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  • WisBar News
    January 24, 2019

    Noise Nuisance: Each Concert is a Separate Event for Notice of Injury Purposes

    Joe Forward

    Summer Concert

    Jan. 24, 2019 – Each time the Village of Sister Bay – a tourist hotspot in Door County – puts on a summer concert alleged to be a nuisance, the timer to file a statutory notice of injury with the village restarts, the Wisconsin Supreme Court has ruled.

    In 2016, the Yacht Club at Sister Bay Condominium Association (Yacht Club) served the Village of Sister Bay (Sister Bay) with a written notice of injury, a requirement when a party intends to pursue a legal action against a municipality in Wisconsin.

    Under Wis. Stat. section 893.80(1d), the notice of injury must be served “within 120 days after the happening of the event giving rise to the claim.”

    Failure to give the notice bars action on the claim unless the municipality “had actual notice of the claim and the claimant shows to the satisfaction of the court that the delay or failure to give the requisite notice has not been prejudicial” to the municipality.

    Sister Bay, which received an anonymous donation to build a concert pavilion at a public waterfront park, built the pavilion and held the first concert in 2014. The pavilion, which typically hosts live music events, faces in the direction of the nearby Yacht Club.

    Owners of the Yacht Club’s condo association complained that the summer, waterside concerts were too loud, often ran after park hours – as late as midnight – and kept residents awake with music “loud enough to cause windows and personal property to shake and shudder from the intensity of the volume produced by these performances.”

    Although the first concert was held in the summer of 2014, the Yacht Club did not serve its notice of injury upon Sister Bay until 2016. Sister Bay argued that any legal action was barred because the Yacht Club failed to meet the 120-day notice requirement.

    That is, Sister Bay said the Yacht Club had 120 days from the first concert, in 2014, to serve its notice. But the notice – which alleged noise pollution that interferes with the Yacht Club’s use and enjoyment of its property – was not served until two years later.

    The Yacht Club still filed the civil action, alleging a private and public nuisance that last occurred in September 2015. The plaintiffs sought damages for loss of property value and annoyance and invasion of property rights, and an injunction to stop the concerts.

    The Door County Circuit Court dismissed the Yacht Club’s action, concluding that the 120-day notice of injury requirement barred the civil action because the Yacht Club needed to serve the notice of injury within 120 days of the first concert in 2014.

    The circuit court also rejected the Yacht Club’s claim that Sister Bay had “actual notice” and was not prejudiced by the delay in serving the 120-day notice of injury because the Yacht Club did not meet its burden to prove the delay was not prejudicial. An appeals court affirmed the circuit court’s decision that notice of injury was not timely filed.

    Reversed in Part, Affirmed in Part

    In The Yacht Club at Sister Bay Condominium Association Inc. v. Village of Sister Bay, 2019 WI 4 (Jan. 18, 2019), the Wisconsin Supreme Court unanimously clarified that each concert was a new event giving rise to a claim, restarting the 120-day clock.

    Thus, each time Sister Bay held a concert considered a nuisance by the Yacht Club, the Yacht Club had 120 days from the date of that concert to file its notice of injury; the 120-day notice of injury clock was not tied to the first concert in the summer of 2014.

    “We conclude that each concert that is alleged to be a nuisance constitutes a separate event for purposes of filing written notice of injury,” wrote Justice Ann Walsh Bradley.

    The supreme court looked to the common law of nuisance, as noted in cases dating back to 1875, stating that “every continuance of a nuisance is, in law, a new nuisance.”

    “[T]his precedent establishes that each use of the performance pavilion that constitutes a nuisance, is a new nuisance for which an injured party has a remedy for any damages incurred. Some concerts may be nuisances and some may not,” A.W. Bradley wrote.

    However, the supreme court still affirmed the conclusion that the Yacht Club did not timely file the notice of injury “because the Yacht Club failed to serve its written notice of injury within 120 days after the date of the last concert alleged to be a nuisance.”

    The Yacht Club alleged that the last nuisance-causing concert was Sept. 1, 2015, but did not serve the notice of injury until March 7, 2016, which was not within 120 days.

    Together, these decisions mean that if Sister Bay holds a future concert the Yacht Club considers a public or private nuisance, the Yacht Club can serve Sister Bay with a notice of injury within 120 days and a subsequent lawsuit won’t be barred as untimely, at least under section 893.80(1d).

    Distinguishing E-Z Roll Off

    The supreme court also distinguished its 2011 decision in E-Z Roll Off LLC v. County of Oneida, in which the court concluded that the “continuing violations doctrine” did not apply to trigger a new notice period each time an alleged antitrust violation occurred.

    In E-Z Roll Off, the plaintiff – a private company (E-Z Roll Off) that hauled solid waste – paid a greater per ton “tipping fee” than another private company that had a contract with the county. The county alleged that E-Z Roll Off did not timely file the notice of injury, but E-Z Roll Off said a new notice period began each time it paid a higher fee.

    The supreme court rejected E-Z Roll Off’s argument, concluding that this interpretation would conflict with the statute’s purpose: to give government entities a chance to compromise before a lawsuit is filed, or to budget for potential settlement or litigation.

    In the instant case, however, the court noted that its E-Z Roll Off decision was limited to the anti-trust context and the potential for “limitless liability” was not the same.

    “Here, in contrast, there is no assertion that each and every concert is a nuisance,” Justice A.W. Bradley wrote. “The Yacht Club seeks redress only for those concerts that it alleges to be nuisances. Each concert is a unique event that is different from previous concerts with respect to noise levels and length of time.”

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