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5.f nuisances from league145 University Ave. West www.lmc.org 4/19/2018 Saint Paul, MN 55103-2044 (651) 281-1200 or (800) 925-1122 © 2018 All Rights Reserved This material is provided as general information and is not a substitute for legal advice. Consult your attorney for advice concerning specific situations. INFORMATION MEMO Public Nuisances Defines public and private nuisances, giving common examples such as weeds, smoke, noise, animals and more. Examines tools cities can use to effectively and fairly prevent nuisances or eliminate nuisance conditions when they occur. Evaluates complaint versus inspection enforcement options. Links to a model nuisance ordinance. RELEVANT LINKS:I. Considering community nuisances Nuisances impact a community’s livability. Minnesota cities provide for and protect the general welfare of its residents. This can include the prevention or abatement of various nuisance activities. In addition, state statutes provide cities the specific authority to abate nuisances within their jurisdictions. Although it may seem relatively simple in theory, nuisance enforcement is much more difficult in practice. When adopting local regulations, cities need to consider many things, such as: Is the conduct or activity really a nuisance? Does that type of activity negatively impact the entire community or only certain individuals? Will we actively investigate nuisance conditions, or will we rely on resident complaints? How will we address an individual’s rights when the city investigates or removes nuisance conditions? What resources do we have (or need) to enforce our ordinances? Enforcement can be difficult, even in the most obvious situations. The “nuisance” owner may honestly have no idea that the use of his or her property is negatively impacting the community. Nuisance owners often have their own questions, such as: Why am I required to shovel the sidewalk in front of my property? Who are you to tell me how loud I can play my music? Why should my neighbors care how many cars I park on my property? Don’t you need a warrant to enter my property? These are questions city officials should be prepared to answer. RELEVANT LINKS: League of Minnesota Cities Information Memo: 4/19/2018 Public Nuisances Page 2 II. What is a nuisance? Minn. Stat. § 561.01. Matter v. Nelson,478 N.W.2d 211 (Minn. Ct. App. 1991). See Public Nuisances, LMC Model Ordinance. As defined by statute, a nuisance is anything injurious to health, indecent or offensive to the senses, or that obstructs the free use and comfortable use of life or property. Nuisance laws attempt to balance the competing interests and uses of property. As such, nuisance regulations commonly address neighborhood and land use issues, such as zoning, building codes, and fire codes, as well as more general quality-of-life concerns. City ordinances tend to provide a more detailed definition for nuisance conditions within a jurisdiction. Highview N. Apts. v. County of Ramsey, 323 N.W.2d 65 (Minn. 1982). Nuisances can spring up in a variety of ways. A nuisance may be created by: An intentional act. Negligent conduct. An ultra-hazardous activity. A violation of state statute. A violation of city ordinance. Any other wrongful (or “tortious”) activity. Citizens for a Safe Grant v. Lone Oak Sportsmen’s Club, Inc.,624 N.W.2d 796. (Minn. Ct. App. 2001). 28A Minn. Prac., Elements of an Action § 18:1-2 (2016). With nuisances, a person’s intent is often immaterial; the person’s motive or intent doesn’t necessarily enter into the analysis of whether the condition or conduct is a nuisance. While nuisances may often include negligent conduct, determining whether an individual failed to exercise due care is not always critical. Consequence, rather than intent or care, is the primary concern. See Part V –Common nuisances.Nuisances may occur when someone fails to do something that is required. For example, the failure to cut one’s grass may become a nuisance. Nuisances can also occur when people do something they shouldn’t. Common examples of these action-based nuisances are: vehicle noise; accumulation of garbage or other junk; and parking an excessive number of vehicles at one location. See LMC information memo, Zoning Guide for Cities.Often, the location and its surroundings are critical in determining if a nuisance exists. Something considered a nuisance in a higher density, residential area may be appropriate in an industrial zone (or in another city altogether). III.Creation and classification Nuisances can generally be categorized as follows: RELEVANT LINKS: League of Minnesota Cities Information Memo: 4/19/2018 Public Nuisances Page 3 A.Nuisance per se Robinson v. Westman, 224 Minn. 105, 29 N.W. 1 (1947).State v. Lloyd A. Fry Roofing Co.,310 Minn. 535, 246 N.W.2d 692 (1976). See Part IV – A – 2 – Injunctions and abatements. A “nuisance per se” (or “nuisance at law”) is an act, occupation, or structure which is a nuisance at all times and under all circumstances, regardless of the actual location or its surroundings. In the case of a nuisance per se, the right to relief is established more simply through proof of the act itself. For example, conduct specifically prohibited by state statute or local ordinance would be a nuisance per se. B.Nuisance in fact Olsen v. City of Minneapolis, 263 Minn. 1, 115 N.W.2d 734 (1962). A “nuisance in fact” is an act, occupation, or structure that becomes a nuisance based upon its relationship to its surroundings, its location, or the manner in which it is performed or operated. C.Ordinance classifications See Public Nuisances, LMC Model Ordinance. See Part IV –Public vs. private nuisances. When defining nuisance activities, it is quite common for city ordinances to classify nuisances with the following general classifications. Such classifications separate nuisances by the harms that they cause, but also upon the broad police powers a city has to remedy such situations. It is quite possible for each category to include both per se and in fact nuisances. 1. Against the peace Certain actions can be categorized as a “nuisance against the peace.” These and similar conditions can create fire, traffic, or other safety hazards: Snow, ice, or other obstructions impacting city streets and sidewalks. Trees or other materials blocking traffic or sightlines. Unnecessary or excessive noises and vibrations. Accumulation of old machinery, appliances, motor vehicles, and the like. 2. Against the quality of life Some activities impact more generally upon a community’s “quality of life”: Minn. Stat. § 609.72. State v. Henzel,901 N.W.2d 166 (2017). Disorderly conduct. Use and/or sale of drugs and alcohol. Prostitution. Loud music. Barking dogs or animal fighting. RELEVANT LINKS: League of Minnesota Cities Information Memo: 4/19/2018 Public Nuisances Page 4 3. Affecting morals Some are categorized due to the detrimental impact on community morals: Minn. Stat. § 609.755. Minn. Stat. § 609.322. Minn. Stat. ch. 340A. Use of illegal gambling devices. Houses of prostitution. Illegal sale or production of alcoholic beverages. 4. Affecting public health Some activities are nuisances because they impact public health: Minn. Stat. §§ 18.76-.91. Accumulation of rotting food, household wastes, and other refuse. Animals running at large. Noxious weeds. IV.Public vs. private nuisances In evaluating how it will respond to nuisances a city must first decide whether something is a public or private nuisance. Handbook,City Regulatory Functions. Excelsior Baking Co. v. City of Northfield,247 Minn. 387, 77 N.W.2d 188 (1956). Public nuisances affect a considerable number of people; they violate public rights and produce a common or general injury, or they injure or annoy the portion of the public that comes into contact with them. Because they harm the general public, they can be addressed through city action. Hill v. Stokely-Van Camp, Inc.,260 Minn. 315, 109 N.W.2d 749 (1961). A private nuisance, on the other hand, produces damages or injuries to only one person or a few people. As such, the prevention or abatement of a private nuisance is generally the responsibility of the individual injured, not the city. Aldrich v. Wetmore,52 Minn. 164, 53 N.W. 1072 (1893). Minn. Stat. § 609.74. See Part VII –Remedies. Nuisances can be both public and private. For example, a tree on private property could overhang both the public right of way and the adjoining private property. Public nuisances are generally remedied by criminal prosecution or injunction or abatement actions. Private nuisances are typically remedied by a private civil action. When the city receives a nuisance complaint, alleging some harmful or inappropriate conduct, city officials should consider the following questions: Is the activity actually a nuisance (as provided in state law or as defined in the city ordinances)? If it is a nuisance, is it a public or private nuisance? If it is a public nuisance, what enforcement actions should be used? RELEVANT LINKS: League of Minnesota Cities Information Memo: 4/19/2018 Public Nuisances Page 5 A.Public nuisances Victor E. Schwartz & Phil Goldberg, The Law of Public Nuisance: Maintaining Rational Boundaries on a Rational Tort, 45 Washburn L.J. 541 (2006). Public nuisance laws have developed over centuries of English and U.S. court decisions (common law). In addition, state and local governments determine through state statutes and/or local ordinances what are considered nuisance activities for a particular jurisdiction. Nuisance laws have evolved over time and will continue to do so. With more and more people living and working closely in our cities, individuals have a greater opportunity to impact the living conditions of their neighbors. Changes in industrial and commercial practices also lead to different beliefs on what are appropriate uses of property, real and personal, and what is not proper. Kelsey v. Chicago R.I. & P.R. Co.,264 Minn. 49, 117 N.W.2d 559 (1962). Public nuisances negatively impact a community—perhaps the city at large, or an otherwise significant area such as a neighborhood. Public nuisance laws address both intentional acts and negligent conduct. 