Chapter 823

823.01 Annotation A town’s recovery under nuisance statutes does not require injury to the town’s own property. Town of East Troy v. Soo Line Railroad Co. 653 F.2d 1123 (1980).

823.01 Annotation Navigating the “Impenetrable Jungle”: Statutory Limits on Wisconsin Public Nuisance Actions. Massaro. 90 MLR 95 (2006).

823.015 823.015 Action against condominium association. If a city, village, town, or county has grounds under this chapter to abate a nuisance occurring upon the common elements of a condominium and the failure of a condominium association under ch. 703 to perform its duties to maintain and control the common elements is a reason the nuisance has not been abated, an action for a receivership under ch. 823 may be brought against the condominium association whether it is incorporated or unincorporated. This section does not authorize the seizure of condominium buildings or units.

823.015 History History: 2003 a. 283.

823.015 Note NOTE: 2003 Wis. Act 283, which affected this section, contains extensive explanatory notes.

823.02 823.02 Injunction against public nuisance, time extension. An action to enjoin a public nuisance may be commenced and prosecuted in the name of the state, either by the attorney general on information obtained by the department of justice, or upon the relation of a private individual, sewerage commission created under ss. 200.01 to 200.15 or a county, having first obtained leave therefor from the court. An action to enjoin a public nuisance may be commenced and prosecuted by a city, village, town or a metropolitan sewerage district created under ss. 200.21 to 200.65 in the name of the municipality or metropolitan sewerage district, and it is not necessary to obtain leave from the court to commence or prosecute the action. The same rule as to liability for costs shall govern as in other actions brought by the state. No stay of any order or judgment enjoining or abating, in any action under this section, may be had unless the appeal is taken within 5 days after notice of entry of the judgment or order or service of the injunction. Upon appeal and stay, the return to the court of appeals or supreme court shall be made immediately.

823.02 History History: 1971 c. 276; Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.02; 1977 c. 187, 379; 1981 c. 282; 1999 a. 150 s. 672.

823.02 Annotation This section was not repealed by implication by the creation of former ss. 144.30 to 144.46 [now see chs. 285 and 289] that empower DNR to investigate sources of pollution. State v. Dairyland Power Coop. 52 Wis. 2d 45, 187 N.W.2d 878 (1971).

823.02 Annotation A court of equity will not enjoin a crime or ordinance violation to enforce the law, but will if the violation constitutes a nuisance. Repeated violations of an ordinance constitute a public nuisance as a matter of law, and the injunction can only enjoin operations that constitute violations of the ordinance. State v. H. Samuels Co. 60 Wis. 2d 631, 211 N.W.2d 417 (1973).

823.02 Annotation The concept that an owner of real property can, in all cases, do with the property as he or she pleases is no longer in harmony with the realities of society. The “reasonable use” rule applies. State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974).

823.02 Annotation A nuisance is an unreasonable activity or use of property that interferes substantially with the comfortable enjoyment of life, health, or safety of others. State v. Quality Egg Farm, Inc. 104 Wis. 2d 506, 311 N.W.2d 650 (1981).

823.02 Annotation Prohibiting injunctive relief against a person merely because the person was acting independently would render a public nuisance that consisted of multiple independent actors engaging in acts of prostitution immune to effective redress. Accordingly, a trial court had authority to issue an injunction to abate the individual’s role in prostitution that undisputed evidence proved was a public nuisance. City of Milwaukee v. Burnette, 2001 WI App 258, 248 Wis. 2d 820, 637 N.W.2d 447, 00-2308.

823.02 Annotation The social and economic roots of judge-made air pollution policy in Wisconsin. Laitos, 58 MLR 465.

823.02 Annotation Primary jurisdiction; role of courts and administrative agencies. Krings, 1972 WLR 934.

823.02 Annotation Protecting the right to farm: Statutory limits on nuisance actions against the farmer. Grossman and Fischer. 1983 WLR 95.

823.03 823.03 Judgment. In such actions, when the plaintiff prevails, the plaintiff shall, in addition to judgment for damages and costs, also have judgment that the nuisance be abated unless the court shall otherwise order.

823.03 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.03; 1993 a. 486.

823.04 823.04 Execution and warrant. In case of judgment that the nuisance be abated and removed the plaintiff shall have execution in the common form for the plaintiff’s damages and costs and a separate warrant to the proper officer requiring the officer to abate and remove the nuisance at the expense of the defendant.

823.04 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.04; 1993 a. 486.

823.05 823.05 Warrant may be stayed. The court may, on the application of the defendant, order a stay of such warrant for such time as may be necessary, not exceeding 6 months, to give the defendant an opportunity to remove the nuisance, upon the defendant’s giving satisfactory security to do so within the time specified in the order.

