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WEST virginia legislature
2023 regular session
Committee Substitute
for
Senate Bill 572
By Senators Maynard, Deeds, Stover, Trump, Maroney, and Stuart
[Originating in the Committee on the Judiciary; reported on February 24, 2023]
A BILL to amend and reenact §8-12-5 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §55-7-32, all relating to reforming the cause of action for public nuisance; providing definitions; outlining appropriate remedies; clarifying when municipal entities and individuals have standing to pursue a public nuisance action; and noting that any changes to current law of public nuisance have only prospective effect.
Be it enacted by the Legislature of West Virginia:
In addition to the powers and authority granted by: (i) The Constitution of this state; (ii) other provisions of this chapter; (iii) other general law; and (iv) any charter, and to the extent not inconsistent or in conflict with any of the foregoing except special legislative charters, every municipality and the governing body thereof shall have plenary power and authority therein by ordinance or resolution, as the case may require, and by appropriate action based thereon:
(1) To lay off, establish, construct, open, alter, curb, recurb, pave or repave and keep in good repair, or vacate, discontinue and close, streets, avenues, roads, alleys, ways, sidewalks, drains, and gutters, for the use of the public, and to improve and light the same, and have them kept free from obstructions on or over them which have not been authorized pursuant to the succeeding provisions of this subdivision; and, subject to such terms and conditions as prescribed by the governing body shall prescribe, to permit, without in any way limiting the power and authority granted by the provisions of §8-16-1 et seq. of this code, any person to construct and maintain a passageway, building or other structure overhanging or crossing the airspace above a public street, avenue, road, alley, way, sidewalk, or crosswalk, but before any permission for any person to construct and maintain a passageway, building, or other structure overhanging or crossing any airspace is granted, a public hearing thereon shall be held by the governing body after publication of a notice of the date, time, place, and purpose of the public hearing has been published as a Class I legal advertisement in compliance with the provisions of article three, chapter fifty-nine of §59-3-1 et seq. this code and the publication area for the publication shall be the municipality: Provided, That any permit so granted shall automatically cease and terminate in the event of abandonment and nonuse thereof for the purposes intended for a period of ninety 90 days, and all rights therein or thereto shall revert to the municipality for its use and benefit;
(2) To provide for the opening and excavation of streets, avenues, roads, alleys, ways, sidewalks, crosswalks, and public places belonging to the municipality and regulate the conditions under which any such opening may be made;
(3) To prevent by proper penalties the throwing, depositing, or permitting to remain on any street, avenue, road, alley, way, sidewalk, square, or other public place any glass, scrap iron, nails, tacks, wire, other litter or any offensive matter or anything likely to injure the feet of individuals, or animals, or the tires of vehicles;
(4) To regulate the use of streets, avenues, roads, alleys, ways, sidewalks, crosswalks, and public places belonging to the municipality, including the naming or renaming thereof, and to consult with local postal authorities, the Division of Highways, and the directors of county emergency communications centers to assure uniform, nonduplicative addressing on a permanent basis;
(5) To regulate the width of streets, avenues and roads, and, subject to the provisions of article eighteen of this chapter §8-18-1 et seq. of this code, to order the sidewalks, footways, and crosswalks to be paved, repaved, curbed, or recurbed and kept in good order, free and clean, by the owners or occupants thereof or of the real property next adjacent thereto;
(6) To establish, construct, alter, operate and maintain, or discontinue, bridges, tunnels and ferries and approaches thereto;
(7) To provide for the construction and maintenance of water drains, the drainage of swamps or marshlands and drainage systems;
(8) To provide for the construction, maintenance, and covering over of watercourses;
(9) To control and administer the waterfront and waterways of the municipality and to acquire, establish, construct, operate, and maintain and regulate flood control works, wharves and public landings, warehouses and all adjuncts and facilities for navigation and commerce and the utilization use of the waterfront and waterways and adjacent property;
(10) To prohibit the accumulation and require the disposal of garbage, refuse, debris, wastes, ashes, trash, and other similar accumulations whether on private or public property: Provided, That, in the event the municipality annexes an area which has been receiving solid waste collection services from a certificated solid waste motor carrier, the municipality and the solid waste motor carrier may negotiate an agreement for continuation of the private solid waste motor carrier services for a period of time, not to exceed three years, during which time the certificated solid waste motor carrier may continue to provide exclusive solid waste collection services in the annexed territory;
(11) To construct, establish, acquire, equip, maintain, and operate incinerator plants and equipment, and all other facilities for the efficient removal and destruction of garbage, refuse, wastes, ashes, trash, and other similar matters;
