Burch v. Nedpower Mount Storm, LLC

trial, prosecution’s in our At entire case was that we all learned rules of fairness supposition. To upon speculation based The foundation of high civics class. school guilty just require find a defendant doesn’t system that justice is the American criminal sense,” suggests. It innocent, “common as the dissent gov- presumed and the people are requires prosecutor that eliminate all them proving burden of bears the ernment doubts about the defendant’s reasonable beyond a doubt. guilty reasonable frankly, riding guilt. And in a car with Michael centers on defendant This case pseudoephedrine enough isn’t to matches and attempting oper- to Cummings’ conviction for say operating drug a is a lab. defendant lab, drug conspiracy ate a clandestine proof There be some that the defendant must might operate drug a lab. The defendant ingredients, drug or controlled the not owned The very guilty be of both offenses. well merely they length. were at arm’s And is, much problem the State didn’t introduce whiz, proof, to be real not the “Gee oh has just It is charges. those evidence on, come he had to know! How could he likely that the defendant could have been as supposition plays know?” land of well innocently riding in a car that was owned time, with the voters at election but Foreman, else, whose own someone James democracy. nothing to do with freedom pursuant to a search home was searched majority opinion rightly boldly related to the warrant evidence presumption refused to sacrifice the of inno- methamphetamine lab. expediency, my dis- cence on the altar of as My dissenting colleague position takes senting colleague wishes. methamphetamine highly ad- that because heartily I concur. therefore dictive, easy inexpen- highly potent, and make, presump- then sive to the defendant’s I Al- am authorized state Justice innocence should be thrown out the tion of bright joins opinion. in this Police officers should be allowed window. homes, pockets on a search our vehicles

whim, any suspicious-looking item within length grounds for incarcer- should be

arm’s by association and on the basis

ation. Guilt rule. suspicion should be the 647 S.E.2d 879 dissenting that because opinion argues BURCH, Miller, E. Levi Frank Jerome matches, syringes, and there were boxes of Thomas, Fitzpatrick, E. Richard Charles car, pseudoephedrine boxes of inside Fiedler, Hurley, F. and John T. Robert defendant, then he reach of the within arm’s Below, Mitchell, Appellants Plaintiffs Cummings something. guilty Mr. must though guilty conspiracy must be —even was introduced to show no evidence STORM, LLC and MOUNT NEDPOWER conspiring. And Mr. Cum- he was whom Windenergy, Inc., Defendants Shell guilty attempting oper- mings must be Below, Appellees. lab, riding in a car drug because he was ate are, coincidentally, items that with household No. 33201. ingredients that could be used the same Appeals Supreme Court of passengers making drugs. The female two Virginia. West innocent, Cummings Mr. car are but something, right? So let’s guilty must be 2007. Submitted jail. throw the bum 8, 2007. Decided June argument dissenting colleague’s My basic Dissenting Opinion of Justice you eggs to make have to break few Benjamin July 2007. people go have to A few innocent an omelet. many get guilty jail to make sure we people possible. in there as

445

447 Trivelli, Esq., Prac- The Calwell

Vincent Virginia tice, PLLC, for Amicus Curiae West Building Construction Trades State Council, AFL-CIO. DiBenedetto, County Esq., Grant

Dennis Attorney, Amici Curiae The Prosecuting County, The County of Grant Commission County, The of Grant Board Education Authority, The County Development Grant County, and The Assessor of Sheriff of Grant County. Grant Roth, Esq., Amici Curiae Jeffrey R. County Jason Grant Landowners/Lessors Nichol, Evans, Kitzmiller, Andrew Lee Mark Hanlin, Evans, Hanlin, Norma Linda Vernon Park, Jones, Kline, Evelyn Tim Roy David Streets, Roger Whetzel.

MAYNARD, Justice. 7, 2006, appellants appeal County Court of Grant order of the Circuit their nuisance claim which that dismissed injunction against appel- they sought an lees, Storm, Mount LLC NedPower Inc., appel- WindEnergy, Shell constructing power a electric lees from wind Hunter, Neely Neely, Esq., & Richard F. facility proximity the generating in close Charleston, Appellants. the for For appellants’ property. the reasons follow, Esq., M. the circuit court and re- Stephen LaCagnin, M. Andrew we reverse PLLC, Morgan- proceedings Esq., Kelly for consistent with Wright, Jackson mand Callas, town, Esq., opinion. Jackson Christopher L. Charleston, PLLC,

Kelly for NedPower

Mount LLC. Storm I. III, Esq., Grant P.H. M. Brock

Samuel Battle, FACTS Shuman, Spilman Thomas & Esq., Charleston, Smith, PLLC, Esq. Reginald R. 2, 2003, By final order dated the (Pro Vice), Loveland, Joseph Esq. L. Hac PSC”) (“the Public Commission Service (Pro Marsh, Vice), Esq. Jonathan L. Hac LLC, granted Mount Storm an NedPower (Pro LLP, Vice), King Spalding & Hous- Hac herein, appellee a certificate of convenience TX, ton, WindEnergy Inc. for Shell necessity1 operate a construct facility Wooton, generating along Esq., power for Amici Curiae wind electric John D. County.2 Allegheny Front in Grant Ned- County the Grant Landowners. necessity facility Legislature changed such were July the na convenience and the 1. siting opinion, In this we refer to required a certificate.” the certificate ture of facilities, appellees generating as a like the the certificate issued to the electric of wholesale issue, power facility certificate of certificate. from a wind necessity public cer to a convenience (c)(1) hearing subject According 24—2—1 2. The PSC's certificate to W.Va.Code tificate. order, (2006), granted public In its final facility notice comment. a a certificate necessity as a matter of law that the on or before the PSC concluded facility convenience and issued beneficial, 1, 2003, economically subject specified will “an envi- July shall be to the facility” ronmentally responsible power wind statutory provisions "as if the certificate ruling following on the ap- into a contract court based its has entered Power Inc., WindEnergy, grounds: jurisdiction to sell the no pellee Shell upon completion. approved facility project to Shell its of a that was entire construction power PSC; contemplated that the facili- by It is wind most of the assertions made approximately on a ty appellants be located site will concern activities consti- average nuisance; of one-half long with an width private miles than a tute a rather up facility The is to include to 200 injunction proper mile.3 a prospective a is not rem- is to be mount- turbines. Each turbine facility wind edy in this case because the wind approximately a 15 feet ed on steel tower per not a nuisance se and does not constitute height, 450 feet in diameter and 210 to danger impending or imminent of certain approximately 115 three blades of feet. have effect; approval facility and the PSC’s collaterally appellants estops the from chal- appellants The are seven homeowners who lenging it in circuit court. from about one-half mile to two miles live projected turbines.4 On No- from the wind appellants appeal the circuit now 23, 2005, appellants filed a com- vember court’s order. Amicus Curiae briefs have County in' of Grant plaint the Circuit Court support been filed with this Court permanently enjoin seeking to NedPower County appellees Commission of Inc., WindEnergy, and Shell from construct- County, the Board of Education of Grant facility ing operating power wind County County, Develop- Grant Grant that it create a nui- the basis would Authority, County, ment the Sheriff of Grant Specifically, asserted sance. County, County Grant the Assessor of Grant they negatively impacted will be leased land to Ned- landowners who have turbines; noise from the wind turbines power for the construction of wind Power create a “flicker” or “strobe” effect when will Virginia Building facility, State and West horizon; the turbines the sun is near will Council, and Construction Trades AFL-CIO. blades, danger pose significant a from broken County Grant landowners who also live throws, towers; collapsing and the ice approved site of the proximity close facility power cause reduction wind will an amicus have filed wind appellants’ property values. appellants. curiae We brief joint appellees subsequently filed a arguments of amici as have considered judgment pleadings in motion for on the parties rendering our as those of the well they essentially argued circuit decision. enjoin, pro- court has no nuisance, private projects spective authorized II. PSC, party and that a cannot OF REVIEW

