Category: Nuisance

Weeds are not protected speech or expression

hdankbar

by Hannah Dankbar

Discount Inn, Inc. v. City of Chicago
Federal 7th Circuit Court of Appeals, September 28, 2015

(Note that the Court included photos of native Illinois plants in its written opinion; a very unusual practice)

Chicago’s Department of Administrative Hearings decided that Discount Inn, Inc. violated the weed and fence ordinances.  The weed ordinance reads:

Any person who owns or controls property within the city must cut or other‐ wise control all weeds on such property so that the average height of such weeds does not exceed ten inches. Any person who violates this subsection shall be subject to a fine of not less than $600 nor more than $1,200. Each day that such violation continues shall be considered a separate offense to which a separate fine shall apply.

The fence ordinance reads:

It shall be the duty of the owner of any open lot located within the City of Chicago to cause the lot to be surrounded with a noncombustible screen fence …. Provided, however, that this section shall not apply to … sideyards. The owner shall maintain any such fence in a safe condition without tears, breaks, rust, splinters or dangerous protuberances and in a manner that does not endanger or threaten to endanger vehicular traffic by obstructing the view of drivers. Any fence which is not maintained in accordance with these provisions is hereby declared to be a public nuisance and shall be removed … . It shall be the duty of the owner of any lot whose fence has been so removed to replace such fence with a noncombustible screen fence meeting the requirements of this section and of this Code.” Municipal Code of Chicago § 7‐28‐750(a). Violators “shall be fined not less than $300 nor more than $600 for each offense,” and “each day such violation continues shall constitute a separate and distinct offense to which a separate fine shall apply.

Discount Inn made two claims: (1) the ordinances violate the prohibition against “excessive fines” in the Eight Amendment; and (2) the weed ordinance is vague and forbids expressive activity protected by the First Amendment.

In regards to the first claim, the Supreme Court has not decided whether this clause applies to state action. This court assumes that it does apply, but found that the fines are not excessive. The fines for both ordinances enforce a legitimate government interest. Fencing vacant lots are important for identifying abandoned lots. The City has an interest in controlling weeds because uncontrolled weeds lead to problems such as obscuring debris, providing habitat to rodents and mosquitos, and contributing to breathing problems.

Regarding the second claim, Discount Inn argued that native plants are mistaken for weeds and their use is unnecessarily limited because of the ordinance. There is no clear definition of a weed in the city code. Discount Inn does not argue that they have native or other decorative plants, but simply rather that the ten-inch rule violates the free-speech clause of the First Amendment. It is true that the First Amendment protects some non-spoken work, such as paintings; however, the Court concluded that these weeds have no expressive value. The owner did nothing to cultivate or design the weeds.

Discount Inn also argues that the ordinances are unconstitutional because they do not specify a statute of limitations. There is no rule that there must be a statute of limitations. Prescribing a statute of limitations for a weed ordinance would require an insane use of city resources.

The decision was upheld.

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Fear about dangers in the vicinity of property insufficient to constitute nuisance

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by Andrea Vaage

Smith & Wunderlich v Conoco Phillips Pipe Line Company
Federal 8th Circuit Court of Appeals, September 15, 2015

Conoco Phillips owns a pipeline constructed in 1930 that runs through part of West Alton, a small town in Missouri. A leak was discovered near the town in 1963. The source of leak was repaired, but no remediation efforts were made to clean up the spill. Contaminants from the spill were discovered at a residence near the spill in 2002. Phillips purchased that residence and two others. Under supervision of the Missouri DNR, the buildings were demolished; 4,000 cubic yards of soil was removed; and monitoring wells were set up to test for chemicals of concern (COCs) such as benzene, toluene, ethyle benzene, xylenes, and lead.

