A community in Wisconsin raised concerns about a brewpub that was emitting exhaust so foul that some neighbors were not able to use their back yards. The Network was asked if the problem with the exhaust could be considered a public health concern, and what laws might be relevant to the situation.
The Network found that laws concerning public nuisance would be the most applicable to addressing this type of issue. The relevant Wisconsin statute does not define “public nuisance,” but identifies certain activities as nuisances, so at the state level, there is no clear legal answer to whether the brewpub’s emissions could be defined as a public nuisance. However, Wisconsin grants local communities considerable authority under the state structure to define what constitutes a nuisance within a community, and also indicates that repeated violation of municipal ordinances is a public nuisance. For example, the village of Slinger, in Washington County, Wisconsin, defines “noxious odors” as a public nuisance affecting health:
Any use of property, substances or things within the Village emitting or causing any foul, offensive, noisome, nauseous, noxious or disagreeable odors, gases, effluvia or stenches extremely repulsive to the physical sense of ordinary persons which annoy, discomfort, injure or inconvenience the health of any appreciable number of persons within the Village.
A Marquette Law Review article provides an overview of public nuisance law in Wisconsin and some of the challenges and opportunities of using public nuisance law to effect change.
Though not directly applicable to Wisconsin law, a guidance document the Network prepared in partnership with the New Hampshire Department of Health and Human Services provides a good overview of how public nuisance can be addressed at a federal, state, and local level.
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