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Abatement by Municipal Corporations

The community as a whole suffers injury, loss, or damage in public nuisance.  The suppression of nuisances injurious to public health or morals is among the most important duties of a government.  A public nuisance can be abated by a public body.  A municipal corporation, being the basic local administrative division, is entrusted with the power to abate a public nuisance.  Additionally, it is the duty of a municipal corporation to abate public nuisances.  Usually, a municipality issues ordinance to abate nuisances.

The Common Law entrusts upon every municipality the power to abate nuisances.  Many of the state statutes empower municipalities to make and enforce ordinances to provide for the removal of a building or structure which is or may become dangerous to life or health[i].  When a statute authorizes a municipality to suppress or abate a particular thing and business, dangerous or detrimental to the public health, further definition by ordinance is unnecessary.  Thus, regardless of the statute or ordinance, a city has a common-law right to abate a public nuisance[ii].  The right is inherent in every municipality.  When a municipality cannot abate nuisances, it can destroy the thing which constitutes the nuisance.  Abatement of a nuisance is the exercise of a power long possessed by municipal corporations and closely connected with the purposes for which a corporation is organized[iii].

Nuisance abatement, as a means to promote public health, safety, and welfare, is a valid goal of municipal police power[iv].

However, the power to summarily abate a nuisance must be reasonably exercised.  The exercise of power shall not unnecessary injure a person or the property of citizens.  The enactment and enforcement of ordinances related to municipal concerns is a valid exercise of municipal police powers as long as the ordinance does not conflict with the constitution or general laws[v].

Under general law, in the case of an emergency, a municipality has the power to provide for the summary abatement of nuisances by municipal officials.  In such proceedings, a municipality can charge the cost of abatement to the property owner and to assess such cost a lien against the property involved.  Such special or summary proceedings for abatement are valid where they afford the essential elements of due process of law.  The due process clause of the Fourteenth Amendment to the U.S. Constitution requires the city to provide a property owner with adequate notice and hearing before it exercises the police power to declare and abate a nuisance in a non-emergency situation.  Notice must be reasonably calculated to apprise interested parties the pendency of the action and afford them an opportunity to present their objections.  Before proceeding in a non-emergency situation, the municipality should:

  • inform the property owner of the city’s declaration that a property is a nuisance;
  • inform the owner of what the owner must do to prevent the city from abating the nuisance at the owner’s expense; and
  • provide the owner with a hearing to contest the declaration and abatement order[vi].

 

Additionally, when a local government, in the proper exercise of its delegated powers, summarily abates a public nuisance, it may compel the owner of the property involved to bear the cost of abatement[vii].

Abatement of nuisances is a governmental function.  No liability can arise against a municipality for the destruction of property which is a nuisance, but it must be a nuisance in fact[viii].

[i] N.J. Stat. § 40:48-1.

[ii] Potashnick Trust Service, Inc. v. Sikeston, 351 Mo. 505, 513 (Mo. 1943).

[iii] Baumgartner v. Hasty, 100 Ind. 575, 580 (Ind. 1885).

[iv] Cady v. Detroit, 289 Mich. 499, 505 (Mich. 1939).

[v] Rental Prop. Owners Ass’n v. City of Grand Rapids, 455 Mich. 246, 254 (Mich. 1997).

[vi] Meyer v. Jones, 696 N.W.2d 611, 614 (Iowa 2005).

[vii] Gregory v. New York, 40 N.Y. 273, 276 (N.Y. 1869).

[viii] Denver v. Davis, 37 Colo. 370, 374 (Colo. 1906).


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