The Register-Herald, Beckley, West Virginia

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April 25, 2013

Greenbrier County Commission votes to continue pool litigation

LEWISBURG — Rejecting an offer to take ownership of the portion of a structure in which a controversial swimming pool is being renovated, the Greenbrier County Commission voted to let litigation now under way simply take its course.

The 2-1 vote — with commission President Karen Lobban dissenting — followed a 34-minute executive session during which the three commissioners conferred with Prosecuting Attorney Patrick Via, who now is defending the county against a legal action challenging the expenditure of $1.3 million in bed taxes for the pool’s renovation.

Lobban said during a follow-up interview with The Register-Herald that she believes accepting an offer to accept a “condo deed” for only the part of the building that houses the indoor pool would have forced the dismissal of a petition for a writ of mandamus and thus ended the costly litigation.

The structure in question is located on the Greenbrier Valley campus of New River Community and Technical College, which is now renovating the entire building, most of which will be used as additional classrooms.

The mandamus petition challenges the legality of the commission’s allocation late last year of hotel/motel tax revenues for the project. The suit maintains that those funds cannot be used to enhance property in which neither the county nor a municipality has an ownership interest.

While the commission did not discuss the offer or take a vote to turn it down, the 2-1 decision to allow the legal process to move forward and “abide by the judge’s ruling” effectively served as a rejection of the college’s offer, Lobban noted.

Commissioner Michael McClung pointed out that he voted three times last year against funding the pool, but was out-voted by Lobban and Betty Crookshanks, who was then the president of the commission.

“I didn’t think it was a good expenditure,” McClung said.

He said certain people had encouraged him prior to those votes last year to vote against his conscience and cast his ballot for the allocation of bed tax funds, saying that if he were in the majority he could ask for the measure to be reconsidered after Crookshanks’ successor, Woody Hanna, had been seated at the beginning of the new year.

“I refused to do that,” McClung said.

Likewise, he said he refused to agree to either of the two proposals made in executive session — to accept the condo deed from the college or to exercise the escape clause built into the lease the county and New River signed in anticipation of the county’s management of the aquatic center.

“We are a nation of laws,” McClung said, making the motion to continue with the litigation that is already under way.

Before siding with McClung on that motion, Hanna explained his opposition to the pool project.

“I have always been in favor of a pool,” Hanna maintained, saying his quibble about this project centers on the site.

“I have some real reservations about the location,” he said.

Hanna, whose previous 6-year term as commissioner ended in 2000, said he had proposed at that time that a public pool be located in Fairlea, between Eastern Greenbrier Middle School and Greenbrier East High School. That site, he said, would allow the students in both schools to use the pool for classes during the day, while the facility would be open to the general public in the evening and on weekends, at which time swim meets could also be staged.

“I worked towards that, even after I went off the commission in 2000,” Hanna said.

Although much of the pool-related buzz at the turn of the century focused on the possibility of building a recreation center, at an estimated cost of $12 million to $14 million, Hanna said his proposal is more incremental, with a much smaller initial cash outlay. That more modest proposal would involve the construction of a shell building to house the pool and, presumably, dressing rooms and bathrooms, with additional land reserved for future development of other recreational facilities.

“I am trying to be responsible here with the funding,” Hanna said.

Stating her preference for accepting the condo deed — which she said the college was offering at no charge — Lobban grimly called for the vote. “I guess we’re going to court,” she said.

A hearing on the mandamus request is scheduled in Greenbrier Circuit Court for Wednesday.

— E-mail: talvey@register-herald.com

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