The thought of the government taking away land without consent is a nightmare for many Pocahontas County residents, but that’s what happened to two Linwood homeowners in Circuit Court last Friday. Like David facing down Goliath, the landowners stood before the judge and squared off against the mighty power of the government. Ultimately, the government won, but not before the landowners stood their ground and gave it their best shot.
Steve and Peggy Mardosa and their neighbor David Kirby showed up to argue their cases, but three other homeowners chose not to show up. The Pocahontas Public Service District (PSD) needed easements across their land to build a sewer pipeline for a new Snowshoe area wastewater system.
PSD attorney Chris Negley spoke first and explained why the PSD needs the easements. Negley told the court that the West Virginia Public Service Commission (PSC) had ordered construction of a new sewage plant and directed that the area north of Linwood on Route 219, where the Mardosas and Kirbys own homes, would be included in the service area. Negley said the PSD was still under the threat of an an active lawsuit, filed by the West Virginia Department of Environmental Protection for water pollution violations. The attorney said the PSD had acquired 93 out of 99 easements via negotiation and that eminent domain was being used against the remaining holdouts “as a last resort.”
Steve Mardosa responded, claiming that his 15-year old septic system has a better record than the PSD because it had never polluted the Elk River. The homeowner said he was an avid fisherman and had seen the damage done by Snowshoe and PSD water pollution.
“I’m a fisherman and I’ve watched the Elk River decline,” Mardosa told the judge. “There’s been a need for a new sewage system on the mountain for a long time. But this is a project for the resort – not a public project. I’m not here to stop the project, I’m here to protect my property rights.”
Mardosa said the resort had passed off a failing sewage system to the PSD, which needed customers in the valley to justify calling the wastewater project a ‘public’ system.
“This is a private sewage system that’s called public,” he said. “It’s a travesty to take my property because the project is for the mountain.”
Mardosa pleaded, in the event eminent domain is unavoidable, for a waiver from hooking up to the new sewage system and paying a $70 per month sewage bill.
Kirby, of Lynchburg, Virginia, said he spends a total of two months at his Linwood cabin every year. He told the judge he is not opposed to the project, but has no need for sewage service because he has a perfectly functioning and permitted septic tank. The homeowner said he deliberately chose to buy a house away from the mountaintop resort so that he wouldn’t have to pay a big utility bill.
“I just want to be left alone,” Kirby told the judge.
Kirby argued that his property is at the end of the line of the sewer system, and that the PSD was demanding an easement just to add him as a customer, not to reach other customers.
Ultimately, Judge James Rowe had to follow the law and ruled in the government’s favor. The judge found that the PSC had issued a certificate of public convenience and necessity for the sewer project and that the PSD had met all legal requirements to obtain access to the land. Rowe granted a right of entry for the PSD to build the pipeline on the land of the five property owners, including the three absent owners.
However, the issue of the amount of compensation to be paid to the homeowners has yet to be resolved. The judge made it very clear to Negley that he wants to see the landowners treated fairly when the government negotiates a price. The judge also ordered Negley to look into the possibility of a waiver for the owners who do not wish to hook into the system or pay the utility bill.
Mardosa said he knew he was going to lose.
“I knew I was going to get screwed, I just wanted five minutes of time with the court to express my opinions and make my statements, and I’ve done so,” he said.
Negley explained the legal procedure.
“We were asking for the right of entry onto the property,” said Negley. “The right of entry allows the PSD to go onto the property and begin construction. Under West Virginia law, as long as we have shown a public need and a public necessity and the court is satisfied we have done that, then we have the right of entry. We’re not taking ownership today, merely entry onto the property.”
A jury will be convened to decide how much the PSD will pay for the easements.
“At some point, the court will convene a jury of 12 freeholders and the PSD and the property owner will present evidence,” said Negley. “The jury will pick a number – whoever’s number they believe to be more applicable to the property. The only issue remaining is the price – what is the value to be paid for the easement?”
Negley interpreted Judge Rowe’s command to be a good neighbor.
“I believe he would like us to engage, as we try to do with our stakeholders – in this case the property owners – so that people understand what we’re doing. We’re not trying to do it behind closed doors. There are 2,200 people and we’ve done our best. There are some that, obviously, we have not reached.”
Nine years ago, the PSD announced plans to use eminent domain to obtain land on Sharp’s Farm in Slaty Fork for construction of a wastewater plant. The farm has been in the family for nine generations and remained a landmark on U.S. 219 since the highway opened in the 1920s.
Farm manager Tom Shipley, a Sharp descendant, launched a widespread public relations campaign and was successful in defeating the proposal. Shipley was later appointed to the PSD board and currently serves as the board chairman.
Five Snowshoe area land holders, including Snowshoe Mountain, litigated at the PSC and were successful in obtaining a PSC order to the PSD to build a large-capacity sewage plant near Linwood. In an unusual move, the PSC order directed that the sparsely populated area north of Linwood would be included in the system’s service area. Russell Holt, one of the land holder litigants, owns a large parcel in that area. The collection system north of Linwood will cost $1.3 million to build and pick up a total of 10 customers, including Holt, the Mardosas and Kirbys.