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Legislature to reconsider RAD statute

Snowshoe Mountain photo.
Snowshoe Mountain photo.

The fight over a Snowshoe resort area district (RAD) has reached the State Legislature.

After Snowshoe Mountain, Inc., agreed to changes to the original RAD statute, Delegate Bill Hartman (D-43) and Delegate Isaac Sponaugle (D-55) co-sponsored a bill “by request” to repeal the RAD statute in its entirety. The repeal bill has been assigned to the Judiciary Committee of the House. Attorneys for Snowshoe submitted a re-drafted statute to the Legislature, which they intend as a replacement for the law to be repealed.

RAD opponents claim the original law was rushed through the Legislature at the behest of Snowshoe lobbyists and not carefully reviewed by politicians, who were eager to please the big money resort operator. As Snowshoe lobbyists work to push through a new version of the RAD statute, RAD opponents traveled to Charleston this week to tell the Legislature why the new law doesn’t go far enough to fix problems in the original law.

Foremost among the opponents’ complaints are the RAD law’s restriction of voting rights to property owners; the law’s guarantee to Snowshoe management of a four-seat majority on the RAD governing board; no caps on assessments and borrowing by the RAD (like ones that apply to municipalities); and no provision for RAD dissolution.

Two prominent Snowshoe property owners led the campaign against the original RAD statute: retired educator David Litsey and retired Marine Corps officer and program director Bill McHenry.

McHenry briefed the County Commission on December 2, when he described problems with the RAD law.

“[Snowshoe parent corporation] Intrawest has asked the Commissioners to give them control of decision making, charge up to a five per cent tax from tourists and residents, borrow and pay interest without restriction, place assessments on the property of private homeowners, place liens against private property that supersede mortgages, that makes it difficult to sell or refinance, and makes it very difficult for the economic development of the county and state,” McHenry said. “What could go wrong?”

In January, McHenry met with West Virginia Cabinet Secretary Robert Kiss and Deputy Attorney General J. Robert Leslie. Following that meeting, McHenry wrote a letter to the editor in The Pocahontas Times, which read in part:

“Both Secretary Kiss and Mr. Leslie stated that the RAD law should be repealed because of its many inherent flaws both constitutional and operational and, if referred to court action, would certainly not survive. This obviously would have had significant implications for the county had the RAD petition been approved. Both stated they felt it most appropriate to allow the Legislature to take initial action prior to them providing comment and opinion.”

Litsey traveled to Charleston this week with plans to deliver a letter to every member of the Legislature. Among other grievances, Litsey’s letter decries the RAD statute’s restriction of voting rights to just property owners.

“The law denies the vote to ‘other qualified electors’ who reside in the district but do not own property, as well as spouses of property owners, adult-aged children, renters, lease holders, and other resident registered voters who do not own property,” the letter reads. “Settled constitutional law requires state legislatures use the principles of ‘one man – one vote’ when creating governing boards of the general interest nature. The denial of voting rights to some other qualified voters but not to others requires compliance with strict scrutiny standards – the demonstration by the state legislature of compelling need.”

Litsey noted that successful resort district laws in Montana and Wisconsin do not restrict voting rights in the manner that West Virginia’s does, making it clear that a ‘compelling need’ does not exist.

A news article in the April 2, 2014 edition of The Pocahontas Times described potential constitutional infirmities of the RAD law, in light of the 1969 U.S. Supreme Court decision in Kramer v. Union Free School District No. 15. In that case, the Court struck down a New York law that restricted voting to property owners in a school district election. The Court held that the restriction violated the Equal Protection Clause by disenfranchising citizens “who have a distinct and direct interest in the school decisions,” and that any statute restricting voting rights must survive “strict scrutiny” and serve a “compelling state interest.”

However, in its proposed amendment to the RAD statute, Snowshoe did not eliminate the voting rights restriction. The corporation made four major concessions, outlined in an email from Snowshoe Mountain President and CEO Frank DeBerry:

“1. Provide for more open voting formats for mail-in votes. 2. Eliminate any authority to levy special assessment or borrow without a majority vote of the membership. 3. Place a statutory cap on assessments equal to that of a municipality. 4. Allow for member-induced dissolution of the RAD if it is seen to no longer be working to the public good.”

DeBerry has characterized criticism of Snowshoe’s RAD proposal as “sky is falling falsehoods.” The corporation claims that a RAD is desperately needed to fund improvements to roads and other public infrastructure at the resort. Those projects are currently funded by a “Mountain Top Assessment,” collected from most Snowshoe property owners through a deed condition, capped at 1.5 percent of the property value per year.

Hartman said he has been consulting with all parties to work out a solution.

“I think it’s important to Snowshoe, it’s important to the homeowners and it’s important to Pocahontas County because of the property taxes that come from up there,” he said. “I think we need to find a solution that leads to the common good.”

In 2013, the West Virginia Legislature passed the RAD law, which gave authority to county commissions to approve RADs within their borders. A RAD is a public corporation, similar to a municipality, with the powers to assess property, levy fees (taxes), borrow money and operate a police force.

Last April, under the terms of the RAD statute, Snowshoe Mountain petitioned the Pocahontas County Commission to create a RAD. In July, RAD opponents fell short by 15 votes to reach the 25 percent threshold (458 votes) to block RAD creation for one year. Opponents questioned the fairness of the voting process because a Snowshoe-hired accountant counted the votes and because DeBerry oversaw the voting process.

Last August, the County Commission voted down the RAD petition, citing continuing questions about how a Snowshoe RAD would affect Pocahontas County as a whole. The Commission could have re-considered the petition at any time but declined to do so.

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