City Council's Malfeasance

The City of Asheville is proceeding with its litigation over the water system with the foreknowledge that it will not and cannot ultimately win.





Interview with Rep. Brian Turner
WCQS | November 12, 2015



TURNER: "Well, I think that, you know, my priority is that the people in my district have access to clean and reliable water. The city and the county and the state have been at odds on this for decades, um, you know, probably close to a hundred years now. We have two options at this point. The city has said they're going to appeal it to the Supreme Court. And, if the city is unsuccessful, then we know what's going to happen with the Regional Authority. If the city is successful, Senators Apodaca and Representative McGrady have already said that they will file new legislation to fix the problem that was with the old legislation that caused it to be overturned, but that the Asheville system will become a regional system. That's their goal. And, so, I think, if the city is successful in their suit and new legislation comes forth, then my job is to sit down with Senators Apodaca and McGrady and other stakeholders and say, "OK, how do we create a system that is going to best serve the larger community? If you're hell bent on making this happen, how do we do it in such a way that's beneficial for everybody?" So, you know, hopefully, you know, we'll know soon and we can work to that end."

"The city will appeal."

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RELATED

Who Owns WNC's Water
Oct. 22, 2015
John Ellison: "Chuck, I wanted you to look into your legislative crystal ball for us and ponder...if by some chance the State Supreme Court decides this law is a 'no go', what might be the next step in the General Assembly a proposed transfer?"
Chuck McGrady: "There are other ways to skin a cat. There are other ways to draft that legislation, depending on what the NC Supreme Court says, to make sure we do things constitutionally."

Critique of LTE on Water System

**UPDATE**

1. November 19, 2015: Comments go missing.



2. November 20, 2015: Comments return, with explanation.

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LETTER

Letter: Expresses worries about water system’s future
Peter Gentling | AC-T | November 17, 2015

Our legislature’s contempt for Asheville knows few bounds. Political punishment at its best. Soon the Court of Appeals will consider our feeble attempts to save our precious water system. Transfer to the Metropolitan Sewerage District may seem minor, but it is not. The MSD’s board is appointed, not elected, and is therefore political. Watch to see Tim Moffitt appointed and somewhere down the line, our water deaccessioned and sold to a private company. Since the court is made up of Republicans, we can anticipate our loss. Republican ambitions are to privatize. Asheville’s water is the purest anywhere. As the world population explodes water’s value will, too. Our taxpayers should benefit, not a private company that will raise our rates. Those who hate or envy Asheville should pay attention. They will lose, too, in the long run.

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CRITIQUE:

(Posted in the comments section on November 17, 2015)

LTE: "Our legislature’s contempt for Asheville knows few bounds. Political punishment at its best."

The letter writer has obviously accepted the mayor's false narrative and the AC-T's biased reporting on this subject and has, sadly, swallowed it whole. Once again, the clueless need correcting.

LTE: "Soon the Court of Appeals will consider our feeble attempts to save our precious water system."

Feeble?! The city mounted a valiant attempt to resist implementing the Water Act with as much of other people's money as they can lay their greedy little hands on. They even won a favorable decision from the North Carolina Superior Court, Judge Manning presiding.

1. House Bill 488/Session Law 2013-50, Regionalization of Public Utilities (the “Water Act”)
http://www.ncleg.net/gascripts/BillLookUp/BillLookUp.pl?Session=2013&BillID=h488&submitButton=Go

2. The City of Asheville Complaint Against the State
https://www.scribd.com/doc/141477000/Asheville-Complaint

3. North Carolina Superior Court Ruling on the Water Lawsuit
https://www.scribd.com/doc/290083516/Superior-Court-Ruling-on-the-Water-Lawsuit

And, I understand that the timing is unfortunate for the writer, but the North Carolina Court of Appeals has already decided this case. Twice. And Asheville lost. Twice. That's not to mention the time the city lost a water lawsuit in the case City of Asheville v. State, 192 N.C. App 1, 665 S.E.2d 103 (2008), appeal dismissed, disc. rev. denied, 672 S.E.2d 685 (2009).

