Nuisance Abatement and Local Governments: What a Mess

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Richard Ducker

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UPDATE September 2013:  Click here for the 2013 sequel to this blog.

What is a public nuisance? A public nuisance is a condition or activity involving real property that amounts to an unreasonable interference with the health, safety, morals, or comfort of the community. Of course, for many of us a public nuisance may be impossible to define; you simply know it when you see it (or hear it or smell it). Often times, it involves a real mess. But the real nuisance for our purposes may be the confusing state of the law that applies to local government nuisance actions. The purpose of this blog is to consider some of the statutory choices (and problems) facing local governments that wish to regulate and abate nuisances. A subsequent blog will consider further some of the legal issues involved.

City and County Nuisance-Abatement Authority

G.S. 160A-193  (abatement of public health nuisances) provides that a city “shall have the authority to summarily remove, abate, or remedy everything in the city limits, or within one mile thereof, that is dangerous or prejudicial to the public health or public safety.” The corresponding county statute, G.S. 153A-140 (abatement of public health nuisances) declares that a county “shall have authority . . . to remove, abate, or remedy everything that is dangerous or prejudicial to the public health or safety.” The catch line of each statute refers to public health nuisances although the statutory text speaks to both public health and public safety matters. Neither statute expressly authorizes the adoption of an implementing ordinance. The municipal statute allows “summary” actions to remove or abate a nuisance (more immediate, abbreviated procedures) whereas the county statute omits such a term. Municipal authority may be exercised not only inside municipal limits, but also up to one mile outside such limits. Since a county may act in any part of the county not within a city (see G.S. 153A-122), a city and a county have overlapping jurisdiction in the one-mile area around a city. In summary there are differences between municipal and county authority to abate public nuisances. However, they are minor when compared to the differences between these statutes (G.S. 160A-193 and G.S. 153A-140) and the city and county statutes authorizing the use of the general police power (G.S. 160A-174 and G.S. 153A-121) that are described below. While there may be times when summary abatement is appropriate, proceeding under an ordinance will be preferable in most cases for the reasons explained below.

Public Nuisances and the General Police Power

G.S. 160A-174(a) provides in part that a city “may by ordinance define, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances.” (Italics added.) G.S. 153A-121(a) is essentially identical and provides comparable authority for counties. How do these statutes compare with the so-called “nuisance statutes” discussed above?

Local Government “Police-Power Statutes”

First, the “police-power statutes” enable local governments to act only upon the adoption of an ordinance. Such an ordinance may address any of a multitude of topics that may be made subject to a local government’s general regulatory power. Why should a city or county choose to adopt a nuisance ordinance under the “police-power statutes” rather than proceed under the “nuisance-abatement statutes”? For one thing a local government may use an ordinance to set forth the procedures it intends to follow in dealing with a nuisance and to ensure that it conforms to state and federal law. (Failure to follow proper notice and hearing procedures may render a local government liable in damages; see my next blog post.) For another, an ordinance provides the local government with the opportunity to define the kinds of conditions that give rise to nuisances. More specifically, a police-power ordinance allows for the definition of conditions that categorically constitute nuisances, that is “nuisances per se.” For example, an ordinance may define one type of nuisance to be weeds or grass allowed to grow to a height greater on average than 12 inches. Indeed, the police-power authority may well encompass regulation of conditions that do not now constitute a nuisance but might become one if left unregulated. In contrast a local government may use the public nuisance statutes to address “one-off” nuisance situations that are not routine and that resist ordinance definition.

Second, ordinances adopted under municipal police-power statutes apply only inside municipal limits (county ordinances apply anywhere outside municipal limits). Thus the municipal public nuisance statute, which can be applied up to one mile beyond city limits, offers more geographic versatility than a police-power ordinance.

A third comparison concerns the nature of the physical premises associated with the nuisance. Most nuisances involve the use of a building or a structure of some other sort. Several statutes address severe structural problems. G.S. 160A-441 et seq. (authority to adopt a minimum housing ordinance); G.S. 160A-426 et seq. and G.S. 153A-365 et seq. (unsafe building condemnation); and G.S. 160A-439 (authority to adopt a nonresidential building/structures ordinance) allow the demolition of a building or structure. Does that mean that these “condemnation statutes” preempt or prevent local governments from treating nuisances involving structures under the public-nuisance statutes or the police-power-ordinance statutes? Not necessarily. In the case of Monroe v. City of New Bern, 158 N.C. App. 275, 580 S.E.2d 372 (2003), cert. denied, 357 N.C. 461 (2003), the North Carolina Court of Appeals implied that in proper circumstances G. S. 160A-193 (the municipal public nuisance statute) may apply to structurally-deficient residences. Whether police-power ordinances may also apply to buildings of this sort (rather than just overgrown vegetation, discarded appliances, yard debris, and the like) remains unclear.

