March/April 2019 Issue
Also in this issue: What Constitutes a Quasi-governmental Corporation Subject to Wisconsin Public Records Law? | The FCC's Small Cell Order: The Down and Dirty
Each Concert at a Public Park was a Separate Event for Purposes of Providing Notice of a Private Nuisance Claim Against a City
The Wisconsin Supreme Court has held that, in the context of a private nuisance claim, each concert held at a public park was a separate event for purposes of providing timely notice of a claim to a municipality. The Yacht Club at Sister Bay Condominium Association v. Village of Sister Bay, 2019 WI 4 (Jan. 18, 2019) (“Yacht Club”).
The village completed construction of a performance pavilion in a public park by August 1, 2014. It immediately began hosting performances, which typically involved live music and often continued past official park hours. The condominium association owned a condominium complex within several hundred feet of the pavilion and due to the layout, the sound of performances was amplified and directed straight toward the complex. On March 6, 2016, the association served a notice of claim on the village asserting that the noise from the concerts substantially interfered with the residents’ quiet enjoyment of their property and constituted a private nuisance. The complaint alleged that the last concert took place on or about September 1, 2015.
The issue reviewed by the Supreme Court was whether the concerts taken together were a single ongoing event, or if each concert was a separate event for purposes of the notice of claim statute, section 893.80(1d). The village argued, and the circuit court held, that the claim arose in August 2014 when the residents started noticing problems with noise. The association argued that the last concert in September 2015 was a separate event. In either case, the association did not meet the formal statutory requirement to provide notice of the claim within 120 days of the event. However, the case was to be remanded for a determination of whether the village had actual notice and was not prejudiced — an alternative to timely formal notice. Therefore, the issue was still relevant.
The Court concluded that nature of the claim asserted — private nuisance — was determinative. It cited the well settled common law of nuisance that every continuance of a nuisance is, as a matter of law, a new nuisance. The Court distinguished the case from E‑Z Roll Off, LLC v. County of Oneida, 2011 WI 71, 335 Wis. 2d 720, 800 N.W.2d 421 (“E‑Z Roll Off”), which involved Wisconsin antitrust law. In that case, Oneida County had entered into a waste hauling contract under which a hauling company would pay a $5.25 per ton tipping fee whereas every other hauler would pay $54 per ton. Another hauler served a notice of claim and filed suit alleging violations of section 113.18, Wis. Stats. The Supreme Court rejected E‑Z Roll Off’s argument that each time it delivered a load of waste was a separate violation and affirmed the dismissal of the case for failure to comply with the notice of claim statute.
The Court noted several distinctions between the two cases. First, the plaintiff in E‑Z Roll Off had not cited any authority for applying the continuing violation rule to the notice of claim statute. Second, the court in that case had explicitly limited its holding to the antitrust context. Finally, whereas in E‑Z Roll Off every incident of dumping had the same alleged violation, i.e., the differential tipping fee, in Yacht Club each concert was different. The Court gave a hypothetical comparison of an unamplified string quartet performance that ends at 8 p.m. and a concert with amplified heavy metal music that goes on past midnight. The association was not asserting that every concert was a nuisance. The village’s theory could deprive the association of its ability to assert a nuisance claim for some later concerts by not objecting to all of them from the start.
The takeaway from E‑Z Roll Off and Yacht Club is that there is not a bright line rule on whether a continuation of conduct will be treated as a single event or a series of separate events for purposes of providing notice of claims under section 893.80(1d). It will depend on the legal theory and the nature of the claim.
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