Bifalgorithm post · Property · The complaint alleges that the residence has a solar

132 Declare

132 Declare (Property · The complaint alleges that the residence has a solar) — "132 declare by judicial fiat what is right and what should be done, under the…

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  • The dissent rejects judicial expansion of nuisance law to protect access to sunlight.
  • Declaring what is right despite legislative inaction would intrude on the constitutional roles of the three branches.
  • The legislature has acted by creating a statutory framework for sunlight access.
  • Chapter 354, Laws of 1981, enables local governments to establish procedures guaranteeing access to sunlight.
  • The framework regulates certain light blockage through permits and notice to neighboring owners.
  • Judicial intervention is unwarranted because it could undermine the legislature’s orderly development of this scheme.
  • The statutory scheme addresses the type of problem presented in this case and removes the need for judicial activism.
  • The majority relies on the Restatement definition of private nuisance as a nontrespassory invasion of another’s interest in the private use and enjoyment of land.
  • The majority treats obstruction of access to sunlight as an invasion of the use and enjoyment of land.
  • The dissent disputes that obstruction of access to sunlight constitutes an invasion.
  • The ordinary meanings of invasion emphasize entry, attack, penetration, hostile entrance, or the spread of something unusually harmful.
  • Therefore, the defendant’s obstruction does not fall within the nuisance definition as applied to private use and enjoyment of land.
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132 Declare

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"132 declare by judicial fiat what is right and what should be done, under the facts in this case, such action under our form of constitutional government where the three branches each have their defined jurisdiction and power, would be an intrusion of judicial egoism over legislative passivity.” The legislature has recently acted in this area. Chapter 354, Laws of 1981 (effective May 7, 1982), was enacted to provide the underlying legislation enabling local governments to enact ordinances establishing procedures for guaranteeing access to sunlight. This court’s intrusion into an area where legislative action is being taken is unwarranted, and it may undermine a legislative scheme for orderly development not yet fully operational. [Judge Callow excerpts statutory provisions prohibiting certain light blockage but only according to a permit scheme and with notice to neighboring owners.] This legislative scheme would deal with the type of problem presented in the present case and precludes the need for judicial activism in this area. I examine with interest the definition of nuisance as set out in the Restatement (Second) of Torts and adopted in the majority opinion: “A private nuisance is a nontrespassory invasion of another’s interest in the private use and enjoyment of land.” Restatement (Second) of Torts sec. 821D (1977) (emphasis added). The majority believes that the defendan t’s obstruction of the plaintiff’s access to sunlight falls within the broad definition of “use and enjoyment of land.” Supra , at 187-188. I do not believe the defendant’s “obstruction” of the plaintiff’s access to sunlight falls within the definition of “invasion,” as it applies to the private use and enjoyment of land. Invasion is typically synonymous with “entry,” “attack,” “penetration,” “hostile entrance,” “the incoming or spread of something unusually hurtful.” Webster’s Third International Dictionary , 1188 (1966). Most of the nuisance cases arising"

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