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2023 - 2024 LEGISLATURE
2023 ASSEMBLY BILL 1157
March 22, 2024 - Introduced by Representative GUNDRUM. Referred to Committee
on Criminal Justice and Public Safety.
AN ACT to repeal 823.02; to renumber and amend 823.01 and 823.015; to
amend 823.03, 823.04, 823.05 and 823.06; and to create subchapter I (title)
of chapter 823 [precedes 823.001], 823.001, 823.002, 823.01 (1), 823.012,
823.013, 823.021, 823.024, subchapter II (title) of chapter 823 [precedes
823.029] and subchapter III (title) of chapter 823 [precedes 823.065] of the
statutes; relating to: abrogating the common law and codifying the law of
public nuisance.
Analysis by the Legislative Reference Bureau
This bill abrogates the common law of public nuisance and codifies the law of
public nuisance.
The bill defines “public nuisance” to mean an unlawful condition that violates
a right common to the general public to use public real property, and the bill defines
“unlawful condition” to mean a condition, activity, or situation that is expressly
prohibited by the laws of this state. The bill provides that a person may be held liable
for creating or maintaining a public nuisance only if the person controls the public
nuisance at the time a cause of action for public nuisance arises.
The bill provides that only the following persons may maintain a public
nuisance action:
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ASSEMBLY BILL 1157
1. The state or the city, village, town, or county (political subdivision) that has
a substantial ownership interest in or authority over the real property, or the
ancillary space related to the real property, to which the public nuisance relates.
2. A nongovernmental person (private party) that suffers injuries peculiar to
the private party, so far as necessary to protect the private party's rights and to
obtain an injunction to prevent the same.
If the plaintiff is the state or a political subdivision (governmental body), all of
the following apply:
1. The governmental body may maintain the public nuisance action only by an
attorney employed by the governmental body.
2. If more than one governmental body is a plaintiff, there is a presumption that
only one governmental body has standing to maintain the action, and the court must,
on its own motion, determine which governmental bodies have standing.
3. The governmental body may not maintain the public nuisance action solely
to recover a financial expenditure of the governmental body related to the
remediation, abatement, or injunction of an unlawful condition.
If the plaintiff is a private party, all of the following apply:
1. The private party bears the burden of establishing by clear and convincing
evidence that the private party suffered an injury peculiar to the private party.
2. The fact that public real property has a spiritual, cultural, emotional, or
otherwise personal significance to a private party is not, by itself, sufficient to
establish that the use of or damage to the real property is an injury peculiar to the
private party.
3. The private party may not maintain both a public nuisance action and a
private nuisance action related to damages resulting from the same unlawful
condition.
The bill limits the remedies available in an action for public nuisance to only
the following:
1. Injunctive relief sufficient to abate the public nuisance.
2. Monetary damages in an amount reasonably necessary to abate the public
nuisance but not including a) speculative estimates of current needs, b) costs of
future remediation, c) costs of investigating and identifying the existence of an
unlawful condition, or d) costs of public services provided as a result of the public
nuisance.
3. Compensatory damages for a private party's injury that is peculiar to the
private party.
For further information see the state and local fiscal estimate, which will be
printed as an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
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SECTION 1
ASSEMBLY BILL 1157
SECTION 1. Subchapter I (title) of chapter 823 [precedes 823.001] of the statutes
is created to read:
CHAPTER 823
SUBCHAPTER I
PUBLIC NUISANCES; GENERALL Y
SECTION 2. 823.001 of the statutes is created to read:
823.001 Abrogation of common law. The common law of public nuisance
in this state is abolished.
SECTION 3. 823.002 of the statutes is created to read:
823.002 Definitions. In this subchapter:
(1) “Government attorney” means an attorney regularly employed on a
salaried basis by this state or a political subdivision. “Government attorney” does
not include an attorney hired on a contingency fee or hourly basis or on a short-term
or temporary basis, including a legal fellow, special prosecutor, or other similar
provisional position.
(2) “Political subdivision" means a city, village, town, or county.
(3) “Public nuisance” means an unlawful condition that violates a right
common to the general public to use public real property.
(4) “Real property” includes the waters of the state, as defined under s. 281.01
(18).
(5) “Unlawful condition” means a condition, activity, or situation that is
expressly prohibited by the laws of this state.
SECTION 4. 823.01 of the statutes is renumbered 823.01 (intro.) and amended
to read:
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SECTION 4 ASSEMBLY BILL 1157
823.01 Jurisdiction over Causes of action for public nuisances. (intro.)
Any person, county, city, village or town of the following persons may maintain an
action to recover damages or to abate a public nuisance from which:
(2) PRIVATE ACTION. Subject to s. 823.013, a nongovernmental person that
suffers injuries peculiar to the complainant are suffered person, so far as necessary
to protect the complainant's person's rights and to obtain an injunction to prevent the
same.
SECTION 5. 823.01 (1) of the statutes is created to read:
823.01 (1) GOVERNMENTAL ACTION. Subject to s. 823.012, the state or a political
subdivision that has a substantial ownership interest in or authority over the real
property, or the ancillary space related to the real property, to which the public
nuisance relates.
