City, state argue Asheville water case before Supreme Court

North Fork Reservoir, the main water source for the local water system managed by the city of Asheville, is part of a 22,000-acre watershed. Courtesy City of Asheville

by Ted Strong, Carolina Public Press

The General Assembly’s bid to force the regionalization of Asheville’s water system is an unconstitutional over-reach, the city’s attorney argued Tuesday before the state Supreme Court.

An attorney representing the state countered that a literal, absolutist interpretation of a provision of the state Constitution barring the legislature from making local health decisions — the basis on which a lower court originally found the law unconstitutional before the Court of Appeals disagreed — no longer makes sense.

Faison Hicks, arguing for the state, sought to cast Asheville as attempting to use the letter of the law to shield discrimination, in this case against water customers who aren’t city residents.

“I’m trying to demonstrate there is an undeniable, documented record going by 70 or 80 years of the city using control of a trust property … to discriminate against groups of the state’s people,” he said.

Attorney Matthew Sawchak, arguing for the city, countered that such concerns have already been addressed by laws known as the Sullivan acts, which prevent the city from charging higher water rates to customers outside city limits.

Laws, Sawchak said, must be evaluated not on their professed intent but on their effect on the ground. And this law, he said, would have an effect on the ground related to health and is limited to one locality, and is thus unconstitutional.

The 2013 law passed by the General Assembly mandates that water system’s transfer from the city to a new regional authority. Critics have warned that, while most of the system’s customers are city residents, they would have a disproportionately small voice in how the regional water system would be run.

After the Court of Appeals overturned the initial ruling favorable to Asheville, the city appealed that finding to the state Supreme Court. The City of Wilson and the North Carolina League of Municipalities have filed briefs with the court on Asheville’s behalf.

The law in question would shift the governance of health-related resources. Sawchuk argued that this should qualify the law as being related to health and sanitation.

If that’s the case, the law, which pertains only to Asheville, would run afoul of a provision in the state Constitution that bars the General Assembly from passing local acts “relating to health, sanitation, and the abatement of nuisances,” Sawchuk said.

But Hicks argued that sometimes other factors impose limits on constitutional protections.

“If that weren’t so, people could go out to a crowded motion picture theater and shout fire,” he said.

He urged the justices not to “live and die by what Merriam-Webster says.”

“If that’s the case, then this court will bind the hands of the people’s duly elected representatives forever,” he said.

Justice Robin E. Hudson asked what other constitutional provision might override the prohibition on local bills relating to health.

Faison clarified his point. “We simply live in a different era [than when the provision was drafted],” he said. “I think it is now safe, I am saying, for the courts to adopt a more relaxed view of the constitutional phrase ‘relating to health.’”

He pointed to the variety of extant water quality regulations at the federal and state level.

Justice Paul M. Newby asked about the way the wording of the bill focuses on services, rather than water.

“That goes to the real tension in this case,” Faison said.

He emphasized the General Assembly has the authority to give and remove powers from political subdivisions of the state.

Sawchak countered that the General Assembly has that authority, according to the Constitution, except as other parts of the Constitution limit it.

The court’s ruling could have practical as well as legal implications.

Legislators have signaled that they’ll rewrite the law to avoid constitutional hurdles if the current provision is struck down. But because the initial court case ended in a summary judgment, without a full hearing of the case, a decision ordering the lower court to rehear the matter could draw the legal proceedings out.

And that might add impetus for a compromise between state and city officials.

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28 thoughts on “City, state argue Asheville water case before Supreme Court

  1. bsummers

    I was there, and for the most surreal, offensive, bizarro-world moment, for me it was when the attorney for the State specifically invoked the example of Flint, Michigan to support the argument that a state takeover of a municipal water system has absolutely nothing whatsoever to do with health and sanitation.

    Gods help us, these people will say anything to steal Asheville’s water, and more importantly, set the precedent so they can steal any municipal assets anywhere in the State.

    • Lulz

      LOL, considering that the GOVERNMENT subsidized breweries here are stealing it because they are in a drought out west and the fools here are stupid enough to BELIEVE they are “progressing”, by giving it all away in the end it really won’t matter. By the time it’s all said and done, the residents here will be dealing with French Broad river water coming out of their taps lulz. And I dunno about you LOL, but that ain’t no better than Flint’s. And the really, really funny thing is that people float in it along with the occasional sewage overflow lulz.

      • bsummers

        It’s well know that the City of Asheville’s water system is operating far under capacity as it is. The watershed, the reservoirs, the treatment plants, are all capable of delivering far more purified drinking water than they currently are. They were built when there was far more water-intensive manufacturing in the region, and so the new breweries are only taking advantage of excess water capacity that was just sitting there, essentially. Good decision to bring them here, good decision by them to locate here.

        • Lulz

          LOL, it’s not a good thing when you assume bribes lead to wealth that’s spread around lulz. Ironic that the closet commie doesn’t comprehend that only a few benefit while the industry itself has a glut of people to fill low wage jobs. And is given the resources to use while the rest of us have to pay even more . On top of the crony government that imposes fee after fee all the while promoting lies like the new garbage fee lady who is nothing more than an overpaid shill. Never mind that the article about the upcoming garbage fees written here was BS just like this garbage rag is known for lulz. And that the garbage fee lady actually believes in these fees as something good for the environment but in all reality it’s about even more wealth redistribution to the SAME leech brewers who you praise LOL. Fool.

