JCV vs. CITY OF RANSON (REZONING CASE)

Summary — On November 5, 2020, Jefferson County Vision (JCV) filed an amended complaint in the Circuit Court of Jefferson County asking for Declaratory Judgement and Damages.  The complaint alleges that Ranson knowingly violated their comprehensive plan and engaged in illegal spot/contract zoning when the Ranson City Council approved the Industrial District Ordinance on June 30, 2020.  The suit states that the Ordinance is therefore “invalid and void as to the matter of law as to all intended future uses of the Subject Property.”  The complaint lists over two dozen examples of how Ranson’s comprehensive plan was violated.  

In addition, the complaint alleges that, “The Industrial District Ordinance violates the express provisions prohibiting contract and/or spot zoning and the Industrial District Ordinance was orchestrated and passed to benefit the owners of the Jefferson Orchards parcel, and their successors in interest, to specifically allow industrial uses in an area not otherwise permitted.”

Activity — December 2020, the Defendant, the City of Ranson moved the Court to dismiss the Plaintiffs’ amended complaint.  Rockwool requested that the Court enter an Order granting it leave to intervene as a party-defendant in the case arguing that it is entitled to participate and protect its interests in this matter. The Jefferson Orchards parcel is where Rockwool’s insulation manufacturing plant is being built.  Plaintiffs respectfully requested that the Court deny the motion.

In March of 2021, the Court concluded that Rockwool is entitled to intervene as of right in this matter.  Rockwool subsequently requested the Court to dismiss the actions of the case or, alternatively, staying this action until the Supreme Court of Appeals renders its decision on [the Zoning] appeal.  

The Court believes that the arguments in the two motions to dismiss requested by the City of Ranson and Rockwool significantly overlap, and Plaintiffs may submit to the Court a response to the pending motions along with a proposed order.

— April 2021, in response to Defendants’ previous motions, JCV (et al. Plaintiffs) requested that the Court deny both pending Motions to Dismiss, deny the request to stay this Civil Action and permit this matter to proceed in due course.  A determination was sought that any future industrial use should be prohibited at Jefferson Orchards.  

The Defendant, the City of Ranson replied that their motion to Dismiss should be granted under the three legal arguments of;  judicial estoppel, claiming that JCV took “successive inconsistent positions in the course of a suit or series of suits,” laches, “that unreasonable delay will bar [the] claim if the delay is a prejudice to the Defendant,” and res judicata, given the specific findings of the Court in rejecting JCV’s Motion to Amend in the (2018) Zoning case.  Additionally, Ranson sought immunity as a political subdivision under WV Code §29-12A-5 the WV Governmental Tort Claims Act.

Ruling — On April 30, 2021, Judge David Hammer of the Jefferson County WV Circuit Court issued a final order, on JCV’s civil action against the City of Ranson’s rezoning of the Jefferson Orchards property. 

The Circuit Court ruled JCV had known of the potential for substantive challenges against the Stack Ordinance and Industrial District Ordinance when Plaintiffs filed their original complaint in the (2018) Zoning case (JCV I) but did not timely present those challenges.  This Rezoning case was characterized as an “improper collateral attack on this Court’s order in JCV I while the appeal in JCV I is pending.”  JCV I, was dismissed in September of 2020 and appealed to the WV Supreme Court in October.  The Court concluded to dismiss Jefferson County Vision’s Rezoning suit against the City of Ranson with prejudice.

Updates – May 28, 2021, JCV filed a notice of appeal on the April 30th Circuit Court order to the WV Supreme Court of Appeals.  JCV (et al. Appellants) requested for the Supreme Court to reverse the Circuit Court’s decision, arguing there was not a final judgement in the (2018) Zoning case (JCV I) on the merits of the claims that the Industrial District Ordinance violates Ranson’s Comprehensive Plan and other local regulations prohibiting contract and spot zoning.  In addition, this Rezoning action did not involve the same parties until the Circuit Court erred in granting Rockwool’s Motion to Intervene.  The Appellants requested that the Industrial District Ordinance rezoning be declared invalid and void as a matter of law as to all intended future industrial uses.  