collaterally STANDARD attack a final order of the PSC bringing injunction action in means of “[appel that This Court has held circuit court. granting of a circuit court’s order late review pleadings de 7, 2006, judgment a motion for on the is By order of the circuit court Syllabus Copley Mingo v. Point appellees’ judgment motion for novo.” granted the Educ., 195 466 appel- County Bd. W.Va. pleadings and dismissed the on (1995). considering the prejudice. The circuit S.E.2d When lants’ action with system approximately 200 wind tur- help need for "additional that will to address the "diversify generating capacity” help approximately will ... 0.5 miles from bines will be Burch, by adding competitive generation mix renewa- a 1 mile of Plaintiff Jerome the house supply.” energy regional energy Miller, ble source to Levi of Plaintiff 0.5 from the house appealed final to this The PSC’s decision of Plaintiff Frank Fitz- miles from the house Front, Allegheny Friends of the this Court patrick, the house of Plaintiff 0.72 miles from appeal. to hear the Court refused Thomas, miles from the house Charles E. 1.8 Fiedler, 1 mile Richard from of Plaintiff to be located on land leased to 3. The is Hurley, miles of Plaintiff Robert and 0.8 house out-of-state land- NedPower from local and/or T. Mitchell. the house of Plaintiff John from owners. 4. The circuit court found that. separate granting judgment proceed a motion for to consider each of these

propriety of guided grounds. are the fact pleadings, on the

that 1. Jurisdiction judgment plead- on the motion for [a] that be The circuit court first found challenge legal effect ings presents a granted Legislature cause the the PSC the proof of given facts rather than on generat to decide the of electric respect In it is es- facts themselves. this ing designated that are under feder facilities delayed sentially a motion to dismiss. The exempt generators, al law as wholesale Virginia Rules of Civil Procedure West enjoin the circuit court lacks essentially approach the motion as a mo- operation of facilities construction and these failure to state a claim tion to dismiss for under our law of nuisance.5 granted not be the motion will begin our discussion We except apparent it that the defi- when is recognition always that our common law ciency by an could not be cured amend- provided remedy a for a nuisance. This ment. explained Court has Syllabus Copley, supra. Point We also “nuisance is a flexible area of the law that keep in mind that a motion to dismiss on the adaptable variety factual is to a wide only granted very pleadings should City Corp. situations.” Sharon Steel v. Specifically, limited circumstances. Fairmont, 479, 483, 175 W.Va. court, viewing all the circuit facts [a] fact, 616, 621 said has been “[i]t nonmoving light most favorable to the incapable that the term ‘nuisance’ is of an party, may grant judgment a motion for exact and exhaustive definition which will only appears beyond if pleadings cases, controlling fit all because the facts nonmoving party prove that the can doubt alike, are seldom and each case stands on no set of facts of his or her Workman, footing.” its own Harless claim or defense. 266, 273-74, 145 W.Va. S.E.2d Syllabus Copley. Point (1960). Nonetheless, “the term [‘nuisance’] generally ‘applied wrongs to that class of

III. unreasonable, which arises from the un DISCUSSION by person warrantable or unlawful use property produces his own such mate appellants assignments raise two inconvenience, discomfort, annoyance, rial appeal. assignment error The first presume or hurt that the law will conse finding that the circuit court erred in ” Harless, quent damage.’ granted by certificate the PSC to omitted). (citation 274, 114 S.E.2d at 552 appellees for the construction of the wind way, Stated another the un “nuisance is power facility appellees immunizes the from reasonable, unusual, or unnatural use of liability under the common law doctrine substantially one’s so that it im Second, allege nuisance. er- pairs right peacefully of another to finding ror in the circuit court’s enjoy property.” his or her 58 Am.Jur.2d prove allegations failed to various (2002). § 2 Nuisances complaint, notwithstanding in their that on a judgment pleadings motion for on the the Foose, 727, 730, Booker v. 216 W.Va. 613 well-pled complaint facts of the must be tak- (2005). 94, past, S.E.2d In the 97 we de- en as true. scribed a nuisance as 2006, above, 7, order, anything annoys noted in its As which or disturbs the free appellants’ property, the circuit court dismissed the use of one’s or its which renders injunction ordinary physical claim for an occupation nuisance several use or uncom- independent grounds. anything This Court fortable. A will now nuisance is contend, appellees applicable 5. The do not and the circuit under the facts of this case. find, preemption court did not that federal is

