MARTINSBURG – Imagine if the government used its power to shut down a mosque, simply because some citizens didn’t like the Muslim religion.
What if the government targeted a gay night club, an abortion clinic or methadone treatment center or used its power to punish someone who challenged its authority?
Chief U.S. District Judge Gina Groh voiced those questions last week before granting Rockwool an injunction to stop the Jefferson County school board from stopping the company’s controversial project by seizing the land where its factory is being built.
“Private property rights should be protected from bad faith and arbitrary government action,” Groh said.
Groh spent about 45 minutes deliberating before siding with Rockwool after listening to a full day of testimony on April 30 and hours more the following afternoon.
She also took time to detail how she arrived at her decision, explaining that Rockwool had shown its case of injury would likely be accepted by a jury, that Rockwool would likely suffer irreparable harm without the injunction and that the injunction is in the public interest.
Groh’s decision prevents the school system from taking further action in proceedings begun April 12 in Jefferson County Circuit Court.
Anthony Majestro, a lawyer hired by the school system, said school officials may. “The Board of Education is disappointed in the judge’s ruling and doesn’t believe it did anything wrong in condemning Rockwool’s property,” he said just after the ruling.
School board President Kathy Skinner, who filed the school board’s petition to initiate the condemnation process in Jefferson County Circuit Court, attended the federal court hearing but declined to comment afterward.
Before granting the injunction, Groh heard testimony from Skinner, Jefferson County Schools Superintendent Bondy Shay Gibson and from Rockwool executive Peter Regenberg.
Groh said school officials’ testimony “defied logic and was incredible, and a jury would find it to be incredible as well.”
She called the school system’s actions “bad faith so arbitrary as to violate [Rockwool’s] due process.”
The judge also said: “This was not a close call.”
Groh noted that the school system hadn’t considered any other land for its newly proposed support center and also hasn’t made other key decisions such as financing it.
Groh said the school board’s condemnation was unusual in that it sought to acquire a large tract of land under development. Most public condemnations involve taking a limited amount of private property for laying a utility line or widening a roadway, she pointed out.
“This is a whole property,” she said. “This is a huge property.”
Groh also pointed out that the school board had joined other officials in signing a Payments in Lieu of Taxes agreement – clearly acknowledging the factory would be built on the former Jefferson Orchards property.
“It’s a condemnation with a property owner with a government entity that made a legal agreement with Rockwool for the company to build its facilities there,” she said.
News of Rockwool’s decision to come to Jefferson County was announced in July of 2017, but the protests against the factory did not begin until after the June 26, 2018, groundbreaking.
State officials and Rockwool officials have said the factory’s emissions will be safe for all people, including children and those with breathing issues.
In her ruling, Groh said that delaying the school system’s effort to seize the factory site would not cause “real hardship” to the school system.
She acknowledged that Rockwool has already spent about $50 million to prepare the property, including creating drainage systems, building foundations and putting in utility infrastructure. Rockwool paid $2.3 million for the factory site.
School officials had offered Rockwool $1.4 million for the site.
Peter Regenberg, Rockwool’s vice president of operations for North America, testified that the company has committed another nearly $80 million to contractual agreements with suppliers for the project.
The stone wool insulation factory, set to open in mid-2020, will be a $150 million project when finished.
In his final statement on May 1, Rockwool attorney James Walls highlighted testimony from Regenberg that the school system would have to pay potentially millions to undo the work Rockwool has done to prepare the site for the factory.
Walls said school officials didn’t consider the additional costs the school system would have to pay to prepare the site for a school complex.
Gibson testified that when she and other school officials met with state School Building Authority officials in Charleston in February, they talked about the center but did not mention where the new facility would be built or the possibility of using eminent domain to get the land.
Gibson said the school system has no estimate for what the regional student center would cost to build. She said buildings and programs would likely be phased in over several years.
Meanwhile, Walls had Gibson recount the detailed planning undertaken before the school board purchased 155 acres two years ago for three future schools in Ranson as well as 101 acres purchased last year for two schools in Shepherdstown.
Gibson acknowledged that the school system looked at several possibilities before deciding on the Ranson and Shepherdstown sites.
Walls produced a report developed by The Thrasher Group, an architecture and engineering firm. It analyzed seven properties in the county that were ranked as appropriate school sites. Gibson acknowledged that school officials used the evaluation in the decision to select the Ranson school site.
“It only makes sense to do your homework before you spend that much money?” Walls asked Gibson.
“Yes, sir,” she responded.
Later Walls asked Skinner why undeveloped property near the Ranson site was not purchased for the regional student center.
“Why would you seek to condemn [Rockwool’s property] when there’s all this other land out there?” the attorney asked.
Skinner testified that it was her idea for the school board to pursue the condemnation. She defended the school board’s decision, saying the Rockwool property is near W.Va. 9 and close to Berkeley County, which, she said, has tentatively offered to send its students to the regional center.
The property adjacent to the Rockwool site that is for sale wasn’t considered, Skinner said, because the center would be too close to the factory’s pollution emissions.
But Walls emphasized the sequence of events he said showed the school board’s motivation was not to find a site for the regional student center but to respond to public pressure to stop the factory from opening.
A year after Rockwool announced plans for the factory in mid-2017, citizens began protesting its emissions and location close to North Jefferson Elementary and other schools. Citizens came to school board meetings and urged board members to help stop Rockwool, or at least delay the factory’s construction.
School board members then asked Rockwool to halt construction while school officials examined potential health risks.
The company offered to pay for an independent health risk assessment, an effort that stalled after school officials failed to find a company to conduct the study.
On the stand, Gibson acknowledged that she continued to discuss a human health risk assessment with Rockwool representatives at the same time the school board was discussing its eminent domain seizure.
On Feb. 7 to Rockwool, Gibson wrote the school system would pursue “any and all legal, ethical” actions to stop the PILOT.
Rockwool attorney Joseph Schaeffer argued that the letter’s conclusion, written before the school board moved to condemn Rockwool’s property, showed the true motivation of school officials.
“We have the Board of Education using its authority as a pretext to stop Rockwool,” he said.
Under questioning by Walls, Skinner also acknowledged that she did not want to see the stone wool manufacturer open its facility. But she said it wasn’t public pressure motivating the school board to pursue taking the factory site.
“I personally don’t want Rockwool to build because it prevents the schools from doing what it needs to do,” she testified.