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]
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1 A BILL to amend and reenact §8-12-5 of the Code of West Virginia, 1931, as amended; and to
2 amend said code by adding thereto a new section, designated §55-7-32, all relating to
3 reforming the cause of action for public nuisance; providing definitions; outlining
4 appropriate remedies; clarifying when municipal entities and individuals have standing to
5 pursue a public nuisance action; and noting that any changes to current law of public
6 nuisance have only prospective effect.
Be it enacted by the Legislature of West Virginia:
CHAPTER 8. MUNICIPAL CORPORATIONS.
ARTICLE 12. GENERAL AND SPECIFIC POWERS, DUTIES AND ALLIED
RELATIONS OF MUNICIPALITIES, GOVERNING BODIES AND MUNICIPAL
OFFICERS AND EMPLOYEES; SUITS AGAINST MUNICIPALITIES.
§8-12-5. General powers of every municipality and the governing body thereof.
1 In addition to the powers and authority granted by: (i) The Constitution of this state; (ii)
2 other provisions of this chapter; (iii) other general law; and (iv) any charter, and to the extent not
3 inconsistent or in conflict with any of the foregoing except special legislative charters, every
4 municipality and the governing body thereof shall have plenary power and authority therein by
5 ordinance or resolution, as the case may require, and by appropriate action based thereon:
6 (1) To lay off, establish, construct, open, alter, curb, recurb, pave or repave and keep in
7 good repair, or vacate, discontinue and close, streets, avenues, roads, alleys, ways, sidewalks,
8 drains, and gutters, for the use of the public, and to improve and light the same, and have them
9 kept free from obstructions on or over them which have not been authorized pursuant to the
10 succeeding provisions of this subdivision; and, subject to such terms and conditions as prescribed
11 by the governing body shall prescribe, to permit, without in any way limiting the power and
12 authority granted by the provisions of §8-16-1 et seq. of this code, any person to construct and
13 maintain a passageway, building or other structure overhanging or crossing the airspace above a
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14 public street, avenue, road, alley, way, sidewalk, or crosswalk, but before any permission for any
15 person to construct and maintain a passageway, building, or other structure overhanging or
16 crossing any airspace is granted, a public hearing thereon shall be held by the governing body
17 after publication of a notice of the date, time, place, and purpose of the public hearing has been
18 published as a Class I legal advertisement in compliance with the provisions of article three,
19 chapter fifty-nine of §59-3-1 et seq. this code and the publication area for the publication shall be
20 the municipality: Provided, That any permit so granted shall automatically cease and terminate in
21 the event of abandonment and nonuse thereof for the purposes intended for a period of ninety 90
22 days, and all rights therein or thereto shall revert to the municipality for its use and benefit;
23 (2) To provide for the opening and excavation of streets, avenues, roads, alleys, ways,
24 sidewalks, crosswalks, and public places belonging to the municipality and regulate the conditions
25 under which any such opening may be made;
26 (3) To prevent by proper penalties the throwing, depositing, or permitting to remain on any
27 street, avenue, road, alley, way, sidewalk, square, or other public place any glass, scrap iron, nails,
28 tacks, wire, other litter or any offensive matter or anything likely to injure the feet of individuals, or
29 animals, or the tires of vehicles;
30 (4) To regulate the use of streets, avenues, roads, alleys, ways, sidewalks, crosswalks,
31 and public places belonging to the municipality, including the naming or renaming thereof, and to
32 consult with local postal authorities, the Division of Highways, and the directors of county
33 emergency communications centers to assure uniform, nonduplicative addressing on a
34 permanent basis;
35 (5) To regulate the width of streets, avenues and roads, and, subject to the provisions of
36 article eighteen of this chapter §8-18-1 et seq. of this code, to order the sidewalks, footways, and
37 crosswalks to be paved, repaved, curbed, or recurbed and kept in good order, free and clean, by
38 the owners or occupants thereof or of the real property next adjacent thereto;
39 (6) To establish, construct, alter, operate and maintain, or discontinue, bridges, tunnels and
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40 ferries and approaches thereto;
41 (7) To provide for the construction and maintenance of water drains, the drainage of
42 swamps or marshlands and drainage systems;
43 (8) To provide for the construction, maintenance, and covering over of watercourses;
44 (9) To control and administer the waterfront and waterways of the municipality and to
45 acquire, establish, construct, operate, and maintain and regulate flood control works, wharves and
46 public landings, warehouses and all adjuncts and facilities for navigation and commerce and the
47 utilization use of the waterfront and waterways and adjacent property;
48 (10) To prohibit the accumulation and require the disposal of garbage, refuse, debris,
49 wastes, ashes, trash, and other similar accumulations whether on private or public property:
50 Provided, That, in the event the municipality annexes an area which has been receiving solid
51 waste collection services from a certificated solid waste motor carrier, the municipality and the
52 solid waste motor carrier may negotiate an agreement for continuation of the private solid waste