The summary of arguments was presented to the Supreme Court in September 2021.

JCV vs. RANSON CITY COUNCIL (ZONING CASE)

Summary — On December 13, 2018 JCV filed a lawsuit against the Ranson City Council asserting that changes made to Ranson’s zoning to permit industrial uses at Jefferson Orchards are invalid due to the failure to provide public notice as required by state law. 

Activity — June 6, 2019 Jefferson County Circuit Court Judge Hammer heard oral arguments regarding the zoning case. 

— June 24, 2019, JCV provided to the Court proposed Findings of Fact, Conclusions of Law and Proposed Relief on the pending Motions. 

— May 5, 2020, Judge David Hammer agreed with the claim in JCV’s lawsuit: The City of Ranson failed to provide adequate public notice when it changed its zoning to permit heavy industrial uses at Jefferson Orchard.  The Court’s ruling emphasized the distinct statutes regarding zoning ordinances as directed by the WV State Code and noted that compliance is not at the unilateral discretion of a municipality.  The Court ordered the City of Ranson to advise, by July 3, 2020, as to its intent to address “the now failed amendments in their procedures to attempt the Industrial District Ordinance.”

— June 16, 2020, The City of Ranson re-enacted the failed Industrial District Ordinance #2017- 302 with the first reading to amend the official zoning map.  A public hearing and second reading occurred on June 23.  The City Council voted in favor of the Ordinance five to one on June 23, but due to technical difficulties during the Zoom meeting, the decision was not validated.  The Council reconvened on June 30 for the continuation of the public hearing and approval of the Ordinance.

— July 15, 2020, JCV submitted a Motion to amend the complaint, presenting substantive examples where the Ordinance violated the 2012 Ranson Comprehensive Plan and Section 19-19 of the Ranson City Code (2018).  The complaint asserted, “The zoning changes and map amendments further constitute illegal and improper spot zoning for the Rockwool facility, as special consideration was given for Rockwool’s zoning needs, and the area was classified in a manner differently from the surrounding area.”  JCV concedes, since Ranson reissued the proper legal notice and held a public hearing, that the procedural error in the Zoning case has been corrected and is moot.  

Ruling — September 11, 2020, the Circuit Court concluded the procedural claim was now moot and given the time that has passed and based on public policy, denied the amendments of substantive challenges against the Industrial District Ordinance and the case was dismissed.

Updates — October 8, 2020, JCV submitted a Notice of Appeal to the Supreme Court of Appeals of West Virginia, challenging Judge Hammer’s denial of Plaintiffs’ Motion to Amend. 

JCV expressed three Assignments of Error – why the Circuit Court erred in denying the Motion to Amend the First Amended Complaint – asking the Honorable Court to reverse the Order and remand the matter for further proceedings. 

— February 2021, the City of Ranson and Rockwool each requested the Supreme Court of Appeals of WV affirm the trial court ruling, arguing there was no abuse of discretion in its denial of Petitioners’ Motion to Amend the First Amended Complaint.

— March of 2021, JCV replied the City of Ranson’s re-enactment of the Industrial District Ordinance was an intervening event that triggered a substantive challenge, as it had ripened when Ranson passed the Ordinance following proper procedural notice on June 30, 2020.  The decision of the Circuit Court in denying Plaintiff’s Motion to Amend the First Amended Complaint should be reversed.

— In October of 2021 the Supreme Court of Appeals issued a Memorandum Decision on JCV’s appeal.  The Court held, “a trial court is vested with sound discretion in granting or refusing leave to amend pleadings in civil actions.”   (The Jefferson County Circuit Court denied JCV’s July 15, 2020, Motion to amend the complaint.)  The Supreme Court noted Rule 15(a) of the WV Rules of Civil Procedure “does not entitle a party to be dilatory in asserting claims… and places the burden on the moving party to demonstrate some valid reason for his or her neglect and delay.”  JCV argued that claims did not ripen until Ranson properly enacted the ordinance on June 30, 2020, however, the Supreme Court Decision found no substantial question of law and no prejudicial error, therefore affirming the September 2020 order of the Circuit Court.

