This morning, the Supreme Court released its opinion affirming the decision in West St. Paul v. Krengel. The Court of Appeals previously ruled against the City’s use of a nuisance-abatement injunction because the City lacked evidence of two instances of public nuisance within a 12-month period. The Supreme Court “simplified” the analysis, finding that Krengel had “abated” the nuisance and thus the law barred the City from seeking the injunction. The Court makes clear that the amount of time the nuisance is cleared doesn’t matter, though timing was central to the Court of Appeals opinion: “the abatement of statutorily-defined nuisance activity … prevents the prosecuting attorney from seeking an injunction under the Public Nuisance Law.” In a footnote to that sentence, the Court refuses to interpret “within 12 months,” finding it irrelevant.
By shaping their ruling this way, the Supreme Court has either exposed a big hole in the nuisance-abatement statute or rendered a section of it effectively meaningless. When a city gets to the point (usually after a long, long history with the property) of filing for a nuisance injunction, the property owner has three choices: fight, fix the problem immediately, or enter into a nuisance abatement plan. In developing a nuisance-abatement plan, especially for a behavioral nuisance problem like in the Krengel case, the city wants to get at some of the underlying causes behind the nuisance, like chemical dependence, and wants to be able to verify compliance. Despite a clause in the statute which seems to indicate that the city can pick up the injunction case if there’s a failure to comply with the abatement plan, the Supreme Court today rules that the “abatement” of a nuisance completely severs any ability to pursue the injunction. Without the ability to bring the injunction back before the court, there is no remedy available to a city for failures to comply with the nuisance abatement plan which are not in themselves public nuisances. All agreement terms beyond “knock it off” are unenforceable.
With that as the rule, it’s not clear why cities should even bother with agreements – either the nuisance exists or it doesn’t. If the city can’t follow through on making the owner address root causes or even agree to compliance inspections, there’s no upside to stopping the injunction process because the owner promises to straighten things out. Remember, barring someone from their property for a year is a compliance tool of last resort, after code citations and other efforts to solve the problem have utterly failed. At this stage, there’s no trust between the city and the landowner. From the City’s perspective, it seems better to get the temporary injunction and then discuss achieving compliance over time. This doesn’t seem to be what the Legislature had in mind (it made several tweaks to timing provisions in reaction to the Court of Appeals decision). Without a statutory remedy for abatement-agreement problems (say, making those a basis for obtaining an injunction, or at least allowing the parties to agree to make them the basis for an injunciton), a public-nuisance injunction case is going to be an all-or-nothing matter.