823.05 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1982); Stats. 1975 s. 823.05; 1993 a. 486.

823.06 823.06 Expense of abating, how collected. The expense of abating such nuisance pursuant to such warrant shall be collected by the officer in the same manner as damages and costs are collected upon execution or may be collected by finding the defendant personally liable for these expenses, as provided in s. 74.53. The officer may sell any material of any fences, buildings or other things abated or removed as a nuisance as personal property is sold upon execution and apply the proceeds to pay the expenses of such abatement, paying the residue, if any, to the defendant.

823.06 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.06; 1983 a. 476; 1987 a. 378.

823.065 823.065 Repeated violations of a municipal ordinance a public nuisance. Repeated or continuous violation of a municipal ordinance relating to naphtha, benzol, gasoline, kerosene or any other inflammable liquid or combustible material is declared a public nuisance, and an action may be maintained by the municipality to abate such nuisance and enjoin such violation.

823.065 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.065; 1993 a. 246.

823.07 823.07 Violations of ordinances or resolutions relating to noxious business. Repeated or continuous violations of a city, village or town resolution or ordinance enacted pursuant to s. 66.0415 (1) is declared a public nuisance and an action may be maintained by any such municipality to abate or remove such nuisance and enjoin such violation.

823.07 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.07; 1999 a. 150 s. 672.

823.075 823.075 Actions against forestry operations.

823.075(1) (1) In this section:

823.075(1)(a) (a) “Department” means the department of natural resources.

823.075(1)(b) (b) “Forest” means a parcel of land in which at least 80 percent of the parcel is producing or is capable of producing at least 20 cubic feet of merchantable timber, as defined in s. 77.81 (3), per acre per year.

823.075(1)(c) (c) “Forestry operation” means any activity related to the harvesting, reforestation, and other forest management activities, including thinning, pest control, fertilization, and wildlife management.

823.075(1)(d) (d) “Generally accepted forestry management practices” means forestry management practices that promote sound management of a forest, as determined by the department by rule. The rule promulgated by the department may incorporate by reference the most recent version of the department’s publication known as Wisconsin Forest Management Guidelines and identified as publication number PUB-FR-226.

823.075(2) (2) A forestry operation is not a nuisance if the forestry operation alleged to be a nuisance conforms to generally accepted forestry management practices.

823.075(3) (3) A forestry operation that conforms to generally accepted forestry management practices is not a nuisance as a result of any of the following:

823.075(3)(a) (a) A change in ownership or size of a forest.

823.075(3)(b) (b) Cessation or interruption of forestry operations.

823.075(3)(c) (c) Enrollment of all or part of the forest in governmental forestry or conservation programs.

823.075(3)(d) (d) Adoption of new forestry technology.

823.075(4) (4) In any action in which a forestry operation is alleged to be a nuisance, if the party who was alleged to commit the nuisance prevails, the court may award that party the actual and necessary costs incurred in the action and, notwithstanding s. 814.04 (1), reasonable attorney fees.

823.075 History History: 2005 a. 79.

823.08 823.08 Actions against agricultural uses.

823.08(1) (1) Legislative purpose. The legislature finds that development in rural areas and changes in agricultural technology, practices and scale of operation have increasingly tended to create conflicts between agricultural and other uses of land. The legislature believes that, to the extent possible consistent with good public policy, the law should not hamper agricultural production or the use of modern agricultural technology. The legislature therefore deems it in the best interest of the state to establish limits on the remedies available in those conflicts which reach the judicial system. The legislature further asserts its belief that local units of government, through the exercise of their zoning power, can best prevent such conflicts from arising in the future, and the legislature urges local units of government to use their zoning power accordingly.

823.08(2) (2) Definitions. In this section:

823.08(2)(a) (a) “Agricultural practice” means any activity associated with an agricultural use.

823.08(2)(b) (b) “Agricultural use” has the meaning given in s. 91.01 (2).

823.08(3) (3) Nuisance actions.

823.08(3)(a) (a) An agricultural use or an agricultural practice may not be found to be a nuisance if all of the following apply:

823.08(3)(a)1. 1. The agricultural use or agricultural practice alleged to be a nuisance is conducted on, or on a public right-of-way adjacent to, land that was in agricultural use without substantial interruption before the plaintiff began the use of property that the plaintiff alleges was interfered with by the agricultural use or agricultural practice.

823.08(3)(a)2. 2. The agricultural use or agricultural practice does not present a substantial threat to public health or safety.

823.08(3)(am) (am) Paragraph (a) applies without regard to whether a change in agricultural use or agricultural practice is alleged to have contributed to the nuisance.

