City of Newport News v. Hertzler, 750159

• Decision Date: 16 January 1976
• Docket Number: No. 750159,750159
• Citation: 221 S.E.2d 146,216 Va. 587
• Parties: CITY OF NEWPORT NEWS et al. v. David HERTZLER et al. Record
• Court: Virginia Supreme Court

Page 146

221 S.E.2d 146

216 Va. 587

CITY OF NEWPORT NEWS et al. v. David HERTZLER et al.

Record No. 750159.

Supreme Court of Virginia.

Jan. 16, 1976.

Lawrence Mark Spigel, Newport News, for appellants.

Richard W. Hudgins, Newport News (Hudgins & Neale, Newport News, on brief), for appellees.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, POFF and COMPTON, JJ.

COCHRAN, Justice.

This appeal presents the question whether the final decree entered by the trial court on December 11, 1974, enjoining the City of Newport News and the members of its City Council from operating a public park, is contrary to the law and the evidence.

In September, 1972, the City acquired 13 acres of land at the end of Denbigh Boulevard, within the corporate limits, for the purpose of establishing and maintaining thereon for the benefit of its citizens a public park, known as Denbigh Boulevard Park, including a parking lot, nature trails, bridges, an overlook, a fishing pier, a boat house, and a boat ramp to provide access to the Warwick River. Funded by Federal, State and City moneys, the project cost approximately $139,000.

On July 9, 1974, David Hertzler and 31 other complainants filed their bill of complaint in the trial court against the City and the members of its City Council, alleging that the City, in its operation of the Park, was maintaining a nuisance. The bill, which described the complainants as owners of real property at or near the Park, alleged that the City had opened the Park when it was uncompleted, unregulated and unsupervised. Specifically, complainants alleged erosion of the shore by speeding boats launched from the Park ramp; a health hazard caused by debris, human excrement and stench; annoyance from noisy parties, lack of toilets, lights, trash receptacles, and telephones; and lack of supervision of Park facilities. Complainants alleged that these conditions constituted a present danger to the health and welfare of the adjacent landowners, which, if permitted to continue, would cause them irreparable damage. They sought an injunction prohibiting the City from operating the Park until it had been completed, with regulations posted, sanitary facilities and lights installed, a buffer zone established, and adequate supervision and policing provided. They also gave notice of their intention to seek a temporary restraining order.

After a hearing on July 10, 1974, the trial court deferred action on complainants' application for a temporary restraining order, but ordered the City to show cause, at a hearing set for August 1, 1974, why the Park should not be closed. At this second hearing, the court overruled the Special Plea filed by the members of City Council that they were not proper parties to the proceeding, and heard the evidence. The court twice viewed the Park and, on August 5, 1974, over objection, ordered the City to file a 'letter of intent' as to installation of permanent sanitary facilities and establishment of a plan for law enforcement at the Park. A letter of intent was filed by the City but was not considered as evidence in the trial court and was not made a part of the record. On September 3, 1974, the court entered an order stating that the City 'has established two portable toilets on the property and . . . has not properly supervised and policed' the Park. On September 24, 1974, the court ruled that the complainants were entitled to injunctive relief. The final decree of December 11, 1974, awarded complainants a permanent injunction, but stayed the effect of the decree, pending this appeal by the City and the members of its City Council.

In both evidentiary hearings complainants relied almost entirely upon the testimony of complainant David Hertzler. Hertzler lived with his family in one of two residences which he owned on Denbigh Boulevard, across from the Park. At the time of the first hearing that portion of Denbigh Boulevard lying between the Hertzler properties and the Park had not been hard-surfaced, but the public, nevertheless, had been permitted to use this access road, and dust from the increased vehicular traffic was annoying to the Hertzlers. Hertzler testified that trash and debris accumulated in the unfinished parking lot at the Park and overflowed onto property of adjacent landowners; that the Park had no supervision and no posted closing time, so that noisy drinking parties and the racing of motor vehicles on the parking lot disturbed the Hertzlers at night; and that because the Park lacked such facilities as lights, water fountains, toilets, and telephones, the Hertzlers were annoyed by requests from Park visitors for water and the use of a telephone.