JCV vs. JEFFERSON COUNTY PLANNING COMMISSION (OGPA COMPLAINT)

Summary — In August of 2021, JCV filed a Legal Complaint for injunctive relief against the Jefferson County Planning Commission (JCPC). The complaint identifies alleged violations by the JCPC of the Open Governmental Proceedings Act (OGPA). 

The Complaint was brought about by the behavior of the JCPC during its May 11, 2021 JCPC meeting when a Zoning Map Amendment for Jefferson Orchards was reviewed for consistency with the 2035 Comprehensive Plan.  An overview of the request was given, then without discussion, the JCPC moved to enter executive session. This closed session lasted for 20 minutes, after which, and without any public and open deliberation, a motion was made and passed on the application. 

JCV asks the Court to declare that the Planning Commission’s actions violated the WV Open Governmental Proceedings (or Meetings) Act and the Court therefore should annul the decision of the JCPC to recommend the rezoning request to the County Commission. 

Activity — September 2021, the JC Planning Commission filed a Motion to Dismiss the complaint claiming, “[JCV] failed to join all parties interested in the outcome of the action, since the annulment and/or reversal of the re-zoning would have adverse effects on all parties with an interest in the property, and have an adverse effect on the Jefferson County Commission’s interest in the integrity and validity of its Zoning Ordinance and related decisions.” 

— October of 2021, the Circuit Court concluded that the JCPC’s Motion to Dismiss should be denied.  Within the Court’s Conclusion of Law, it was found JCV could not have brought its action against the owner of the property and/or the County Commission because it stated no controversy with those entities, and those entities could not be answerable to JCV’s case because they were not responsible for compliance with the Open Governmental Proceedings Act.

— A scheduling conference was held on October 29, 2021, at which time it was determined the case will continue with a bench trial, scheduled for March of 2022, in the Jefferson County Circuit Court.

JCV vs. JEFFERSON COUNTY DEVELOPMENT AUTHORITY (JCDA FOIA)

Summary — August 22, 2018 JCV undertook to determine the underlying facts, details and actions that led to the Rockwool siting in Jefferson County.  The JCDA, a public body, was subject to a WV Freedom of Information Act for all documents and communications regarding the August 8, 2018 closed-door meeting at the Bavarian Inn (Shepherdstown, WV) with select public officials and Rockwool executives for the purpose of “candid conversations” about public opposition to and concerns about the Rockwool project.  In September 2018, the JCDA provided a response “that it was subject to an exemption,” that it may not produce records associated with efforts to furnish assistance to a new business in WV.  

Activity — September 10, 2018 JCV submitted a FOIA request for any emails from or between JCDA members in preparation for the August 2018 second reading and vote regarding the Water Bond funding for the Jefferson Orchards waterline extension project.  The JCDA denied parts of the request as an exemption of internal and deliberative memoranda or letters.

—  October 22, 2018 JCV requested the Jefferson County Circuit Court order the JDCA to produce the requested documentation asserting neither exemptions are applicable.

—  On December 5, 2018 the JCDA filed a “Motion to Dismiss,” claiming the documents are unequivocally exempted from disclosure and production under FOIA.

— The Circuit Court denied the Motion to Dismiss in February 2019, ordering the JCDA to prepare a Vaughn Index (detailed justification) of any and all documents to be withheld and explain why its disclosure would harm the public interest.

— March 2019, a Vaughn Index was provided for sixteen documents that were withheld so as to not reveal group-thinking and deliberative processes between JDCA Board Members and staff while considering issues outside of public scrutiny as well as maintain confidentiality to permit businesses to fully explore and consider opportunities in Jefferson County.

Updates —  In April of 2021, the Court required an in-camera inspection of documents prior to a final decision in this action.  As a result, the Court concluded that four documents were not exempt as none would furnish “assistance to a new or existing business” so as to enjoy the statutory exemption and must be produced to JCV.  

—  The Court found that an in-camera view of the remaining JCDA documents identified on the March 2019 Vaughn Index was necessary prior to a final decision in this civil action.  

