Governmental Power to Regulate, Prohibit, and Abate Nuisances

The suppression of nuisances injurious to the public health or morality is among the most important duties of government[i].

In the exercise of its police power, the state has the authority to prevent or abate nuisances, for the police power is the sovereign right of the state to enact laws for the protection of lives, health, morals, comfort and general welfare[ii].  Also, under this power and subject to constitutional limitations, the legislature has the authority to declare what will be deemed nuisances and to provide for their suppression[iii].

To justify the State in interposing its authority on behalf of the public, it must appear that the[iv]:

  • interests of the public generally, as distinguished from those of a particular class, require such interference; and
  • means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.

 

A State may interfere wherever the public interest demand it, and in this respect, wide discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests[v].

Congress has a power similar to that of the states as to the regulation and suppression of nuisances with respect to territory under its control[vi].  For example, federal statutes:

  • authorize the Secretary of Agriculture to conduct activities and enter into agreements with states, local jurisdictions, individuals, and public and private agencies, organizations, and institutions in the control of nuisance animals and birds[vii].
  • authorize the removal of pets that constitute a nuisance from federally assisted rental housing for the elderly or handicapped[viii].
  • provide that marine mammal protection statutes do not prevent certain officials or other persons from taking by nonlethal removal, in the course of such person’s duties, nuisance marine animals[ix].
  • provide for the prevention of the unintentional introduction and dispersal of nonindigenous species into waters of the U.S. through ballast water management and other requirements[x].
  • provide for a covenant in leases of certain Indian reservation land that the lessee will not commit or permit on leased land any act which causes a nuisance[xi].

 

The police power of the state to control matters which are or may be considered nuisances is extremely broad[xii].  The instances are numerous in which acts and things not nuisances at common law, and in themselves harmless and inoffensive or even beneficial, and only subject to become offensive to the public health or comfort by improper use, have been by statute declared nuisances.

However, the legislature has no power to declare arbitrarily and capriciously any act a nuisance[xiii].

Further, the legislature may delegate to administrative officers the authority to determine whether certain things constitute public nuisances, with the power to abate them[xiv].

The legislature may also confer upon a local board the authority to exercise the police power of the state when, in the judgment of such board, the conditions exist which the legislature has declared will constitute a nuisance.

[i] Marsland v. Pang, 5 Haw. App. 463 (Haw. Ct. App. 1985).

[ii] Orlando Sports Stadium, Inc. v. State, 262 So. 2d 881 (Fla. 1972).

[iii] Napro Dev. Corp. v. Berlin, 135 Vt. 353 (Vt. 1977).

[iv] Lawton v. Steele, 152 U.S. 133 (U.S. 1894).

[v] Id.

[vi] Camfield v. United States, 167 U.S. 518 (U.S. 1897).

[vii] 7 USCS § 426c.

[viii] 12 USCS § 1701r-1.

[ix] 16 USCS § 1379.

[x] 16 USCS § 4701.

[xi] 25 USCS § 416a.

[xii] King v. Blue Mountain Forest Ass’n, 100 N.H. 212 (N.H. 1956).

[xiii] Adams v. Commissioners of Trappe, 204 Md. 165 (Md. 1954).

[xiv] Id.


Inside Governmental Power to Regulate, Prohibit, and Abate Nuisances