1. Appeals Court Ruling on the Water Lawsuit
https://appellate.nccourts.org/opinions/?c=2&pdf=32975

2. Appeals court declines to reconsider city water ruling
http://www.citizen-times.com/story/news/2015/11/11/appeals-court-declines-reconsider-city-water-ruling/75600844/

3. Appeal Court's Order Denying Petition for Rehearing of Water Lawsuit
https://www.scribd.com/doc/289465258/Denial-of-Petition-for-Rehearing

4. City of Asheville v. State
http://caselaw.findlaw.com/nc-court-of-appeals/1396554.html

LTE: "Transfer to the Metropolitan Sewerage District may seem minor, but it is not. The MSD’s board is appointed, not elected, and is therefore political."

This notion that an appointed board somehow suddenly politicizes the representation is absurd. I would ask, what is more political? Denying non-voting stakeholders outside the city any representation? — or allowing them to be represented by seated members who are in turn appointed by officials who are elected by the people from across the region served by the water system?

The new Regional Water Authority will have local representatives from all the areas served by the water system who will be appointed by elected officials from those areas, not by Raleigh. Everyone served by the water system will be represented, not just the City of Asheville, as it is now. Roughly 50% of the people served by the water system live outside the city and currently they have NO representation on the water board.

Additionally, most members of the MSD Board are elected officials who appointed themselves to that board.

On top of all that, the city has promised to charge water customers in the county, who cannot vote in the city, for their legal bills in their stubborn attempt to resist the law.

1. Time To End Frivolous Lawsuits and Create a Regional Authority
http://timpeck.blogspot.com/2015/10/lte-water-lawsuit.html

2. Asheville legal bills in water case top $550,000 (note: this was before the appeal)
http://www.citizen-times.com/story/news/local/2014/11/01/asheville-legal-bills-water-case-top/18350277/

LTE: "Watch to see Tim Moffitt appointed and somewhere down the line, our water deaccessioned and sold to a private company... Republican ambitions are to privatize."

OK. This is where the letter becomes downright wacky. G.S. 162A-85.29, created by the Water Act, specifically prohibits the water system from being privatized (which, by the way, is currently not the case). The water system used to be governed by an Asheville-Buncombe Water Authority, established in 1981, but Asheville reneged on the bargain and withdrew in May 2004 in disagreement over the differential rates issue. The Water Act merely reinstates the authority as state law.

1. § 162A-85.29. No privatization. The district board may not in any way privatize the provision of water or sewer to the customers of the district unless related to administrative matters only. (2013-50, s. 2.)
http://www.ncleg.net/EnactedLegislation/Statutes/HTML/BySection/Chapter_162A/GS_162A-85.29.html

2. The Whole Story on the Water Agreement Controversy
http://buncombecounty.org/countycenter/news-detail.aspx?id=1357

LTE: "Since the court is made up of Republicans, we can anticipate our loss."

Judge Howard E. Manning, Jr., who ruled in favor of Asheville in Superior Court, is a Republican. Judge Elmore was endorsed by a number of progressive groups, like the ACLU. The 2007 Court of Appeals was composed of two Democrats and one Republican and they ruled unanimously against the city at that time.

1. Voter Registration of Judge Howard E. Manning, Jr.
https://vt.ncsbe.gov/Voter_Search_Public/voter_details.aspx?voter_reg_num=000005317321&county=92

Zamfir's Lament

In response to the City of Asheville's Petition for Rehearing being denied by the North Carolina Court of Appeals, Save Our Water WNC will be holding a concert on Thursday to raise funds for its ongoing legal battle with the state.

Headlining the musical extravaganza is community activist Barry Summers, who will play the flute and perform an interpretive dance to “My Heart Will Go On,” a song that has become the group’s unofficial anthem and which was featured in the 1997 beloved film classic “Titanic.” An apt choice. The Titanic, you'll remember, sank like a bloody rock after a blind encounter with a massive immovable impediment.

Tickets are $10 and guests are encouraged to bring their own homemade protest signs.

"This song, and the way I perform it, has become emblematic of our case against the state and that mean old Tim Moffitt,” said Mr. Summers. “No matter what happens — no matter how much all this litigation costs taxpayers, no matter how much Asheville loses in court, no matter how much of a loser I am, my heart will go on.”