One other major difference between the “nuisance-abatement statutes” and the “police-power statutes” is that the former allow for both an administrative determination that a nuisance exists and an administratively ordered abatement of the nuisance if the owner fails to take timely action. These “summary” procedures permit a local government to save time by being able to move quickly and to save money by being able to avoid having to file a lawsuit to obtain a court order providing for abatement. Of course, these summary actions initiated by a local government can also be a curse because the nuisance abatement statutes offer so little guidance on how to recognize a nuisance and how a local government must proceed in order to get rid of it. In contrast subsections (e) of both G.S. 160A-175 and G.S. 153A-123 (enforcement of ordinances), set forth extensive procedures for how to enforce an “ordinance that makes unlawful a condition existing upon or use made of real property” by obtaining an injunction or order of abatement from the General Court of Justice (our state judicial system). The implication is clear: in order for a local government to abate a public nuisance pursuant to an ordinance adopted under G.S. 160A-174 or G.S. 153A-121 (the general police-power statutes), the local government must file suit against the owner to obtain the appropriate court order.

Abatement by court order offers one other key advantage. It is based on a judicial determination of the scope of the nuisance and the extent of the steps needed to abate it. In North Carolina local governments are liable in damages to the extent that the demolition or removal of property undertaken to abate the public nuisance exceeds what is necessary to eliminate nuisance conditions. Administrative mistakes made in determining what needs to be done can be costly.

This blog has outlined some of the choices regarding enabling authority that local governments must make if they take action against nuisances. The next blog will review some of the constitutional issues involved in abating nuisances and demolishing buildings.

Leave a comment ?

14 Responses to Nuisance Abatement and Local Governments: What a Mess

  1. fred baggett says:

    Rich

    Glad you are addressing this–has not been lately or comprehensively as I recall.

    Do you think at least a reference to Ch. 19 public nuisance actions is in order? Cities do use this chapter to address locations involved in illegal activites or breaches of the peace, and often these locations may be the same places which are
    under consideration for other “nuisance” actions discussed in this initial post.
    Thanks

    Fred

    • Fred,
      You are absolutely right. I debated mentioning so-called “criminal nuisances” under Chapter 19 (offenses against public morals) and should have done so. Nuisances that are offensive to public morals under this chapter generally involve illegal activity. But since the premises where the activity occurs are part of the nuisance (along with some of the personal property involved), such a premises could be the subject of both a public nuisance action as described in my blog and a chapter 19 proceeding.

      Rich

  2. Philip Culpepper says:

    Rich,
    What can a town do about a “nuisance” that is detrimental to the welfare of its citizens and dignity of the town but lies in the ETJ? (The nuisance is an unkept junk filled property on the main entrance of a town that has long been considered an eyesore having negative impacts on the economic development.)

    Thanks.

    Philip

    • Philip,
      It seems to me that a municipality’s sole option is to proceed under G.S. 160A-193, the city’s public nuisance abatement authority. That authority is available in areas up to one mile outside city limits. The disadvantage of doing so, as I outlined in the blog, is that the statute provides little guidance about the procedural steps necessary to declare and abate a nuisance. It also seems to presume that proceeding under a court order is unnecessary, an approach that has its pitfalls.

      Rich

  3. billy says:

    What can you do when you have made repeated attempts about criminal activity and the city makes no effort to remedy it?

    Have met with chief of police, city mayor
    and have numerous e mails.

    • Local governments retain considerable discretion in determining what a nuisance is and in choosing when, where, how, or even if the local government is to proceed. Keep in mind, however, that there is such a thing as a private nuisance. In such a case a private property may be able to seek redress in court directly against the offending property owner.

  4. Warren says:

    My wife had bought a house in 1999, that may have been misrepresented by the seller as having the sewer connected. We are currently looking for the original sales papers to verify this and take any remedy. In app 2000, the city passed an ordinance requiring all residents to connect to sewer by 1/1/2012. This was in response to an area of the city which was found to have a contaminiated water system, not due to septic systems, but due to underground tanks with petroleum products. We and app 1500 other residents received notice in mid January that we had not connected. Since owning the house, my wife never received notice. All other local residents I talked with stated they too had not received any notice. Our house did not have a defective septic system but we connected to sewer last week due to a threat by the city to mark the house as a public nuisance. This cost was just over $6,000.00 from my retirement funds. The city is considering on 2/22/2012 that ANY municipal code violation be considered a public nuisance. This to me seems to be going overboard, and since the loss of RDA funds here in California, seems to be a method to raise money by means of abatement of any public nuisance. In addition, I thought that if there was already an ordinace in place, that it could not be deemed a nuisance. I intend on attending the council meeting tomorrow to see just what they intend to do. As a general question in regards to a public nuisance, if a public employee prepares a staff report that contains false and misleading information that is presented to the city council to which the city council then passes an ordinance which affects a large number of the city’s residents, could that be considered a public nuisance uder the definition of a public nuisance?

