Posted by: Patricia Salkin | March 14, 2019

W. VA Supreme Court Holds Statute Prohibiting Nuisance Claims Against Shooting Range Did Not Bar Plaintiffs’ Claim for Money Damages

This post was authored by Matthew Loeser, Esq.

Petitioners Ben and Diane Goldstein owned land in Frederick County, Virginia, and claimed that noise from Respondents’, Peacemaker National Training Center, LLC and Peacemaker Properties, LLC, nearby shooting ranges substantially and unreasonably interfered with their use and enjoyment of their rural property. In 2017, the West Virginia Legislature amended West Virginia Code § 61-6-23 (2014) to bar nuisance claims against a shooting range if the shooting range was in compliance with local noise ordinances. The Legislature specified that the amendment applied retroactively. As a result, the circuit court concluded that Petitioners’ nuisance claim was retroactively barred, granted Respondents summary judgment, and dismissed Petitioners’ suit.

At the outset, the court noted that since Berkeley County chose not to impose noise limitations upon shooting ranges like Respondents’, as a matter of law Respondents could not have violated those same local noise ordinances. Consequently, the circuit court did not err by finding that § 61-6-23(e)(1) applied to bar Plaintiff’s claim for injunctive relief.

Petitioners next challenged the circuit court’s retroactive application of the 2017 Amendment to dismiss their entire nuisance claim against Respondents. Specifically, they contended that their verified complaint against Respondents included a claim for money damages, which was a vested property right that the Legislature could not eliminate by retroactive legislation. In their verified complaint, Petitioners demanded “monetary damages for the cost of implementing reasonable and necessary noise abatement measures on their own property to comply with these guidelines and any other damages permitted by West Virginia law and supported by the evidence.” Petitioners further demanded “any other damages permitted by West Virginia law and supported by the evidence” and “such other legal and equitable relief as the circuit court shall deem just and proper under the circumstances.” The court found that these demands evidently notified Respondents that Petitioners sought money damages as relief for the alleged nuisance conditions on Respondents’ property because the demands prompted Respondents to act. Accordingly, the court held that the circuit court erred by applying the 2017 Amendment to § 61-6-23 retroactively to dismiss Petitioners’ accrued nuisance claim for money damages.

Goldstein v. Peacemaker Properties, LLC, 2019 WL 2415081 (W VA App. 3/13/2019)


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