451 27, citizen, rights part, Ry. ei- in Co. the of a labus Point Coal & Coke with interferes (1910). 129, enjoyment of person, property, Conley, 67 W.Va. 67 S.E. 613 in v. ther A Further, statutory or his comfort. condition property, his the axioms “[o]ne clearly appears it a nuisance when is that a be read construction is statute will in materially less- enjoyment of is clearly with the common law unless context ened, persons physical and comfort of purpose that the appears from statute materially is interfered their homes change was to the common law.” the statute thereby. 2, Syllabus Point W.Va. State Bd. Smith v. (1982). 593, Williams, 610-611, Educ., 595, 680 141 170 W.Va. 295 S.E.2d v. W.Va. Martin (1956) (citations omitted). 835, 844 93 S.E.2d jurisdiction, power, The PSC’s and authori- recently, private held that nui “[a] More 24-1-1, seq. §§ ty are found in W.Va.Code et and inter a substantial unreasonable sance is purpose Legislative policy and in enact- enjoyment private use and ference with is, ing Chapter 24 of the Code 1, Syllabus Hen land.” Point another’s upon confer commis- to service Stalnaker, 181 v. W.Va. dricks duty authority of this state and to sion (1989). test to unreason determine 198 regulate practices, and services enforce by this Court as has been stated ableness and rates of utilities order to: “An interference with follows: enjoyment of land is unrea and another’s use (1) regulation prompt fair and Ensure harm out gravity of the sonable when using utilities in of the the interest activity alleged value weighs the social consuming public; and Syllabus Hen the harm.” Point cause (2) availability adequate, Provide the dricks, regard remedying a supra. With utility and reliable economical services nuisance, long it has understood been state; throughout the “[j]urisdiction equity abate nuisances is (3) recognition.” Encourage well-planned develop- and of undoubted universal Ehrlick, 700, 705, S.E. utility 64 a manner con- State ment of resources in ways con- sistent with state needs and productive use of sistent with case, court In the instant the circuit coal; resources, energy such as state’s power grant found that the PSC’s electric facilities generating certificates to charges Ensure rates jurisdiction to hear abrogates a circuit court’s reasonable, just, applied utility are services facility’s claim to con nuisance unjust prefer- or without discrimination Concerning power gen the PSC’s struction. ence, applied in a manner consistent with that, Ser erally, held Public “[t]he we have policies forth in arti- purposes set no Virginia has vice Commission West chap- seq.] 24-2A-1 et of this [§§ cle two-a authority jurisdiction, inherent ter, primarily based on the costs of only jurisdiction, power or can exercise such services; providing these Sylla authority by statute.” as is authorized (5) Encourage energy conservation and Pipe Eureka Line Co. v. Public bus Point management of effective and efficient Com’n, S.E.2d Service W.Va. utility regulated enterprises; (1964). Therefore, addressing this (6) Encourage open issue, examining appli limited to arewe rail carrier ser- competitive marketing of Further, looking statutory scheme. cable by providing to all rail carriers access vices statutes, primary focus applicable our provided three-b in section to tracks expressly in Legislature whether 24-3-3b], chapter. article of this three [§ abrogate the common dicated an intent Legislature purpose It determining “In the mean of nuisance. law rail artificial carrier statute, remove barriers in the presumed, it will ing of a be service, competition, stimulate stimulate therein, indicat specifically absence of words passengers of goods free flow and did not contrary, legislature ing the throughout promote and ex- unsettle, disregard, state upon, intend to innovate industry, thereby Syl- pansion ... of tourist common law[.]” alter or violate improving the economic condition of the as if the public certificate of convenience state. necessity and facility for such siting were a 24-l-l(a) certificate issued under said section and § W.Va.Code According to shall not subject juris- otherwise be to the 24-l-l(b), § W.Va.Code diction provi- commission or to the Legislature creates the ser- of chapter sions this respect to such vice legislative commission exercise the of facility except making or construct- powers delegated to it. The service ing material charged commission responsi- with the modification thereof (5) provided bility in subdivision appraising balancing and the in- this subsec- tion. utility added). terests of current and future (Emphasis service customers, general interests of the Thus, exempt generator wholesale of elec economy and the state’s interests tricity subject jurisdiction to the subject jurisdiction utilities to its in its specifically PSC as indicated in W.Va.Code deliberations and decisions. 24r-2-11c(e) § §§ 24-2- W.Va.Code power facility desig- wind issue is 1(c)(5). According § to W.Va.Code 24-2- nated under exempt federal law as an whole- llc(e):8 generator.6 sale The PSC’s over If the commission siting issues the exempt cer- generators wholesale is found in tificate, 2—1(c)(1) (2006),7 § commission shall W.Va.Code have continu- pro- which 24— ing jurisdiction vides: over the holder of the sit- ing certificate for the (c) purposes limited of: Any provisions other chapter of this (1) Considering requests by future contrary

to the notwithstanding: holder for modifications of or amendments (1) operator An owner or of an electric (2) siting certificate; to the considering generating facility located or to be located resolving complaints related to the state that designated this has been as an compliance holder’s with the material exempt generator wholesale applica- under terms and conditions of the commission law, ble federal or will designated be so issuing certificate, order siting prior whether commercial of the facili- complainant or not ty, party and for was a which such the owner or case in operator siting which the holds a certificate of certificate was con- issued, necessity complaints filed, venience and which issued shall be com- an- swered, mission on or day July, before the first resolved in accordance with three, two subject thousand shall procedures commission’s for resolving (e), (f), (i) (h), (g), subsections (j), complaints; formal enforcing the section eleven-c 24-2-1 [§ lc] this article material terms and conditions of a commis- 6.Exempt generator required wholesale § status is 7. W.Va.Code 24-2-1 has been amended since imposed to avoid certain restrictions the Pub granted siting NedPower was certificate. Utility Holding lic ty Holding Act of 1935. The Public Utili However, these amendments do not affect our 109-58, Company Act of Pub.L. analysis. 1262(6), 119 State. replaced sec. Act, "exempt indicates that the term whole c(f) § 8. W.Va.Code 24—2—11 concerns the PSC's generator” sale meaning has the same as in power compliance to enforce with the material (15 section 32 of the [the Act] U.S.C. 79z- certificate; siting terms of a (g) pro- subsection 5a) as that day section existed on the before the right any person vides for the compli- to seek effective Utility Holding date of the Public Com terms; ance with a certificate’s material pany According § Act of 2005. to 15 U.S.C. 79z- (h) explains subsection 5a(a)(l), that a transferee of a part, comply certificate must with the material "exempt generator” The term wholesale certificate; (i) terms of the provides subsection any person means determined the Federal for review any this person feeling Court of Energy Regulatory engaged Commission to be aggrieved PSC; by a final directly, order of indirectly through or and sub- one or more 79(a)(l (j) grants 1)(B) section prescribe affiliates the PSC the as defined in section title, exclusively necessary carry provisions in the rules business of out the owning operating, owning oper- or both W.Va.Code 24-2-11 c. ating, part eligible all or of one or more facili- selling energy ties and electric at wholesale. (f) provided sion order as subsection grant to siting whether or refuse a certificate this section. generating facility, to an electric W.Va.Code 24-2-llc(c) § provides that 24-2-l(c)(5) “[t]he Finally, § provides, W.Va.Code appraise commission shall and balance the An operator gen- owner or of an electric public, general interests of the interests erating facility described this subsection of the state and economy, local and the inter- shall, making constructing before or a ma- applicant.” Notably ests absent terial facility modification of the that is not balancing of interests are the interests of any within the terms of certificate of nearby enjoyment whose use landowners necessity siting convenience and or certifi- properties may of their substantially in- previously cate issued for the or an terfered operation with of an electric thereof, earlier material modification ob- generating facility. rights Because the siting tain a certificate for the modification nearby primary landowners are not a consid- pursuant from the pro- commission to the determinations, eration in the PSC’s visions of section eleven-c [§ 24-2-llc] necessary we believe it preserve to this article lieu of a certificate of rights traditional of these to landowners seek necessity convenience and for the modifica- appropriate remedies the circuit courts. tion pursuant provisions to the of section and, eleven [§ this article ex- 24-2-11] Accordingly,

cept we now hold that provisions for the of section eleven-c right person of a article, under the common to of this law shall not otherwise be sub- bring in circuit ject court a nuisance claim jurisdiction to the to of the commission enjoin the construction or provisions chapter to the of this and/or an electric generating facility desig respect to such modification. nated under exempt federal law as an whole Our express examination of the language generator sale precluded by is not the fact specific the above statutes reveals no lan that the Public Service Commission of West guage indicating Legislature’s intent to Virginia granted has certificate to disregard abrogate the common law doc operator the owner or facility pursuant trine of applies nuisance as it to electric 2—1(e)(1)(2006) § to W.Va.Code and re 24— generating designated exempt facilities lated statutes. generators. wholesale Under our rules of construction, clearly ap because does not Court, appellees their brief to this pear- Legislature’s to purpose us which, policy arguments they make several change the common law of nuisance as it say, compel affirming the circuit court’s deci- applies facilities, to electric generating example, appellees sion. For warn will read the above statutes in context with permitting party prospective to seek a in- Therefore, the common law. this Court will junction under the facts of this case is con- presume Legislature that the left intact the federal, state, trary public policies by equity circuit court’s over elec rendering procedures the PSC’s review generating tric facilities like the one at issue. meaningless, causing a waste of