Plaintiffs, the Smiths and Wunderlichs, property owners within 1.1 mile radius of contamination site, filed a class action suit in district court October 2011. Their complaint identified two separate classes, each including property owners within a 1.1 mile radius of the contamination site. The first class sought injunctive relief and monetary damages for creation of a nuisance and negligence for remediation. The second class sought compensation for ongoing expenses of medical monitoring due to potential exposure to pollutants from the pipeline leak. The district court certified the first class, but not the second. In certifying the first class the court relied on evidence and expert testimony that contaminants were found in the monitoring wells, that pollutants could continually shift, and that MTBE, a gasoline additive, had been found at one residence one quarter mile away from the contamination site. Phillips appealed the court’s decision to certify the first class.

In cases of certification, the district court is granted broad discretion. A higher court will only reverse a certification where there has been an abuse of discretion or an error of law. Four standards must be met to certify a class: numerosity, commonality, typicality, and adequacy of representation.

In order for commonality to be met, the plaintiff’s must show that all class members suffered the same injury. The plaintiff’s demonstrated contamination by citing the MBTE found on the Wunderlichs’ property. However, there was no MBTE found at the contamination site. None of the chemicals found at the contamination site were detected at any of the class members’ property; however, plaintiffs’ claim that physical invasion is not required for the contamination site to be a nuisance, because the fear of contamination depressed their property values. The Court cited recent cases that establish that fear alone is not enough to meet the requirement that a nuisance be visible or capable of physical detection. “Negative publicity resulting in unfounded fear about dangers in the vicinity of the property does not constitute a significant interference with the use and enjoyment of land:  The potential for contamination does not amount to sufficient proof of a nuisance. Since plaintiff’s were unable to establish contamination on the class land, the nuisance claim fails.

The Court determined the fear of contamination without sufficient supporting proof was not enough to establish a claim for common law nuisance. The Court found the district court ruling certifying the class was an abuse of discretion. The case was reversed and remanded.

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Missouri Right-to-Farm statute upheld by Missouri Supreme Court

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by Hannah Dankbar and Gary Taylor

Labrayere v. Bohr Farms
Missouri Supreme Court, April 14, 2015

Multiple landowners filed suit against Cargill Pork LLC and Bohr Farms alleging damages for temporary nuisance, negligence and conspiracy due to odors coming from a concentrated feeding animal operation (CAFO) owned and operated by Bohr Farms. The landowners who filed the complaint claimed that they lost the use and enjoyment of their property.  Neither rental value nor medical conditions were issues raised by the landowners in this case. The circuit court found that Bohr Farms was not responsible for paying damages.

In 2011 section 537.296 went into effect. This statute supersedes common law related to actions that result in an alleged nuisance coming from a property that is used primarily for crop or animal production. This statute prohibits non-economic damage recovery for items such as loss of use and enjoyment of property, inconvenience or discomfort that the agricultural nuisance caused, and allows recovery only for a diminished market value of property and documented medical costs.  Only a few days after the statute was passed Bohr Farms began their CAFO operation that can feed 4,000 hogs. Bohr owns and operates the CAFO and Cargill owns the hogs. The CAFO includes an on-site sewage disposal system as well as a system for composting deceased hogs. The plaintiffs raised seven constitutional issues. Appellants claimed that section 537.296 is unconstitutional for seven reasons.

 

