allegedly began throwing objects at the patrons of a neighboring bar, Hans' Bier Haus, from their parking garage. Residents complained about noise from the bar, and apparently they thought that throwing eggs and produce would somehow diminish the noise. (Here is a news flash: It won't. It is likely to provoke more noise, like, "Hey jackass, why are you throwing squash at me?") According to the Chronicle:
This is the type of dispute that is really quite easy to resolve if one applies the proper principles. (It shouldn't need to be said, but physically assaulting others by dumping water on bar patrons or attacking a concierge is not the proper principle.) Unfortunately, those principles appear to be as foreign to those involve in BierGate as they are to those fighting Ashby. In both cases, property rights are under attack. In both cases, identifying, recognizing, and protecting property rights provides a very clear resolution.
The unpleasantness peaked December 13. The bar laid out a Sunday night holiday buffet and had Ronnie Renfrow's 15-piece big band set to play. But water cascading from the garage rained down on patrons, the band and its electrical equipment. Kellogg said a trumpet player slipped in the water and broke a finger.
Cave [bar co-owner Bill Cave] said in court papers that he went to the condo and was eventually successful in turning off the water at a faucet on a condo's porch. In the process, Frederick [Art Frederick, the general manager of the condos] said an angry Cave took the concierge by his tie, broke his phone and forced his way up in the elevator. And they have videotape of it all, Frederick said.
I have addressed the Ashby situation previously. In regard to the Bier Haus, the principle to apply is "coming to the nuisance". The Bier Haus existed prior to the construction of the condos--the residents "came to the nuisance". The prior use of the bar's owners established their right to continue to use the property for that purpose.
A point of contention is that the bar owners have changed their use (that is my interpretation, as those involved seem to be oblivious to the proper principles) since the construction of the condos. According to the general manager of the condos, the bar has increased its noise levels, becoming a "Friday night rodeo".
If this is true, the condo residents have a valid claim. If the Bier Haus was, for example, a quiet piano bar and one day it began hosting AC/DC tribute bands on its patio, its use has clearly changed. The condo was not built next to an establishment that blasted arena rock; it was built next to a cozy neighborhood watering hole that featured twinkling ivory keys.
In the context of nuisance complaints, first use establishes the right to continue using one's property for that purpose. Those who come later cannot complain that your use is a nuisance, for they "came to the nuisance". This principle applies to countless situations. One cannot build a home next to an existing oil refinery, or a muffler shop, or a truck depot, or a bar, and then complain about the noise. One could have avoided the nuisance by building elsewhere, by not "coming to the nuisance". (Similarly, if one is offended by nude women, don't go into a "gentleman's club".)
I hasten to add that nuisance complaints cannot be made arbitrarily. The fact that someone objects to a particular activity does not make that activity a nuisance. An objective threat to one's well-being, one's property, or the "peaceful enjoyment" of one's property must exist. Exactly where the line should be drawn can be complex, but blasting loud music at 3 A.M., or conducting target practice in your back yard (assuming you live in a subdivision), or sending noxious fumes over your fence are objective threats to your neighbors. Painting your shutters hot pink, or growing corn in your front yard, or erecting a monument to Elvis in your car port might be obnoxious, but they are not a threat to anyone's well-being or property.
I do not know enough of the facts in this particular situation to say whether the condo residents came to the nuisance, or whether the Bier Haus has changed its use. But that is the important point in this dispute. As with Ashby, all that is required is the application of the principle of property rights. That, and the residents of the condos need to start eating their veggies rather than throwing them at bar patrons, or Ma Parker will get on their case.