Contrary arguments resources, appel- discouraging the de- lees, we do believe that a velopment exempt generator nuisance action wholesale enjoin gen- projects. the construction of an electric appellees caution that if cir- erating facility conflicts permitted with the role of the cuit courts are prospectively in granting siting PSC certificates to these exempt the construction of wholesale Legislature facilities. The charged generators, Virginia West to be a will cease PSC with responsibility for “appraising any projects viable location for of these be- balancing the interests of current and cause the financial risks uncertainties utility customers, general future service great. will be too arguments These do not economy interests of the state’s persuade and the in- policy us. We believe that such subject jurisdic- terests of the utilities Legisla- to its considerations are best left to the tion in its deliberations and decisions.” ture and not the courts. The role of the 24-l-l(b). Specific W.Va.Code deciding simply apply courts is our traditional nui- 454 Moreover, governmental entity a legal a

sanee in the absence clear where law lawfully right to private its take exercises reason to so act. not prospective legal analysis, different ing findings. prospective injunction generating facility certificated essentially different facts circuit against decision appellees court a PSC We an by the PSC involves a different injunction against an electric can “second impermissible reject this contention. A sit- than siting also a nuisance aver that in circuit decision in which the considerations, and guess” the PSC’s collateral by coui't. permitting action the PSC is attack for a Ruckelshaus property pensation ^[986] United owner’s L.Ed.2d law, brought against erty enjoin “Equitable relief is not available to at when a suit for a States remedy ^[815] 1016, an for for alleged taking public public v. Monsanto the at 841[1984]: Supreme 104 S.Ct. is property the use, duly use, the compensation right Court ^[2862] the affected sovereign taken. As the Co., authorized private explained obtain at 467 U.S. 2880, can be subse prop land com by 81 quent taking. Larson to the v. Domes Further, appellees contend that the the Corp., tic & Foreign Commerce 337 U.S. a full op- fair appellants were afforded 682, 697, 18, 1457, 1465, n. n. S.Ct. [69 proceed- in the portunity participate PSC (1949).” n. 93 L.Ed. 1640 18] ings every challenge asserted and could have (Citations omitted). omitted; footnote the of a certificate that granting Thus, that the we conclude Sextons’ they in their nuisance claim in circuit raised damage property claim to their from disagree. appel- Again, court. we While the sewage lagoons of the is construction pro- lants could intervened the PSC have decide, an not the PSC to but issue for ceeding complaints, ap- their voiced rather a matter that is should be ad- pellants’ rights among are not private proceeding. dressed in domain the eminent primary considered to be the PSC factors decisions, it the making when nor is 310-11, 188 W.Va. at 423 S.E.2d at 919-20 apply the PSC to statutory task of nuisance (citations omitted). According and footnotes law. appellants, requires to the if Sexton that project necessary PSC that a finds Finally, appellees, of their law, applicable statutory convenient under position, cite the case Sexton v. Public finding and if not overruled this Com’n, Service 423 S.E.2d review, Court on direct construction of the Sexton, plaintiffs appealed 914 In project may prospec- not be PSC-certified conditionally a final of the PSC order tively enjoined aas nuisance. approved public of a application service dispositive We do not find Sexton public district for a certificate convenience present Significantly, issue. Sexton involved necessity operate to construct and private property taking actual for a sewage facility owned treatment Sexton, public Court use. In this found that plaintiffs. One issues raised equitable not available relief was plaintiffs this Court before was that the taking for a use but sewage lagoons proposed consti- location private landowners could seek nuisance dam- issue, In addressing tuted nuisance. this ages in proceeding. an eminent domain “[wjhether explained this Court the con- contrast, does not the instant case involve the sewage lagoons struction of the would consti- talcing private property for a use. tute a nuisance does defeat the PSC’s Therefore, herein, unlike the a certificate issue Sexton, plaintiffs have right do not W.Va.Code, necessity under convenience and proceeding they an eminent domain 24-2-11.” W.Va. at at damages. can also seek nuisance Further, if 918. creates a “[e]ven Sextons, However, simply nuisance to the harm is do find Sexton instructive just compensation in an insofar as element of emi- it indicates PSC is not statutorily proceeding.” empowered nent domain to decide W.Va. nuisance damages. appellees’ Despite S.E.2d at 919. contention residents, contrary, it is may we believe relevant that fort of the the noise be inhib authority adjudicate by 2, the PSC has no dam- equity.” Syllabus ited a court of Point ages by Ritz, caused nuisance. If neither the Cabell, PSC supra. Snyder See also v. 29 jurisdiction nor the circuit court has to abate 48, 1 (affirming injunc S.E. 241 W.Va. private gen- a nuisance caused an electric against skating tion rink’s where it erating facility, appellants are left with- found that materially noise from the rink remedy injuries. out a for their Such a enjoyment interfered with the comfort and of plainly result is inconsistent our histori- residents.). with nearby holdings These are understandings equity. cal Accordingly, of grounded principle on a that is essential to a ruling find that the circuit court in we erred society “every person civil which is that ... appel- that it had no to hear the right has the to be disturbed his alleged lants’ claim to an nuisance. house; right he has the quiet to rest and materially not to be disturbed his rest and 2. Private Nuisance Claim enjoyment of home Prospective Injunction Snyder, loud noises.” a 62, Thus, 29 at 1 W.Va. S.E. at 251. find finding juris- In addition to that it had no appellants’ allegation of noise is appellants’ diction to hear the nuisance claim cognizable under our law an abatable nui as injunction, for an the circuit court ruled that sance. failed to set forth sufficient complaint alleging facts in their