Constitutional Claims

  1. Section 537.296 impermissibly authorized an unconstitutional private taking.  Plaintiffs argued that the statute, “effectively provide[s] the right of eminent domain to private companies.” The Court stated that, “The fact that private parties benefit from a taking does not eliminate the public character of the taking so long as there is some benefit to any considerable number of the public.”  A use is public if it reasonably likely to create some advantage or benefit for the public.  The Court noted that the statute did not authorize any private party to create a nuisance.
  2. Section 537.296 authorized a taking without requiring just compensation. Under the statute all nuisance claims following the initial temporary nuisance claim are to be considered a permanent nuisance. The plaintiffs claimed that this essentially grants an easement for the respondent to interfere with the full use and enjoyment of their land. The court found this argument was not ripe because the appellants were only seeking relief for a temporary nuisance in this case. The court noted that the statute specifically allowed the recovery of damages for loss in rental value of impacted property when a temporary nuisance was present.  That satisfied the constitutionally required just compensation when a temporary nuisance amounts to a temporary taking.
  3. Section 537.296 violated the plaintiffs’ constitutional right of equal protection. The plaintiffs claimed that the statute creates a suspect class of “rural landowners and residents” and therefore the statute should have to withstand strict scrutiny. Historically, rural landowners have not been oppressed and the statute benefits rural landowners who use their land for agricultural purposes, so there is no suspect class. The argument related to the fundamental right to property conflicts with the established right of the state to confiscate property to “substantially advance a legitimate state interest.” Therefore, the statute only has to withstand the rational basis test. The Court presumes the state has a rational basis for this statute and the appellants had to demonstrate a “clear showing of arbitrariness and irrationality” before the statute can be declared unconstitutional.
  4. Section 237.296 violates due process. This argument relied on a finding that a fundamental right had been violated, but the Court already determined there was no fundamental right violated.
  5. Section 537.296 violates separation of powers. The appellants claimed that the statue requiring a person to have “ownership interest” in order to have standing is a judicial decision that the legislature did not have the power to make. Nobody in this case was denied standing because of this, and none of the plaintiffs were injured as a result of this part of the statute. The court will not rule on hypothetical questions of standing.
  6. Section 537.296 violates the open courts clause. Article I, section 14 of the Missouri Constitution guarantees “the right to pursue in the courts the causes of actions the substantive law recognizes.” The plaintiffs’ asserted that the statute denied access to the court to “lawful possessors and occupiers of land”; however, the plaintiffs did not claim that the statute restricts access to the courts, so they did not have an argument to support this claim.
  7. Section 537.296 is an unconstitutional special law. Finally, plaintiffs argued that this statute “benefits only the corporate farming industry.” Article III, section 40 of the Missouri Constitution does not allow the legislature to enact “special laws” when a general law will work. Special laws, “includes less than all who are similarly situated… but a law is not a special if it applies to all of the given class alike and the classification is make on a reasonable basis.” The court said that the landowners that can take advantage of the statute could change, as could the land uses.  The open-ended classification, the Court noted, was reasonable because it advanced the legitimate state purpose of promoting the agricultural economy.

Plaintiffs argued that, according to a negligence or conspiracy cause of action, they should receive “use and enjoyment” recovery. They also argued that there are not enough facts to demonstrate that Cargill was not vicariously liable for Bohr’s alleged negligence. The statute allows people to recover non-economic “use and enjoyment” damages only if their negligence and conspiracy claims are “independent of a claim of nuisance.” The court found that Appellants’ negligence, conspiracy and vicarious liability claims were not “independent of a claim of nuisance” because those claims were dependent on the nuisance claims.

The ruling of the circuit court was upheld.

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Defendants ‘good deeds’ not a defense to nuisance action

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by Hannah Dankbar and Gary Taylor

Flynn v. Hurley
North Dakota Supreme Court, March 24, 2015

The Flynns have lived on their property in East Fairview since 1999. This is a small-unincorporated village on the border of North Dakota and Montana. In 2007 Hurley Enterprises, which is owned by Vess Hurley, began operating an oil field service company on the property next to the Flynns. Hurley used the property to store large equipment and to dump sewage. The Flynns noticed an increase in truck traffic, dust, noise, diesel, smoke, lights and sewage odor.

The Flynns filed a complaint against the company claiming that the activity constituted a public and private nuisance. After a trial at district court it was determined that there was no private or public nuisance.  The Flynns claimed that the district court erred by allowing evidence about the reputation and good deeds of the company and the owner, and that this evidence was irrelevant to the nuisance question. The district court included in its opinion several quotes of witnesses speaking to the character of the company and of the owner, such as how he funds students to go on trips and plows snow in the town.

Section 828 of the Second Restatement of Torts (1977), states;

“In determining the utility of conduct that causes an intentional invasion of another’s interest in the use and enjoyment of land, the following factors are important:
(a) the social value that the law attaches to the primary purpose of the conduct;
(b) the suitability of the conduct to the character of the locality; and
(c) the impracticability of preventing or avoiding the invasion.”