53 motor carrier services for a period of time, not to exceed three years, during which time the
54 certificated solid waste motor carrier may continue to provide exclusive solid waste collection
55 services in the annexed territory;
56 (11) To construct, establish, acquire, equip, maintain, and operate incinerator plants and
57 equipment, and all other facilities for the efficient removal and destruction of garbage, refuse,
58 wastes, ashes, trash, and other similar matters;
59 (12) To regulate or prohibit the purchase or sale of articles intended for human use or
60 consumption which are unfit for use or consumption, or which may be contaminated or otherwise
61 unsanitary;
62 (13) To prevent injury or annoyance to the public or individuals from anything dangerous,
63 offensive, or unwholesome: Provided, That no abatement or other regulatory action seeking to
64 address or otherwise remediate annoyance of any similar injury, where the underlying basis for the
65 annoyance or similar injury is excessive noise, may be maintained against a venue that hosts
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66 sporting events, including, but not limited to, motor sports events, as long as that venue has been
67 in regular operation hosting sporting events at its current location for a period of two years or more;
68 (14) To regulate the keeping of gunpowder and other combustibles;
69 (15) To make regulations guarding against danger or damage by fire;
70 (16) To arrest, convict, and punish any individual for carrying about his or her person any
71 revolver or other pistol, dirk, bowie knife, razor, slingshot, billy, metallic or other false knuckles, or
72 any other dangerous or other deadly weapon of like kind or character: Provided, That with respect
73 to any firearm a municipality may only arrest, convict, and punish someone if they are in violation
74 of an ordinance authorized by §8-12-5a of this code, a state law proscribing certain conduct with a
75 firearm or applicable federal law;
76 (17) To arrest, convict, and punish any person for importing, printing, publishing, selling or
77 distributing any pornographic publications;
78 (18) To arrest, convict, and punish any person for keeping a house of ill fame, or for letting
79 to another person any house or other building for the purpose of being used or kept as a house of
80 ill fame, or for knowingly permitting any house owned by him or her or under his or her control to be
81 kept or used as a house of ill fame, or for loafing, boarding or loitering in a house of ill fame, or
82 frequenting same;
83 (19) To prevent and suppress conduct and practices which are immoral, disorderly, lewd,
84 obscene, and indecent;
85 (20) To prevent the illegal sale of intoxicating liquors, drinks, mixtures, and preparations;
86 (21) To arrest, convict, and punish any individual for driving or operating a motor vehicle
87 while intoxicated or under the influence of liquor, drugs, or narcotics;
88 (22) To arrest, convict, and punish any person for gambling or keeping any gaming tables,
89 commonly called "A, B, C," or "E, O," table or faro bank or keno table, or table of like kind, under
90 any denomination, whether the gaming table be is played with cards, dice or otherwise, or any
91 person who shall be is a partner or concerned in interest, in keeping or exhibiting the table or bank,
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92 or keeping or maintaining any gaming house or place, or betting or gambling for money or anything
93 of value;
94 (23) To provide for the elimination of hazards to public health and safety and to abate or
95 cause to be abated anything which in the opinion of a majority of the governing body is a public
96 nuisance: Provided, That nothing in this subdivision shall be construed as to allow for a
97 municipality or its governing body to bring an action or seek relief inconsistent with §55-7-32 of this
98 code;
99 (24) To license, or for good cause to refuse to license in a particular case, or in its discretion
100 to prohibit in all cases, the operation of pool and billiard rooms and the maintaining for hire of pool
101 and billiard tables notwithstanding the general law as to state licenses for any such business and
102 the provisions of section four, article thirteen of this chapter §8-13-4 of this code; and when the
103 municipality, in the exercise of its discretion, refuses to grant a license to operate a pool or billiard
104 room, mandamus may not lie to compel the municipality to grant the license unless it shall clearly
105 appear appears that the refusal of the municipality to grant a license is discriminatory or arbitrary;
106 and in the event that the municipality determines to license any business, the municipality has
107 plenary power and authority and it shall be the duty of its governing body to make and enforce
108 reasonable ordinances regulating the licensing and operation of the businesses;
109 (25) To protect places of divine worship and to preserve peace and order in and about the
110 premises where held;
111 (26) To regulate or prohibit the keeping of animals or fowls and to provide for the
112 impounding, sale, or destruction of animals or fowls kept contrary to law or found running at large;
113 (27) To arrest, convict, and punish any person for cruelly, unnecessarily or needlessly
114 beating, torturing, mutilating, killing, or overloading, or overdriving, or willfully depriving of
115 necessary sustenance any domestic animal;
116 (28) To provide for the regular building of houses or other structures, for the making of
117 division fences by the owners of adjacent premises, and for the drainage of lots by proper drains
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118 and ditches;
