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In a victory for local rule, Wake County Superior Court Judge Howard Manning, Jr. yesterday struck down a 2013 law transferring control of the Asheville water system to a newly-created regional entity as unconstitutional.

As reported by the Asheville Citizen-Times:

Manning said the law violates the state constitution’s guarantee of equal protection under the law because it “transfers the water system to another entity without any rational basis for doing so.”

The act would not change the use of the assets of the system, “will not result in any higher quality of water” and would give the system to “an entity that has never owned or operated a public water supply and delivery system,” Manning wrote.

The law would result in an “unlawful taking” of assets that the city runs similarly to a private corporation and that are entitled to similar protections, Manning wrote.

The state cannot require such a transfer of a private company’s assets and the water law “is not a valid exercise of the sovereign power of the legislative branch of government (or the state of North Carolina) to take or condemn property for public use.”

Even if the law were to be found valid, Asheville “is entitled to be paid just compensation” for the system, Manning wrote.

An appeal of Manning’s ruling is likely.

For more on the case, read here .

 

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(Photo: WRAL)

As reported here, Wake County Superior Court Judge Howard Manning Jr. heard arguments last Friday in the state-versus-local battle over control of the Asheville water system.

Per this report on the arguments from the Asheville Citizen-Times, Manning is expected to issue his ruling within the next 30 days. Until then his order enjoining the formation of a regional water system remains in effect.

During the two-hour argument, Manning pushed attorneys to get the crux of the challenge, which he identified as constitutional:

Manning, who ruled in a previous trial about the water system, said a decision on the latest case depends on whether the legislation was, in fact, a local bill and whether it applied to sanitation and public health, a combination that would run afoul of Article 2, Sec. 24 of the state constitution, which says the General Assembly cannot enact local local legislation “relating to health, sanitation, and the abatement of nuisances.” He also declined to consider legislators’ statements from committee hearings or from the floor of either the state House or Senate.

“Our constitution says what it says. Section 24 says what it says,” Manning said. “That’s where we are. So, gentlemen, we need to get to the merits of this thing, because this is your final shot.”

Manning asked the attorneys to send him a two-page summary of their arguments for review within a week.

 

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Wake County Superior Court Judge Howard Manning Jr. is hearing arguments this morning on the parties’ motions for judgement in the dispute over the Asheville city water system  - one of a number of turf wars between the state and local authorities arising from the General Assembly’s 2013 long session. (The Charlotte airport and the Dorothea Dix park in Raleigh are also in play.)

In May 2013, the General Assembly created the  Metropolitan Water and Sewage District and immediately transferred Asheville’s water system to that district.  The city then filed a lawsuit in Wake County and obtained a temporary injunction from Manning. After further arguments by attorneys, Manning extended that injunction in September.

 A ruling in the case will have obvious implications for the city, but it may also  touch more broadly on the question of municipal self-rule. Cities across the state and the League of Municipalities agree with Asheville that the state is treading on dangerous ground when it comes to concepts of local rule.

In this issue brief, the league noted these points:

  • Local communities should decide how to meet the water/wastewater needs of a local area, and how to pay for those investments – not lawmakers in Raleigh.
  • Cities should be able to operate water/wastewater enterprises like a business, without external interference from the state legislature. Decisions over rates, extensions, financing, and service should all be left to the discretion of system owners.
  • Intrusive legislative decisions impacting individual water/wastewater systems disrupt predictable rate structures for existing customers.

Watch below as Asheville Mayor Esther Manheimer explains the case and its impact to residents at a meeting earlier this year.

Read more here about the Asheville and Charlotte lawsuits.