Supreme Court says sanitary board, city council complied with statutory notice requirements

By Kyla Asbury | Dec 1, 2017

CHARLESTON – The West Virginia Supreme Court of Appeals has issued a memorandum decision, ruling that the Huntington Sanitary Board and the Huntington City Council complied with statutory notice requirements before seeking a rate increase last year.

SWVA Inc. sought a writ of mandamus and injunctive relief from Cabell Circuit Court, claiming the sanitary board did not comply with statutory notice requirements and the circuit court denied the relief sought on the grounds that SWVA has an administrative remedy with the Public Service Commission for challenging the sanitary board’s alleged noncompliance.

“Because this case does not present a new or significant issue of law and we find no prejudicial error, we find that this case satisfies the ‘limited circumstances’ requirements under Rule 21(d) of the West Virginia Rules of Appellate Procedure, and a memorandum decision under that rule is, accordingly, appropriate,” the Nov. 14 decision states.

On Dec. 5, 2016, the sanitary board met to consider proposed rate increases to fund 15 itemized projects in the total amount of $75 million.

During the meeting, discussion turned to a new statutory provision requiring the sanitary board to provide prior public notice of construction projects that are not in the ordinary course of business.

Two days later, the sanitary board approved an ordinance for consideration by city council that involved fees to fund $7.5 million in construction projects.

After a first reading, the city council referred the ordinance to its finance committee, which held a meeting the following week and, during the public comment period of the meeting, SWVA representatives John O’Connor and Elizabeth Grille presented opposition to the proposal.

However, by unanimous vote, the finance committee sent the ordinance back to city council with a positive recommendation.

On Dec. 15 and 22, 2016, the sanitary board and city council caused to be published in The Herald-Dispatch a notice that the council intended to take up consideration of the proposed ordinance.

SWVA contends that it was concerned about the effect the proposed rates increases would have on its operations, but was unable to obtain specifics about the ordinance within the compressed timeframe.

On Dec. 27, 2016, SWVA filed a complaint and petition for writ of mandamus and injunctive relief against the sanitary board and city council.

SWVA filed a motion for a preliminary injunction and a temporary restraining order seeking to compel or enjoin noncompliance with the notice requirements, prohibit further consideration of the ordinance, and to annul any decision made relating to the ordinance if made in violation of West Virginia Code § 24-2-11(l).

The city council approved the ordinance by a 7-3 vote later that day.

SWVA appealed to the Supreme Court and argued that the circuit court erroneously characterized its challenge to the ordinance as a complaint regarding the rates, fees and charges raised in the ordinance when, in fact, it was challenging the sanitary board’s and city council’s failure to comply with the notice requirements of West Virginia Code § 24-2-11(l).

“As a result of that mischaracterization, SWVA argues that the circuit court erroneously concluded it had a remedy under West Virginia Code § 24-2-1(b)(6) and (7),” the decision states. “SWVA further argues that the circuit court erred in determining that the projects considered in the proposed Ordinance were ‘in the ordinary course of business’ such that the notice requirements under § 24-2-11(l) were inapplicable.”

SWVA failed to meet the elements required for mandamus. The Supreme Court also ruled that the circuit court did not have jurisdiction to determine whether the notice provisions were applicable and, therefore, should not have ruled on the merits of whether the projects were or were not “in the ordinary course of business” so as to trigger the notice requirements.

“As we have discussed, insufficiency of or noncompliance with the public notice required under West Virginia Code § 24-2-11 is within the jurisdiction of the PSC, not the circuit court,” the decision states. “For the foregoing reason, we affirm the result reached by the circuit court in denying the writ of mandamus and injunctive relief for failure to exhaust an available administrative remedy.”

W.Va. Supreme Court of Appeals case number: 17-0120

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