1. Statutory criminal offenses Minn. Stat. § 609.74.State statutes provide that a person is guilty of maintaining a public nuisance (a misdemeanor offense) when he or she, by an affirmative action or upon a failure to act, does any of the following: State v. Nelson, 189 Minn. 87, 248 N.W. 751 (1933). Maintains or permits a condition which unreasonably annoys, injures, or endangers the safety, health, morals, comfort, or repose of any considerable number of members of the public. Interferes with, obstructs, or renders dangerous for passage any public highway, right-of-way, or waters used by the public. Is guilty of any other act or omission declared by law to be a public nuisance and for which no sentence is specifically provided. Minn. Stat. § 609.745.Both the person in control of the real property where a public nuisance is maintained, as well as a property owner who rents property with knowledge of the nuisance conditions, may be guilty of a misdemeanor. Statutory nuisance violations can be enforced through criminal prosecutions. 2. Injunctions and abatements Minn. Stat. §§ 617.80-.87.In addition to possible criminal prosecutions, the state statutes also provide a mechanism for obtaining temporary or permanent injunctions or orders for abatement of certain defined public nuisance activities. An injunction is an order that requires a person to stop doing something that harms (e.g., refraining from loud noises, odors, etc.); an abatement order would require a harmful condition to be removed from the property (e,g., cutting weeds, draining stagnant water, etc.). RELEVANT LINKS: League of Minnesota Cities Information Memo: 4/19/2018 Public Nuisances Page 6 Minn. Stat. § 617.81, subd. 2. Minn. Stat. § 617.80, subd. 2. For purposes of statutory injunction or abatement proceedings, a public nuisance exists upon proof of one or more separate incidents committed within the previous 12 months either within a building or upon the land surrounding the structure of: Minn. Stat. § 340A.401 (unlicensed sales). Minn. Stat. § 340A.503, subd. 2(1)(persons under 21 years of age). Minn. Stat. § 609.02, subd. 6. Prostitution or prostitution-related activity. The unlawful sale, possession, storage, delivery, giving, manufacture, cultivation, or use of controlled substances. Selling alcohol without a commercial license and/or the unlawful sales or gifts of alcohol to persons under 21 years of age, when multiple violations occur during the same behavioral incident when the building is not occupied by the owner or a tenant, lessee, or occupant. The unlawful use or possession of a dangerous weapon. Minn. Stat. § 617.81, subd. 2.In addition, for purposes of injunction or abatement, a public nuisance also exists upon proof of two or more separate behavioral incidents committed within the previous 12 months within a building (or upon the land surrounding the structure) of: See Part IV – A – 1 – Statutory criminal offenses. Minn. Stat. § 609.745. Minn. Stat. § 340A.401. Minn. Stat. § 340A.503, subd. 2(1). Gambling or gambling-related activities. Maintaining a public nuisance as defined by Minn. Stat. § 609.74, clause (1) or (3). Permitting a nuisance to occur in violation of Minn. Stat. § 609.745. The sale of alcoholic beverages without commercial license. The unlawful sale or gifts of alcoholic beverages to an individual under 21 years of age. The violation by a commercial enterprise of state or local licensing regulations, state statute, or local ordinance prohibiting the maintenance of a public nuisance. Minn. Stat. § 617.81, subd. 2(c).To obtain an injunction or abatement order, proof of each element of the conduct constituting the nuisance must be established by clear and convincing evidence. 3. Court decisions 35 Dunnell Minn. Digest Nuisances §§ 4.00-.15 (4th ed. 1997). Minnesota courts have found, among others, the following specific circumstances to be nuisances: Accumulation of filth. Noise. Offensive odors. Automobile wrecking. Houses of prostitution. The operation of steam shovels. Hazardous buildings. RELEVANT LINKS: League of Minnesota Cities Information Memo: 4/19/2018 Public Nuisances Page 7 Three or more people obstructing the free passage of sidewalk traffic. Icy sidewalks or driveways. A building overhanging a public street. Stockyards, slaughtering houses, and rendering works. Gases and gas odors, including those emanating from gas plants, petroleum tanks, and engines. Smoke, dirt, and cinders emitted from chimneys and smoke stacks. Obstructions or pollution of public streets or waters. Discharge of water and sewage unto adjacent lands. Cesspools. 