Justices expand on U.S. 35 ruling

By Jessica M. Karmasek | Mar 2, 2011

CHARLESTON -- The West Virginia Supreme Court, in a full opinion released Tuesday, said the Mason County Commission lacked the authority to rescind their approval of a controversial parkways project.

CHARLESTON -- The West Virginia Supreme Court, in a full opinion released Tuesday, said the Mason County Commission lacked the authority to rescind their approval of a controversial parkways project.

On Dec. 7, the Supreme Court issued a four-page order saying the commissioners "had no legal authority" to revoke its Sept. 30 resolution and that its vote to do so is "void."

During last 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, but 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.

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

The Parkways Authority took the dispute to the state's high court, arguing that the commission didn't have the authority to revoke their prior approval.

Chief Justice Margaret Workman authored the Court's full 21-page opinion.

The petitioners -- the West Virginia Parkways Authority; Erica M. Mani, chairman designee of the Parkways Authority; and Cameron Lewis, vice chairman of the Parkways Authority -- contended the commission couldn't rescind their approval of the project because the authority had relied on their original resolution to "identify, approve and designate" the proposed parkway as a project, thereby giving it "final approval."

And because West Virginia Code provides that county commissions must give approval "prior to any final approval," the authority argued that the commission acted too late in their attempt to rescind their vote.

The commissioners, on the other hand, contended that the authority did not and could not have issued any "final approval" of the project because state code requires public notice and public hearings prior to any such action.

Because no public notice or hearing was held prior to the authority's "final approval" of the U.S. 35 project, the commission contended that such "final approval" was invalid. And without valid approval having occurred, the commission argued they were entitled to rescind their approval of the project.

Workman wrote that both parties' arguments were "misplaced."

"Indeed, whether or not the Parkways Authority has issued a valid final approval of the U.S. Route 35 parkway project is irrelevant," she wrote for the Court.

"Rather, this case is resolved by the fact that the Commission Respondents did, in accordance with West Virginia Code § 17-16A-30, validly approve the U.S. Route 35 parkway project, and no legal basis exists by which they can rescind that approval at a later date."

County commissions are "limited in their authority," the Court wrote.

According to the Court, a county commission is a corporation created by statute and possessed only of such powers as are expressly conferred by the Constitution and Legislature, "together with such as are reasonably and necessarily implied in the full and proper exercise of the powers so expressly given."

A county commission can do only such things "as are authorized by law, and in the mode prescribed," the Court said.

"Here, when the Court closely examines the role of county commissions in approving parkway projects, as set forth by statute, it is apparent that the Commission Respondents overstepped their authority by attempting to rescind their approval of the U.S. Route 35 parkway project," Workman wrote.

The statute at issue is West Virginia Code § 17-16A-30, which provides that "prior to any final approval of a parkway project, the county commissions of the counties in which a parkway project is located shall by resolution approve the parkway project."

The Court noted that the statute does not give county commissions the ability to rescind that approval or revisit their decision after having issued the required resolution.

The Court's conclusion is "further bolstered," it said, by the plain language of West Virginia Code § 17-16A-13(a)(1), which indicates that the Parkways Authority is solely charged with fixing toll rates for parkway projects.

Specifically, that statute authorizes the Parkways Authority to fix, revise, charge and collect tolls, rents, fees and other charges in relation to parkway projects and further clarifies that: "(S)uch tolls, rents, fees and other charges shall not be subject to supervision or regulation by any other commission, board, bureau, department or agency of the State."

"Thus, although the schedule of toll rates proposed by the Parkways Authority is subject to public notice and hearings, it is not subject to review or approval by a county commission," the Court wrote. "Therefore, the Commission Respondents clearly had no authority to withdraw their approval for the U.S. Route 35 parkway project in response to learning of the Parkways Authority's proposed toll rate schedule."

The Court said in its opinion that "it takes no position" as to the merits of the U.S. 35 project.

Justice Brent Benjamin had recused himself from hearing the case, and Taylor Circuit Judge Alan Moats was appointed in his place.

Lawmakers were considering a measure to finance the construction in both Mason and Putnam counties; however, they declined to enact any such legislation, the Governor's Office said Wednesday.

The legislation, Acting Gov. Earl Ray Tomblin said, would have "enhanced the prospects of completing the remaining 14.6 miles."

"In light of the Legislature's action, we will reassess the available options to complete this important highway project," Tomblin said in a statement.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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