(12) To regulate or prohibit the purchase or sale of articles intended for human use or consumption which are unfit for use or consumption, or which may be contaminated or otherwise unsanitary;
(13) To prevent injury or annoyance to the public or individuals from anything dangerous, offensive, or unwholesome: Provided, That no abatement or other regulatory action seeking to address or otherwise remediate annoyance of any similar injury, where the underlying basis for the annoyance or similar injury is excessive noise, may be maintained against a venue that hosts sporting events, including, but not limited to, motor sports events, as long as that venue has been in regular operation hosting sporting events at its current location for a period of two years or more;
(14) To regulate the keeping of gunpowder and other combustibles;
(15) To make regulations guarding against danger or damage by fire;
(16) To arrest, convict, and punish any individual for carrying about his or her person any revolver or other pistol, dirk, bowie knife, razor, slingshot, billy, metallic or other false knuckles, or any other dangerous or other deadly weapon of like kind or character: Provided, That with respect to any firearm a municipality may only arrest, convict, and punish someone if they are in violation of an ordinance authorized by §8-12-5a of this code, a state law proscribing certain conduct with a firearm or applicable federal law;
(17) To arrest, convict, and punish any person for importing, printing, publishing, selling or distributing any pornographic publications;
(18) To arrest, convict, and punish any person for keeping a house of ill fame, or for letting to another person any house or other building for the purpose of being used or kept as a house of ill fame, or for knowingly permitting any house owned by him or her or under his or her control to be kept or used as a house of ill fame, or for loafing, boarding or loitering in a house of ill fame, or frequenting same;
(19) To prevent and suppress conduct and practices which are immoral, disorderly, lewd, obscene, and indecent;
(20) To prevent the illegal sale of intoxicating liquors, drinks, mixtures, and preparations;
(21) To arrest, convict, and punish any individual for driving or operating a motor vehicle while intoxicated or under the influence of liquor, drugs, or narcotics;
(22) To arrest, convict, and punish any person for gambling or keeping any gaming tables, commonly called "A, B, C," or "E, O," table or faro bank or keno table, or table of like kind, under any denomination, whether the gaming table be is played with cards, dice or otherwise, or any person who shall be is a partner or concerned in interest, in keeping or exhibiting the table or bank, or keeping or maintaining any gaming house or place, or betting or gambling for money or anything of value;
(23) To provide for the elimination of hazards to public health and safety and to abate or cause to be abated anything which in the opinion of a majority of the governing body is a public nuisance: Provided, That nothing in this subdivision shall be construed as to allow for a municipality or its governing body to bring an action or seek relief inconsistent with §55-7-32 of this code;
(24) To license, or for good cause to refuse to license in a particular case, or in its discretion to prohibit in all cases, the operation of pool and billiard rooms and the maintaining for hire of pool and billiard tables notwithstanding the general law as to state licenses for any such business and the provisions of section four, article thirteen of this chapter §8-13-4 of this code; and when the municipality, in the exercise of its discretion, refuses to grant a license to operate a pool or billiard room, mandamus may not lie to compel the municipality to grant the license unless it shall clearly appear appears that the refusal of the municipality to grant a license is discriminatory or arbitrary; and in the event that the municipality determines to license any business, the municipality has plenary power and authority and it shall be the duty of its governing body to make and enforce reasonable ordinances regulating the licensing and operation of the businesses;
(25) To protect places of divine worship and to preserve peace and order in and about the premises where held;
(26) To regulate or prohibit the keeping of animals or fowls and to provide for the impounding, sale, or destruction of animals or fowls kept contrary to law or found running at large;
(27) To arrest, convict, and punish any person for cruelly, unnecessarily or needlessly beating, torturing, mutilating, killing, or overloading, or overdriving, or willfully depriving of necessary sustenance any domestic animal;
(28) To provide for the regular building of houses or other structures, for the making of division fences by the owners of adjacent premises, and for the drainage of lots by proper drains and ditches;
(29) To provide for the protection and conservation of shade or ornamental trees, whether on public or private property, and for the removal of trees or limbs of trees in a dangerous condition;
(30) To prohibit with or without zoning the location of occupied house trailers or mobile homes in certain residential areas;
(31) To regulate the location and placing of signs, billboards, posters, and similar advertising;
