Nuisance lawsuit up for discussion


WVPA Staff Report



CHARLESTON, W.VA. — With crossover day for bills complete, legislators from both chambers of the West Virginia Legislature will spend remainder of the 2016 session reviewing and analyzing bills, deciding which pieces of legislation will reach the desk of Gov. Earl Ray Tomblin.

Proponents of Senate Bill 508, the Private Nuisance Reform bill — through the Senate and now before the House Judiciary Committee — are ready for to discussion the issues. There is talk of a public hearing on the bill.

The Senate approved SB 508 last week, but speaking Tuesday, Chris Hamilton, chairman of the West Virginia Business and industry Council, said no action was expected on the bill until the end of this week.

“The Senate is trying to pass all Senate bills and the House is trying to pass all house bills,” Hamilton said of Wednesday’s crossover day. “It’s really crunch time. We weren’t really anticipating much action in the early part of this week. The bill is out of the Senate and has crossed to the House. It’s an engrossed bill, meaning its been passed by one body, that being the Senate. Now we look forward to working with House Judiciary Chairman Shott and his members on this bill. Hopefully beginning later this week so they will have time to review it adequately and act favorably on it and get it down to the full House.

“We wanted to give everyone time to look it over and have time to resolve any questions and issues that they have,” Hamilton said. “That is the way the Legislative process is suppose to work. We find that its a good policy and a necessary first step to make sure you reach out to all stakeholders and anybody that is potentially impacted by a piece of legislation and have a professional discussion. Legislators need time to reach out to their various constituent bases and those they reach out to on these matters. We want to give them time. Our legislative process takes place in a compressed time, 60 days, and nobody likes to be surprised.”

SB 508 establishes standards for private nuisance lawsuits, including requiring physical property damage or bodily injury before a person can seek damages and prohibiting claims if the activity is approved by permit, license or other approval by government entity. Plaintiff would also need either an ownership interest or possessory interest in the property to bring a private nuisance claim.

The list of supporters for the legislation is extensive: West Virginia’s Chamber of Commerce, Citizens against Lawsuit Abuse, Business and Industry Council, Oil and Natural Gas Association, Independent Oil and Gas Association, Trucking Association, Coal Association, Contractors Association, Manufacturers Association, Retailers Association, Forestry Association, Automobile & Truck Dealers Association, Utilities Telecommunications Energy Coalition, Norfolk Southern Railroad and CSX Transportation among others.

Opponents fear the bill would give companies would too much protection from nuisance lawsuits, so long as they do not violate a law, regulation or the specific terms of their permit.

Legislative discussion on SB 508 has centered on the oil and gas industry. “This is geared for oil and gas,” said Sen. Doug Facemire, D-Braxton, in Senate discussion of the bill, as reported by The Charleston Gazette-Mail. “We’re giving to the industries and taking from the citizens.”

The Senate passed the bill, 20-12.

Proponents of SB 508 say the legislation – and the related problems – addresses broader issues, pointing to the diverse support from the business and industry community.

“This is a business issue,” said Dale Oxley, owner of Modern Home Concepts in Charleston and vice president of the West Virginia Home Builders Association. “The threat of these nuisance lawsuits is another reason it’s difficult for anyone to do business in West Virginia. Just another problem when trying to do business in this state.”

Oxley said the construction industry struggles with nuisance lawsuits from people who oppose things such as a new housing development because they, personally, don’t want the nearby farmland they enjoyed as children to change or don’t want a new house in their development because it might mean temporarily there will be mud on the street or some traffic congestion.

“I want to ask those people how they think their house was built,” Oxley said, adding business owners struggle with the threat of such lawsuits: “Sometimes you just want to throw up your hands. You wonder if it’s worth the risk for the reward when doing business in West Virginia.”

Oxley said SB 508 doesn’t stop people from filing a lawsuit for actual harm, but would stop the lawsuits by people who just don’t like change or who are just trying to slow the process, make growth and development more difficult or expensive or get a settlement from an insurance company.

“No one wants to be sued. We try to do our best,” Oxley said, “That doesn’t mean there aren’t problems. People should be able to sue when there is harm.”

While nuisance lawsuits aren’t new, Hamilton said growth in West Virginia’s natural gas industry has resulted in more such lawsuits.

“It’s interesting, in terms of nuisance lawsuits around the natural gas industry, there is a lot of mischief out there,” Hamilton said. “It kind of reminds me a lot of the overzealous fisherman who follows the stocking truck during the trout stock to get the easy fish. We literally have some aggressive trial lawyers who are following these gas well sites and the natural gas industry development from one region of the country to another.”

Hamilton, who also serves as vice president of the West Virginia Coal Association, said while the coal industry dealt with such lawsuits for decades, the biggest challenges now face the oil and natural gas industry. “From a growth or expansion standpoint, coal is probably through the period where the growth is all new. With the coal regions and places where we’re involved with mining, most of the relationships are established. For the oil and gas industry, at least with current expansion, the growth is relatively new and the boundaries aren’t as established as what they are with the coal industry.”

Corky DeMarco, executive director of the West Virginia Oil and Natural Gas Association, noted that one law firm based in Kansas City, Mo., distributed fliers to West Virginia residents who live around gas well sites. The letter, DeMarco said, basically was “fishing for clients” and encouraging residents to file nuisance lawsuits.

Oxley said the oil and natural gas industry is being targeted now because the lawsuits are filed against the companies with the “deepest pockets” in hopes of getting a settlement.

However, Hamilton and Oxley both said the the issue goes well beyond the oil and natural gas industry, or even the natural resource industry.

“This is about the truck unloading at Walmart or the local grocery, or the FedEx truck that blocking the road (at the distribution center near the Capitol),” Hamilton said. “A lot of the commerce is transported by truck, and a lot of times a large truck will have to block the road for five minutes or a short time. It’s part of the burden of doing commerce, but there really is no harm here. People aren’t exposed to any danger or threat. We are talking about, arguably, a nuisance and what constitutes a nuisance.”

Hamilton said the state should consider whether all of the economy activity more than offsets that inconvenience.

Opponents also note that SB 508 requires a citizen to give a business notice of 60 days if he or she intends to file a nuisance lawsuit and a chance to correct the issue. Senate Minority Leader Jeff Kessler, D-Marshall, told the Charleston Gazette-Mail, “With the 60 days’ notice, you can’t even get an injunction, get the court to say ‘stop it.’ For 60 days the dust, the noise, the noxious smell continues.”

Currently, a property owner can file a nuisance lawsuit when their property has been harmed without someone physically entering the property, for things like noise, smell or dust. Residents can also file nuisance lawsuits if they oppose new developments, traffic congestion, mud on the road, visual issues and numerous other issues.

WVPA Staff Report

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