CUA) - Columbus School of Law ( email )

3600 John McCormack Rd., NE
Washington, DC 20064
United States

Griffin W. Fernandez

affiliation not provided to SSRN ( email )

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