(32) To erect, establish, construct, acquire, improve, maintain, and operate a gas system, a waterworks system, an electric system, or sewer system and sewage treatment and disposal system, or any combination of the foregoing (subject to all of the pertinent provisions of articles nineteen and twenty of this chapter §8-19-1 et seq. and §8-20-1 et seq. of this code, and particularly to the limitations or qualifications on the right of eminent domain set forth in articles nineteen and twenty §8-19-1 et seq. and § 8-20-1 et seq. of this code), within or without the corporate limits of the municipality, except that the municipality may not erect any system partly without the corporate limits of the municipality to serve persons already obtaining service from an existing system of the character proposed and where the system is by the municipality erected, or has heretofore previously been so erected, partly within and partly without the corporate limits of the municipality, the municipality has the right to lay and collect charges for service rendered to those served within and those served without the corporate limits of the municipality and to prevent injury to the system or the pollution of the water thereof and its maintenance in a healthful condition for public use within the corporate limits of the municipality;
(33) To acquire watersheds, water and riparian rights, plant sites, rights-of-way, and any and all other property and appurtenances necessary, appropriate, useful, convenient, or incidental to any system, waterworks or sewage treatment and disposal works, as aforesaid, subject to all of the pertinent provisions of articles nineteen and twenty of this chapter §8-19-1 et seq. and §8-20-1 et seq. of this code;
(34) To establish, construct, acquire, maintain and operate, and regulate markets and prescribe the time of holding the same;
(35) To regulate and provide for the weighing of articles sold or for sale;
(36) To establish, construct, acquire, maintain, and operate public buildings, municipal buildings or city halls, auditoriums, arenas, jails, juvenile detention centers or homes, motor vehicle parking lots, or any other public works;
(37) To establish, construct, acquire, provide, equip, maintain, and operate recreational parks, playgrounds and other recreational facilities for public use and in this connection also to proceed in accordance with the provisions of article two, chapter ten of §10-2-1 et seq. this code;
(38) To establish, construct, acquire, maintain, and operate a public library or museum or both for public use;
(39) To provide for the appointment and financial support of a library board in accordance with the provisions of article one, chapter ten §10-1-1 et seq. of this code;
(40) To establish and maintain a public health unit in accordance with the provisions of section two, article two, chapter sixteen of this code §16-2-2 of this code. Which The unit shall exercise its powers and perform its duties subject to the supervision and control of the West Virginia Board of Health and State Bureau for Public Health;
(41) To establish, construct, acquire, maintain, and operate hospitals, sanitarians, and dispensaries;
(42) To acquire, by purchase, condemnation or otherwise, land within or near the corporate limits of the municipality for providing and maintaining proper places for the burial of the dead and to maintain and operate the same and regulate interments therein upon terms and conditions as to price and otherwise as may be determined by the governing body and, in order to carry into effect the authority, the governing body may acquire any cemetery or cemeteries already established;
(43) To exercise general police jurisdiction over any territory without the corporate limits owned by the municipality or over which it has a right-of-way;
(44) To protect and promote the public morals, safety, health, welfare, and good order;
(45) To adopt rules for the transaction of business and the government and regulation of its governing body;
(46) Except as otherwise provided, to require and take bonds from any officers, when considered necessary, payable to the municipality, in its corporate name, with such sureties and in a penalty as the governing body may see fit, conditioned upon the faithful discharge of their duties;
(47) To require and take from the employees and contractors such bonds in a penalty, with such sureties and with such conditions, as the governing body may see fit;
(48) To investigate and inquire into all matters of concern to the municipality or its inhabitants;
(49) To establish, construct, require, maintain, and operate such instrumentalities, other than free public schools, for the instruction, enlightenment, improvement, entertainment, recreation, and welfare of the municipality's inhabitants as the governing body may consider necessary or appropriate for the public interest;
(50) To create, maintain, and operate a system for the enumeration, identification and registration, or either, of the inhabitants of the municipality and visitors thereto, or the classes thereof as may be considered advisable;
(51) To require owners, residents, or occupants of factory-built homes situated in a factory-built rental home community with at least ten 10 factory-built homes, to visibly post the specific numeric portion of the address of each factory-built home on the immediate premises of the factory-built home of sufficient size to be visible from the adjoining street: Provided, That in the event no numeric or other specific designation of an address exists for a factory-built home subject to the authorization granted by this subdivision, the municipality has the authority to may provide a numeric or other specific designation of an address for the factory-built home and require that it be posted in accordance with the authority otherwise granted by this section.
