By Douglas R. Johnson
June 19, 2009
The fate of the James River Water Authority now is in the hands of two separate Courts of Record, The Fluvanna Circuit Court and the State Corporation Commission. Some time has transpired from all of the headlines and broadcast media attention. This is an update and review to explain the history and the legal arguments at issue.
History of Joint Water Authority
Many years of discussion over providing drinking water for Zions Crossroads took a sudden change of direction with the supposed consensus to form a Joint Water Authority with Louisa County for a pipeline wholly within the borders of Fluvanna County.
This was first revealed at the January 26, 2009 joint meeting of the Fluvanna Board of Supervisors and the Louisa Board of Supervisors held at the Best Western meeting room at Zions Crossroads. That meeting was advertised as a discussion but the meeting confirmed it had already been decided. It was claimed that there was a consensus but the Fluvanna Board of Supervisors was divided by the same 4 to 2 that exists to this date.
It is clearly apparent that there were secret or semi-secret meetings planning that approach going on outside the public view. Perhaps they were at perfectly legal work sessions but clearly "below the radar".
The plan revealed at that meeting was that each county would advertise the required 30 day notice, hold a public hearing, vote authorizing the plan, and finally have the Joint Water Authority chartered by the State Corporation Commission.
While there were multiple discussions held in various parts of the community on the water pipeline, all such discussions were about the pipeline; its route and cost. There was no discussion concerning any Joint Water Authority with Louisa County.
Many of us who were associated with Lee True and his Fluvanna Taxpayers Association were not opposed to the pipeline itself but were withholding judgement on the project depending how the project would be funded. Our consensus was that we would not oppose a plan that would fund the project with revenue bonds that would be repaid by those who actually used the water. But we would oppose if those not needing the water would be forced to pay for other's use of that water.
In February of 2009, we had a presentation made to the Fluvanna Taxpayers Association that simply listed all of the unanswered questions concerning the project. These question were not only not answered but not known by anyone, not even those advocating the formation of the Joint Water Authority. It was clear to all who heard the presentation that this was all going too fast as once the Authority was created, it would live on for some 50 years.
What we came up with as a way to slow down long enough to fully explore the implications of a Joint Water Authority was the provision for a referendum that was included in the very law that authorized its creation, namely the "Virginia Water and Waste Authorities Act" (Chapter 51) and the specific section, "Hearing; referendum" (§ 15.2-5105), which says in part: "If ten percent of the qualified voters in a locality file a petition with the governing body at the hearing calling for a referendum, such governing body shall petition the circuit court to order a referendum...."
A petition was subsequently circulated and filed with the Fluvanna Board of Supervisors at their March 18, 2009 Public Hearing on the Joint Water Authority. The Board voted at that Hearing to review the petitions and not act until April 15, 2009 when it voted to reject the petition and form the Joint Water Authority.
Legal Basis for Petition for Referendum
Our Founding Fathers established this government we all live under based on their personal experience and their broad knowledge of history. Early English law was actually not written down. It was a big step to have any laws in written form. What they came up with what we think has always been, "the rule of law". That means that both the government and people are under this rule of law. The concept that "no one is above the law" is vital and absolute. No governing official nor governing body can ignore the law but must abide by it.
Furthermore, laws must be in plain language and easily understood by people of average intelligence. Otherwise, how can anyone be held accountable for violating said laws?
Some laws are narrowly construed while others are liberally construed. That means that some laws must be adhered to the very letter of the law and some must just have the basic intent followed.
Here in Virginia we have a specific law that states that as long as the basic concept of various legal papers are clear, one cannot throw out a case for a mere technicality. That law is titled "When action or suit not to abate for want of form; what defects not to be regarded" (§ 8.01-275):
No action or suit shall abate for want of form where the motion for judgment or bill of complaint sets forth sufficient matter of substance for the court to proceed upon the merits of the cause. The court shall not regard any defect or imperfection in the pleading, whether it has been heretofore deemed mispleading or insufficient pleading or not, unless there be omitted something so essential to the action or defense that judgment, according to law and the very right of the cause, cannot be given.
(Code 1950, §§ 8-102, 8-109; 1954, c. 333; 1977, c. 617.)
Here we read "abate" as "to be thrown out". The petition filed with the Fluvanna Board of Supervisors is a "pleading" and the "essential" part of that pleading is whether it was filed at the specified time and place and whether it contained the required number of signatures.
But the "Virginia Water and Waste Authorities Act" is even stronger it its specific language. Section 15.2-5100 states:
§ 15.2-5100. Title of chapter.Note that there are no other laws needed to interpret or modify the purposes of this Act. The phrase, "without regard to the provisions of any other law for the doing of the acts herein authorized", prohibits the argument that says the petition failed to meet some other law. The phrase, "shall be liberally construed to effect the purposes of the chapter", prohibits the use of technicalities to void the petition.
This chapter shall be known and may be cited as the "Virginia Water and Waste Authorities Act." This chapter shall constitute full and complete authority, without regard to the provisions of any other law for the doing of the acts herein authorized, and shall be liberally construed to effect the purposes of the chapter.
(Code 1950, § 15-764.1; 1950, p. 1312; 1962, c. 623, § 15.1-1239; 1997, c. 587.)
The two purposes of the Act which are of interest here are the formation of an Authority and the requirement for a referendum before the formation of an Authority. Of these two issues, only the requirement for a referendum is at issue. The procedure of the formation part is not disputed. Of course, the procedure would be illegal until the referendum is passed should the requirement for the referendum been met.
There is no dispute of the fact that the petition was filed with the Board at the appropriate time. There is further no dispute of the fact that the number of qualified signatures did exceed the ten percent required.
So according to a plain reading of the "Virginia Water and Waste Authorities Act", the referendum should have been held prior to the formation of the James River Water Authority. But the Fluvanna Board of Supervisors, by that same 4 to 2 vote, failed to follow the law with respect to that Act.