—  May 2021, as a result of the final in camera inspection, the Circuit Court concluded that an additional four documents withheld by the JDCA are not exempt from discovery and must be produced to JCV.  

—  In September 2021, JCV submitted a petition to the Court for Attorney’s fees and costs incurred from this matter. According to W.VA. Code §29B-1 et. seq. regarding public records and the right to inspect or copy any public record of a public body in this state, “any person who is denied access to public records requested pursuant to this article and who successfully brings a suit filed pursuant to section five of this article shall be entitled to recover his or her attorney fees and court costs from the public body that denied him or her access to the records.”

—  October 2021, The JCDA presented a summary of the case to the Jefferson County Commission (JCC).  The JCDA requested the JCC assist in the final payment of the agreed legal fees.  A motion was unanimously approved to assist the JCDA with the payout of legal fees up to $20,000 to JCV from the County Coal Severance Fund.

– Documents obtained by JCV through Freedom of Information Act requests as well as ordered by the Circuit Court to be provided, as the records were not statutorily exempt from public disclosure.

View the documents here: JCDA FOIA pages

JCV vs. CITY OF CHARLES TOWN (THE BLUE PETITION CASE)

Summary — On June 17, 2019 JCV filed a “Writ of Mandamus and Prohibition” requesting that the Court order the City of Charles Town to comply with applicable state laws regarding the verified Protest Petition (aka the “Blue Petition”) presented by JCV on behalf of Charles Town residents to block support for a sewer pipeline for Rockwool in the absence of a super majority of the Charles Town City Council voting for it. 

Activity — The Court held a hearing on the Blue Petition case on October 28, 2019 at 9:30 a.m. at the Jefferson County Courthouse. 

— Thereafter, on November 12, 2019 JCV proposed a Writ of Mandamus from the Court to compel the City of Charles Town, to comply with both the subject Ordinances and applicable law, directing both the Charles Town City Council and Charles Town Building Commission to schedule a public hearing at which public hearings the Petitioners may present the subject Protest Petition for proper and further consideration.

Ruling — On November 18, 2020, the Circuit Court of Jefferson County granted the City of Charles Town’s Motion to Dismiss the case under Rule 12(b)(6), which it took under advisement following arguments received on October 28, 2019.  Judge David Hammer ruled [the] Petitioners (JCV) have failed to state a claim for Prohibition, prohibiting the City of Charles Town from taking any further action on the Route 9 Sewer Extension.  The Court concluded that the Lease Ordinance and Bond Ordinance are legislative acts to which a Writ of Prohibition will not lie, as [they] are not judicial acts.

The Court also ruled JCV failed to state a claim for Mandamus, because the City of Charles Town is not the entity issuing the revenue bonds for the Route 9 Extension.  The Legislature gave the Building Commission (which is not a municipal governing body) its own authority to issue revenue bonds.  The Court determined we did not have a clear legal right to requested relief under statute nor ordinances and for the same reason failed to identify a clear legal duty, to submit a written protest as the Building Commission substantially complied – meeting procedural requirements – by giving public notice and holding a public hearing on August 6, 2018, before the Bond Ordinance became effective on March 19, 2019.  JCV presented the Protest Petition at a City Council meeting held on May 20, 2019, and again by counsel letter to both the City Council and Building Commission, dated May 31, 2019.  W. Va. Code § 8-16-7 does not further require public notice or a public hearing after an ordinance becomes effective. 

The Court briefly went on to state that JCV could have explored other adequate remedies to our concerns raised, through the Public Service Commission, the WV Department of Environmental Protection, or other land use public hearings.

– On December 18, 2020, JCV and Plaintiffs submitted a Notice of Appeal to the Supreme Court of Appeals of West Virginia, requesting the reversal of Judge Hammer’s Order dismissing the “Blue Petition.” 

Updates — March 15, 2021, The Charles Town City Council and Building Commission both passed resolutions declaring the controversial Route 9 Sewer project decision of March 2019, to have no further effect; meaning there will be no further effort to acquire public financing by a lease revenue bond for the construction and acquisition of a sewer extension to serve the Rockwool plant in Ranson, WV.