(52) To appropriate and expend not exceeding twenty-five 25 cents per capita per annum for advertising the municipality and the entertainment of visitors;
(53) To conduct programs to improve community relations and public relations generally and to expend municipal revenue for such purposes;
(54) To reimburse applicants for employment by the municipality for travel and other reasonable and necessary expenses actually incurred by the applicants in traveling to and from the municipality to be interviewed;
(55) To provide revenue for the municipality and appropriate the same to its expenses;
(56) To create and maintain an employee benefits fund which may not exceed one tenth of one percent of the annual payroll budget for general employee benefits and which is set up for the purpose of stimulating and encouraging employees to develop and implement cost-saving ideas and programs and to expend moneys from the fund for these purposes;
(57) To enter into reciprocal agreements with governmental subdivisions or agencies of any state sharing a common border for the protection of people and property from fire and for emergency medical services and for the reciprocal use of equipment and personnel for these purposes;
(58) To provide penalties for the offenses and violations of law mentioned in this section, subject to the provisions of section one, article eleven of this chapter §8-11-1 of this code, and such penalties may not exceed any penalties provided in this chapter and chapter sixty-one §61-1-1 et seq of this code for like offenses and violations; and
(59) To participate in a purchasing card program for local governments authorized and administered by the State Auditor as an alternative payment method.
(a) Definitions. — Unless otherwise set forth in this Code:
(1) "Public nuisance" means an ongoing and unlawful condition that proximately causes an interference with an established public right.
(2) "Public right" means a right, commonly held by all members of the public.
(3) "Unlawful condition" means a circumstance or effect of an instrumentality that is prohibited by the laws of this state or the laws of the United States.
(b) Specific limitations on public nuisance actions. — Unless otherwise set forth in this code, and in addition to any other action or condition not recognized under common law or the definition set forth in subsection (a) of this section as a public nuisance, the manufacturing, distribution, sale, labeling, promotion, hosting, or marketing of the following products or services shall not constitute a public nuisance for purposes of a legal action in this state:
(1) Food, drink, or raw materials used in food or drink;
(2) Motor vehicles;
(3) Fossil fuels, unless the act of mining, drilling, extracting, preparing for market, or transporting the fossil fuels creates a public nuisance, as defined in subsection (a) of this section, at the location where the acts necessary for the mining, drilling, extracting, preparing for market, or transporting the fossil fuels are conducted;
(4) Firearms, handguns, or ammunition; and
(5) A venue for sporting events, including, but not limited to, a venue for motor sport events, so long as the venue in question has been in regular operation hosting sporting events at its current location for a period of two years or more.
(c) Standing for government entities. —
(1) A public nuisance cause of action is only available to a government entity if the source of the ongoing and unlawful condition is within the jurisdiction of that government entity or the source of the ongoing and unlawful condition is a substantial factor to the public nuisance occurring within the jurisdiction of that government entity.
(2) Past, current, or future financial expenditure made by the state, an agency of the state, or a political subdivision of the state related to injunction of, or any other response to, an ongoing and unlawful condition does not itself confer standing to file or maintain a public nuisance action.
(d) Remedies available to government entities. — Unless otherwise set forth in this code, in a public nuisance action brought by the state, an agency of the state, or a political subdivision of the state, the remedies available to the governmental entity are limited to injunctive relief, including prospective abatement only. A governmental entity may not recover economic, noneconomic, or exemplary damages, or for costs associated with potential future harms.
(e) Standing for private citizens. —
(1) A public nuisance cause of action is only available to a private citizen if the injury suffered by the individual is proximately caused by the ongoing and unlawful condition and is different in kind, not just in degree, from an injury suffered by the other persons exercising the same established public right.
(2) Interference with the personal, spiritual, cultural, or emotional use of public land, air, or water does not constitute a special injury for purposes of availability of a public nuisance cause of action to a private citizen.
(3) Financial expenditure made by an individual related to injunction of, or any other response to, an unlawful condition does not constitute a special injury sufficient to confer standing to file or maintain a public nuisance action.
(4) Aggregation of multiple individual injuries or private nuisances does not constitute a public nuisance.
(f) Remedy available to private citizen. — In a public nuisance action brought by a private citizen in accordance with subsection (d) of this section, the remedy available to that individual is limited solely to compensatory damages.
(g) Affirmative defense. — Unless otherwise set forth in this code, it is an affirmative defense to any claim under this section that the defendant does not have actual control over the source of the alleged public nuisance.
(h) Prospective effect. — The provisions set forth in this section applies only to a cause of action that accrues on or after the date that this section becomes effective and shall not apply to any legal action initiated before the date that this section becomes effective. A legal action arising out of a cause of action that accrued prior to this section becoming effective or a legal action initiated before the date that this section became effective shall be governed by the law applicable to the cause of action at the time the cause of action accrued, and that law is continued in effect for that purpose.
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