Mark Barrett

ASH

ASHEVILLE – A judge on Monday struck down as unconstitutional the 2013 law that would transfer control of the city water system to the Metropolitan Sewerage District.

Wake County Superior Court Judge Howard Manning Jr. found that the law violates a prohibition in the state constitution against "local" laws on certain subjects, "lacks a rational basis" and calls for an "unlawful taking."

Even if the law passed the constitutional hurdles, the city would be owed compensation for the water system, Manning wrote, something the law does not provide for.

Both sides have predicted that whatever decision Manning made would be appealed, and Manning himself said the same thing in his nine-page decision.

Mayor Esther Manheimer said that by taking the city's position on four of the six legal points at issue, Manning's ruling would be more difficult for the Court of Appeals to overturn. The decision does not address the two other points the city raised, that the law was an unlawful interference with the city's contract with bondholders.

The ruling is "affirming, gratifying and thrilling and it's great for Asheville," Manheimer said.

The short-term impact of the decision on the water system will be nil. A judge stayed the effect of the law in May 2103 while the city's appeal is heard.

Primary sponsor Rep. Tim Moffitt, R-Buncombe, pushed the law through the General Assembly last year with the support of the legislature's Republican majority. Democrats generally opposed the bill.

Moffitt said Monday he had not yet read the decision but, "I'm not surprised or disappointed. This is the first step in a very long journey" through the state's appellate courts. He and Rep. Nathan Ramsey, R-Buncombe, noted that a trial judge took the city's side in a lawsuit over water rates in the 1950s, only to be overturned.

Both said they still feel the transfer would be the best policy for the city and Buncombe County.

Ramsey said that during his time as chairman of the county Board of Commissioners, he and his Democratic colleagues all felt putting the system in the hands of an independent authority "was the best way to resolve the conflicts" that have surfaced periodically over water in Buncombe County.

The Asheville water bill is among several steps the legislature has taken weakening powers of towns and cities.

Manheimer said Manning's decision is "a huge victory for cities. When you initiate a lawsuit of this magnitude, you need to so responsibly because it has broad implications across the state."

Manning had ruled against the city in 2007 when he upheld laws preventing the city from charging more for water outside the city limits than inside them, although he wrote then that he did so "while holding (my) nose" at the way the legislature exercised its powers.

This time, Manning made it clear that he feels the legislature had gone beyond the limits of what the constitution allows:

He wrote that the law violates prohibitions in the constitution of local laws affecting one or just a few cities or counties regarding "health, sanitation ... (and) non-navigable streams."

The law "was specifically drafted and amended to apply only to Asheville and the Asheville water system" and thus violates those prohibitions, he wrote.

Manning said the law violates the state constitution's guarantee of equal protection under the law because it "transfers the water system to another entity without any rational basis for doing so."

The act would not change the use of the assets of the system, "will not result in any higher quality of water" and would give the system to "an entity that has never owned or operated a public water supply and delivery system," Manning wrote.

The law would result in an "unlawful taking" of assets that the city runs similarly to a private corporation and that are entitled to similar protections, Manning wrote.

The state cannot require such a transfer of a private company's assets and the water law "is not a valid exercise of the sovereign power of the legislative branch of government (or the state of North Carolina) to take or condemn property for public use."

Even if the law were to be found valid, Asheville "is entitled to be paid just compensation" for the system, Manning wrote.