The Yacht Club at Sister Bay Condominium Association, Inc. v. Village of Sister Bay
922 N.W.2d 95
Wis.2019Background
- Village of Sister Bay built a performance pavilion in Waterfront Park (completed Aug. 1, 2014) and began holding concerts, some late at night, with sound directed toward the Yacht Club condominium a few hundred feet away.
- Yacht Club alleges certain amplified concerts created excessive noise that interfered with residents’ quiet enjoyment and caused property vibration and sleep disturbance.
- Yacht Club served a written "notice of injury" under Wis. Stat. § 893.80(1d)(a) on March 7, 2016, stating the last use was on or about September 1, 2015.
- Village moved to dismiss for failure to timely serve the 120‑day notice of injury and for not filing an itemized claim under § 893.80(1d)(b); circuit court dismissed for untimeliness.
- Court of Appeals affirmed untimeliness, relying on E‑Z Roll Off; Supreme Court granted review to decide whether each allegedly nuisance concert restarts the 120‑day notice period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| What constitutes "the happening of the event giving rise to the claim" under § 893.80(1d)(a)? | Each individual concert that is a nuisance is a separate "event," restarting the 120‑day notice period. | The 120‑day window began when the pavilion was completed and concerts began in Aug. 2014 and should not reset for each concert. | Each concert alleged to be a nuisance is a separate event for § 893.80(1d)(a) purposes. |
| Does E‑Z Roll Off bar treating discrete occurrences as separate events under the notice statute? | E‑Z Roll Off is distinguishable; nuisance continuances are traditional separate wrongs. | E‑Z Roll Off's policy concerns (budgeting, avoiding limitless liability) require a contrary rule. | E‑Z Roll Off does not control here; allowing discrete nuisance notices does not create limitless municipal liability. |
| Was the Yacht Club's March 7, 2016 notice timely as to the last alleged nuisance concert (Sept. 1, 2015)? | Notice covered the last use and thus should be timely for any later alleged nuisance events. | Notice was filed after the 120‑day period following the Sept. 1, 2015 event and is untimely. | Yacht Club’s notice was not served within 120 days after the Sept. 1, 2015 concert and is untimely as to that event. |
| Can untimely notice be excused by actual notice and lack of prejudice to the municipality at the dismissal stage? | Village had actual notice and was not prejudiced; dismissal should be denied or court should consider excuse. | The statutory exception requires a showing; plaintiff bears burden at appropriate stage. | Supreme Court did not decide the actual notice/prejudice issue on review and remanded for the circuit court to address whether the Village had actual notice and was prejudiced. |
Key Cases Cited
- E‑Z Roll Off, LLC v. County of Oneida, 335 Wis. 2d 720 (2011) (refused to apply continuing violations theory in antitrust context because of notice statute policy concerns)
- Kull v. Sears, Roebuck & Co., 49 Wis. 2d 1 (1970) (every continuance or use of a nuisance is a new nuisance)
- State ex rel. Kalal v. Circuit Court for Dane Cty., 271 Wis. 2d 633 (2004) (framework for statutory interpretation)