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Nuisance and CodeEnforcement

John BriggsSenior Deputy Prosecuting AttorneyKing County Prosecuting Attorney’s Office

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What I am not going to be discussing

No discussion of moral nuisances. No discussion of drug nuisances.

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Washington’s Nuisance Statute is old

RCW 7.48 was enacted in 1881, before Washingtonwas even a state.

Codified common law nuisance law. Many provisions in the statute have not been

amended since the statute was originally enacted in1881.

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When did people talk like this?

For that so much Dung and Filth of the Garbage and Intrails as well as of Beastskilled, as of other Corruptions, be cast and put in Ditches, Rivers, and other Waters,… that the Air there is greatly corrupt and infect, and many Maladies and otherintolerable Diseases do daily happen, … to the great Annoyance, Damage and Peril ofthe Inhabitants, Dwellers, Repairers, and Travellers…;

… all they which do cast and lay all such Annoyances … in … Waters … shall causethem utterly to be removed, avoided, and carried away [before the next Feast of St.Michael] … every one upon Pain to lose and to forfeit to our Lord the King [twentylivre] … (

… the mayors and Bailiffs … shall compel the same to be done upon like Pain. And if any feel himself grieved, that it be not done in the Manner aforesaid, and will

thereupon complain him to the Chancellor after the said Feast of St. Michael, he shallhave a Writ to make him of whom he will complain come into the Chancery, there toshew why the said penalty should not be levied of him, and if he cannot excusehimself, the said penalty shall be levied of him. Statute of 12 Rich. II, ch. 13 (1388)

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Definitions of Nuisance in Washington

Nuisance is “a substantial and unreasonableinterference with the use and enjoyment of land.” Grundy v. Thurston County, 155 Wn. 2d 1(2005)

RCW 7.48.010: Actionable nuisances defined RCW 7.48.120: Nuisance defined

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RCW 7.48.010

“…or whatever is injurious to health or indecent oroffensive to the senses, or an obstruction to the freeuse of property, so as to essentially interfere withthe comfortable enjoyment of the life and theproperty, is a nuisance and the subject of an actionfor damages and other and further relief.”

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RCW 7.48.120

“Nuisance consists in unlawfully doing an act, oromitting to perform a duty, which act or omissioneither annoys, injures or endangers the comfort, repose,health or safety of other, offends decency or …in anyways renders other persons insecure in life, or in theuse of property.”

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Nuisance law impinges on property rights

A nuisance cause of action requires the court to carry out“…the nice balancing of the right of an individual to use hisproperty in a lawful manner for his own purposes, asagainst the comfort and convenience of his neighbor.” Mathewson v. Primeau, 64 Wn. 2d 929, 935 (1964)

“Rights of adjoining landowners in the use and enjoymentare relative, but they are also equal. Equity cannot restrictone landowner to confer a benefit on the other.” McInnes v. Kennell, 47 Wn. 2d 29, 38 (1955)

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“Nice Balancing” by the Court is notalways required Enumerated public nuisances

RCW 7.48.140

Nuisance per se Engaging in a business or profession in violation of a law

regulating the same is a nuisance per se. Zoning ordinances Licensing requirements

Plaintiff must demonstrate causal link between theunlawful act and the claimed injury.

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Activities that don’t amount to a nuisance

Blocking your neighbor’s view Collinson v. John L. Scott, Inc., 55 Wn. App. 481 (1989)

Killing someone’s pet Cat taken from plaintiff’s yard, killed elsewhere. Court dismissed Plaintiff’s nuisance claim. Court ruled

that plaintiff suffered a loss, but not a loss related to landor property fixed to land. Womack v. Von Radon, 133 Wn. App. 254 (2006)

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“Legal Nuisances”

A action carried out under cover of law can still bea nuisance. Grundy v. Thurston County, 155 Wn. 2d, 1, 8 fn. 5

(2005)

A lawful business can never be a nuisance per se,but can still amount to an actionable nuisance ifcarried out in an unreasonable manner or in aninappropriate location. Tiegs v. Watts, 135 Wn. 2d 1, 13 (1998)

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Location, Location, Location

“…whether the defendant’s activities are a nuisancedepends not only on what the defendant is doing,or upon the effect on the plaintiff, but also upon, ina sense, the activities of third persons in the area,indicating whether the defendant’s activities aresuitable to the area.” Washington Practice, Vol. 17 §10.2, pg. 656

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Nuisance as opposed to Trespass

“A nuisance is an unreasonable interference with another’suse and enjoyment of property, whereas a trespass is aninvasion of the interest in exclusive possession of property.” Kitsap County v. Allstate Insurance Company, 136 Wn. 2d 567

(1998)

“…[I]f the invasion consists of objects that are transitory,rather than permanent, the tort is properly characterized asa nuisance rather than a trespass.” Womack v. Van Rardon, 133 Wn. App. 254, 261 (2006)

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Nuisance as opposed to Trespass

Any tangible invasion of plaintiff’s property,however slight, amounts to a trespass, while anuisance requires proof that the interference withuse and enjoyment is “substantial andunreasonable.” Bradley v. American Smelting and Refining Company,

104 Wn. 2d 677, 685 (1985)(Quoting W. Rodgers,Environmental Law § 2.13 at 154-157 (1977)

Little difference between the two causes of actionwhen air pollution is involved.

