The Register-Herald, Beckley, West Virginia

May 17, 2013

Final legal briefs filed in pool dispute

By Tina Alvey
Register-Herald Reporter

LEWISBURG — Final legal briefs were filed this week by both sides in a dispute over funding of an indoor swimming pool, and now the 6-month-old case is in the hands of a circuit judge.

A group of four residents filed a petition for a writ of mandamus in November, challenging the legality of the Greenbrier County Commission’s allocation of $1.3 million in hotel/motel tax funds for the pool’s renovation.

The swimming pool is located in a building on the Greenbrier Valley campus of New River Community and Technical College. That entire building — which once housed Division of Highways offices — is now being renovated by the school for use as a Student Activities Center.

The county commission agreed to lease the portion of the building that contains the pool with the intention of managing the aquatic facility as a public pool which would be supported by membership fees and donations.

At the heart of the legal case are two issues: the legality of the commission’s use of bed tax money for a “bricks and mortar” project on property the county does not own and the propriety of at least two meetings during which the funding decisions were made.

Barry Bruce, attorney for the petitioners (whose number has dwindled to only two — Mary Jo Sharp and Pete Adams), asserts in his final brief that the county commission’s emergency meeting held Dec. 4, 2012, and a special meeting held Dec. 10, 2012, were both illegal.

Bruce concludes, therefore, that all actions taken at those meetings should be set aside by the court.

The attorney also maintains in the brief, which was filed Wednesday, that the commission’s initial appropriation of $1 million “is not a proper use of hotel and motel occupancy revenues.” The later additional appropriation of $300,000 “is void for lack of proper notice” of the meeting in which the decision was made to spend the bed tax money to renovate the pool, Bruce concludes.

The county commission’s brief, which Prosecuting Attorney Patrick Via filed Thursday, first argues that a writ of mandamus is an improper vehicle for the petitioners’ purpose, which he says is to seek “declaratory relief.”

On the question of the legality of the meetings, Via posits that the Dec. 10 meeting was “properly noticed,” but even if it were not, he says the court is not required to invalidate the actions taken at that meeting.

Dealing with the bed tax issue, Via asserts, “By their argument, the Petitioners seek to have this Court supplant its judgment for that of the Commission and manage its day to day affairs.”

He says this represents a violation of separation of powers.

Via also argues that the property ownership issue at the base of the petitioners’ claim that the funds could not be legally spent for the pool is questionable, as the county holds a lease on the portion of the building that houses the pool and, therefore, has a “measure of control over the premises.”

“The project at issue is essentially a community swimming pool to be situated on public real estate, and available for public use,” Via concludes. “Such a purpose fulfills the overall legislative intent with respect to the hotel/motel tax fund.”

Documents in the court file indicate that the bed tax money allocated for the pool project was paid, in two separate checks, to the college’s Foundation at the time the commission voted to fund the project.

Via notes in his final brief that the court “cannot direct action on behalf of the County Commission to regain the funds.”

The commission voted 2-1 Tuesday evening, however, to ask the New River Foundation to voluntarily refund the entire $1.3 million, a request that college President  Dr. L. Marshall Washington told The Register-Herald he will not consider until after the judge renders a ruling on the mandamus case.

Senior Status Judge Charles M. Vickers was appointed to hear the case. He has not said when a ruling will be forthcoming.

— E-mail: talvey@register-herald.com