Hertzler enumerated ten complaints that he had made to various public officials from June 4 through June 21, 1974. Hertzler also testified that on occasions he had observed human excrement in the Park, and that the area smelled of human waste. Hertzler had observed a boy urinating into the water from the boat house, and he introduced into evidence a photograph showing a man urinating from a lookout on a back trail of the Park.

At this hearing the only other witness who testified for complainants was complainant Vernon S. Briggs, who also resided on Denbigh Boulevard. Briggs expressed concern that the westerly end of Denbigh Boulevard had not been completed, that there had been a tremendous increase in vehicular traffic, and that the Park area was unsupervised. He admitted, however, that he did not live within view of the Park, that he had never seen or smelled the odor of human waste in the area, and that he had not observed therein any disorderly behavior or the consumption of alcoholic beverages.

Ronald Burroughs, Director of Parks and Recreation of the City, was the only witness called by the defendants. Burroughs conceded that the Park had been opened before the facilities had been completed. Because of a gravel shortage the City had been delayed in completing the parking lot, which had postponed the hard-surfacing of the westerly end of Denbigh Boulevard by the State Highway Department. Burroughs testified that he had discussed Hertzler's complaints with Hertzler on numerous occasions, and would attempt to comply with all requests made by the complainants. Trash cans, already ordered, would be placed in the Park as soon as they were delivered; a buffer zone of trees would be planted to shield the parking lot from Hertzler's view; and 'no parking' signs would be erected along the westerly end of Denbigh Boulevard. Signs had been posted to prohibit swimming and diving from the pier and the boat ramp. To provide supervision of the facilities, park rangers and police and juvenile officers would patrol at intervals.

Burroughs was of opinion, based upon his regular observations of the area, that permanent toilet facilities were not needed. He further testified that the marshy terrain would not permit the use of septic tanks, and that use of a sewer line would necessitate installation of a pump and a feeder line at prohibitive expense to the City. He also expressed concern that any sanitary facilities would be vandalized.

Hertzler testified at the August 1, 1974 hearing, that the noisy parties at night and other activities in the Park continued to annoy him and his family. The City had not placed 'no wake' signs in the water, and the river traffic was still a problem. The parking lot had not been completed. Trash receptacles had been placed, but not in the most convenient locations, resulting in the continued accumulation of debris and litter. Two unsightly, temporary toilets, known as 'porta-toilets' whose doors faced the Hertzler residence, had been placed on the parking lot within plain view of the Hertzlers. Vandals had defaced these sanitary units with painted inscriptions.

Hertzler, over defendants' objections, introduced into evidence numerous photographs which he had taken on various dates from June 5 through August 1, 1974. Several of the photographs, taken before trash receptacles had been placed in the Park, showed a few discarded beer bottles and cans. Of other pictures taken prior to the first hearing, two showed youngsters on the boat house roof, one showed a boy urinating from the pier, one showed horses in the boat ramp area, one showed a boat speeding on the river, and another showed a boat trailer blocking a driveway. Photographs taken of the parking lot after the first hearing showed the two 'porta-toilets', water in a ditch at the edge of the entrance to the lot, two cars and two boat trailers parked on the lot, a van stuck in the gravel surface, and road grading equipment standing near piles of gravel.

Hertzler conceded that Denbigh Boulevard had been made passable; that speed limit and 'no parking' signs had been posted on the street; that some debris had been removed; that a 'no swimming' sign had been placed on the boat house; and that two signs had been installed to warn the public that the nature trails in the Park were closed at sundown. He contended, however, that the buffer strip, one shrub in depth, was inadequate, that loud parties and noisy movement of vehicles late at night continued, and that the Park still lacked telephone and drinking water facilities.

The other witness for the complainants at this hearing was Police Officer Mark Muza, who served on one of the City's two Police Boats. He testified that there were no posted regulations or ...