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Mayor suggests legal action over commission vote

BUCKHANNON — Calling the Upshur County Commission’s vote to allow Tennerton Public Service District to pursue expanding its territory along Route 33 West “unfounded, arbitrary and capricious,” Buckhannon Mayor David McCauley called for the city council to support possible legal action the city utility boards may take to protect their interests.

McCauley also said the decision “erects a wall around our city that will inhibit Buckhannon’s opportunity to grow.”

McCauley read a four-page statement out loud at the most recent Buckhannon City Council meeting — a week after the commission voted 3-0 to allow the Tennerton PSD to begin the process of extending the boundaries of the Tennerton PSD west to the county line. The commission’s vote came after two public meetings with city officials and commercial property owners along the proposed expansion route.

Tennerton PSD has proposed a $5.6 million project to take sewer to 150 or so properties on the western side of Route 33, according to McCauley. It was noted at the last county commission meeting with interested parties that the City of Buckhannon surveyed residential property owners who comprise the majority of the 150 or so customers and determined that only 24 percent want public sewer service. However, all would be required to participate in a public sewer if assigned to the Tennerton PSD.

In the statement, McCauley said, “You might imagine our city officials’ collective dismay and outrage really — to learn just one week ago today that the Upshur County Commission had decided to reassign substantial sewer utility territory, long belonging to our city, to a struggling public service district.”

The mayor outlined the city’s work over the areas in the area of utilities as well as problems the Tennerton PSD has experienced.

He further outlined three financial models the city could take to realize its utility projects including annexation, financial participation from the benefiting parties and a utility surcharge model.

“There has been absolutely no showing of cause supporting any possible conclusion that our city utility boards cannot complete the projects along Route 33 west or any other place for that matter,” McCauley said. “The seminal question in reassigning utility territory has to be a supported finding that the entity from whom the territory is proposed to be taken cannot perform the work.”

McCauley noted the sanitary board has gone on record saying that it can achieve completion of the northside sewer project during the 2020 construction season and the southside sewer and water projects during the 2021 construction season while the earliest a Tennerton sewer project could begin is estimated at 2023.

“This evening, I request that our city council take a formal position to vigorously support the anticipated actions of our sanitary board and possibly our water board, if necessary to protect their respective utility territory rights along Route 33 West and to challenge this decision by the county commission before a final court if necessary,” McCauley continued in his statement.

Councilman Robbie Skinner moved, seconded by councilman David Thomas to stand behind the sanitary and water boards and to take all action necessary, legal and administrative to protect the city’s utility territorial rights.

Skinner and Thomas both sit on the water board as council members and McCauley chairs the water and sanitary boards. All council members serve on one of the four boards — water, sanitary, consolidated public works or waste.

Thomas said, “I support you 100 percent.”

City recorder Randy Sanders said he attended both meetings at the county commission.

“In the second meeting, I was appalled and surprised to learn of the action that was about to be taken without, as far as I know, any consideration of the current utility customers in the Tennerton PSD,” he said. I mean, they are going to be surprised about this. I just hope, if it comes to a point where they are in a public meeting, that every customer — all 851 or so — is notified and given an opportunity to express their opinion as to whether or not they want to help finance this project largely for commercial developers.”

Skinner said he attended both county commission meetings and spoke to two of the commissioners privately in between the meetings explaining what was at stake and why it was important for the City of Buckhannon and for the people who live in the Tennerton and Hodgesville PSD areas that would not have to bare the brunt of the project.

“I thought they got it,” he said. “That meeting last week where they were trying to flex their muscles…I left like everybody else – extremely disappointed.”

McCauley said, “We cannot allow this action to stand. We have to defend ourselves. We have to assert our position and we most certainly will do that.”

When reached for comment Friday morning, commission president Sam Nolte said the county commission was not attempting to take over the city’s territory by giving the Tennerton PSD the ability to pursue their project.

“The expansion of Tennerton PSD’s boundaries has enabled them to serve an area currently unserved in Upshur County,” he said.

Further, Nolte said that the county commission does not determine which utility – whether it is the PSD or the city – is the proper one to provide service.

That is the role of the Public Service Commission, Nolte added.

“The city has a statutory right to provide services up to 20 miles outside the city limits,” he said.

Nolte said there will be a hearing before the county commission in the next 30 days and at that point, the commission could recommend that the Tennerton PSD’s expansion go before the Public Service Commission.

“Ultimately, it still goes to the Public Service Commission,” he said.