Asheville Mayor Esther Manheimer (front left) and City Councilman Marc Hunt (front right) leave Wake County Superior Court following a 2014 hearing on the future ownership of the city's municipal water system. File photo by Kirk Ross/Carolina Public Press

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ASHEVILLE – Legislators can’t just set up a new local government entity to seize control of Asheville’s existing municipal water system, the North Carolina Supreme Court ruled 5-2 Wednesday, reversing a Court of Appeals decision.

Writing for the majority, Justice Sam Ervin IV found that legislators passed a local act relating to health and sanitation, which the state constitution prohibits.

Ervin noted the history of Asheville’s water system, which “has been built and maintained over the course of the past century using a combination of taxes, service fees, connection charges, bonded indebtedness, federal and state grants, contributions from Buncombe County and donations from property owners and developers.”

Part of the General Assembly’s legal justification had been that the water system was primarily built through fees collected from its customers, so that Asheville taxpayers would not be disenfranchised by removing control from the city and setting up a new regional water authority, as the 2013 legislation did.

Although the Supreme Court reached its decision on the same grounds that had been explored previously at the trial and appellate court levels, Ervin included a footnote clarifying that the city, had it lost, would still have had the right to defend its position on other legal grounds that the courts hadn’t considered.

The court also found that lawmakers had tried to skirt the constitution by tailoring the wording of the legislation. The law’s plain wording appeared to affect an entire class of municipalities, but did so in way that ensured Asheville was the only member of this class.

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“Nothing in the legislation in any way explains why every other municipality in North Carolina except (Asheville) should have the right to decide for itself whether to transfer its water system to a metropolitan water and sewerage district,” Ervin wrote.

“Moreover, nothing in the legislation does anything to explain why the benefits that the General Assembly expects to result from the creation of the metropolitan water and sewerage districts should not be made available to the customers of every large municipal water system in North Carolina.”

The court also pointed out errors in legislators’ contention that the law would “ensure the availability of better water service at a lower cost.” The decision noted that several of the region’s municipalities do the same thing that Asheville was being criticized for doing – charging customers outside their territory higher rates than municipal customers. The decision specifically singled out Biltmore Forest, Black Mountain, Montreat, Weaverville, Woodfin and Hendersonville for this practice.

On the key finding of the appellate court that the legislation was not prohibited by the Constitution because it wasn’t inherently concerned with health and sanitation, the Supreme Court found that the lower court had relied on an older decision in a Buncombe County case that wasn’t really applicable to the situation that the 2013 law created.

The court found that more recent precedents have said, when deciding whether a law impermissably relates to health and sanitation, the guide should not just be the stated purpose of the legislation but also its practical effect.

Ervin wrote that since the language prohibiting such local laws says they cannot “relate” to health and sanitation, a legal standard broader than “regulate,” the clear impact of the legislation in this case was relevant enough to health and sanitation to come under the prohibition, making it unconstitutional.

Justice Paul Newby penned a dissenting opinion in which Chief Justice Mark Martin joined him. The overall decision was a 5-2 victory for the city of Asheville.

Reaction

City officials were pleased with the outcome.

“Today, the North Carolina Supreme Court ruled that Asheville and its residents will keep and maintain our water system,” Mayor Esther Manheimer said in a statement.

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“Many years ago, our city leadership made the bold and wise investment in a watershed and water infrastructure that provided the foundation for the robust water system we have today that provides safe drinking water for Asheville and its customers.

“This ruling ensures that Asheville can continue to own this great water system and continue to provide safe drinking water for years into the future. Asheville is committed to continuing to work with our regional partners to ensure all water system customers received the highest quality service from the city of Asheville.”

The court ruling does not necessarily prevent the Republican-controlled General Assembly from attempting to enact similar legislation against Democrat-controlled Asheville in the future. However, legislators might have a steeper hill to climb.

In addition to the precedent in Wednesday’s decision, any such law would likely have to survive a veto from new Democratic Gov. Roy Cooper and potential review by the new Democratic majority on the North Carolina Supreme Court.

Frank Taylor

Frank Taylor is the managing editor of Carolina Public Press. Contact him at ftaylor@carolinapublicpress.org.

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