The relevant conduct in a nuisance action thus is not the value of the “good deeds” of the defendant in the community, but rather the value to society of the invasive actions that allegedly are a nuisance. The testimony that the Flynns objected to is irrelevant to the nuisance question because it did not “tend to prove or disprove any fact in issue.”

The Flynns also argued that district court erred in instructing the jury on the immunity afforded nuisance defendants.  The court gave the jury the following instruction:

ACTS DONE UNDER STATUTORY AUTHORITY NOT DEEMED NUISANCE
Nothing which is done or maintained under the express authority of a statute, law, or action of a governing body shall be deemed a nuisance. This protection is lost if the authority given is exceeded or is exercised in a negligent or unreasonable manner.”

Hurley Enterprises explained to the jury how they obtained approval from the necessary boards on issues related to zoning and sewage. Hurley Enterprises argued that since they obtained approval, their actions cannot be a nuisance; however, the North Dakota Supreme Court determined that the instruction misstated the law and was not supported with evidence and should not have been included. First, North Dakota zoning statutes do not expressly or by implication authorize the actions of Hurley Enterprises alleged to be a nuisance. Second, the instruction suggested that any action of a governing body could immunize the individual creating the nuisance, whether or not such action is authorized by statute. East Fairview has a three-member sewer board, which is a nonprofit entity that met informally and infrequently. One or more members of the sewer board gave Hurley Enterprises permission to dump sewage into the manhole near the property line with the Flynns. This was beyond the scope of authority of the sewer board, and so cannot be relied upon to immunize Hurley Enterprises from nuisance liability.

The Flynns argued that these mistakes (and others not reviewed in this brief) allow for a new trial. The North Dakota Supreme Court agreed that Flynn’s substantive rights were violated and that there should be a new trial.

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Concrete wall 9 feet high, 800 feet long just may be a spite fence

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by Hannah Dankbar and Gary Taylor

Bennett, et al,  v Hill
Montana Supreme Court, February 3, 2015

Lot owners of the Lake Hills Subdivision complained about a wall constructed by Lake Hills Golf Course, LLC. The wall is located within the subdivision and adjacent to the lot owners’ properties.

The “Declaration of Restrictions” for the subdivision was created and approved in 1958. Any lot owner has power to enforce the restrictions. Lake Hills Golf, LLC got their land in the subdivision through a warranty deed in 2009. Part of the deed specified that the golf course be subject to the restrictions and any amendments.

In early 2011 Hill, the owner of the Golf Course applied for a zoning change to multiple lots he owned in Lake Hills Subdivision. Other lot owners in the subdivision opposed the change in zoning, resulting in Hill withdrawing his application. The lot owners said their relationship with Hill was damaged.

Late in 2012, Hill applied for a building permit from the City of Billings. He wanted to build the wall that is the subject of this case. He received the permit and built a $40,000 wall of concrete and rebar. The wall is nine feet tall and is set approximately ten feet from the border between the Golf Course property and the opposed lot owners’ property. The wall runs parallel to the properties and is approximately 800 feet long, with a 2-foot jog perpendicular to its length at 40-foot intervals. The lot owners claimed that the wall violated the Restrictions, the wall constituted a nuisance, and also constituted a spite fence.  The lot owners sued Hill in district court, but lost on all issues on summary judgment.  The property owners appealed the court ruling.

On appeal the Montana Supreme Court considered multiple issues:

1.Did the District Court err by granting summary judgment in favor of Hill on the issue of whether the wall constituted a spite fence?

A “spite fence” is one that provides no benefit to the person erecting the fence (erected solely for spite).   The district court found that the wall benefited the golf course by discouraging trespassers and preventing trash from blowing onto the course. The Supreme Court noted, however, that the lot owners presented affidavits that they had never observed trespassers or trash cross the golf course property from their properties, and they never received complaints of this happening. One of the Plaintiffs also stated that Hill had told him that the wall was built because the Plaintiffs’ properties were unattractive. Viewed in a light most favorable to the property owners, the district court should have allowed the spite fence claim to proceed to trial.

