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Public utilities code section 216522/12/2023 ![]() ![]() Allowing adequate recovery, and deterrence, are cited as the policy reasons that justify a cause of action in nuisance, and these would not be served by increasing the scope of permanent nuisance since this assumes all damages have been done and are remedied through a lump sum payment. The focus should be on the existence of the ability to abate the nuisance, not on the possibility of getting a court order which orders abatement. The distinction is one where there is a continuing use that offends, not the presence of what offends. A nuisance that may be discontinued at any time and that is an ongoing, repeated nuisance, is ruled to be a continuing nuisance. The court instead finds that a permanent nuisance usually involves one act that does a permanent injury and archetypically involves a solid, permanent structure. Defendant's argument that a permanent nuisance is one that can't be enjoined is held to be unnecessarily narrow. ![]() The classification of type of nuisance is based on the type of harm suffered, and, to a lesser extent, the nature of the disturbance. The court also rules that noise, smoke, and vibration may be considered a continuing, as opposed to a permanent nuisance. Rather, the court rules that inverse condemnation is a constitutional remedy that may be used whenever damage may be shown to have resulted from the exercise of governmental power. In a suit brought by homeowners living adjacent to the Burbank-Glendale-Pasadena Airport, the court first rejects defendant's argument that if a public entity has no power to condemn, and thus no power to take by eminent domain, it may not be guilty of inverse condemnation, since this is only a remedy that may be used when proper condemnation proceedings are not held. The court rules that a cause of action in inverse condemnation is appropriate against a public entity even though that entity has no power to take by eminent domain, and that plaintiffs may treat airplane noise, smoke, and vibration as a continuing nuisance. Burbank-Glendale-Pasadena Airport AuthorityL.A. Burbank-Glendale-Pasadena Airport Authorityģ | Environmental Law Reporter | copyright © 1986 | All rights reservedīaker v.
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