Friday, January 30, 2009

Route 10's Judicial Pothole Swallows Constitution

When engineers design a new highway, they try to balance the quantity of excavated dirt and rock (the cuts) with the quantity of dirt and rock needed to fill in the valleys (the fills). Needless to say, our hills and valleys are never in direct proportion with one another.

Usually there is an excess of dirt from the cuts, and that excess is "wasted" in an off-site waste pit. When cuts fail to provide enough dirt and rock, dirt and rock are "borrowed" from an off-site borrow pit. Oftentimes, waste pits are needed for disposing unsuitable material, such as clay, marl, very thin coal or slate seams and other such material that you cannot use to build a road.

Ever since time began, it was up to the highway contractor to secure waste pits from landowners near the highway right-of-way. The system has worked very well because the landowner ended up with a few acres of level land as well as some income from what had been unproductive land. It goes without saying that, in nearly all cases, the land appreciated in value.

And in return for the waste pit rights, the landowner also had the flexibility to work with the contractor and negotiate for improvements, such as straightening a creek bed, building an access road to the ridge top and so on. It doesn't cost the contractor much to make these improvements with heavy equipment, but it would cost the landowner a tidy sum if he had to hire the work separately.

One other note applies here: Waste pits are designed by engineers and approved by the contracting owner. The land, therefore, is not laid to waste. But the excavated material placed in a waste pit is said to be wasted because it will not be used in the future.

This all changed on Dec. 15, 2006, when someone at the Division of Highways got the bright idea to have the state condemn private property for a waste pit. Ostensibly, the state wanted to provide a waste pit for the construction of state Route 10 in Logan County. However, to skirt federal law, the state could not mandate contractors to use the waste pit.

The feds have been down this road before. In every state, at one time or another, the politically connected just happened to own land in the path of a new highway. Need I say more as to why the feds frown on state-mandated waste pits? If I do, then let me call the applicable federal law a coincidence-management measure.

On Nov. 14, 2008, the West Virginia Supreme Court of Appeals issued its approving opinion of the Logan County property condemnation (West Virginia Deptartment of Transportation v. Contractor Enterprises Inc., et al). The court relied heavily on established state law that allows the highway commissioner to condemn property for a variety of purposes to build highways. In this case, the purpose is that the commissioner can condemn property for the storage of road-building materials.

What puzzled me was that the court's opinion equated wasted dirt with stored materials. To drive this point home, the word "storage" is emphasized in italics so as to make it interchangeable with waste.

Waste is "damaged, defective or superfluous material produced by a ... process" or "to expend idly or without return." Store means "something that is kept or stored for future use" or "to place or leave in a location for later use."

There can be no confusion that these words (whether as nouns or verbs) are opposites, and, further, that based on these definitions, state law does not even contemplate the highway commissioner condemning property for waste pits let alone authorize the commissioner to do so.

Former State Highway Commissioner Fred VanKirk gave expert testimony in this case. VanKirk, a civil engineer who spent a four-decade career with the Division of Highways, testified that he knew of no instance of the state condemning private property for waste pits and explained (rather lucidly) that the state had no bona fide reason for making such a condemnation. His testimony alone would convince any reasonable person as to why the Division of Highways need not be in the waste pit business.

VanKirk also pointed out that the state's ownership of waste pits may result in some future liability, albeit unknown and undeterminable, that any landowner faces and that state ownership of waste pits removes that property from the tax rolls.

The Supreme Court of Appeals has erred in this matter. In reading the court's majority opinion, it was obvious to me that the justices misunderstood the issue at hand and misinterpreted state law concerning highway condemnations. The two dissenting opinions offered to rebut the majority lack the passion necessary to describe this outrage.

This decision allows for the unjustified taking of private property by the state for non-public use and should be reversed immediately.

West Virginia is not a Judicial Hellhole. No, it is a Judicial Pothole -- a condemned waste pit in the making.

Majority Opinion;
Dissent (Maynard);
Dissent (Benjamin);