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Tuesday, June 10, 2014

State takeover of Asheville water system ruled unconstitutional

Posted by on Tue, Jun 10, 2014 at 10:31 AM

Updated: Attorneys from the state Attorney General's office do plan to appeal the judge's decision on behalf of the state, according to an email from Noelle Talley, a public information officer with the N.C. Department of Justice. 

A judge struck down a 2013 bill Monday that allowed the state-ordered transfer of Asheville’s water system to a Buncombe County regional water system.

According to the Asheville Citizen-Times, Wake County Superior Court judge Howard Manning Jr. found that the bill—sponsored by Rep. Tim Moffitt, R-Buncombe and pushed through by the Republican majority in the state legislature— violates the state constitution, “lacks a rational basis” and calls for an “unlawful taking.”

“The Water Act 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 a public use,” Manning wrote in the ten-page decision.

He noted that the law violates the state constitution’s guarantee of equal protection because it “transfers the water system to another entity without any rational basis for doing so,” “will not result in any higher quality of water” and gives the system “to an entity that has never owned or operated a public water supply and delivery system.”

Because of a legal mechanism, Asheville can't charge higher water rates to areas outside of the city. Moffitt's bill, which was co-sponsored by Rep. Chuck McGrady, R-Henderson and Rep. Nathan Ramsey, R-Buncombe, has been criticized as a blatant power grab in an attempt to privatize a public system. 

The paper reports that Moffitt said he was “not surprised” about the judge’s ruling.

He said he still feels the transfer is the best policy for Asheville and Buncombe County and plans to appeal the decision.

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The bill is one of several designed to weaken local governments' power

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