    Thank you for your blog.

    • It sounds from your reply as if you are a resident of California. I am afraid that I cannot answer your question under California law. However, here in North Carolina the mere fact that an ordinance is being violated does not transform the matter into a public nuisance. Furthermore, I would be pretty skeptical of any legislative action that would purport to do so.

  5. Debbie says:

    I moved back to my hometown in Ohio (population 12,000) after a divorce.
    A few months after I moved here the house next door to me caught on fire. The insurance company settled with the owner then that owner sold the structure to a friend who was in the construction business.
    It is THREE years later and I am still looking at siding flapping in the breeze, tons of broken up concrete, and weeds that are 8′ tall on my rod iron fence line.
    I have made several calls to the city manager who obviously knows this guy who bought it because he slipped up in a conversation with me and said the guy is out of state working on a project and then the city manager promptly started pulling the weeds I was complaining about.
    The same day I enlightened the city manager that the new owner who is in his early 30’s and appears to be very healthy was getting a disability discount PLUS the homestead discount on his taxes. Please keep in mind no one has lived in this house for 3 years and its common knowledge this guy plans to flip the house. He only paid 25K for it and it sits on a golf course. I have also discovered that the mailing address listed for his tax bill does not exist. I think I have degree of corruption going on next door but all I want is to get the city to make this guy clean up the exterior so I can get my sold. I want out of here !!
    This mess next door is dragging down the value of my home a considerable amount yet my taxes went up quite a bit. The other neighbors are not affected like I am due to landscape conditions so I am on my own.
    We don’t have a mayor in this town so I am dealing with a 30 year old city manager who won’t do anything. The new owner and the city manager are friends and at a minimum favoritism is being practiced…possibly more.
    I have thought about going to a news agency and drawing attention to this issue or putting a “reward for any information leading on how you can get the city to do its job” sign on my front yard but I would be shooting myself in the foot since I want to sell.
    Isn’t there a law against this ??
    Any suggestions ?

    • It is worth remembering that abating a public nuisance can be an expensive and time-consuming proposition for any local government. Despite the ability to impose a lien for demolition and clean-up costs, local governments rarely recover their expenses. Before you impugn the motives of the manager and others, remember that their focus needs to be on addressing those situations that provide the greatest benefit for the community as a whole.

    • Debbie,

      Yes, it possible to try to draw attention to the condition of the property you have in mind by alerting the media. You might be more successful if you could demonstrate that the entire neighborhood feels the way you do. Similarly, chances are that you could post a sign in your yard, drawing attention to the situation that way.

      It is also possible for you to bring a legal action against the owner of the neighboring property for causing a “private nuisance” (an unreasonable use of one property that substantially diminishes the value of some other property)

  6. Donna Fell says:

    I live in Ocean Ridge Plantation located in Ocean Isle Beach, NC. There is an entrance to our community has remained unfinished for years. NCDOT won’t enforce existing regulations to block this mess and the developer won’t comply with requirements to add turning lanes from the main road. This entrance was marked construction but there has not been a construction permit applied for because the developer is not doing any construction in here. The entrance is horrible. Huge holes, muddy after a rain. GPS sends visitors to this entrance. At night a small chain goes up to block people from coming in but you can’t see the chain in the dark. Plus, police and emergency vehicles can’t get in for the knox box only allows the fire department access. Cars have lost control and there was one fatality here. NCDOT continues to discuss and talk about what needs to be done but won’t for the hand of the developer while the public safety is greatly jeopardized. Does this kind of thing fall under public nuisance????

    • I am inclined to think that the situation you describe would not amount to a public health or safety nuisance. The key seems to be determining just who has responsibility for the entrance area. If the development is relatively new, you may want to check the terms of the land subdivision or zoning approval involved to see what property improvement responsibilities the developer may have (or have had). Or you may want to review the materials provided and representations made by the developer when lots or houses were originally sold to determine whether any implied promises concerning the entrance area were involved. You might also check the design standards that must be met by the applicant for a NCDOT driveway permit when a private drive is connected to certain NCDOT highways. In any event if the streets and entrance area in your development are private, the responsibility for maintenance of the entrance area may have been transferred to a property owners’ association. In that case you and other association members may be forced to make some difficult financial decisions.

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