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Public v. Private Nuisances

A public nuisance is one which affects equally therights of an entire community or neighborhood,although the extent of the damage may be unequal. RCW 7.48.130

Every nuisance not included in the definition ofRCW 7.48.130 is private. RCW 7.48.150

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Public Nuisances Enumerated: RCW7.48.130 Carcasses, offal Carcasses, offal or other offensive matter which “corrupt or render

unwholesome or impure” water Manufacturing gun powder, nitroglycerine or other explosives within a

building within 50 rods of another existing building To erect or use a building for any trade, employment, or manufacture, which,

“by occasioning obnoxious exhalations, offensive smells, or otherwise isoffensive to the health of individuals or of the public”

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Intrusive Nuisances

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Odors

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Smoke

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Flies

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Dust

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Noise

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Richard Simmons

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Aesthetic Nuisances

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Mortuaries

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Why are mortuaries the number oneaesthetic nuisance? Because dead people are scary “…the immediate presence of those mute

reminders of mortality, the hearse, the chapel, thetaking in and carrying out of bodies, the knowledgethat …the dead are there, cannot help but have adepressing effect upon the mind of the averageperson, weakening, as the testimony shows, hisphysical resistance, and rendering him moresusceptible to contagion and disease.” Densmore v. Evergreen Camp, 61 Wash 230, 232 (1910)

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Cemeteries

Hite v. Cashmere Cemetery Ass’n, 158 Wash. 421 (1930) Clark v. Sunset Hills Memorial Park, 45 Wn. 2d 180 (1954)

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Non Conforming Nuisances?

RCW 7.48.190: Nuisance does not become legal byprescription.

Right to maintain public nuisance can’t be acquiredby prescription. Elves v. King County, 49 Wn. 2d 201 (1956)

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Right to Farm Statute: RCW 7.48.305

Agricultural activities conducted on farmland arepresumed reasonable and not a nuisance unless theactivity has a substantial adverse effect on thepublic health and safety.

Immunity primarily designed to shield farms fromnuisance suits that result from urban encroachment. Buchanan v. Simplot Feeders, Ltd. Partnership, 134 Wn.

2d 673 (1998)

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Nuisance actions and LUPA

Asche v. Bloomquist, 132 Wn. App. 784 (2006) Public nuisance claims that depend on a finding

that the land use decision was invalid are barredunless the land use decision is appealed throughLUPA: Asche at 800

LUPA does not bar private nuisance claims: Ascheat 801-802

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Nuisance Nuts & Bolts

Standing Remedies Statute of limitations

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Standing

“Such action may be brought by any such personwhose property is, or whose patrons or employeesare, injuriously affected or whose personalenjoyment is lessened by the nuisance.” RCW 7.48.020

Private person can maintain a civil action for apublic nuisance, if it is specifically injurious to him. RCW 7.48.210

Tiegs v. Watts, 135 Wn. 2d 1 (1998)

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Remedies available in a Nuisance action:RCW 7.48.200 Monetary Damages

Measure of damages for temporary nuisance: Diminishedrental value if the property is rented, or the diminishedvalue of its use if not rented.

Measure of damages for permanent nuisance: Differencein the market value of the property before and after thecreation of the nuisance.

Personal injury damages can be awarded. Miotke v. City of Spokane, 101 Wn. 2d 307 (1984)

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Remedies available in a Nuisance action:RCW 7.48.200 Abatement

A public nuisance may be abated by any public body orofficer authorized by law: RCW 7.48.220

Abatement of a nuisance doesn’t preclude action fordamages: RCW 7.48.180

Abatement of businesses that amounts to a nuisance isnot automatic. Woodard v. West Side Mill Co., 43 Wash. 308 (1906) Hardin v. Olympic Portland Cement Co., 89 Wash. 320 (1916)

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Statute of Limitations

Two years from accrual of nuisance RCW 4.16.130 “A nuisance cause of action accrues when the plaintiff initially

suffers some actual and appreciable harm or when the plaintiffshould have discovered the basis for a nuisance action.” Wallace v. Lewis County, 134 Wn. App. 1, 19 (2006)

Discussion of discovery rule in nuisance cases Mayer v. City of Seattle, 102 Wn. App. 66 (2000)

Continuing Nuisances For continuing nuisances, the two year statute of limitations only

serves to limit the period for which the plaintiff may collectdamages.