2. Did the District Court err by granting summary judgment in favor of Hill on the issue of whether the wall constituted a nuisance?

The district court found that since there was no issue of the wall serving a “reasonable purpose”(stopping trash and trespassers) there is no legal argument that it constitutes a nuisance. The Supreme Court found this to be an incorrect interpretation of the law. The Court stated:

A beneficial or reasonable purpose will not immunize something that would otherwise constitute a nuisance from being ruled a nuisance. Montana statute states that “[a]nything that is injurious to health, indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property . . . is a nuisance.” Section 27-30-101(1), MCA (emphasis added). Although there are exceptions for farming operations, activities authorized by statute, and noises from shooting activities at shooting ranges, Montana statute does not otherwise limit this broad definition of what may or may not constitute a nuisance.

The Supreme Court was unwilling to rule that anything that has a beneficial or reasonable use cannot also be a nuisance (at the same time noting that the question of the fence being a reasonable use was still unresolved), and reversed the district court on its grant of summary judgment on the nuisance claim.

3. Did construction of the wall violate the Subdivision Restrictions?

Paragraph 6 of the Restrictions states:

6. No fence or wall shall be erected or maintained on any lot, nor any hedge planted or maintained on any lot until written authority therefore has been secured from the Architectural Control Committee (ACC), which shall have authority to prescribe the location, height, design and materials used.

Hill claimed that the provisions of paragraph 6 of the Restrictions have been waived and are therefore unenforceable against them. To prove waiver of a covenant, it must be demonstrated that the other party knew of and acted inconsistently with the covenant, and that prejudice resulted to the party asserting waiver.  It may be either express or demonstrated by a course of conduct. If demonstrated by a course of conduct, waiver will “depend upon the circumstances of each case and the character and materiality of the permitted breach.”  Despite that fact that the ACC had never met or approved a construction project of any kind, and “the vast majority of the residences and structures within the subdivision were built without approval from the ACC,” such facts do not establish that breaches occurred of the character and materiality necessary to establish waiver.  Indeed, there was no indication that any fences, walls or hedges had ever been constructed (or even exist) in the subdivision.

Finally Hill argued that paragraph 16 is an exception to paragraph 6 and allows them to build the wall. Paragraph 16 reads:

16. If used as a public or private golf course, country club, or park, any structure incidental to such use, including but not limited to clubhouse, swimming pool, tennis courts and other recreational facilities, storage shops, and repair and maintenance facilities and shops, may be maintained and erected on any of the said tracts.

The Supreme Court found that it was a genuine issue of material fact as to whether the wall was “incidental” to the use of the property as a golf course, noting again the lack of evidence that trash or trespassers had ever crossed the property.

The Supreme Court reversed all of the district court’s rulings favoring Hill, and remanded for trial.

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Dust, noise from bridge project did not give rise to taking or public nuisance claims

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by Hannah Dankbar and Gary Taylor

Sommer v Ohio Department of Transportation
Ohio Court of Appeals, Tenth District, December 23, 2014

In 2007 Nick Sommer and Alyssa Birge bought a home in the Tremont neighborhood in Cleveland. In 2010 the Ohio Department of Transportation (ODOT) started construction to replace the “Innerbelt Central Viaduct truss bridge.”

The first phase of the project was to realign the sewer system.  This phase of the project ran from September 2010 to July 2011. The construction was coordinated between ODOT and Northeast Ohio Regional Sewer District (NEORSD). This phase of construction took place around Sommer’s home and resulted in “construction noise” and the closure of traffic lanes around Sommer’s home. The driving of piles into bedrock for the westbound bridge “create[d] a loud banging sound.”  In June 2012 Sommer filed a complaint against ODOT complaining that the construction resulted in “extreme noise, pounding and vibrations *** separate and distinct from that experience by other affected properties,” and causing his home to be uninhabitable.  Sommer sought declaration of inverse condemnation, as well as a public and private nuisance.  The Court of Claims filed an entry granting ODOT’s motion for summary judgment.

