When Nuisance Laws Become a Menace

The law of nuisance has emerged over the centuries to govern relationships between neighbors and community members who have contractual obligation to each other. The most common contemporary nuisance laws, usually enacted in the form of local ordinances, regulate conduct that is not usually illegal but, if it exerts harm that outweighs its social utility and is unsuitable to the area in which the conduct occurs, can constitute an undesirable burden on the community. Factors such as the nature of the conduct (e.g. intentional or unintentional), character of the harm (the level of danger posed to the community), and the cost to both the plaintiff and defendant in avoiding the harm have been incorporated into analyses of nuisance complaints. See Page Cnty. Appliance Ctr., Inc. v. Honeywell, 347 N.W.2d 171 (Iowa 1984). Examples of such conduct range from loud noises and unruly gatherings in residential areas to agricultural and chemical waste. See e.g. Art. 40, Amherst, Mass. Home Rule Auth. Bylaws (2008); KOC 830.6 (2008). Ordinances that enforce the limits of nuisances, particularly in residential communities, work toward the goal of encouraging neighbors to get along,  foster respect, and prevent excessive litigation.

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However, a host of nuisance laws across the country have been challenged for violating residents' civil and constitutional rights, including protections enumerated in the Fair Housing Act. A particular example of these distressing nuisance laws that has recently attracted a flurry of media attention is the "disorderly behavior ordinance" in Norristown, Pa., a borough near Philadelphia. According the ACLU, the borough "penalizes landlords and tenants when the police respond to three instances of 'disorderly behavior', including domestic disturbances, within a four-month period." After these "three strikes" of police response to domestic disturbances, landlords are pressured by the borough to evict the tenant and, in some cases, have threatened to condemn properties and forcibly remove tenants if they are not evicted. Such threats have led many victims of domestic violence, including named plaintiff Lakisha Briggs, was threatened with eviction after she and various neighbors reporting her ex-boyfriend's violent behavior to police, to remain silent and refrain from reporting instances of abuse to authorities in fear of eviction. Although Norristown agreed to repeal the disorderly behavior ordinance, the borough subsequently passed an ordinance that outlines fines that can be placed on landlords who do not evict tenants who call for police assistance, including for instances of domestic violence that "do not require a mandatory arrest to be made." Borough of Norristown Code §245-3 (2013).

The sense of fear and helplessness that these ordinances impose on victims of domestic abuse, in addition to violating tenants' First Amendement rights and the Violence Against Women Act (VAWA), may also present violations of the Fair Housing Act under the still-debated disparate impact theory. The Act prohibits housing discrimination on the basis of "race, color, religion, sex, national origin, physical ability, or familial status" with limited exceptions and, as studies show that women and persons of color are victims of domestic violence more often than other populations, housing discrimination against domestic violence victims would disproportionately affect female tenants and tenants of color and thus constitute unlawful housing practices under a theory of disparate impact. While SCOTUS has not yet ruled on whether fair housing discrimination claims can be properly brought on disparate impact grounds, the Third Circuit Court of Appeals, which covers Pennsylvania, along with the other federal circuits have allowed disparate impact fair housing claims to be brought. Indeed, the case which prompted SCOTUS' recent invitation to the Solicitor General to express the views of the U.S. regarding disparate impacts on housing was a Third Circuit decision to allow disparate impact claims. See Mt. Holly Gardens Citizens in Action, Inc. v. Twp. of Mt. Holly, 658 F.3d 375 (3d Cir. 2011). Disparate impact theory presents an opportuity to add cognizable housing discrimination claim to the VAWA and First Amendment claims that are likely to be filed in opposition to these "disorderly behavior" ordinances.