Someone up in Asheville must've really ticked off someone else down at the North Carolina legislature. Because for some reason, the state adopted a statute which, just like that, transferred the city-owned water system to a newly-created county sewer and water district. The statute didn't change the water system's operation -- and this was key in the resultant lawsuit in which the city sued the state -- only the ownership.
The law on its face is one of general application, and doesn't name Asheville's system specifically. But the statute covered only systems that met certain standards (population, for example), and which were located in a county that already has a public sewer system. And guess which was the only city in all of North Carolina which qualified? You guessed it, Asheville.
The city wasn't too happy about that and called bunk (perhaps appropriate, given that the new entity to which the city's water system was transferred was the Metropolitan Sewerage District of Buncombe County). It sued the state, alleging the new statute was invalid under the North Carolina Constitution.
The Court of Appeals disagreed, concluding that the transfer was not a law "relating to health and sanitation," and thus a local subject off limits to the state legislature's meddling. The court also held that this was not a taking in violation of North Carolina's "law of the land" clause (remember, there's no "takings" clause in the NC Constitution). There was no taking, because this was just the state withdrawing from the city the authority to own and operate a water system, and reassigning it elsewhere. See City of Asheville v. State, 777 S.E.2d 92 (N.C. Ct. App. 2015).
But is it a taking? The city argues that when it possesses something in its proprietary capacity, then that something is private property, protected from uncompensated transfer to a new owner.
On Tuesday, May 17, 2016 at 9:30 a.m., the North Carolina Supreme Court will hear oral arguments in the case. Here are the Supreme Court briefs:
Stay tuned, we'll post more after the arguments.
More about the case here: "State Supreme Court will decide fate of Asheville's water system."
