CHARLESTON -- The state Supreme Court of Appeals on Tuesday concluded that the Mason County Commission "had no legal authority" to rescind its previous resolution approving a controversial parkways project.

During this year's session, the state Legislature passed a bill allowing the West Virginia Parkways Authority to work with the state Department of Transportation to create new toll roads other than the current portion of Interstate 77 between Charleston and Princeton. The bill required approval of the county commissions affected by the tolls before they could be implemented.

The Putnam County Commission voted unanimously to approve the placement of tolls on a 32-mile section of U.S. 35 on Sept. 28. The Mason commission followed suit two days later by a 2-1 vote. Rick Handley, a Democrat, cast the dissenting vote.

The Authority announced on Nov. 4 after an initial base toll of $2 for passenger vehicles, the tolls would increase $.25 every four years to a final rate of $3.75 until 2041. The final rate would remain in effect until the bonds sold to pay for the road were paid off in 2043.

State officials say it is the only way to complete the highway's upgrade to four lanes on the still unconstructed 14.6 miles.

Following public outcry against the toll plan, the Mason commission then voted 2-1 to rescind their approval of the project during a Nov. 10 meeting.Commissioner Miles Epling, a Republican, who first voted with fellow Republican Bob Baird to approve the toll road, joined with Handley in voting to rescind the Commission's Sept. 30 vote.

The commission, in a filing with the Court on Friday, argued that its original vote supporting the tolls was based on "misleading representations" by state officials.

Commissioners contended they never received a "full accounting" of the project from the Parkways Authority or the state Division of Highways. In fact, Mason County Prosecuting Attorney Damon Morgan, who represented the Commission in the case, said information on "traffic diversion statistics, traffic patterns, toll schedules, toll revenue studies [and] limited access points" was only disclosed to the commission by a third party.

"The 'Jacobs Report' cited by Petitioner [the Authority] was not disclosed to Respondent County Commission by Petitioner prior to the vote on September 30, 2010," Morgan said.

"Respondent County Commission received the 'Jacobs Report' on November 5, 2010 from a concerned citizen and, at that time, in light of the information contained in the 'Jacobs Report' and public opposition to the proposed project, scheduled a meeting to rescinded [sic] its prior approval of the proposed parkway project."

The Parkways Authority took the dispute to the state Supreme Court, arguing that the commission doesn't have the authority to revoke their prior approval.

The Court on Tuesday granted the petition praying for a writ of mandamus by the Authority.

The justices, in their four-page order, noted, "The Court wishes to be clear, however, that it is only considering the issue of whether Respondent County Commission of Mason County was authorized to rescind its September 30, 2010, resolution approving the U.S. Route 35 Parkway Project, and whether Respondent (Gregory) Barr (general manager of the West Virginia Parkways Authority) should be compelled to move forward with the Parkway Project by, among other things, proceeding with his statutory duties pursuant to West Virginia Code 17-16A-13a.

"The Court takes no position as to the merits of the Parkway Project, despite having received briefing and exhibits to that effect."

According to the Court's order, the commission "had no legal authority" to rescind its Sept. 30 resolution and therefore its vote to rescind that approval is "void."

The Court ruled that Barr must proceed in moving forward with the U.S. 35 project by "among other things, noticing and holding public hearings on fixing tolls and issuing bonds," as required by state code.

Public hearings are tentatively scheduled for Dec. 27 and 28 in Point Pleasant and Winfield, respectively.

A full opinion will be issued "in due course," the Court wrote.

Justice Brent Benjamin did not participate in the Court's decision. He did not provide a specific reason for recusing himself.

Taylor Circuit Judge Alan Moats was appointed in his place.

West Virginia Supreme Court of Appeals case number 35757

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