823.08(3)(b) (b) In an action in which an agricultural use or an agricultural practice is found to be a nuisance, the following conditions apply:

823.08(3)(b)1. 1. The relief granted may not substantially restrict or regulate the agricultural use or agricultural practice, unless the agricultural use or agricultural practice is a substantial threat to public health or safety.

823.08(3)(b)2. 2. If the court orders the defendant to take any action to mitigate the effects of the agricultural use or agricultural practice found to be a nuisance, the court shall do all of the following:

823.08(3)(b)2.a. a. Request public agencies having expertise in agricultural matters to furnish the court with suggestions for practices suitable to mitigate the effects of the agricultural use or agricultural practice found to be a nuisance.

823.08(3)(b)2.b. b. Provide the defendant with a reasonable time to take the action directed in the court’s order. The time allowed for the defendant to take the action may not be less than one year after the date of the order unless the agricultural use or agricultural practice is a substantial threat to public health or safety.

823.08(3)(b)3. 3. If the court orders the defendant to take any action to mitigate the effects of the agricultural use or agricultural practice found to be a nuisance, the court may not order the defendant to take any action that substantially and adversely affects the economic viability of the agricultural use, unless the agricultural use or agricultural practice is a substantial threat to public health or safety.

823.08(3)(c) (c)

823.08(3)(c)1. 1. Subject to subd. 2., if a court requests the department of agriculture, trade and consumer protection or the department of natural resources for suggestions under par. (b) 2. a., the department of agriculture, trade and consumer protection or the department of natural resources shall advise the court concerning the relevant provisions of the performance standards, prohibitions, conservation practices and technical standards under s. 281.16 (3).

823.08(3)(c)2. 2. If the agricultural use or agricultural practice alleged to be a nuisance was begun before October 14, 1997, a department may advise the court under subd. 1. only if the department determines that cost-sharing is available to the defendant under s. 92.14 or 281.65 or from any other source.

823.08(4) (4) Costs.

823.08(4)(a) (a) In this subsection, “litigation expenses” means the sum of the costs, disbursements and expenses, including reasonable attorney, expert witness and engineering fees necessary to prepare for or participate in an action in which an agricultural use or agricultural practice is alleged to be a nuisance.

823.08(4)(b) (b) Notwithstanding s. 814.04 (1) and (2), the court shall award litigation expenses to the defendant in any action in which an agricultural use or agricultural practice is alleged to be a nuisance if the agricultural use or agricultural practice is not found to be a nuisance.

823.08 History History: 1981 c. 123; 1995 a. 149; 1997 a. 27; 1999 a. 9; 2009 a. 28.

823.08 Annotation Sub. (4) unequivocally mandates the recovery of reasonable attorney fees. Zink v. Khwaja, 2000 WI App 58, 233 Wis. 2d 691, 608 N.W.2d 394, 99-0149.

823.08 Annotation Protecting the right to farm: Statutory limits on nuisance actions against the farmer. Grossman and Fischer. 1983 WLR 95.

823.08 Annotation Brewing Land Use Conflicts: Wisconsin’s Right to Farm Law. Hanson. Wis. Law. Dec. 2002.

823.085 823.085 Actions against owners or operators of solid waste facilities.

823.085(1) (1) In this section, “solid waste facility” has the meaning given in s. 289.01 (35).

823.085(2) (2) In any action finding a solid waste facility or the operation of a solid waste facility to be a public or private nuisance, if the solid waste facility was licensed under s. 289.31 (1) and was operated in substantial compliance with the license, the plan of operation for the solid waste facility approved by the department of natural resources and the rules promulgated under s. 289.05 (1) that apply to the facility, then all of the following apply:

823.085(2)(a) (a) Notwithstanding s. 823.03, the court may not order closure of the solid waste facility or substantial restriction in the operation of the solid waste facility unless the court determines that the continued operation of the solid waste facility is a threat to public health and safety.

823.085(2)(b) (b) The department of natural resources shall comply with a request by the court to provide suggestions for practices to reduce the offensive aspects of the nuisance.

823.085(2)(c) (c) The amount recovered by any person for damage to real property may not exceed the value of the real property as of the date that the solid waste facility began operation increased by 8 percent per year.

823.085(2)(d) (d) Punitive damages may not be awarded.

