The Register-Herald, Beckley, West Virginia

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May 2, 2013

Judge hears arguments in Greenbrier County swimming pool dispute

LEWISBURG — The fate of a proposed Greenbrier County public swimming pool hangs in the balance as Judge Charles M. Vickers awaits final briefs before weighing all of the evidence and arguments in a case that challenges the propriety of using bed tax funds for the project.

Also at issue in an amended petition for a writ of mandamus filed on behalf of two county residents by attorney Barry Bruce is the legality of two Greenbrier County Commission meetings during which $300,000 was added to the original $1 million allocation of hotel/motel tax funds for the pool’s renovation.

Greenbrier County Prosecuting Attorney Patrick Via conceded during a Wednesday morning hearing that one of the two contested meetings “was compromised” by the lack of a meaningful public notice.

“There is no argument to be made,” Via said of the Dec. 4 emergency session.

He argued, however, that a Dec. 10 special session could be interpreted as legal because the county’s policy on meeting notices differs from the recommendation set forth in an Ethics Commission advisory opinion cited by Bruce. Via said, since Ethics Commission opinions don’t have the “force and effect of law,” the court should not invalidate the decisions made by the county commission in that Dec. 10 meeting.

Bruce argued that the meeting in question “went awry” in that public notice was not provided three full days prior to the special session, nor did the notice, once given, include essential information about the matters that were to be discussed. He also challenged the commission’s decision not to allow public comment at that meeting until after the re-vote on the hotel/motel tax allocation had been completed.

Bruce asked the judge, therefore, to set aside the decisions made at both the admittedly illegal emergency session of Dec. 4 and the special session of Dec. 10, which was arguably also illegal.

Switching gears to deal with the issue of the legality of the expenditure of hotel/motel tax revenue for renovation of the swimming pool, Bruce argued that the $300,000 added onto the allocation by the commission Dec. 4 and re-approved Dec. 10 was not properly given, due to what he said was the illegality of both meetings.

The $1 million allocated on Nov. 13 “could not be applied” legally to the renovation project either, Bruce maintained, because the facility is a recreation center, not a convention center.

The definitions in the bed tax section of State Code for convention versus recreation center differ in one substantial area, Bruce said. Whereas convention centers owned by the state, county or municipality may receive hotel/motel tax funds for “bricks and mortar” projects, recreation centers must be owned by either a county or municipality in order to legally receive those funds.

The controversial swimming pool is located in a building sited on the Greenbrier Valley campus of New River Community and Technical College in Lewisburg. The college is owned by the state.

In responding to Bruce’s argument, Via did not dispute that the swimming pool is a recreational facility, but instead asked the judge to give “close scrutiny” to the legislative intent of the bed tax law.

By so doing, Via said, the judge could “give a more broad and more practical view” of the definition of a recreation center.

“This is not a joint venture of public and private entities,” Via said.

Calling attention to the six-year lease the county and New River agreed to for management of the pool, he also noted, “The county is not acting wholly as a bystander.”

Via said that lease gives the county some control over the property, justifying the potential “long-term investment” in the swimming facility.

“There is a measure of control; there is a measure of intangible property rights,” he asserted.

Bruce countered by saying the bed tax statute “is not ambiguous whatsoever.”

He contended, “If a statute is unambiguous, it is to be applied, not construed.”

Bruce acknowledged that, if the judge were to rule the bed tax expenditure was illegal, the county could be in the position of having to find other funds with which to pay the college or its foundation the money that was promised.

“They’ve got to solve that problem,” he said.

Vickers gave both sides 15 days in which to file briefs, after which he is expected to issue a ruling.

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