This decision by Charles Town puts an end to a battle to prevent the public funding of the Route 9 Sewer line.

— On March 25, 2021, after unanimous approval of the Resolutions by Charles Town, that public financing of the Route 9 Sewer line would not be pursued by the City of Charles Town, JCV submitted a voluntary dismissal of the pending Supreme Court appeal of the Blue Petition case. 

— April 16, 2021, JCV wrote a letter urging the WV Infrastructure Jobs and Development Council (WV IJDC) to recognize the position of Jefferson County citizens and not engage in reimbursement to Rockwool nor provide economic development assistance for this project. The IJDC should recognize the will of the community as it was stated Rockwool agreed to no longer seek public funding for the sewer.

— May 5, 2021, during the WV IJDC meeting, a loan modification request for the original 2017 public bond financing for the Route 9 sewer line project was presented to the Council on behalf of the WV Economic Development Authority (WV EDA).  The non-recourse, non-interest bearing 25-year loan was unanimously approved to be given to the WV EDA to purchase Rockwool’s interest in the now substantially complete sewer extension.

— May 20, 2021, the WV EDA approved a Resolution authorizing the borrowing of not to exceed $10.5 million by the WV EDA from the WV Water Development Authority (WV WDA) acting on behalf of the WV IJDC to acquire the sewer interests of Roxul, USA Inc. (Rockwool) and will receive reimbursement payments under the terms defined in the Alternate Main Line Extension Agreement (AMEA) that was entered by Rockwool and the Charles Town Utility Board.

— June 9, 2021, the Charles Town Utility Board (CTUB) approved a Resolution to assign the AMEA for the Route 9 sewer project to the WV EDA.  Rockwool requested written consent from CTUB to reassign their rights to receive payments for the future connection fees as defined in the AMEA.  Further, the WV EDA requested CTUB’s consent to the collateral assignment of the payment rights by the WV EDA to the WV WDA acting on behalf of the WV IJDC as the lender to the WV EDA.  

JCV vs. THE CITY OF RANSON (VERTICAL WALL PERMIT CASE)

Summary — On September 17, 2019 JCV filed a “Petition for Writ of Mandamus” requesting that the Court order the City of Ranson to comply with applicable laws relating to the issuance of building permits to Rockwool. JCV contends that since sewer service has not been confirmed, Ranson should revoke Rockwool’s building permit; otherwise, they are not in compliance with Ranson City Code. 

Activity — On September 24, 2019 the Judge granted Rockwool’s motion to intervene in the case. We are still awaiting a notice for a hearing on this case. 

October 17, 2019 – Rockwool filed a Motion to Dismiss the case claiming, “Petitioners have failed to plead (let alone meet) the elements for both constitutional standing and mandamus relief.”

November 2020 – The Circuit Court issued an Order setting a briefing schedule on the pending motion to dismiss.  The Charles Town Utility Board reported on November 9, despite delays of equipment delivery, in part because of COVID-19, substantial completion of the Route 9 Sewer Project will occur on November 30, 2020.

December 1, 2020 – The Circuit Court granted a motion to continue the briefing on pending motions, ordering JCV to show cause why the matter is not moot. 

Ruling – On December 21, 2020, JCV and Plaintiffs entered a Notice of Dismissal as the Complaint was moot.  The case was removed from the active docket of the Circuit Court.

JCV vs. ROCKWOOL ET AL. (PILOT CASE)

Summary — On November 2, 2018 JCV filed the Payment in Lieu of Taxes (PILOT) lawsuit challenging the constitutionality of the PILOT arrangement and asserting that Rockwool should not be given preferential treatment and should pay their fair share of taxes just like other Jefferson County taxpayers.  

Ruling — On June 6, 2019 Judge Hammer heard arguments regarding the PILOT lawsuit and on August 8 issued his decision which stated that “[t]he Court agrees with the plaintiff’s contention that the PILOT is defective on its face: The only two essential parties to the PILOT are Rockwool and the JCDA. Absent the JCDA’s assent evidenced by a vote of its board, the PILOT is not an enforceable agreement – it is merely a proposal.” JCV is pleased with Judge Hammer’s decision in this matter since it held that the PILOT agreement was invalid even without needing to reach the issue of constitutionality. 

