WINFIELD – A Hurricane couple has made good on their promise to quickly re-file legal action against city officials in an effort to halt construction of a nearby Wal-mart Supercenter.
Last week, The Record reported that Mark and Delores Halburn decided to voluntarily dismiss their Writ of Mandamus against the city of Hurricane.
The Halburns filed the writ on June 25 in Putnam Circuit Court to compel city officials to begin enforcement of its noise ordinance against Cleveland Construction Inc., the general contractor for the new Wal-Mart being built across from the Halburn's home near the westbound entrance to Interstate 64.
The Halburn's initially filed the writ pro se. Since then, they have retained former Kanawha County Prosecuting Attorney Mike Clifford and former state Secretary of Arts and Education Barbara Harmon-Schamberger as legal counsel.
Clifford and Harmon-Schamberger suggested the Halburns drop the writ and file an injunction against both the city and CCI to halt work on the project instead. According to court records, the Halburns did just that on Aug. 28.
In their complaint, the Halburns name the city of Hurricane and its city manager Ben Newhouse, CCI and Kanawha Stone as co-defendants.
According to court records, the Halburns allege the former denied them their constitutional rights by selective enforcement of ordinances meant to control nuisances created by the latter.
Specifically, the Halburns allege that since Dec. 4, 2006, when work began on the project, CCI and Kanawha Stone have created a "private nuisance" because of "blasting, excessive exposure to lights, and excessive exposure to noise."
Such activities, the Halburns allege, have restricted the "peaceful enjoyment of their premises, have interfered with the postal delivery to their residence and have otherwise acted so as to constitute an unreasonable and substantial interference with the private use and enjoyment of plaintiff's land, without just compensation."
In an effort to quell some of the noise, the Halburns maintain they made repeated requests to city officials to enforce its noise ordinance. However, they allege that the city has "willfully and intentionally refused to enforce said ordinance in response to the complaints made by the plaintiffs" thus making the city a "co-conspirator" with CCI and Kanawha Stone "in their diminution of the peaceful use and enjoyment of the plaintiffs property."
Also, the Halburns allege that the city blocking their telephone calls is an "interfere[nce] with their state constitutional privilege to petition the government for a redress of grievances."
As a result of these and other actions, the Halburns, through Clifford and Harmon-Schamberger, ask for the court to "issue an injunction prohibiting the defendants from interfering with the peaceable use and enjoyment of their real estate and that the plaintiffs be granted judgment against the defendants in amounts sufficient to compensate them for their damages, that they be awarded court costs and counsel fees, and that they be granted all such other and further relief as the nature of their case may require."
Initially, the case was assigned to Putnam Circuit Judge O.C. "Hobby" Spaulding. However, both he and Judge Ed Eagloski recused themselves from hearing the Halburn's Writ of Mandamus.
The state Supreme Court appointed retired Wayne Circuit Judge Robert G. Chafin to hear the case. On Aug. 21, Chafin granted the Halburn's Aug. 15 motion to dismiss their writ petition.
CCI seeks dismissal of second suit
In a related matter, CCI has chosen not reply to a suit Mark Halburn filed against it and Mark David Koon, the project superintendent.
Instead, they filed a motion to dismiss, and alternatively for summary judgment.
In their motion filed Aug. 23 though their attorneys Jeffrey K. Phillips and Paul A. Konstanty with the Charleston law office of Steptoe and Johnson, CCI and Koon say Halburn has "failed to state a cause of action upon which relief may be granted."
Specifically, CCI and Koon say dismissal is warranted "because the City of Hurricane Police Department and an independent Magistrate (Magistrate Kim Blair) found probable cause to issue a warrant for the plaintiff's arrest."
"Moreover," they add, "none of the information provided to the police by Koon was false."
In his suit filed in July, Halburn alleged that CCI, though Koon, provided false information to HPD on Jan. 10 in effort to stifle a story he was preparing for PutnamLive.com, on an unlicensed blaster.
According to court records, Halburn was arrested in the early morning hours of Jan. 11 on charges of telephone harassment, a misdemeanor.
In April, Halburn was acquitted of the charges by Putnam Magistrate Kylene Dunlap Brown.
Putnam Circuit Court, case number: 07-C-298