Section 6.2 Nuisance

• Library: Local Government Deskbook (2017 Ed.)

II. (§6.2) Nuisance

Before the U.S. Supreme Court’s acceptance of comprehensive governmental control of land use in Village of Euclid, Ohio v. Ambler Realty Co., 272 U.S. 365 (1926), land use restrictions existed chiefly in the form of nuisance law and in private agreements among landowners.

The law of nuisance continues today as a sort of judicial land use control—although a crude and limited one—especially in those areas throughout the state that have chosen, for whatever reason, not to exercise the zoning power granted to them by the legislature. But the law of nuisance may also be applied to a use that is in conformity with applicable zoning or other governmental regulations but that, nevertheless, is obnoxious to adjoining property owners. Mere compliance with applicable zoning laws is not an absolute defense to a nuisance action. Scallet v. Stock,253 S.W.2d 143 (Mo. 1952).

A comprehensive discussion of the law of nuisance is beyond the scope of this chapter. But the general principles discussed in this chapter should be considered in evaluating a potential nuisance claim. First, a nuisance is generally defined as an unreasonable or unlawful use of land to the detriment of adjoining property owners. Grommet v. St. Louis Cnty., 680 S.W.2d 246 (Mo. App. E.D. 1984). Under some circumstances, uses such as blasting or slaughterhouses may be classified as “nuisance[s] per se.” Kays v. City of Versailles, 22 S.W.2d 182 (Mo. App. W.D. 1929). More often, the question of whether a use constitutes a nuisance must be determined based on a balancing of the facts and circumstances found in each case. Fletcher v. City of Independence, 708 S.W.2d 158 (Mo. App. W.D. 1986).

Nuisances may be public (i.e., affecting a group of persons or a common public interest) or private (i.e., affecting only individual property owners). A private nuisance is considered a tort, while a public nuisance is in the nature of a public offense. State ex inf. Ashcroft v. Kansas City Firefighters Local No. 42, 672 S.W.2d 99 (Mo. App. W.D. 1984). Remedies for a private nuisance include an injunction to eliminate an abatable nuisance, recovery for damages to the value of property, and perhaps punitive damages if the injury was willfully inflicted. Rebel v. Big Tarkio Drainage Dist. of Holt City, 602 S.W.2d 787 (Mo. App. W.D. 1980). Relief for a public nuisance is by way of injunction or criminal prosecution. State ex inf. Ashcroft v. Kansas City Firefighters Local No. 42, 672 S.W.2d 99.

A...