a Second, appellants allege that a support granting nuisance would of “flicker” or “strobe” effect from the turbines prospective injunction against appel- eyesore. Traditionally will create an “courts Specifically, lees. the circuit court found equity authority of have hesitated to exercise appellants alleged injuries that even if the in the abatement of nuisances where nuisance, which remedies are available in subject objected matter is the com alleged injuries pro- these do not plainants merely because it is offensive to the spective injunction injuries because the are sight.” Parkersburg Builders Material Co. speculative contingent. Barrack, 608, 610, 191 118 W.Va. S.E. reading appellants’ complaint Our (1937). explained This Court has in fur appellants allege, pri- indicates ther detail that nuisances, vate that the wind turbines will [e]quity only should act there where cause constant noise when wind is blow- presented a situation which is offensive to ing and an increase noise as the wind average persons commu- view velocity increases; the turbines an will create nity. And, there even where situation eyesore aas result of the turbines’ “flicker” average person deem of- which would or “strobe” effect when the sun is near the sight, fensive to the such fact alone will not horizon; proximity appellants’ justify equity. interference a court of property to the turbines will result in a dimi- surroundings must be considered. appellants’ property nution values. Unsightly things are not to be banned legal now determine the We will effect of solely Many that account. them on are allegations each of these under our settled necessary carrying proper on the activi- law of nuisance. organized society. things ties of But such First, appellants allege properly placed, should be and not so lo- the noise from turbines will constitute a unduly neigh- cated as to be offensive to nuisance. This Court has held that “[n]oise public. bors or to the nuisance, may depending alone create a Barrack, at 371. time, 118 W.Va. 191 S.E. locality degree.” Syllabus Point activity Charleston, unsightly properly is not Ritz When v. Woman’s Club placed, unduly when it is offensive its W.Va. 173 S.E. 564 We have accompanied by neighbors, and when it is further held that an unusual and “[w]here recurring enjoyment noise is introduced in a residential other interferences to the use and district, prevents sleep property, and the noise or oth of another’s this Court has shown a materially willingness activity erwise disturbs the rest and com- to abate the as a nui- noise, light, unsightliness and resultant de- example, Syllabus Point 3 For sanee. Walter, preciation adjoining residential Mahoney v. (1974), which, though held: it was in an area unrestrict- S.E.2d 692 values corporate limits of a ed and without an automobile sal- The establishment highway city, was across a from noise, town unsight- incident vage yard its property lying zoned residential within presence flam- liness, hazards from limits, previ- vehicles, corporate area had materials, open rodents mable ously exclusively on both insects, depreciation of been residential resultant highway in an for a distance of property values sides of adjoining residential mile, which, though approximately unrestricted and con- one-fourth area businesses, greatly is car lot” interferes with taining some commercial which “used residential, use, in- together enjoyment of such primarily with comfort and use, comfort and en- surrounding properties, residential consti- terference with surrounding properties fact, joyment may of the tutes a nuisance be abated may a nuisance by operation, be equity. caused its by a court of may by compe- a court of be abated Mahoney, supra (holding that auto See also jurisdiction. tent noise, yard unsightli salvage mobile with hold, therefore, unsightliness that while We hazards, ness, flammable materials rodents rarely justifies interference a circuit alone insects, depreciation of and resultant equitable principles, an un- applying court property may adjoining residential values be may it sightly activity be abated when occurs abated). hold, may a nuisance We accompanied by area and is in a residential therefore, activity that an that diminishes other nuisances. nearby property and also cre the value of Third, allege appellants enjoyment to the use and ates interferences turbines will cause a construction of the wind nearby property may of the be abated property values. With re reduction their equitable applying principles. circuit court gard legal effect of mere diminution addition,' may In com landowners seek ex property, this Court has the value of any pensation for diminution in the value of plained: property their caused the nuisance. - question of reduction in value Upon the Finally, remedy sought by properties, as the result of plaintiffs’ injunction against is an lot near- of the used car establishment operation construction and of the wind by, this statement in Wood on we find facility. Nuisances, Edition, § 640: “Mere dim- 3rd general thing It is a rule that when the property, inution of value se, complained per a nuisance is not but adjoining consequence of the use to which so, may according may or not become devoted, unaccompanied premises are circumstances, injury apprehended and the ill-results, absque inju- is damnum other contingent, equity is or will not eventual Nuisances, 19, C.J.S., ria.”- Also in 66 interfere; being presumption that a “However, a 771, it that: use P. is stated entering legitimate person into a business property does not create a nui- proper way, conduct it in a so that it will enjoined or a lawful struc- sance cannot be not constitute a nuisance. will merely it renders ture abated because property neighboring less valuable.” 2, Cramer, Syllabus Point Chambers v. 49 Martin, 609-610, (1901). 93 S.E.2d at 141 W.Va. at 395, 38 S.E. 691 We have W.Va. However, appellants in this 843-844. recognized that a business or a busi lawful rely merely upon diminution of ease do not gov authorized to be conducted ness their nuisance values per se. ernment cannot constitute nuisance claim, unsightliness. Ac Camden, but also noise and early McGregor v. 47 case Martin, cording Syllabus supra, 1 of (1899), Point 193, 196, 34 S.E. 937 W.Va. succinctly commonly stated that lawful busi “[a] Court The establishment what se, per a nuisance from incident ness cannot be but known as a “used car lot” with its

