Nuisances

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150. Under 1997 Wisconsin Act 27, the 1997-99 State Budget Act, all municipalities, not only the City of Milwaukee, may, as an alternative method of recovering the cost of razing a dilapidated building, bring an action against the property owner to have that owner adjudged personally liable for the costs of razing the dilapidated building. Sec. 74.53, Stats. 11/28/97.

151. A nonconforming use existing at the time a zoning ordinance goes into effect can be prohibited or restricted by statute or ordinance where it is a public nuisance or harmful in any way to the public health, safety, morals or welfare. The legitimacy of a particular business and the length of time the business has been in existence is not controlling in determining whether a public nuisance exists. A public nuisance can always be abated by a municipality. Town of Delafield v. Sharpley, 212 Wis.2d 332, 568 N.W.2d 779 (Ct. App. 1997).

152. Business which generates extensive traffic on local streets cannot be declared a nuisance where business is cooperating with municipality by using suggested route and the things complained of are "unavoidable incidents to the operation of a legitimate and beneficial enterprise." Hartung v. Milwaukee County, 2 Wis.2d 269, 281, 86 N.W.2d 475, 483 (1957). Municipalities can establish heavy traffic routes, but may not prohibit heavy traffic from using a street or highway for the purpose of obtaining orders for supplies or moving or delivering supplies or commodities to or from any place of business or residence which has an entrance on such street or highway, pursuant to sec. 349.17(1), Stats. 2/25/02.

153. A county, a town and private property owners were all liable for maintaining a public nuisance where they failed to remove tree branches growing from a tree on private property which obscured a stop sign that the county had placed in its right-of-way and partially in the town's right-of-way at a highway intersection. Physicians Plus Ins. Corp. v. Midwest Mutual Ins. Co., 2002 WI 80, __ Wis.2d __, 646 N.W.2d 777 (June 28, 2002). A public nuisance is a condition or activity which substantially or unduly interferes with the use of a public place or with the activities of an entire community. In determining whether something constitutes a public nuisance, the court considers many factors, including, among others, the nature of the activity, the reasonableness of the use of the property, location of the activity, and the degree or character of the injury inflicted or right impinged upon. Any obstruction in or encroachment upon a highway, which "unnecessarily impedes or incommodes the lawful use of such highway by the public, is a public nuisance." 7/31/02.

154. Although nuisance and negligence are two distinct torts, there is considerable overlap between the two. First, liability for maintaining a public nuisance can be based on either negligent or intentional conduct that maintains a condition or activity which substantially or unduly interferes with the use of a public place or with the activities of an entire community. Second, both notice and causation, concepts oftentimes reserved for negligence cases, are required to establish liability for maintaining a public nuisance. Third, for the purposes of comparing and apportioning responsibility for the accident, and for determining contribution among culpable parties, when all of the elements to establish liability for maintaining a public nuisance are affirmatively proven, a defendant's failure to abate a public nuisance is analogous to negligence per se. Finally, similar to liability for negligence, liability for maintaining a public nuisance can be limited by public policy considerations. Physicians Plus Ins. Corp. v. Midwest Mutual Ins. Co., 2002 WI 80, __ Wis.2d __, 646 N.W.2d 777 (June 28, 2002). 7/31/02.

155. To establish liability for creating a public nuisance, a plaintiff must prove that the defendant's conduct was a substantial cause of the existence of a public nuisance and that the nuisance was a substantial factor in causing injury to the public, which injury is the subject of the action but liability for creating a public nuisance can be limited on public policy grounds. City of Milwaukee v. NL Industries, Inc., Appeal No. 03-2786 (Ct. App., November 9, 2004) (recommended for publication). 11/30/04.

156. A nuisance exists if there is a condition or activity that unduly interferes with the private use and enjoyment of land or a public right. If the interest invaded is the private use and enjoyment of land, then the nuisance is considered a private nuisance. Conversely, if the condition or activity interferes with a public right or the use and enjoyment of public space, the nuisance is termed a public nuisance. Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, Case No. 02-2961, aff'g 2003 WI App 209. 1/31/05. .

157. When a nuisance claim is based upon negligence, the usual defenses in a negligence action are applicable. Notice is a necessary part of the plaintiff's proof in an action for nuisance when liability is based upon the defendant's alleged negligent failure to act, regardless of whether the nature of the harm is public or private. Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, Case No. 02-2961, aff'g 2003 WI App 209. 1/31/05.

158. Legal comment provides an overview of strategies that can be used to abate nuisance properties, such as drug houses or other problem establishments or properties that threaten public safety and drain police resources. Article explains that place-based crime prevention requires neighbors, property owners, businesses, and police to work together to address public safety threats and prevent their reoccurrence.  (Adam Stephens) 5/1/09.

159. A property owner that does not alter the flow of surface water over his property but merely possesses property altered by a prior owner, does not negligently maintain a nuisance and is not liable for damages caused to another property owner from the surface water that flows over his property to the other property since mere possession is not a use of property that alters the flow of surface water unreasonably. Hocking v. City of Dodgeville, 2009 WI 70, __ Wis. 2d __, __ N.W.2d __. 7/31/09.