The Register-Herald, Beckley, West Virginia

Local News

March 6, 2013

Judge denies motions for intervention

The presiding judge has denied motions by New River Community and Technical College’s governing board and the school’s foundation to intervene in a suit challenging the legality of Greenbrier County’s funding of swimming pool renovations.

Senior Status Judge Charles M. Vickers heard arguments concerning the proposed interventions Jan. 30 and denied the requests in a written order dated March 1, thus setting the stage for a hearing on the merits of the funding challenge.

The lawsuit at the base of the case is a petition for a writ of mandamus filed by Lewisburg attorney Barry Bruce on behalf of four clients who contend that the Greenbrier County Commission’s allocation of $1.3 million in bed tax funds for renovation of the pool was illegal.

The pool at the center of the controversy is located inside a building on the grounds of New River’s Greenbrier Valley campus in Lewisburg. Once the pool and its surroundings — dubbed the “aquatic center” — are repaired and restored, the county intends to sell memberships and operate it as a public pool.

The amended writ petition maintains that the aquatic center’s restoration does not meet the narrow requirements of State Code for expenditure of bed tax revenue. Key is the fact that the county does not own the property in which the proposed investment is to be made.

The amended petition also dropped the names of two of the original petitioners — Charles Ayers and Sandra Ayers — leaving only Mary Jo Sharp and Pete Adams on the plaintiff side.

Both New River’s Board of Governors and its Foundation sought to intervene in the case on the side of the county commission, arguing they should have been included as parties to the writ from the beginning, because the pool is on college property, a lease of that property is involved and money has already changed hands between the commission and the Foundation.

Acknowledging that both college entities have set forth their interests, the judge ruled that those interests are not “both direct and substantial,” which the law requires.

Vickers explained in the order, “(A)n order entered between Petitioners and the Commission will not necessarily invalidate the lease. Rather, should this Court find in favor of Petitioners, the Commission, Foundation and Board of Governors, without Petitioners, will need to determine how to comply with any order. Such determination may involve protecting the lease while transferring non-hotel/motel tax funds to the Foundation.”

He continued, “A determination of this issue (the propriety of the transfer) will not have a direct effect on the lease in question and the funds held by the Foundation.”

The judge’s final reason for not granting the motions to intervene hinged on the issue of representation.

In the order, Vickers wrote, “(N)either the Foundation nor the Board of Governors has even attempted to show that their interests will not be adequately represented by existing parties. It appears to this Court that the potential intervenors’ interests are identical to the Commission’s.”

He added, “In other words, the Commission will be arguing for the propriety of the lease in question and any transfers made pursuant to it.”

No further hearings in the mandamus case are set yet.

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