4. Local regulation See Part VI –Municipal regulations.In addition to the statutory and the common law authorities, cities have the ability to define and establish through local ordinances additional nuisance conduct—so long as it is able to demonstrate that the condition or activity is a public nuisance. B.Private nuisances Minn. Stat. § 561.01. Minnesota House Research Dept., Minnesota’s Public and Private Nuisance Laws (July 2008). Holmberg v. Bergin, 285 Minn. 250, 172 N.W.2d 739 (1969). Similar to public nuisances, a private nuisance is anything injurious to health, or indecent or offensive to the senses, or an obstruction to the free use of property, interfering with the comfortable enjoyment of life or property. An activity does not need to be unlawful to be a nuisance; for example, a tree overhanging into a neighbor’s yard may become a private nuisance. Hill v. Stokely-Van Camp, Inc.,260 Minn. 315, 109 N.W.2d 749 (1961). A private nuisance harms few persons. As such, the responsibility for prevention or abatement is the responsibility of those harmed and is not a proper ground for city actions. In contrast to public nuisances, which are redressed by state prosecution or abatement actions, private nuisances are only addressed by the individuals harmed through private actions. C.Creating a private duty Cracraft v. City of St. Louis Park,279 N.W.2d 801 (Minn. 1979). Even though cities do not generally play a role in abating private nuisances, in limited circumstances it is possible for a city to assume a duty and subsequent responsibilities in protecting or preventing private harms from occurring. For such a private duty to exist, an individual will need to demonstrate that: The city had actual knowledge of the dangerous condition. There was reasonable reliance by those subject to the council’s representation and conduct and the reliance was based on specific actions or representations which caused the person harmed to forgo other means of protection. RELEVANT LINKS: League of Minnesota Cities Information Memo: 4/19/2018 Public Nuisances Page 8 The ordinance set forth a mandatory act intended to protect a particular class of people and not just the general public. The city’s action or inaction increased the risk of harm. Danielson v. City of Brooklyn Park,516 N.W.2d 203 (Minn. Ct. App. 1994). The burden will be on the individual to demonstrate that the city has assumed such responsibility. While courts have been reluctant to find cities liable for otherwise private injuries, examples where such a duty has been found includes: Hansen v. City of St. Paul, 298 Minn. 205, 214 N.W.2d 346 (1974). Gilbert v. Billman Const., Inc.,371 N.W.2d 542 (Minn. 1985). Someone bitten by a dangerous dog running at large, where the city had knowledge but failed to enforce its own ordinance. An employee who exceeds his authority by either making specific promises to a homeowner that the conditions will be remedied or provides a guarantee or approval as to private conditions. “Consider Ordinances before Adopting,” Minnesota Cities (Sept. 2007, p. 39). It is important for cities to enforce their ordinances and to refrain from making promises that they are unable or unwilling to keep. V. Common nuisances Nuisances are typically location-specific. Depending on the location, an activity could be either appropriate or terribly harmful. It is generally inappropriate to simply label something a nuisance without investigating the actual impact upon the community. However, there are particular broad categories of activities that often constitute nuisances. A.Noise Sounds are a byproduct of life. Inevitably, noise can negatively impact the quality of life. Typical complaints involve: Barking dogs. Lawn mowers, leaf blowers, and other similar equipment. Radios. Construction equipment. Parties, concerts, and other social events. Motor vehicles. Village of Wadena v. Folkestad,194 Minn. 146, 260 N.W. 221 (1935).City of Edina v. Dreher,454 N.W.2d 621 (Minn. Ct. App. 1990). For noise to be considered a nuisance, it must significantly interfere with one’s enjoyment of life and property. Slight or occasional noises are typically not sufficient to create a nuisance condition. Similarly, those “usual” noises, such as the afternoon operation of a lawn mower, don’t generally rise to nuisance levels. Minn. Stat. § 116.07. MPCA. Coates v. City of Cincinnati, 402 U.S. 611, 91 S. Ct. 1686 (1971). Although the Minnesota Pollution Control Agency (MPCA) has statewide authority over noise and noise control issues, local noise ordinances enable city officials to address community concerns.