457 circumstances, or unreasonableness or the reasonableness surrounding places and its may it or use in relation to the it conducted the manner which omitted). (Citation locality See and under all the exist- particular a nuisance.” become also, Martin, at ing circumstances. (“The car lot is a operation of a used 838 [prospective] Specifically, a[] sustain “[t]o rule, business, and, general as a

lawful business, inhibiting ... not injunction [a] se.”); Frye v. per cannot be a nuisance nuisance, constituting a it must be per se 123, 129, 107 McCrory Corp., 144 W.Va. injury it is danger that the from shown C.J.S., (1959), quoting 66 S.E.2d imminent, cer impending and the effect (“The Nuisances, proper lawful Section part, Pope Syllabus Point tain.” does property or conduct of business use of Co., 43 S.E. Bridgewater W.Va. Gas nuisance, ordinarily an actionable create regal'd inju With whether per se’ in the strict and is never a ‘nuisance certain, this Court has ry in nuisance is term.”).9 Further, according to of.that sense possible, explained that eventual “[m]ere v. Fairmont & S. Syllabus Point 6 of Watson enough. inju That contingent danger is not 528, (1901), Co., 193 Ry. 49 39 S.E. W.Va. beyond ques ry must be shown will result is author- person corporation a or When hypothesis conjec or resting ... not tion by express legislature an stat- ized ture, by conclusive evidence. but established act, city or the council of a ute to do an doubtful, eventual, contin injury or If the power to authorize it to or town which granted.” gent injunction ... an will not be act, delegated by legislative a been (inter 256, at Pope, 43 S.E. 89 52 W.Va. corporation cannot be re- person or such omitted). quotation marks and citation nal in committing a nuisance garded as Essentially, proper test to determine proceeded act nor execution of such activity proposed should be en a whether theory merely upon that it is a against activity will joined on the basis nuisance, equity. either at law fol has been stated as constitute a nuisance (“The also, 1, Frye, supra Syllabus Point perpetuation See of an “To lows: warrant maintaining a under a side- restraining, vault a threatened nui injunction law, by authority of municipality, sance, building proposed a walk of of a the erection se.”). per a nuisance does not constitute fact legitimate purposes, be used for Therefore, holdings to apply these when we if must be be a nuisance so used that will that, facts, as a must conclude clearly appear, beyond ground the instant we all made granted 3, been a Syllabus business which has questioning.” lawful Point Cham fair PSC, appellees’ bers, certificate supra. a power facility cannot be considered wind to the alle Applying the above law per se. nuisance complaint, and tak gations appellants’ in the However, appel the fact that the true, conclude allegations as ing these facility not con generating does lees’ electric legally are sufficient allegations that the not mean per a se a does stitute nuisance enjoin a nui prospectively a claim to state a nuisance. It is that it cannot be abated as differently, it not defini does sance. Stated a a business that is not nui also true that appellants can tively appear to us that the may a nuisance per sance se still constitute claim. support of their prove no set of facts In surrounding circumstances. light of the injury alleged certain appellants have Mahoney, supra, Syllabus Point 2 of properties as enjoyment of their the use and held, Court noise from the wind of constant loud a result turbines, unsightliness, and re turbines’ rule, a fair test as general As a If property values. appellants’ in the particular use of a duction a business or a whether sufficient are able to adduce operation appellants property in connection with beyond nuisance, allegations these prove is evidence constitutes a of the business 725, 626, 628 Navy, W.Va. example of an unlawful business 9. The classic ("A per bawdy nuisance house is a per se that can be that constitutes a nuisance by injunction”). may by injunction v. se that be abated a brothel. See State abated questioning, ground clearly all of fair abatement cases hold that continual sub- Therefore, appropriate. would be we find person’s stantial interferences a use ruling that the circuit court erred that the enjoyment property by things such as appellants any failed to assert facts of a unsightliness noise and can best be abated pro- nuisance would a applying equitable principles. courts This is spective injunction. due to the fact that constant loud noise unsightliness that interferes with the use and however, appellees argue, that under enjoyment property simply suscep- are not holding in Beckley this Court’s Severt v. Thus, computation. money damages tible to Coals, Inc., W.Va. S.E.2d 577 Moreover, remedy. alone are an insufficient (1969), cogniza do not have appellants may the fact that have an they ble nuisance claim because have ade remedy adequate legal prop- reduction SeveH, quate remedy at law. the defen erty equity values not bar does claims to began mining operation dant a coal within alleged abate other nuisances. This Court plaintiffs’ 120 feet of the home. The defen Syllabus Lyons Viglianco, held Point fan, crusher, dant an exhaust installed (1940), 122 W.Va. 8 S.E.2d 801 carrier, a belt transport used trucks to “ equity very salutary ‘[e]ourts of exercise a coal. The defendant’s in con jurisdiction in matters of nuisances.’ approximately stant from 6:00 a.m. Co., Moundsville v. Ohio River Rr. following morning, until 2:00 a.m. the 92, 105-6, 16 S.E. 20 L.R.A. 161. days Where plaintiffs continued six a week. The equity rightfully produced invoked in sued the defendant and evidence at matter, legal trial such the enforcement of a facility deposited the defendant’s also Thus, large quantities ancillary.” demand is plaintiffs’ of dust on the for these rea- sons, property, apply decline to constant loud noise we SeveH to the in- from the stant plaintiffs’ peace disturbed the case.

disrupted sleep. plaintiffs their The also produced evidence of a reduction in the value Estoppel 3. Collateral property. jury of their the awarded Last, the circuit court ruled that plaintiffs damages to per real estate and if appellants even the could assert facts suffi injury, the sonal but circuit court refused the allege cient to pro a nuisance claim for a plaintiffs’ request injunctive pre relief to spective injunction and the circuit court had the operating vent defendant from its coal jurisdiction it, appellants to hear the are col mining facility. laterally estopped bringing from such a This Court affirmed the circuit claim. injunctive Sylla court’s denial of relief. In law, Under our SeveH, bus Point 3 of the Court held that “[e]quity jurisdiction does not have of a case estoppel Collateral will bar a claim if plaintiff full, in complete which the ahas (1) four conditions are met: The issue remedy law, adequate pecu unless some previously decided is identical to the one liar feature of the case comes within the (2) presented question; in the action in province equity.” of a court of The Court adjudication there is a final on the merits explained clearly appears “[i]t from the (3) action; prior party against of the the evidence disclosed the record that the whom the doctrine party is invoked was a plaintiffs adequate remedy an have at law for privity action; or in party prior with a to a recovery the damages compensate them party against the whom the doc- fully injuries for the damages caused trine is opportu- raised had a full and fair Severt, the defendant.” 153 W.Va. at nity litigate prior the issue the action. 170 S.E.2d at 581. Miller, Syllabus Point State v.

After careful consideration of the We find that collat- SeveH, reasoning in we do not estoppel appellants find SeveH to eral does bar the governing precedent. Frankly, bringing SeveH is from prospec- nuisance claim for a inconsistent this injunction with Court’s line of nuisance tive circuit court because the appellants’ the previously decided the PSC court’s to hear issues claim, certificate are granting appellees persuasive the certificate is evi- in a claim. not identical to the issues nuisance utility dence of reasonableness social appellees’ oper- of the use of the PSC, determining propriety power facility. Finally, our ate a wind deci- operating power constructing and wind merely appellants in this that the facility, charged appraising sion ease is and bal- alleged ancing public, general have facts in their the interests sufficient com- economy, and local plaint pleadings. interests of the state to avoid a on the dismissal applicant. in a words, interests of The issue In other should have however, claim, an inter- day this, nuisance whether Beyond their court. we offer no enjoyment use and ference with the opinion on the ultimate success or failure of unreasonable, i.e., land of another’s wheth- appellants’ claim.11 outweighs er the of the harm gravity alleged activity to cause social value of III. specifically The PSC did not de- hann. utility cide the of whether the social issue CONCLUSION facility outweighs any power inter- wind conclusion, no having found basis in law appellants’ private ference with the use and ruling for the circuit court’s that dismissed enjoyment properties. Accordingly, of their the pleadings appellants’ nuisance ruling find the circuit court erred in

we claim for an injunction, we reverse appellants’ nuisance claims are 7, 2006, order of the Circuit Court of Grant estoppel.10 barred collateral County, and remand this case Finally, prior closing, we wish proceedings circuit court for consistent with First, emphasize important points. several opinion. considering appellants’ claim for a Reversed and remanded. permanent injunction, the circuit court has fashioning great appropriate latitude in