Successive owners liable for continuing nuisances. RCW 7.48.170

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Code Enforcement

Cities and Counties spend a great deal of timeattempting to abate public nuisances.

It is not glamorous legal work, but it is importantfor the people who live next to problem sites.

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Code Enforcement in King County

King County code explicitly makes all civilviolations public nuisances. K.C.C. 23.02.030

King County has authority to abate publicnuisances. RCW 7.48.020 and .220

King County code also declares commission of acivil violation a misdemeanor, but they are treatedas civil rather than criminal matters.

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Code Enforcement Process

Before conducting a field verification, code enforcementpersonnel shall notify the owner, occupant, or other personresponsible for code compliance of a possible violation.

Code enforcement personnel will not enter onto privateproperty without such prior notification except in verylimited circumstances.

In cases involving a complaint, C.E. personnel attempt tocontact the complainant by phone or during the field visit. K.C.C. 23.02.060

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Code Enforcement Process

If a violation is discovered, the C.E. personnel shallissue a warning to the person responsible for codecompliance.

That person is generally given an opportunity tocorrect the violation or enter into a voluntarycompliance agreement. K.C.C. 23.02.070

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Code Enforcement Options in the KingCounty Code: Enter into voluntary compliance agreements with persons responsible for

code compliance. Issue citations and assess civil penalties. Issue notice and orders, assess civil penalties and fines and recover costs. Order abatement by means of a notice and order, and if such abatement is not

timely completed by the person responsible for code compliance, undertakethe abatement and charge the reasonable costs of such work.

Order work stopped at a site by means of a stop work order, and if such orderis not complied with, assess civil penalties.

Suspend, revoke or modify any permit previously issued by a director or denya permit application.

K.C.C. 23.02.040

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Notice and Orders

Most frequently utilized code enforcement method. The County is generally willing to work with code

violators even after C.E. personnel have issued aNotice and Order.

Notice and Orders are recorded on title.

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Appeals of Code Enforcement actions

Alleged code violator may file an appeal of the codeenforcement action to the King County HearingExaminer.

Complainants who are “aggrieved persons” mayappeal a determination by the County to not takecode enforcement action.

K.C.C. 23.26.010

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Process for initiating an appeal of a codeenforcement action Appellant must file a notice of appeal within fourteen days

of issuance of the citation or Notice and Order and astatement of appeal within twenty one days of issuance ofthe citation or Notice and Order.

Appellant must pay appeal fee. Timely filing of the notice of appeal, statement of appeal

and appeal fee (if required) are jurisdictional requirements. Rules of Procedure of the King County Hearing Examiner, Section

IV; K.C.C. 23.26.010 Appeal stays, in most instances, enforcement of the Notice

and Order. K.C.C. 23.26.020

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Intervention in Code EnforcementAppeals Intervention as a matter of right

The examiner shall allow intervention in a proceeding by a personwho is not a party who has a substantial property interest in thesubject matter of the proceeding, or whose property is likely to bedirectly affected by the result of the proceeding.

Discretionary intervention Intervention may be allowed in the discretion of the examiner when

participation of the intervenor as a party would be in the publicinterest.

Rules of Procedure of the King County Hearing Examiner, SectionX

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Intervention in Code EnforcementAppeals File Petition for Intervention

Time limit for filing

Role of Intervenor The intervenor has all the procedural rights of a

party in the proceeding, subject to the terms of theorder granting intervention and any subsequentlimitation or expansion as the examiner mayimpose or direct. Rules of Procedure of the King County Hearing Examiner,

Section X(A)(2)(c)(2)

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Intervention in Code EnforcementAppeals Is it worth it for an aggrieved neighbor to intervene

in a Code Enforcement appeal? Yes!

It has been in my experience very persuasive if amember of the community can provide evidence tothe Hearing Examiner regarding the impact on theappellant's activity on the community.

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Burden of Proof in Appeals of Code EnforcementActions to the Hearing Examiner

The County is required to present a prima facie casebased upon competent evidence demonstrating thatthe legal standard for upholding the codeenforcement action has been met. Rules of Procedure of the King County Hearing Examiner, Section

XI(B)(8)

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Where to Get More Information

Washington Practice Volume 17 § 10.3: Freedom from Nuisance Volume 23 § 4.2: Nuisance Volume 16 § 2.24-2.27: Nuisance