Nuisance Regulation and Abatement Authority

What is a Nuisance?

If a jurisdiction is going to regulate nuisances, it first has to define the term. In general, a nuisance is something that annoys — a wearing on the nerves by a persistent unpleasantness. It can evoke anger and interfere with comfort and peace of mind. In a regulatory environment, the term "nuisance" includes anything that results in an invasion of one's legal rights.

A nuisance involves an unreasonable or unlawful use of property that results in material annoyance, inconvenience, discomfort, or injury to another person or the public. The unlawful use may involve doing something (for example, piling garbage on residential property) or failing to do something (for example, cutting or removing noxious weeds from a residential property).

Common nuisances include junk accumulation, animals, noise, dangerous buildings, sewage and unsanitary conditions, and encroachments on the public right-of-way that interfere with pedestrian passage.

Court Definition

In its deliberations over Riblet v. Spokane-Portland Cement Company (1952), the state supreme court asked and responded to the question, "What is a nuisance?" The court stated:

Our basic point of inquiry relates to the general theory of the law of nuisance. This appears primarily to be based upon generally accepted ideas of right, equity, and justice. The thought is inherent that not even a fee simple owner has a totality of rights in and with respect to his real property. In so far as the law of nuisance is concerned, rights as to the usage of land are relative. The general legal principle to be inferred from court action in nuisance cases is that one landowner will not be permitted to use his land so unreasonably as to interfere unreasonably with another landowner's use and enjoyment of his land.

The crux of the matter appears to be reasonableness. Admittedly, the term is a flexible one. It has many shades and varieties of meaning. In a nuisance case, the fundamental inquiry always appears to be whether the use of certain land can be considered as reasonable in relation to all the facts and surrounding circumstances.

Application of the doctrine of nuisance requires a balancing of rights, interests, and convenience.

Statutory Definitions

In Washington, there are two sets of statutes that deal with nuisances. Chapter 7.48 RCW pertains to civil procedures for abating nuisances, and chapter 9.66 RCW pertains to criminal procedures for abating nuisances.

RCW 7.48.120 states:

Nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either annoys, injures or endangers the comfort, repose, health or safety of others, offends decency, or unlawfully interferes with, obstructs or tends to obstruct, or render dangerous for passage, any lake or navigable river, bay, stream, canal or basin, or any public park, square, street or highway; or in any way renders other persons insecure in life, or in the use of property. [Note: this statute has not been amended since 1881.]

RCW 9.66.010 states:

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.

Local Nuisance Definitions and Examples

To be enforceable, the definition of “nuisance” has to be specific. The basic definitions contained in the state nuisance statutes can provide a starting point. Though many local governments adopt these definitions, they often supplement them with their own wording and often adopt ordinances containing lists of specific activities or conditions that constitute a nuisance.

See the examples below:

• Lynnwood Municipal Code Sec. 16.08.210(F) — Definitions
• Pierce County Code Sec. 8.08.040 — Public Nuisance Defined
• Spokane County Municipal Code Sec. 6.13 — Nuisance
• Twisp Municipal Code Sec. 8.05.010 — Conditions constituting a public nuisance
• Vancouver Municipal Code Sec. 8.20.010 — Nuisance Defined

General Principle and Constitutional Provision

There is a general principle that cities and counties have the authority to declare and abate nuisances and that the right of summary action (immediate action) exists in common law under the police power. The general police power is also stated in our state constitution in Article XI, section 11:

Any county, city, town or township may make and enforce within its limits all such local police, sanitary and other regulations as are not in conflict with general laws.

Legal remedies to abate nuisances include:

• the filing of a criminal complaint,
• civil action, or
• abatement.

A public nuisance may be abated by any public body or officer authorized by law.

An individual may maintain a civil action for a public nuisance if the nuisance has been injurious to that individual, but not otherwise. Provisions in nuisance ordinances authorize a city or county to abate a nuisance on private property if the owner fails to do so by the date fixed by the city or county in the notice to abate.