remedy. Certainly, the court has the BENJAMIN, Justice, dissenting. completely enjoin construction 2007) (Filed July power facility. may wind The circuit court conceded, appellant The landowners and remedy equitable also an of a fashion short agreed, the Court that if apparently appellee complete injunction. haveWe held that “[i]n utility public NedPower1 a with the were nuisance, private the matter of a the relief domain, power they of eminent could not granted be such as cause the defen should have the of its construction necessary injury dant no more than is enjoined private facilities as wind-turbine rights.” Syllabus protect plaintiff’s the Point Rather, they nuisance. would be to a Second, limited Lyons, although supra. money damages claim for in an eminent do- grant PSC’s of a certificate to the appellees abrogate proceeding2 main or condemnation does not the circuit inverse sought NedPower received from Federal we find that the first condition of a Because 10. (FERC). present, Energy Regulatory estoppel not we need Commission collateral bar is remaining conditions. consider Recently, recognized 2. the distinction this Court argue appellees judgment 11. The also and inverse condemna- between condemnation must be affirmed circuit court because proceedings, noting tion that: appellants assign error to all failed to and brief Supreme Court drew The United States following grounds by of the enumerated the circuit court between "inverse con- distinction pleadings. granting judgment We for proceedings demnation” and condemnation disagree. argu- there are sufficient We believe Clarke, S.Ct., 1127, v.U.S. 445 U.S. challenge appellants’ all ments in the brief to 63 L.Ed.2d 373 grounds court’s for its dismissal on circuit just [A] landowner’s action to recover com- pleadings. taking by physical pensation for a intrusion "exempt to be which, has come to be referred to as “inverse” or 1. has been deemed NedPower (EWG), according generator” [A] ... “reverse” condemnation "condemna- wholesale 2, 2003, commonly proceeding tion” understood to order of is a status P.S.C.’s (2) noise, unsightliness, utility; any only diminution public such “real” public power in the of their caused value utilities have the of eminent § facilities.3 domain under W. Va.Code 54-1- 2(a)(2)(2006).4 my opinion, In both of these explicit implicit assumptions premises are incorrect. apparently appellants Majority Utility A. NedPower is a Public (1) appeal is that: NedPower must be subject range regulation by full appellees describe NedPower time provided in Chapter again PSC as 24 of the being West as an “EWG” and its PSC Virginia respect Code wind-powered to its rates and certificated generating electric practices in order to be being project.”5 classified as a “real” facilities an “EWG brought by condemning be an action agreed au- er of eminent domain. That the Court thority such as the Government in the exer- appellants' representations with the and conces- power cise of its of eminent domain. perhaps sions is best indicated its statements Sexton, Id. at 100 S.Ct. at 1129. equitable “[i]n this Court found that Virginia Department Transportation West enjoin taking relief was not available to for a Services, Inc., Dodson Mobile Homes Sales public private use but that the landowners could 121, 123, 2, 468, 470, n. n. damages seek nuisance in an eminent domain 2, (2005). contrast, proceeding. In the instant case does taking private property not involve the Court, appellants 3.In their briefs before this Therefore, herein, appellants use. un- represented appeal that "[t]he sole issue on this Sexton, plaintiffs right like the do not have the is whether a certificate from the Public proceeding they of eminent domain in which can Service [PSC] Commission forecloses a circuit damages." Majority opinion, also seek nuisance considering proposed court from whether a in p. by Majority 890. This statement is confus- facility private dustrial wind ais nuisance when ing. Majority If the means that this is not a regulated public utility the wind is NOT a case, correct; condemnation it is on the other (Em power property.” and has no to condemn hand, if it means that the wind turbines are for phasis original). support argument, of this use, disagree explained I for the reasons wind-generated maintained "[t]he herein. part any regulated in this case is not public utility” and claimed that orders of the 1—2(a)(2)(2006) § provides, 4. W. Va.Code 54— PSC it clear "that wind make turbine facilities private property may "The uses for which regulated public are not utilities” because Ned damaged be taken or are ... as follows: For Power, upon request, granted was a waiver telegraph, the construction and maintenance of relieving obligation the PSC NedPower of its telephone, light, power plants, electric heat and file certain financial and cost-of-service informa lines, conduits, systems, lines transmission sta- application tion in of its for a certificate branch, lines), (including spur tions and service necessity. (Emphasis of convenience and original). provision when for pre- use[.]” This was Appellants conceded that "a landown 54-l-2(b) (1979) viously § codified at W. Va. but public utility [apparently er cannot a real redesignated 54-l-2(a)(2) meaning public as W. Va.Code utility subject that is to the full range regulation in 2006 without textual provi amendment. PSC under the Chapter sions of 24 of the W. Va.Code with respect practices] its rates because [such] 1, 2, supra, 5. As noted in footnote the PSC’s utility acknowledged can condemn” and 2003, order determined that NedPower had Court’s decision in Sexton v. Public Service Com sought and received from the FERC the status of mission, (1992), 188 W.Va. 423 S.E.2d 914 paragraphs August an EWG. In 5 and 6 of its noting regulating that when the PSC is a "real 2002, application to the PSC for a certificate of public utility”, damages all related nuisance necessity convenience and to construct sought through be pro must an eminent domain operate up generators, to 200 wind-turbine (Em ceeding damage aor suit in circuit court. following representations: NedPower made the Brief, phasis original). Reply Appel In their Sexton, argued lants that "[i]n the Applicant reason that the operate Project 5. will own and injunction circuit court could not award an was exempt generator as an wholesale as defined in PSC, not the exclusive 32(a) but Utility Holding Section of the Public offending rather the fact that the sewer treatment 79a, Company seq. § Act of 1935. 15 U.S.C. et plant public utility right was a with the of con EWG, Applicant engaged directly As an will be (Emphasis original). demnation!” exclusively owning in the business of operating Project selling Unfortunately, Majority opinion the electric is not as energy generated by Project regarding clear as it could and should have been at wholesale. appellant's representations Applicant's application for concessions as to EWG status was impact approved of a determination filed that NedPower is a on June 2002 and was regulated public utilify pow- or a Energy Regulatory "real” with the Federal Commission

461 EWG, “exempt of wholesale the first letters Trades Foundation v. Public Service Com generator,” Energy Poli- Virginia, is derived from the mission West 565 of cy adopted by Congress in Act 1992. Ac- S.E.2d 778 While there are a number cording Regulato- case, to National Association significant of facets to that the most of ry Utility Commissioners v. Securities & holding majority purposes for of this Commission, Exchange 63 F.3d 1123 Big Sandy, corporation case was that at (D.C.Cir.1995), Policy Energy Act’s therein, was, public utility despite issue purpose “stead[y] fact that the PSC had decided that it encourage was to in- was NedPower, security Big Sandy, energy creases U.S. not. like [in] cost intended ways” by “us[ing] generate electricity solely effective ... the market for the wholesale government regulation rather than majority wher- market. Trades Affiliated possible energy ever both to advance secu- disagreed Big Sandy’s PSC’s and rity goals protect and to consumers.” In Big Sandy contentions that not a development order to facilitate the a utility, stating: of competitive for market wholesale electric Big Sandy represented that it will power, Congress amended the Util- [Public produce electricity which which will ity Holding Company Act of 1935] make to AEP transmitted for eventual sale to holding companies it easier for to invest in public. Virginia § West Code 24-2-1 an “exempt generator” wholesale or specifically engaged states that one in the ” “EWG, which is as defined generation subject of electric person ... any exclusively in the busi- jurisdiction, PSC whether the service is ... owning operating ness or all or provided “directly through or a distribut- of part eligible one or more ing utility.” any entity We note also that of facilities selling energy electric at wholesale. business, “engaged any whether herein not, “eligible facility” is, An is in turn enumerated or or or shall defined be, mean a is either “vised hereafter be held to service” for generation energy exclusively public utility electric constitutes a under Vir- West wholesale, 24-1-2, ... ginia quoted § sale at used Code above. for generation energy electric and leased to That is an inclusive definition. We con- public utility one or companies generation more clude that electric and trans- -” Congress solely Because viewed mission [Pub- intended facilities Utility Holding Company lic electricity limita- sale Act’s] the wholesale market corporate tions on “stifling statutory structures as are within the definition of growth independent power,” public utility Virginia [to] set in West forth exempted appears amendments EWGs “from Code whenever it 2J/.-2-1 provisions will, all Utility Holding electricity Public produced [the in the course Company distribution, ultimately Act].” amendments also be sold to the companies ease the public. Accordingly, restrictions on the PSC find Big wish to invest in Sandy EWGs. determination that is not a “public utility” was erroneous as a matter Commr’s, Reg. National Assoc. 63 F.3d at law. (internal omitted) (emphasis citations added.) Trades, W.Va. Affiliated omitted) (footnote (emphasis S.E.2d at 785 This is not the first time that an EWG has added). Court, yet parties