119 (29) To provide for the protection and conservation of shade or ornamental trees, whether
120 on public or private property, and for the removal of trees or limbs of trees in a dangerous
121 condition;
122 (30) To prohibit with or without zoning the location of occupied house trailers or mobile
123 homes in certain residential areas;
124 (31) To regulate the location and placing of signs, billboards, posters, and similar
125 advertising;
126 (32) To erect, establish, construct, acquire, improve, maintain, and operate a gas system, a
127 waterworks system, an electric system, or sewer system and sewage treatment and disposal
128 system, or any combination of the foregoing (subject to all of the pertinent provisions of articles
129 nineteen and twenty of this chapter §8-19-1 et seq. and §8-20-1 et seq. of this code, and
130 particularly to the limitations or qualifications on the right of eminent domain set forth in articles
131 nineteen and twenty §8-19-1 et seq. and § 8-20-1 et seq. of this code), within or without the
132 corporate limits of the municipality, except that the municipality may not erect any system partly
133 without the corporate limits of the municipality to serve persons already obtaining service from an
134 existing system of the character proposed and where the system is by the municipality erected, or
135 has heretofore previously been so erected, partly within and partly without the corporate limits of
136 the municipality, the municipality has the right to lay and collect charges for service rendered to
137 those served within and those served without the corporate limits of the municipality and to prevent
138 injury to the system or the pollution of the water thereof and its maintenance in a healthful
139 condition for public use within the corporate limits of the municipality;
140 (33) To acquire watersheds, water and riparian rights, plant sites, rights-of-way, and any
141 and all other property and appurtenances necessary, appropriate, useful, convenient, or incidental
142 to any system, waterworks or sewage treatment and disposal works, as aforesaid, subject to all of
143 the pertinent provisions of articles nineteen and twenty of this chapter §8-19-1 et seq. and §8-20-1
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144 et seq. of this code;
145 (34) To establish, construct, acquire, maintain and operate, and regulate markets and
146 prescribe the time of holding the same;
147 (35) To regulate and provide for the weighing of articles sold or for sale;
148 (36) To establish, construct, acquire, maintain, and operate public buildings, municipal
149 buildings or city halls, auditoriums, arenas, jails, juvenile detention centers or homes, motor
150 vehicle parking lots, or any other public works;
151 (37) To establish, construct, acquire, provide, equip, maintain, and operate recreational
152 parks, playgrounds and other recreational facilities for public use and in this connection also to
153 proceed in accordance with the provisions of article two, chapter ten of §10-2-1 et seq. this code;
154 (38) To establish, construct, acquire, maintain, and operate a public library or museum or
155 both for public use;
156 (39) To provide for the appointment and financial support of a library board in accordance
157 with the provisions of article one, chapter ten §10-1-1 et seq. of this code;
158 (40) To establish and maintain a public health unit in accordance with the provisions of
159 section two, article two, chapter sixteen of this code §16-2-2 of this code. Which The unit shall
160 exercise its powers and perform its duties subject to the supervision and control of the West
161 Virginia Board of Health and State Bureau for Public Health;
162 (41) To establish, construct, acquire, maintain, and operate hospitals, sanitarians, and
163 dispensaries;
164 (42) To acquire, by purchase, condemnation or otherwise, land within or near the corporate
165 limits of the municipality for providing and maintaining proper places for the burial of the dead and
166 to maintain and operate the same and regulate interments therein upon terms and conditions as to
167 price and otherwise as may be determined by the governing body and, in order to carry into effect
168 the authority, the governing body may acquire any cemetery or cemeteries already established;
169 (43) To exercise general police jurisdiction over any territory without the corporate limits
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170 owned by the municipality or over which it has a right-of-way;
171 (44) To protect and promote the public morals, safety, health, welfare, and good order;
172 (45) To adopt rules for the transaction of business and the government and regulation of its
173 governing body;
174 (46) Except as otherwise provided, to require and take bonds from any officers, when
175 considered necessary, payable to the municipality, in its corporate name, with such sureties and in
176 a penalty as the governing body may see fit, conditioned upon the faithful discharge of their duties;
177 (47) To require and take from the employees and contractors such bonds in a penalty, with
178 such sureties and with such conditions, as the governing body may see fit;
179 (48) To investigate and inquire into all matters of concern to the municipality or its
180 inhabitants;
181 (49) To establish, construct, require, maintain, and operate such instrumentalities, other
182 than free public schools, for the instruction, enlightenment, improvement, entertainment,
183 recreation, and welfare of the municipality's inhabitants as the governing body may consider
184 necessary or appropriate for the public interest;
185 (50) To create, maintain, and operate a system for the enumeration, identification and
186 registration, or either, of the inhabitants of the mu