Statutes Authorizing Cities and Towns to Abate Nuisances

• RCW 35.22.280(30) — First-Class Cities
• RCW 35.23.440(10) — Second-Class Cities
• RCW 35.27.410 — Towns
• RCW 35A.21.160 — A code city organized or reorganized under this title shall have all of the powers which any city of any class may have and shall be governed in matters of state concern by statutes applicable to such cities in connection with such powers to the extent to which such laws are appropriate and are not in conflict with the provisions specifically applicable to code cities.
• RCW 35.21.310 — Authorizes any city to enact an ordinance requiring the owner of a private property to remove or destroy vegetation overhanging or obstructing a street or sidewalk, to remove or destroy dead vegetation, and to remove or destroy all debris that is a fire hazard or a menace to the health, safety, or welfare of the public.

General Statutes for Counties, Cities and Towns

• Ch. 35.80 RCW — Provides for cities and counties to deal with major problems which make structures a health hazard or uninhabitable. The chapter authorizes the establishment of an improvement board and/or the appointment of an enforcement officer. If the procedures are followed correctly and an owner of property refuses to comply with an order to clean up the property, the board can authorize the work to be done and the amount such work costs to be entered onto the tax rolls against the property. The city or county needs to appoint an administrative appeals commission, and the owner can appeal any final decision of the appeals commission to superior court.
• RCW 46.55.240 — Provides for the removal of junk vehicles as a public nuisance from private property within the city or county. It provides specific authority for a city or county to adopt an ordinance establishing procedures for the abatement and removal as a public nuisance of junk motor vehicles or parts from private property.
• RCW 7.48.120 through 7.48.905 — Outline the standard nuisance abatement authority and court jurisdiction over nuisances. Note that RCW 7.48.250 and 7.48.260 provide both district and superior courts with the authority to impose fines for violation of nuisance ordinances, but only superior courts have the authority to issue orders and warrants of abatement. The procedure for recovering the costs of the abatement is set out in RCW 7.48.280.
• RCW 35.21.955 (first- and second-class cities and towns) and RCW 35A.21.405 (code cities) — Authorize cities and towns that exercise their authority to abate nuisances to levy a special assessment against property for the expense of abatement. The special assessment constitutes a lien against the property and is binding on successors in title from the date the lien is recorded with the county. Up to $2,000 of the recorded lien is of equal rank with state, county, and municipal taxes. Cities and towns levying the special assessment may contract with the county treasurer to collect the special assessment through the property tax collection process in accordance with RCW 84.56.035. In cases where the nuisance threatens health or safety, the city or town must provide prior notice to the property owner that an abatement is pending and that a special assessment may be levied on the property for the expense of abatement. In all other cases, the city or town must notify both the property owner and any identifiable mortgage holder.

Statutes Specific to Counties

• RCW 36.32.120(10) — Laws of 2003, ch. 337 provide statutory authority for counties to declare what shall be a nuisance, to abate a nuisance, and to impose and collect fines upon parties who may create a nuisance.
• RCW 70.05.070(5) — Some counties provide that the county health officer shall have the powers enumerated in this statute. Included in that list of powers is the authority to "prevent, control or abate nuisances which are detrimental to the public health."
• Ch. 17.04 RCW — Authorizes the creation of Weed Control Districts for the purpose of destroying, preventing, or exterminating; or to prevent the introduction, propagation, cultivation, or increase of any particular weed, weeds or plants, or all weeds or plants that are classed by the agricultural experiment station of Washington State University as noxious weeds or plants detrimental to crops, fruit, trees, shrubs, valuable plants, forage, or other agricultural plants or produce.
• Ch. 17.06 RCW — Authorizes the creation of Intercounty Weed Districts to carry out the purposes set forth in RCW 17.04.010.
• Ch. 17.10 RCW — Authorizes the creation of Noxious Weed Control Boards.