Sommer claimed that the Court of Claims was wrong by (1) not examining their inverse condemnation (takings) claim under the proper legal standard, and (2) granting summary judgment in favor of ODOT on their takings claim.

Sommer argued that the proper analysis for the takings claim was the three-part test set forth by the US Supreme Court in 1978 in Penn Central Transportation Co. v New York:

[w]here a regulation places limitations on land that falls short of elimination all economically beneficial use, a taking nonetheless may have occurred, depending on a complex list of factors including (1) the regulation’s economic effect on the landowner, (2) the extent to which the regulation interferes with reasonable investment-backed expectations, and (3) the character of the government action.”

ODOT countered that because Sommer waited until the appeal to raise this claim, it should not stand.  The Court of Appeals agreed, noting that Sommer’s response to ODOT’s summary judgment motion contained no citation to either Penn Central, or to its three-part test.  It also noted that the lower court did analyze Sommer’s claim under Ohio state caselaw, specifically a 1966 case that recognized a taking as “any direct encroachment upon land, which subjects it to a public use that excludes or restricts the dominion and control of the owner over it.”  The Court of Appeals found no error by the lower court.

The next claim on appeal is that the Court of Claims was wrong to interpret the Ohio law that requires a physical invasion of property or a complete denial of access and that issues of material fact still remain as to whether ODOT substantially interfered with appellants’ use and enjoyment of their property in such a degree as to amount to inverse condemnation. While Sommer complained about how the construction “prohibits you from relaxing completely,” he was never denied access to his property and did not claim any physical damage to his property, prerequisites to an inverse condemnation claim per Ohio caselaw.  “An increase in vibration and dust caused by a highway improvement, both from the construction and from the increase in traffic from the expanded highway, is not compensable as a taking.”  It is assumed that once the construction is complete Sommer will be able to enjoy his property as he did before the construction.

Finally, among Sommer’s other claims he alleged that “a genuine issue of material fact exists regarding whether the harm suffered by appellants was different in kind than suffered by property owners.”  Ohio defines a public nuisance as “an unreasonable interference with a right common to the public.” A private individual does not have standing to claim a public nuisance unless the individual can show that they suffered an injury or damage that was not incurred by the general public. The Court of Appeals reviewed the uncontroverted evidence that the inconveniences experienced by Sommer were also experienced by others in the neighborhood, and concluded that since Sommer failed to show how the harm done to his is different than the harm to others in the neighborhood his claim cannot stand.

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US Supreme Court declines to take Grain Processing Corporation nuisance case

Gary Taylor

The US Supreme Court has declined to hear Grain Processing Corporation’s appeal of the Iowa Supreme Court’s decision that neither the Federal Clean Air Act nor state emissions regulations preempt nuisance suits brought by neighbors complaining of the chemicals and particulate matter from the company’s facility in Muscatine. The original blogpost of the Iowa Supreme Court case is here.

A brief article from of all places, Fox News Montana.

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Junk vehicle ordinance not a traffic regulation; neither overbroad nor vague

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by Hannah Dankbar

Village of North Hudson v Randy Krongard
(Wisconsin Court of Appeals, November 18, 2014)

In November 2011 Krongard received two citations from Village of North Hudson for violating article II, chapter 90, § 44 of the Village Code by having two junk vehicles (cars without current registration) in plain view on his property.

Krongard pleaded not guilty in municipal court, but failed to show for his trial. He showed up a few months later with counsel seeking to vacate the municipal court judgment against him by saying that the Village ordinance is void, unlawful and invalid as it is preempted by, contrary and inconsistent with Wisconsin traffic regulations. The municipal court refused to vacate the judgment.  Krongard’s appeal was also dismissed by the circuit court. Krongard then appealed to the court of appeals.

