Berkeley County Com'n v. Shiley, 15061

• Decision Date: 20 September 1982
• Docket Number: No. 15061,15061
• Citation: 170 W.Va. 684,295 S.E.2d 924
• Parties: BERKELEY COUNTY COMMISSION v. Greg SHILEY, d/b/a Shiley Enterprises, et al.
• Court: West Virginia Supreme Court

Page 924

295 S.E.2d 924

170 W.Va. 684

BERKELEY COUNTY COMMISSION v. Greg SHILEY, d/b/a Shiley Enterprises, et al.

No. 15061.

Supreme Court of Appeals of West Virginia.

Sept. 20, 1982.

Syllabus by the Court

W.Va.Code, 16-3-6, authorizes public officials, including a county commission, to apply for circuit court injunctions to abate public health nuisances. County commissions are not authorized to petition for injunctions against any other public nuisances.

William A. O'Brien, Martinsburg, for appellee.

D. Michael Burke, Askin & Burke, Martinsburg, for appellants.

HARSHBARGER, Justice:

Mr. Shiley appealed an August, 1980 Berkeley County Circuit Court decision permanently enjoining him from "promoting, holding, or allowing the lands known as Shiley Acres to be used for any rock concerts, or any other concerts." He had been promoting rock concerts on his parents' farm since 1976. Before he started this business, he went to the Sheriff and County Commission for suggestions and advice about complying with relevant laws. He followed all their instructions, including altering the concerts' starting times and limiting audience size. His last concert was held June 15, 1980. The Berkeley County Commission, allegedly at the behest of several complaining citizens, got an ex parte temporary injunction prohibiting Shiley's June 22, 1980 concert, and a permanent injunction issued after four hearings in July.

Testimony at these hearings was conflicting. ^* Nine neighbors testified that the concerts did not bother them and that they had observed no offensive conduct by anyone attending the concerts. Other neighbors complained about traffic congestion and people urinating in a road that was used for access to Shiley's land. Several witnesses attributed the traffic congestion to police who were checking inspection stickers as cars left the concert.

Police officers said they arrested individuals for public intoxication after the last concert, but another policeman testified that the only problem he encountered was that someone tried to buy beer before one o'clock on Sunday at a convenience store near the concert grounds.

Judith Rice, a health inspector, testified that Shiley's grounds were inspected before and after every concert, grounds were kept clean, and sanitary facilities were more than adequate for people attending the concerts.

Shiley offered to make any necessary changes to ameliorate problems, such as hiring additional security guards and changing the direction of his stage to send sound away from complaining neighbors.

Shiley's appeal challenged the County Commission's authority to obtain this injunction, its characterization of his concerts as nuisances, and the constitutionality of ex parte temporary injunctions.

The Commission relied upon W.Va.Code, 16-3-6, to abate Shiley's "nuisance":

The state director of health or any county or municipal health officer shall inquire into and investigate all nuisances affecting public health within his jurisdiction; and the said director or any such officer or the county commission of any county or any municipality is authorized and empowered to apply to the circuit court of the county in which any such nuisance exists, or to the judge thereof in vacation, for an injunction forthwith to restrain, prevent or abate such nuisance. (Emphasis added.)

A county commission only has powers expressly conferred by the West Virginia Constitution and our State Legislature, or powers reasonably and necessarily implied for exercise of those...