JCV vs. PUBLIC SERVICE COMMISSION OF WEST VIRGINIA (PSC CASE)

Summary — On July 12, 2018 the PSC approved Jefferson Utilities Inc.’s (JUI) application for an emergency certificate of convenience and necessity to extend water service to Rockwool — without a public hearing or public input. The PSC’s approval was conditioned on JUI’s petitioning to reopen the matter if there were any changes to the project (i.e. scope, financing); however, JUI did not do so. On January 23, 2019 JCV filed a complaint to the PSC asserting that the scope of Rockwool’s project had changed and that JUI should have filed a petition to reopen as required by the PSC’s July 2018 approval. JCV’s complaint was dismissed by the PSC on August 2, 2019. 

Activity — On September 3, 2019 JCV appealed the PSC’s decision to dismiss the complaint to the Supreme Court of Appeals of West Virginia and the Court has scheduled a hearing for January 15, 2020. 

 — At the January 15, 2020 hearing, JCV maintained the Commission took no action on the complaint for the request for interim relief except to dismiss the complaint by the Order dated August 2, 2019, which is the subject of this appeal.  The PSC contended “denying reopening of this certificate proceeding is consistent with law, Commission rules and case precedent,” and “the petition to reconsider the Procedural Order should be denied because the Project scope and plans have not changed and the certified public accountant for JUI attests that the changes to Project cost and the source of funding do not impact JUI rates.”  

JCV argued in reply:  The Commission Order unfairly characterized and improperly treated the Complaint, there were clear changes in the scope of the Project and this case is not moot.  

Ruling – On June 15, 2020 The Supreme Court of Appeals of WV affirmed, “the Commission had not exceeded its statutory jurisdiction and powers, and there is adequate evidence to support the PSC’s findings,” dismissing JCV’s complaint.  The Court found no substantial question of law and no prejudicial error.  Upon review, it was maintained that the Commission considered the merits of all the [JCV’s] arguments and found no basis to reopen the matter, for JCV did not present any new facts or substantive issues that were not adequately addressed in the certificate case.  The Court stated, “Based upon our careful review of the record in this matter, we find that substantive result of the Commission’s final order is proper.”  

Filing – November 18, 2020 – JUI filed a Certificate of Substantial Completion with the WV PSC, for the installation of equipment that provides water service to Rockwool, including Contract No. 2 (water storage tank and circulation chlorine booster building).  JUI filed the Certificate for Contract No.1 (waterline extension, altitude valve and booster pump station) on October 3, 2019.  An affidavit provided by the Company’s Accountant, stated, “the rates and charges of the Company [JUI] are not affected by the revised funding for the water line extension.

November 16, 2020 – The West Virginia Infrastructure and Jobs Development Council, acting by and through the West Virginia Water Development Authority provided a non-interest bearing, non-recourse loan to the West Virginia Economic Development Authority in the amount of $5,939,006. million, with a maximum contribution of $330,000. by JUI, to fund the project. 

The WVEDA acquired the newly constructed water line, etc., from ROXUL USA, DBA Rockwool. The monthly repayment of the 40-year loan shall be secured by a promissory note executed by JUI.

JCV vs. JCDA (WATER LINE CASE)

Summary — On September 17, 2018 JCV filed a “Complaint for Injunctive Relief” petitioning the Court for an injunction to stop the Jefferson County Development Authority (JCDA) from taking any further actions regarding the approval and funding of the Jefferson Orchard Water Line Extension Project. JCV asserted that the JCDA violated state law and acted beyond its jurisdiction when it took actions to fund and/or begin construction of the waterline project before it had obtained a Certificate of Public Convenience and Necessity as required by state law. 

Ruling — JCV submitted a motion to dismiss this matter as moot based upon the JCDA’s withdrawal from the water line project. All parties agreed the case is moot and the case has been dismissed.   

Montani Semper Liberie – that’s the state motto

Mountaineers are always free, and we are going to be free from Rockwool.

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