Krongard claimed the Village’s ordinance conflicted with state traffic regulations in chapters 341 to 348 and 350.  Krongard argued that The Village’s ordinance “impermissibly defines unregistered vehicles as junk vehicles and regulates unregistered vehicles on private property.”

The Village argued that its ordinance and the state traffic regulations could not be contradictory because they regulated “two completely different issues.”  While the village ordinance is “concerned with the upkeep of private property,” the state traffic regulations were concerned “with the licensing, regulation of, outfitting and operation of vehicles[.]”

The circuit court decided, “this regulation, because of the way it is written, its location within the Village Ordinances, and the Village’s alternative definition of junk vehicle, falls under the Village’s ‘health, safety, welfare’ power granted in Wis. Stat. § 61.34.”  It also found the ordinance was a constitutionally valid exercise of that ‘health, safety, and welfare’ power.  As a result, the circuit court denied Krongard’s motion to vacate the default judgment. Krongard appealed to the court of appeals.

Krongard argued that because the village ordinance concerns motor vehicles, it must be a traffic regulation. The Village argued that its ordinance only addresses the problem of uncovered junk vehicles and has nothing to do with the operation of motor vehicles on highways or city streets.  Rather, as the circuit court correctly noted it “simply requires owners of inoperable or unlicensed vehicles to keep their vehicles out of the public’s view, either by storage in a fully enclosed garage or by weatherproof, non transparent commercial car cover.”

The court rejected Krongard’s argument that the village ordinance is a traffic regulation. It stated that Krongard’s argument “ignores the fact that § 90-44 does not affect—directly or incidentally—motor vehicle operation. Rather, as the circuit court aptly noted on remand, it ‘simply requires owners of inoperable or unlicensed vehicles to keep their vehicles out of the public’s view, either by storage in a fully enclosed garage or by weatherproof, non transparent commercial car cover.’”

Regarding the constitutionality of the ordinance, Krongard raises due process concerns that the Village’s provisions in Article II are overbroad and vague.

An ordinance is vague if it is “so obscure that [persons] of ordinary intelligence must necessarily guess as to its meaning and differ as to its applicability.” It is overbroad “when its language, given its normal meaning, is so sweeping that its sanctions may be applied to conduct which the state is not permitted to regulate.” The court found “no indication that Krongard could reasonably have any question as to what constituted a violation of the village ordinance, or the consequences for such a violation.”

The court dismissed all of Krongard’s claims.

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Vermont neighbor can bring nuisance claim for wind farm, despite losing fight against permit

Gary Taylor

Note:  This case is from the Federal District Court for Vermont, but it is interesting and in keeping with our “wind week” theme.   It was originally posted by Patricia Salkin on her blog, The Law of the Land http://lawoftheland.wordpress.com.

Brouha v Vermont Wind, LLC
(Federal District Court for Vermont, September 23, 2014)

Plaintiff alleges that the Sheffield Wind Project that the Defendants owned and operated created an unreasonable noise impact, that the noise prevented the Plaintiff from gardening, eating outside, walking and other activities similar, and the Plaintiff therefore suffered stress, pain and suffering and loss of the use of his property.

The District Court of Vermont found that the Plaintiff submitted sufficient information for a private nuisance claim, due to interference with the use and enjoyment of another’s property that is both unreasonable and understanding. Defendants contended that the Plaintiff’s complaint should be collaterally estopped because the claims litigated were already decided when the Plaintiff unsuccessfully contended and appealed against the granting of the permit, but Plaintiff in return claims that the standard applied for the permit were different from the standard applied for private nuisance.

The court found that the enjoyment of the Plaintiff’s property has never been litigated, and the restrictions imposed by the permit did not cover a private nuisance issue. Collateral estoppel does not apply here as the private nuisance claim was not raised in the first action, and the general nuisance claim that focused on the impact to the community was not identical to the private nuisance issue. Defendants’ motion was to dismiss Plaintiff’s private nuisance claim was therefore denied.

 

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Insufficient evidence to establish uncut lawn was a public nuisance

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.

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