SECTION 6. 823.012 of the statutes is created to read:
823.012 Enforcement by government. (1) The state or a political
subdivision that maintains a public nuisance action authorized under s. 823.01 (1)
may maintain the action only by a government attorney employed by the state or that
political subdivision.
(2) In a public nuisance action maintained under s. 823.01 (1) by more than one
political subdivision, or by the state and one or more political subdivisions, the court
shall, on its own motion, determine which governmental parties have standing to
maintain the action. There is a presumption under this subsection that only one
governmental party has standing, which may be rebutted with clear and convincing
evidence.
(3) The state or a political subdivision may not maintain a public nuisance
action under s. 823.01 (1) solely to recover a financial expenditure by the state or
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SECTION 6
ASSEMBLY BILL 1157
political subdivision related to the remediation, abatement, or injunction of an
unlawful condition.
SECTION 7. 823.013 of the statutes is created to read:
823.013 Enforcement by private parties. (1) In an action to enjoin a public
nuisance under s. 823.01 (2), a nongovernmental person bears the burden of
establishing by clear and convincing evidence that the person suffered an injury
peculiar to the person.
(2) The fact that public real property has a spiritual, cultural, emotional, or
otherwise personal significance to a nongovernmental person is not, by itself,
sufficient to establish that the use of or damage to the real property is an injury
peculiar to the person for purposes of s. 823.01.
(3) A nongovernmental person may not maintain both a public nuisance action
under s. 823.01 (2) and a private nuisance action related to damages resulting from
the same unlawful condition.
SECTION 8. 823.015 of the statutes is renumbered 823.029 and amended to
read:
823.029 Action against condominium association. If a city, village, town,
or county has grounds under this chapter to abate a private nuisance occurring upon
the common elements of a condominium and the failure of a condominium
association under ch. 703 to perform its duties to maintain and control the common
elements is a reason the nuisance has not been abated, an action for a receivership
under ch. 823 may be brought against the condominium association whether it is
incorporated or unincorporated. This section does not authorize the seizure of
condominium buildings or units.
SECTION 9. 823.02 of the statutes is repealed.
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SECTION 10 ASSEMBLY BILL 1157
SECTION 10. 823.021 of the statutes is created to read:
823.021 Liability for public nuisance. A person may be held liable for
creating or maintaining a public nuisance only if the person controls the public
nuisance at the time a cause of action under this subchapter arises.
SECTION 11. 823.024 of the statutes is created to read:
823.024 Remedies for public nuisance. (1) In a public nuisance action
under this subchapter, a court may award only the following relief:
(a) Injunctive relief sufficient to abate the public nuisance.
(b) Monetary damages in an amount reasonably necessary to abate the public
nuisance. Damages under this paragraph do not include any of the following:
1. Speculative estimates of current needs.
2. Costs of future remediation.
3. Costs of investigating and identifying the existence of an unlawful condition.
4. Costs of public services provided as a result of the public nuisance.
(c) Compensatory damages for a nongovernmental plaintiff's injury that is
peculiar to the plaintiff as described under s. 823.01.
(2) The plaintiff shall establish the amount of any damages described under
sub. (1) (b) by clear and convincing evidence.
SECTION 12. Subchapter II (title) of chapter 823 [precedes 823.029] of the
statutes is created to read:
CHAPTER 823
SUBCHAPTER II
PRIVATE NUISANCES; GENERALL Y
SECTION 13. 823.03 of the statutes is amended to read:
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SECTION 13
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823.03 Judgment. In such actions an action for private nuisance, when the
plaintiff prevails, the plaintiff shall, in addition to judgment for damages and costs,
also have judgment that the nuisance be abated unless the court shall otherwise
order orders.
SECTION 14. 823.04 of the statutes is amended to read:
823.04 Execution and warrant. In case of judgment that the a private
nuisance be abated and removed, the plaintiff shall have execution in the common
form for the plaintiff's damages and costs and a separate warrant to the proper
officer requiring the officer to abate and remove the nuisance at the expense of the
defendant.
SECTION 15. 823.05 of the statutes is amended to read:
823.05 Warrant may be stayed. The court may, on the application of the
defendant in an action for private nuisance, order a stay of such warrant for such
time as may be necessary, not exceeding 6 months, to give the defendant an
opportunity to remove the nuisance, upon the defendant's giving satisfactory
security to do so within the time specified in the order.
SECTION 16. 823.06 of the statutes is amended to read:
823.06 Expense of abating, how collected. The expense of abating such a
private nuisance pursuant to such a warrant under s. 823.04 shall be collected by the
officer in the same manner as damages and costs are collected upon execution or may
be collected by finding the defendant personally liable for these expenses, as
provided in s. 74.53. The officer may sell any material of any fences, buildings, or
other things abated or removed as a private nuisance as personal property is sold
upon execution and apply the proceeds to pay the expenses of such abatement,
paying the residue, if any, to the defendant.
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SECTION 17 ASSEMBLY BILL 1157
SECTION 17. Subchapter III (title) of chapter 823 [precedes 823.065] of the
statutes is created to read:
CHAPTER 823
SUBCHAPTER III
NUISANCES; SPECIFIC ACTIONS
SECTION 18.0Initial applicability.
(1) This act first applies to a cause of action for public nuisance that accrues
on the effective date of this subsection.
(END)
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