been before the neither Trades, any nor majority the Court made reference to the if the To the Affiliated case, electricity by facility earlier that generated of Construction will ulti- Affiliated ("FERC”) July approv- energy Project, 2002. The letter retail sales of electric from the ing Applicant’s application including is attached as ex- to industrial without limitation sales customers, hibit 2. or commercial unless and until (i) Upon operation, Applicant permitted Virgi- 6. commercial will such sales are under West Project generate energy regu- use the to electric ex- nia law and the Commission's rules and lations; (ii) clusively competi- permitted for sale at in the wholesale for EWGs under Applicant tive wholesale market. will make law. no federal by facility utility determined the extent of the public, the is a is not mately be sold it, statutory authority regulate but utility. consequence no to PSC’s public It was of rather, “public” may as the Court held majority that the be situate Affiliated Trades, Furthermore, electricity in the ex- whether its sale of entirely out of State. will, market in the course of distri- regulation of the did wholesale tent of the PSC’s bution, ultimately public, re- decision. be sold to into the Court’s not enter gardless public may be located. of where that Thus, Affiliated, by operation of the Trades my opinion case, of It is therefore that NedPower upon receipt of its certificate conven- utility though the necessity April public the PSC on is a herein even ience and from public utility Majority parties and the that it is became a sub- assumed NedPower not. ject jurisdiction the full of the PSC to service, un- regulate practices its and rates B. NedPower Has the Power Eminent provisions Chapter of the West der the Irrespective Domain Whether It is or

Virginia Code. Utility Fully Regulated Is Not a Public by theP.S.C. order, three months after the PSC Some July 1, legislation specifically on parties only assumed Ned- enacted, which, amending W. Va.Code utility, public is not a but further Power 24-2-1, § converted NedPower’s certificate only utility public which is assumed (issued necessity of convenience and (a fully public regulated the PSC “real” 2, 2003), siting into a certificate PSC on it) utility appellants put power as effect, and declared in insofar for its EWGs words, In of eminent domain. other relevant, except for de- as here certain parties power linked the of eminent domain continuing jurisdiction lineated of the PSC power generator regu- of an electric to PSC it, the certificate issued to NedPower’s over assumption lation. It is not clear that this is generators wind-power-driven electric would correct. subject jurisdiction not “be to the 54-l-2(a)(2) Virginia § West Code de provisions [Chapter or to the [PSC] clares, part, public “[t]he uses Virginia respect to Code] with such West private property may be taken or dam except making for the or con- facilities] aged are as For the construction follows:... structing of a material modification thereof heat, light, and maintenance .electric of.. provided in subdivision of this subsec- lines, power plants, systems, transmis (c) tion of W. Va.Code See W. [ 24-2-1].” lines, conduits, sion stations ... when for 2—1(c)(1). Thus, according to Va.Code 24— public use.” These words are indifferent as legislation, specifically the 2003 W. Va.Code driven, power plant to how the electric 24-2-l(c)(l) (2), § § and Va.Code 24- W. coal, gas, whether natural water or wind. 2-llc(e), (f) (h), subject an EWG is view, my power In a wind-driven electric regulation PSC’s plant power plant[ ... “electric under ]” respect generating electric its 54-l-2(a)(2), provisions of W. Va.Code facilities, making constructing of a may employed and eminent in the domain modification thereof after the material if the construction and maintenance thereof certificated, considering has been plant is “for use.” An electric resolving complaints relating compliance may plant irrespective be “for use” of, with, enforcing and the the material terms regulation by the extent of its the PSC as issuing and conditions of the PSC order majority indicated above. The in Affiliated siting certificate. Big Sandy Trades declared that was a Significantly, legislation the 2003 did not utility regula not because of extent of its PSC, nullify majority’s holding generates tion but because Affiliated and, public utility, electricity public. Trades that an EWG is a for ultimate sale to the my opinion, implicitly County Light it did not do so. Preston & Power Co. v. Ren Rather, ick, 115, 126, simply legislation lessened the (1960), authority regulate an EWG under this Court stated that term “[t]he PSC’s utility’ designates provisions Chapter ‘public properly 24 of the West the owner entity person an Virginia Code. Whether such as control devoted NedPower, EWG, public is or is not a As NedPower’s wind-driv- use[.]” ultimately generators en are “for

use,” public utility. NedPower is a use,” “public

That as that term is used 54-l-2(a)(2),

W. Va.Code linked regulation by

the extent of the PSC of the power generators

electric is evidenced Legislature power

fact that the bestowed the upon power eminent domain “electric ...

companies, when use” well Legislature

before the created the PSC in constitutionality legis

1913. The of the 1907 upheld in Pittsburg Hydro-Elec

lation was Liston,

tric v.Co. 73 S.E. 86

Accordingly, opinion I am of the that Ned-

Power, respect EWGs, possesses to its power of eminent domain. The Court

should, therefore, have denied the relief because,

sought appellant landowners conceded,

as the if NedPower public utility

were with the of emi- they

nent domain could not the con-

struction and of its wind turbines Accordingly,

as a nuisance. I dis-

sent.

647 S.E.2d 899

STATE EX REL. JOHNSON & JOHNSON

CORPORATION, Foreign Corpora-

tion, Pharmaceutica, Inc., and Janssen

Foreign Corporation Wholly- and a Subsidiary

Owned of Johnson & John-

son, Inc., Petitioners, KARL, Judge

The Honorable Mark A. County,

the Circuit Court of Marshall Wilson, M.D.,

Daniel W. and Estate of

Nancy Gellner, by Gregory Gellner, J. A.

Executor, Respondents.

No. 33211.

Supreme Appeals Court of Virginia.

West

Submitted Jan. 2007.

Decided June 2007.

Concurring Opinion of Justice

Starcher June 2007.

Case Details

Case Name: Burch v. Nedpower Mount Storm, LLC

Court Name: West Virginia Supreme Court

Date Published: Jul 27, 2007

Citation: 647 S.E.2d 879

Docket Number: 33201

Court Abbreviation: W. Va.