Nuisance on the North Coast of Oregon

On the north coast of Oregon, a property owner having issues with a neighbor or with another person or entity whose actions harm their interest may want to consider whether they have claims for nuisance. Nuisance claims would be brought in the county where the property harmed is located, although if the conduct of the bad actor took place in another county or state, theoretically one might consider whether to file a lawsuit in that jurisdiction.

Generally, on the north coast, nuisance claims impacting property located in Clatsop County, Oregon, would be brought in Clatsop County Circuit Court, in Astoria, Oregon, while such claims impacting property located in Tillamook County, Oregon, would be brought in Tillamook County Circuit Court, in Tillamook Oregon.

A private nuisance can be defined as an unreasonable invasion of a person’s interest in the use and enjoyment of the person’s land. On the other hand, a public nuisance can be defined as an unreasonable interference with a right common to the general public.

Liability for a nuisance may be triggered by intentional, negligent, or reckless conduct, by operation of an abnormally dangerous activity, or by violation of a statute or ordinance that specifically defines an activity as a nuisance. Even if conduct seems to qualify as a nuisance, it must be the type of conduct for which there is legal responsibility; i.e., not everything that appears to be a “nuisance” will trigger legal liability for the person or entity which causes it.

Whether a particular situation would rise to the level of a private nuisance depends on the facts and circumstances involved and how the law applies. Under ORS 105.505, “[a]ny person whose property or personal enjoyment thereof is affected by a private nuisance” may maintain an action for damages.

A lawsuit for a public nuisance may be filed by the State of Oregon, by a member of the public who can demonstrate a “special injury” from the public nuisance, and by any other parties permitted to do so by statute. “Special injury” is injury to a private claimant that is different in kind from injury suffered by the general public.

Generally speaking, a nuisance claims requires a party to prove the following elements:

  1. Substantial interference;
  2. Unreasonable interference;
  3. Culpable conduct;
  4. Causation.

Whether a particular activity rises to the level of substantial and unreasonable interference is highly dependent on the nature and scope of the activity and the particular facts of how the injured party is harmed.

Theoretically, a party may claim that an activity constitutes a nuisance per se or is an abnormally dangerous activity, but such theories may be exceedingly difficult to prove and are rare. Much of Oregon caselaw regarding nuisance per se and abnormally dangerous activity predates modern environmental regulations, zoning laws, and land use regulations.

Local governments, including county and municipal entities, may have their own nuisance legislation with specific procedures regarding how local nuisances may be addressed; sometimes this legislation may be referred to as a “chronic nuisance ordinance.” Typically, such ordinances may only be enforced by the local government, not by individuals; however, individual property owners and others negatively affected by a nuisance may seek to consult with local government staff and officials on whether local nuisance legislation applies to a particular activity.

A party sued in a nuisance claim may have a variety of defenses available, depending on the facts and circumstances of the case. First, a party may claim that the party complaining of a nuisance came to the nuisance. I.e., the defense would be that the activity was ongoing and preexisted the injured party’s coming to the nuisance; because the injured party came to the nuisance and knew or should have known of it, they have no right to complain.

A second defense may be raised where a party engages in activity which is privileged or allowed under the authority of valid legislation or regulations. However, a party’s mere compliance with valid legislation or regulations may not automatically shield activity from nuisance liability.

Thirdly, contributory negligence or comparative fault is not available as a defense to private nuisance claims. However, contributory negligence may theoretically limit a party’s liability for damages caused by the injured party’s actions or failure to act.

Nuisance claims can turn greatly on the facts and circumstances involved, and the norms of one community may be different than those of another. E.g., a party seeking to bring a nuisance claim in Clatsop County, Oregon, based on the activities of a seafood processing plant may face an uphill battle given the history and culture of the community, which is closely related to the fishing industry. E.g., a party seeking to bring a nuisance claim in Tillamook County, Oregon, based on the activities of a dairy farm may face an uphill battle given the history and culture of the community, which is agricultural and closely related to the dairy industry.

In a private nuisance action, an injured party who prevails may recover damages as well as obtain an order of abatement, or if such an order would be inadequate to abate or prevent the nuisance, then the injured party might seek an injunction in court.

A party who successfully sues for nuisance may recover compensatory damages, and in egregious cases, punitive damages. Compensatory damages are measured against depreciation in the fair market value of property for long-term interference, and rental or use value for temporary interference. If the injured party has suffered discomfort, annoyance, personal injury, or inconvenience as a result of the nuisance activity, consequential damages may be awarded in addition to an award of compensatory damages. A party seeking an injunction faces a high bar to recovery and must be prepared to present strong evidence that this extraordinary remedy would be appropriate.

At Coast Land Law, we help clients with nuisance issues, from understanding nuisance rights, to assisting with nuisance negotiations, to filing and defending lawsuits involving nuisance claims. Please contact Coast Land Law, 503-470-7070, for a consultation about you can best protect your property rights.

Categories: Real Estate Issues

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