For a preview of the event, which starts at 6:00pm and will be held at Pack Square Park, take a wistful journey through Barry's pain. Here’s a video of Barry Summers performing his signature song:



(As much as it pains him, former Representative Moffitt could not be reached for comment.)

Denial of Petition for Rehearing

Appeals Court Denial of Petition for Rehearing
City of Asheville v. State

Denial of Petition for Rehearing

Barry on the Jeff Messer Show

Jeff Messer Show on 880FM
October 6, 2015
Barry Summers
Podcast

Upon hearing that the NC Court of Appeals ruled against Asheville:

...
MESSER: There are a lot of words I can think of that I want to say to Raleigh right now and most of them the FCC object to.
SUMMERS: Today’s my birthday, too, Jeff. Happy birthday to me.
MESSER: They wanted to make sure you remembered this very specifically, I think, because you’ve been a thorn in their sides.
SUMMERS: [whispers] [laughs]
MESSER: You can say that word, that’s fine.
...
SUMMERS: The City is...according to Mayor Manheimer...and she called me at home and told me this specifically so I wouldn’t start...I think...presumably, so we wouldn’t start jumping up and down saying, “You have to appeal. You have to appeal” She immediately said...I mean, she was pissed. I mean, she was definitely pissed...“We’re definitely going to appeal this and apply for a stay of the ruling.” So, this will go on for another couple of years, in all likelihood, unless there is more legislative shenanigans to shorten the appeals time or move it to the front of the line. That’s the sort of the thing they tried to do in the last session...Well, we’re also...I think...I know that people really misjudged how badly certain parties want this.
...
MESSER: Well, if the courts are stacked at the higher end of the court system in the state, maybe [prevailing] is not such a no-brainer.
SUMMERS: In the 2012 elections the Republicans took over the State Supreme Court. I was at the event where Esther Manheimer, who was then just a council member, was shaking her head saying, “Oh, this is very bad news.” [laugh].
MESSER: They can get power. They can pass illegal laws that they then can be sued over, which takes a number of years. So they get away with these illegal laws for x-number of years, and during those years, while the case is being built, if they win the next election, they can change the courts, they can shift this, they can put somebody on the court of appeals who, by the time you get there, it takes longer to get the court case through then it takes to get through an election cycle, in some instances, and, boom, they own it. And, yeah, Esther was right to sit there and go, "Oh, this is bad."
SUMMERS: Right.
MESSER: Maybe that should be a talking point early in the election process as to why people should get off their asses and go out and vote, because this is where it leads.
SUMMERS: And I will also point out to the people who are currently going and voting for the primary for city council candidates, this is now got to be front and center, and my recommendation is to vote for candidates who have made it very clear what their attitude toward the state is on issues like control of Asheville’s water.
...
MESSER: Is this fight...has it just gotten harder because of this, do you think? I mean, the water fight. Now we have the Supreme Court...is that...in your view, it that a good thing or a bad thing, that we now have to take it to the State Supreme Court?
SUMMERS: Yeah, well, it’s definitely a bad thing. [laughs] We were all hoping and expecting that the Court of Appeals would support it.
MESSER: The Supreme Court in this state is much more stacked. Overtly.
SUMMERS: Yeah, as we said earlier. I don’t know if I’d call it stacked. It’s just that Republican judges are in control.
MESSER: They’re part of the agenda-driven system...A lot of pressure going to come to bear, though, I would imagine, as it heads in that direction. Is there anything beyond that?
SUMMERS: I’ve heard talk of a federal lawsuit. In fact, read the decision...the Court of Appeals actually refers to...sort of swats down the notion of 14th Amendment protections for the City. So, they’re actually, sort of, anticipating that the City might file a federal lawsuit. But I don’t have any information as to whether they’re considering that.

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RELATED

Appeals court declines to reconsider city water ruling
Mark Barrett | Asheville Citizen-Times | November 11, 2015

Appeal Denied

Growth and Development Forum

What: Growing Asheville For All Forum
Where: Diana Wortham Theater, 2 South Pack Square, Asheville
When: 6 - 7:30 p.m. Tuesday, Nov. 10
Cost: Free and open to the public

Livetweeting: Asheville Citizen-Times
Hashtags: #avlgrowth, #avlforum
Dates: 11/10 to 11/11

AC-T