The legislature has the authority to declare what will be deemed nuisances and to provide for their suppression[i]. However, the legislature has no power to declare arbitrarily and capriciously any or every act a nuisance[ii].
The legislature’s power over nuisances is subject to constitutional limitations such as:
- the guarantee of equal protection[iii],
- the prohibition of vague or overbroad statutes[iv],
- the guarantee of freedom of association[v], and
- the prohibition of unreasonable or arbitrary action[vi].
The legislature cannot enlarge its power over a property by declaring it to be a nuisance[vii]. Further, the legislature may not, for purely aesthetic reasons, declare a legitimate use of property to be a nuisance.
Nuisance ordinances must not violate due process guarantees[viii]. The due process test is[ix]:
- whether the regulation is aimed at achieving a legitimate public purpose;
- whether it uses means that are reasonably necessary to achieve that purpose; and
- whether it is unduly oppressive on the landowner.
As per the First Amendment rights Congress should make no law prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press[x]. Nuisance laws are inapplicable when First Amendment concerns are involved.
Although the regulation of obscene expression is unquestionably a legitimate matter for state control, it does not follow that the doctrine of public nuisance can be constitutionally applied to obscenity if it has the effect of imposing prior restraints upon freedom of speech or press[xi].
[i] Napro Dev. Corp. v. Berlin, 135 Vt. 353 (Vt. 1977).
[ii] Adams v. Commissioners of Trappe, 204 Md. 165 (Md. 1954).
[iii] City of Panama City v. Head, 797 So. 2d 1265 (Fla. Dist. Ct. App. 1st Dist. 2001).
[iv] City of Clarkson Valley v. Jones, 872 S.W.2d 531 (Mo. Ct. App. 1994).
[v] State v. Schultz, 218 Wis. 2d 798 (Wis. Ct. App. 1998).
[vi] CEEED v. California Coastal Zone Conservation Com., 43 Cal. App. 3d 306 (Cal. App. 4th Dist. 1974).
[vii] Ghaster Props. v. Preston, 184 N.E.2d 552 (Ohio C.P. 1962).
[viii] City of Panama City v. Head, 797 So. 2d 1265 (Fla. Dist. Ct. App. 1st Dist. 2001).
[ix] City of Seattle v. McCoy, 101 Wn. App. 815 (Wash. Ct. App. 2000).
[x] USCS Const. Amend. 1.
[xi] State v. A Motion Picture Entitled “The Bet”, 219 Kan. 64 (Kan. 1976).