Appeals court: Asheville water system transfer constitutional

Posted October 6, 2015

— The General Assembly did not violate the state constitution when it voted two years ago to move Asheville's water system to the control of a municipal authority, the North Carolina Court of Appeals ruled Tuesday.

In its ruling, the three-judge panel struck down claims asserting the state had unconstitutionally meddled in local affairs, taken the property of the city and violated other constitutional provisions.

"Asheville contends, and the trial court agreed, that the General Assembly had no 'rational' basis for singling out Asheville in the Transfer Provision," Judge Christopher Dillon wrote for the panel. "We believe that the fact that the General Assembly irrationally singles out one municipality in legislation merely means that the legislation is a 'local' law; it does not render the legislation unconstitutional per se."

Dillon's opinion appears to allow the water system transfer to go forward even as the case was remanded back to Superior Court for further hearings. Asheville Mayor Esther Manheimer says her City Council is likely to appeal the decision to the state Supreme Court.

"This is a decision that says, at the legislature's whim, they can take an asset from a city and give it to someone else," Manheimer said. "That's a bad precedent to set."

In this case, the state law beefs up an existing regional sewage district and turns it into a water and sewer district. That newly enlarged body would then take control of the system that Asheville built. The city would have only three seats on a 15-member board.

The case is one of several, including a fight over control of Charlotte's airport, that prompted local governments to take the state to court. Locally, Raleigh and the state avoided a court showdown when they reached agreement over the sale of the Dorothea Dix property.

These fights have often been painted as differences between rural lawmakers and urban communities. In Asheville's case, nearby Henderson County, which is home to powerful Republican committee chairmen Sen. Tom Apodaca and Rep. Chuck McGrady, would get three seats on the 15-member board.

In recent years, Asheville has fostered home-grown brewers as well as attracted new out-of-state breweries such as New Belgium.

Having access to water and being able to control the supply, Manheimer said, "is definitely a driver for economic development and the overall vibrancy of the community."


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