823.085 History History: 1991 a. 269; 1995 a. 227.

823.09 823.09 Bawdyhouses declared nuisances. Whoever shall erect, establish, continue, maintain, use, occupy or lease any building or part of building, erection or place to be used for the purpose of lewdness, assignation or prostitution, or permit the same to be used, in the state of Wisconsin, shall be guilty of a nuisance and the building, erection, or place, in or upon which such lewdness, assignation or prostitution is conducted, permitted, carried on, continued or exists, and the furniture, fixtures, musical instruments and contents used therewith for the same purpose are declared a nuisance, and shall be enjoined and abated.

823.09 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762 (1975); Stats. 1975 s. 823.09.

823.09 Annotation Fourth degree sexual assault under s. 940.225 (3m) constitutes lewdness and supports a finding of a nuisance. State v. Panno, 151 Wis. 2d 819, 447 N.W.2d 74 (Ct. App. 1989).

823.09 Annotation Read in conjunction with s. 823.11, ss. 823.09 and 823.10 do not violate due process because they provide the opportunity to challenge prima facie evidence that a defendant knowingly permitted prostitution to occur on his property, and also allow the collateral challenge of the underlying prostitution convictions. The statutes also do not violate constitutional rights to freedom of association, the protection against government establishment of religion, and equal protection. State v. Schultz, 218 Wis. 2d 798, 582 N.W.2d 113 (Ct. App. 1998), 97-3414.

823.10 823.10 Disorderly house, action for abatement. If a nuisance, as defined in s. 823.09, exists the district attorney or any citizen of the county may maintain an action in the circuit court in the name of the state to abate the nuisance and to perpetually enjoin every person guilty thereof from continuing, maintaining or permitting the nuisance. All temporary injunctions issued in the actions begun by district attorneys shall be issued without requiring the undertaking specified in s. 813.06, and in actions instituted by citizens it shall be discretionary with the court or presiding judge to issue them without the undertaking. The conviction of any person, of the offense of lewdness, assignation or prostitution committed in the building or part of a building, erection or place shall be sufficient proof of the existence of a nuisance in the building or part of a building, erection or place, in an action for abatement commenced within 60 days after the conviction.

823.10 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762, 782 (1975); Stats. 1975 s. 823.10; 1977 c. 449.

823.10 Annotation Fourth degree sexual assault under s. 940.225 (3m) constitutes lewdness and supports a finding of nuisance. State v. Panno, 151 Wis. 2d 819, 447 N.W.2d 74 (Ct. App. 1989).

823.10 Annotation Read in conjunction with s. 823.11, ss. 823.09 and 823.10 do not violate due process because they provide the opportunity to challenge prima facie evidence that a defendant knowingly permitted prostitution to occur on his property, and also allow a collateral challenge of the underlying prostitution convictions. The statutes also do not violate the freedom of association, the protection against government establishment of religion, and the right to equal protection. State v. Schultz, 218 Wis. 2d 798, 582 N.W.2d 113 (Ct. App. 1998), 97-3414.

823.11 823.11 Evidence; dismissal of action; costs. In actions begun under s. 823.10 the existence of any nuisance defined by s. 823.09 shall constitute prima facie evidence that the owner of the premises affected has permitted the same to be used as a nuisance; and evidence of the general reputation of the place shall be admissible to prove the existence of such nuisance. If the complaint is filed by a citizen, it shall not be dismissed, except upon a sworn statement made by the complainant and the complainant’s attorney, setting forth the reasons why the action should be dismissed, and the dismissal shall be approved by the district attorney of the county in writing or in open court. If the court is of the opinion that the action ought not to be dismissed it may direct the district attorney of the county to prosecute said action to judgment. If the action is brought by a citizen, and the court finds that there was no reasonable ground or cause for said action the costs shall be taxed to such citizen.

823.11 History History: Sup. Ct. Order, 67 Wis. 2d 585, 762, 782 (1975); Stats. 1975 s. 823.11; 1993 a. 486.

823.11 Annotation Read in conjunction with s. 823.11, ss. 823.09 and 823.10 do not violate due process because they provide the opportunity to challenge prima facie evidence that a defendant knowingly permitted prostitution to occur on his property, and also allow the collateral challenge of the underlying prostitution convictions. The statutes also do not violate constitutional rights to freedom of association, the protection against government establishment of religion, and equal protection. State v. Schultz, 218 Wis. 2d 798, 582 N.W.2d 113 (Ct. App. 1998), 97-3414.

823.113 823.113 Drug or criminal gang house a public nuisance.

823.113(1) (1) Any building or structure that is used to facilitate the delivery, distribution or manufacture, as defined in s. 961.01 (6), (9) and (13) respectively, of a controlled substance, as defined in s. 961.01 (4), or a controlled substance analog, as defined in s. 961.01 (4m), and any building or structure where those acts take place, is a public nuisance and may be proceeded against under this section.

823.113(1m) (1m)