by Rachel Greifenkamp and Gary Taylor
County of Forest v. Dwayne Pasternak
(Wisconsin Court of Appeals, July 1, 2014)
In Forest County, Wisconsin Robert Lawrence filed a nuisance complaint against his neighbor, Dwayne Pasternak, for not cutting a portion of his lawn. Pasternak was given ten days to mow his lawn by the County. On July 15, 2013, Pasternak was issued a nuisance citation which he filed a motion to dismiss. The complaint went to trial at the circuit court for Forest County where court concluded that Pasternak’s uncut lawn constituted a public nuisance. Pasternak appealed.
The county ordinance defines a nuisance as “any condition which is injurious to health, offensive to the senses, or interferes with public or private use of property….” In the circuit court, the County argued, and the court concluded, Pasternak’s uncut lawn constituted a public nuisance because it promoted mosquitos, pollen, weeds, and small animals. The court of appeals stated, however, that “if we agreed Pasternak’s uncut lawn constituted a public nuisance on that basis, that determination has no standard of enforcement and has the potential of applying to all lawns in Forest County.”
The Court of Appeals noted that the Wisconsin Supreme Court has held “offensive” to mean “giving pain or unpleasant sensation,” “revolting” or “obnoxious.” In the conclusion reached by the circuit court, Pasternak’s uncut lawn was declared offensive and a nuisance because it did not look nice. Based on precedent, however, just because something is disliked or disagreeable it does not make it a public nuisance. The court of appeals concluded that there was insufficient evidence in the record to establish that the uncut lawn was “offensive” and therefore a public nuisance under the definition in the county code. The judgment of the circuit court was therefore reversed.