      • bsummers

        Yes, dressed like an undertaker. Somebody (wasn’t me) hissed when he & Mr. Moffitt walked into the courtroom.

        • Actually, I was wearing my Parisian bespoke Navy herringbone with peaked lapels. I noticed you were wearing your best double-breasted vented six-button potato sack with jetted pockets.

          • I knew it would be only a matter of time before the entire peanut gallery gathered around the topic of Me. What a surprise.

  2. I was there and it was bizarre seeing city attorney Sawchak unable to answer a simple question from a friendly Justice Ervin. He just robotically spoke off-topic from a script. LOL. I hope he got paid.

    I actually feel sorry for the city and the quixotic and expensive quest to maintain control of a regional water system that yields them $4 million per year profit. They are willing to go to any taxpayer expense. In the end, though, they will lose. They already know this. That’s real courage.

    • bsummers

      $4 million per year profit

      Wildly false. As Mr. Peck is fully aware, every dime of water revenue is accounted for, and it all goes to running the water system. This is the law, and the City opens their books on a regular basis. Even Chuck McGrady, one of the chief sponsors of the takeover, admitted as much, and asked people like Mr. Peck to stop spreading these lies:

      https://dl.dropboxusercontent.com/u/108366839/msd_chuck113012.MP3

      • I look forward to a full accounting. I think then we will see the true extent of the corruption and malfeasance. Good luck in the courts and in the legislative inquiry after.

        • bsummers

          Thanks for acknowledging that you were deliberately spreading misinformation.

          • bsummers

            So you admit that you have absolutely no documentation to back up the allegation that the City is “profiting” off of the water system. Thanks again for your candor.

          • Huhsure

            @bsummers Thanks for standing up against that deliberate misinformation!

          • “So you admit that you have absolutely no documentation”

            I admit of no such thing. There is documentation existing and further documentation to be compiled as evidence during Discovery. I hope you can be there.

  3. bsummers

    This discussion has been so full of outright lies, it’s staggering. Here’s one:

    “When the law passed in 2013, legislators said the merger should save the average ratepayer $120 per year…”
    Local lawmakers: water transfer could benefit county
    http://www.blueridgenow.com/article/20151007/NEWS/151009888

    That’s the Hendersonville paper. I know what you’re thinking: Were the “legislators” who made this claim identified? Oddly enough, no. Completely anonymous. I contacted the reporter who wrote that article, and he claimed that even he didn’t know who said that, he was just quoting an earlier article, which also didn’t identify them. Funny, the things you can get away with saying, when you’re given anonymity.

    Let’s do the math. There are roughly 50,000 ‘ratepayers’ of the Asheville water system, across Buncombe and Henderson Counties. $120 per year times 50,000 is $6 million. $6 million in “savings” if Asheville is forced to give up the water system. Let’s compare that to MSD’s own projection of “savings” resulting from a merger.

    https://dl.dropboxusercontent.com/u/108366839/MSD%20savings2..JPG

    Remember, this study was done for MSD (who really wants the water system, and so set the parameters for this study that were most favorable to them) by an outside firm that does nothing but weigh the cost/benefits of utility transfers like this. Once you eliminate the ‘Elimination of the Sullivan Act Transfers’ line (the amount the City was allowed by law to spend on water system-related street maintenance, but which has since been done away with in separate legislation) they were unable to foresee any “savings” from a merger. In fact, it’s red ink as far as the eye can see.

    Would someone please ask Reps. Moffitt, McGrady, or Ramsey, or Sen. Apodaca, if they were the source for this gigantic lie?

  4. bsummers

    But seriously, invoking the disaster of Flint Michigan, as part of their argument for the State takeover of Asheville’s water? That’s beyond Orwellian.

  5. bsummers

    The real important takeaway from the hearing isn’t what various dandies were wearing, or the inordinate police presence inside and out, or even the wildly-Orwellian invocation of the Flint tragedy by the State.

    The point is that the State’s strategy in defending the Water Act has changed. They no longer pretend that Asheville wasn’t the sole target of this law – they practically brag about it – “They had it comin'”.

    So since that admission would run afoul of the Constitutional prohibition on ‘local laws’ (ie. laws intended to only apply to one or two cities/towns) when it relates to health and sanitation, the State’s attorney tells the Court…

    “It is now safe for the Courts to adopt a more relaxed view of the interpretation of the Constitutional phrase “relating to health and sanitation”.”

    What would be the result of the Court deciding to “relax” their view of that particular phrase? Future State seizures of municipal water systems could happen much more easily, as ‘local laws’. Local laws are easier to pass, and are not subject to Governor’s veto.

    What have we been saying from the very beginning? That Asheville is just the first, the low-hanging fruit, the redhaired stepchild, where they can get away with it, and set a statewide precedent. The legal strategy and performance of the State’s attorney yesterday would seem to confirm this.

      • bsummers

        A) It was never my water system to lose. B) It’s not over. Supreme Court just heard the arguments four days ago. And even when the decision comes down, months from now, it might not be over.

        Don’t you ever get tired of being wrong?

        • It was over a long time ago. Your friends are just wasting our money on fruitless lawsuits. The water system is gone one way or another. I am genuinely sorry for you and your losing cause. Potato sack and all.

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