Chapter § 19.3 Public Nuisance

• Jurisdiction: Washington

§19.3 PUBLIC NUISANCE

Like private nuisance, the concept of public nuisance developed through common law. See general discussion in William H. Wilson, Nuisance as a Modern Mode of Land Use Control, 46 Wash. L. Rev. 47, 97-99 (1970). The distinction between a public and private nuisance lies in the number of persons or properties affected by the interference.

(1) In general

RCW 7.48.130 defines a public nuisance as any nuisance that "affects equally the rights of an entire community or neighborhood, although the extent of the damage may be unequal."

Public nuisance also is defined under criminal statutes. RCW 9.66.010 provides as follows:

A public nuisance is a crime against the order and economy of the state. Every place

(1)	Wherein any fighting between people or animals or birds shall be conducted; or,
(2)	Wherein any intoxicating liquors are kept for unlawful use, sale or distribution; or,
(3)	Where vagrants resort; and

Every act unlawfully done and every omission to perform a duty, which act or omission

(1)	Shall annoy, injure or endanger the safety health, comfort, or repose of any considerable number of persons or,
(2)	Shall offend public decency; or,
(3)	Shall unlawfully interfere with, befoul obstruct, or tend to obstruct, or render dangerous for passage, a lake, navigable river, bay, stream, canal or basin, or a public park, square, street, alley, highway, or municipal transit vehicle or station; or,
(4)	Shall in any way render a considerable number of persons insecure in life or the use of property;

Shall be a public nuisance.

See, e.g., State v. Primeau, 70 Wn.2d 109, 112-13, 422 P.2d 302 (1966) (operating piggery within scope of statute not a nuisance); State v. Villarreal, 97 Wn. App. 636, 642, 984 P.2d 1064 (1999), review denied, 140 Wn.2d 1008 (2000) (urinating in public violated city ordinance against offensive or nauseous substances or vulgar conduct); State v. Kerry, 34 Wn. App. 674, 678, 663 P.2d 500 (1983) (holding park rule against loud music did not have force of law to make defendant's conduct unlawful; also insufficient evidence that music annoyed a considerable number of persons other than the two law enforcement officers who made arrest).

As with private nuisance, public nuisance law is found by reference to decisional law and statutes, and each case must be decided on its own peculiar facts. See Shields v. Spokane Sch. Dist. No. 81, 31 Wn.2d 247, 259, 196 P.2d 352 (1948) ; see also Kitsap Cnty. v. Kitsap Rifle and Revolver Club, 184 Wn. App. 252, 286-88, 337 P.3d 328 (2014), review denied, 183 Wn.2d 1008 (2015) (noise and safety issues at gun range constituted public nuisance).

(2) Effect of authorization or prohibition of use by statute or ordinance

Numerous statutes declare particular conduct, businesses, or things to be public nuisances. For a list of the statutes, see §19.3(5), below. These statutes are said to be "largely declaratory of the common law" of public nuisance. Primeau, 70 Wn.2d at 112.

First- and second-class cities have the power to declare what shall be a nuisance, to abate a nuisance, and to impose fines upon parties who may create, continue, or suffer nuisances to exist. See RCW 35.22.280(30); RCW 35.23.331, .440(10). Towns may have similar power by implication. RCW 35.27.410. Counties also have broad statutory powers to enforce police and sanitary regulations by appropriate resolutions or ordinances. See RCW 36.32.120(7). These various powers are grounded in the general police power. "It is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance." Weden v. San Juan Cnty., 135 Wn.2d 678, 691, 958 P.2d 273 (1998) (emphasis removed) (quoting Lawton v. Steele, 152 U.S. 133, 14 S. Ct. 499, 38 L. Ed. 385 (1894)). "Municipal police power is as extensive as that of the [state] legislature, so long as the subject matter is local and the regulation does not conflict with general laws." Covell v. City of Seattle, 127 Wn.2d 874, 878, 905 P.2d 324 (1995).

A local ordinance constitutes a reasonable exercise of police power under Article XI, §11, of the Washington Constitution, if (1) the ordinance promotes the health, safety, peace, education, or welfare of the people; and (2) the requirements of the ordinance bear some reasonable relationship to the accomplishment of the underlying purposes. Weden, 135 Wn.2d at 700; see also Thurston Cnty. v. Burnell, No. 37660-1-II, 2010 WL 1223096 (Wn. Ct. App. Mar. 30, 2010) (unpublished) (storage of numerous vehicles on property constituted public nuisance). However, a city ordinance cannot make something a nuisance unless it is in fact a nuisance. Greenwood v. Olympic, Inc., 51 Wn.2d 18, 21, 315 P.2d 295 (1957) ("Common sense and common experience indicated that a failure to have intermediate handrails on stairs which had been in constant use by the public for almost thirty years, did not constitute a public nuisance, the 1942 Seattle city ordinance to the contrary notwithstanding.").

As noted above, RCW 7.48.160 provides that a use expressly authorized by statute cannot be deemed a nuisance. This provision applies to public as well as private nuisances. There is some authority that suggests, in contrast to the law of private nuisance, that the existence of an authorizing statute and a zoning ordinance specifying a use may be conducted in a particular zone may preclude a finding that the use is a public nuisance per se. In Shield, 31 Wn.2d 247, the Washington Supreme Court adopted the statute and zoning ordinance rule from a Colorado Supreme Court case:

Where the legislative arm of the government has declared by statute and zoning resolution what activities may or may not be conducted in a prescribed zone, it has in effect declared what is or is not a public nuisance. What might have been a proper field for judicial action prior to such legislation becomes improper when the law-making branch of government has entered the field.

Id. (quoting Robinson Brick Co. v. Luthi, 115 Colo. 106, 169 P.2d 171, 173 (1946) (evaluating placement of trade school on elementary school property but affirming nuisance holding because the state trade school statute did not prescribe the place or manner of erection of such schools)). However, just because a use does not constitute a public nuisance per se under the rule articulated in Shields does not necessarily preclude the use from otherwise being deemed a public or private nuisance in fact. See Ackerman v. Port of Seattle, 329 P.2d 210, 219 (Wash. 1959) (notwithstanding legal authority to construct an airport, actual operation may constitute a nuisance in fact); Bruskland v. Oak Theater, Inc., 42 Wn.2d 346, 350-51, 254 P.2d 1035 (1953) (concluding drive-in theater was established as a lawful business at a location legally zoned for that purpose, but the part of the operation of the business having to do with getting the patrons to and from the premises and the noise caused by the advertising sign changes created a private nuisance).

Engaging in a business in defiance of laws regulating or prohibiting the business is a nuisance per se, and a person engaging in such activities may be enjoined from doing so by anyone suffering a special injury as a result of those activities. State v. Lew, 25 Wn.2d 854, 865, 172 P.2d 289 (1946). See generally, Wilson, 46 Wash. L. Rev. at 104-05 & nn.253-68. A failure to comply with permits can give rise to an abatement action as a public nuisance. See Skagit Cnty. v. Waldal, 163 Wn. App. 284, 261 P.3d 164 (2011) (affirming public nuisance abatement summary judgment against recycling center for failures to comply with solid waste disposal permit and operating plan). The fact that a defendant failed...