MARTINSBURG, W.Va.—The West Virginia Public Service Commission on Tuesday ordered Berkeley County’s public water and sewer districts to return any capacity improvement fees that the utilities might have collected since May 9.
The utilities have 15 days from the date of the order to return the fees, which the state regulatory agency ordered in May to be discontinued and not collected by the Berkeley County Public Service Sewer District and Berkeley County Public Service Water District, according to the order.
The directive by the PSC is part of a decision that denied petitions for reconsideration that were filed by the county utilities after the state agency’s decision.
The $3,120-per-lot capacity improvement fee charged by the water district and the $3,650 fee charged by the sewer district first were authorized by the PSC amid the booming housing market.
The PSC in May ruled that criteria based on rapid and expansive growth no longer were being met and ordered the fees to be discontinued.
Without the fee revenue, water and sewer district officials said in May that their customers could be asked to pay more so they can pay off more than $30 million that was borrowed for improvements.
While the PSC’s decision to uphold the final order in the case still could be appealed to the West Virginia Supreme Court of Appeals, attorney Laura Faircloth said she was pleased with the outcome.
“Whether (the public service districts) choose to appeal this to the Supreme Court, I don’t know,” said Faircloth, who has been representing her husband, Larry Faircloth, and his business, Larry V. Faircloth Realty Inc., in a protracted legal battle with the public service districts over the fees.
Faircloth said she is considering whether to file her own appeal with the state Supreme Court to challenge the PSC’s assertion that it has the power to authorize counties to collect the fees at all.
Faircloth said the agency’s process for handling the petition she filed in early 2009 has been frustrating because there were no set timelines for the state to make a decision.
“It’s been a struggle through the PSC maze,” Faircloth said. “Personally, I think two and a half years is too long for a matter that is this important to remain in limbo.”
Larry V. Faircloth argued in his case that he should not have to pay capacity improvement fees totaling $6,770 per lot because he had installed water and sewer infrastructure in his subdivision at his expense and then conveyed it to the water and sewer districts at no charge. According to the PSC order, Larry Faircloth testified in 2009 that he had conveyed about $600,000 worth of infrastructure to the water and sewer districts.
The cost of the infrastructure was included in the sale of the lot, but the capacity improvement fee still was being imposed on top of the homeowner’s regular service bill, Laura Faircloth said.
Among other claims, the Faircloths have argued that the fees can’t be collected because the county doesn’t have the zoning ordinance required to allow them.
In disallowing the fees, the PSC noted that the county water and sewer districts do not meet the criteria because they would not deplete their service capacities within five to seven years.