CHARLES TOWN – Jefferson County school board members aren’t responding to questions from reporters about a just-unveiled plan to seize the Rockwool factory site in a court condemnation action for a regional student resource center.
On Tuesday, Jefferson County Schools Superintendent Bondy Shay Gibson said the school board voted to pursue the condemnation at the end of an April 8 meeting.
At press time Tuesday, she had not fully responded to questions about which board members voted to go to court to seize the nearly 195-acre site where the Denmark-based stonewool manufacturing has planned to build its second U.S. facility – a controversial project that starting last summer set off an unprecedented firestorm in the county.
The school system’s videotaped archive of the meeting ends with the board voting to go into a closed-door executive session. It does not show them coming out of executive session and taking a vote. No notice about such a land acquisition was on the meeting’s agenda as required by law.
James Walls, the Morgantown-based lawyer with Spilman Thomas & Battle who is representing Rockwool in a lawsuit filed Friday in federal court to block the school board’s action, said he is trying to learn whether proper public notice was given regarding the school board’s vote to begin the condemnation process.
“We can’t find any public notice that [school officials] were going to take that action,” he said in a phone interview Tuesday.
Walls said he knows of no comparable case in West Virginia where a government has taken or attempted to take such a large tract of private property for a public use.
Most public condemnations in the state have involved small tracts of land the government might take to widen a roadway or run a utility line, he said.
The school board sent out a news release announcing plans for a student resource center on the afternoon of April 9. (You can read the entire release on Page 7.)
It makes no mention of where the center will be located, nor does it talk about a vote on the project having happened April 8.
School officials filed the public condemnation petition Friday in Jefferson County Circuit Court.
But Rockwool’s attorneys say the school board did not discuss the regional education center in any public meeting over the past several months and has not budgeted money for what would be an enormous project.
Rockwool’s lawsuit says such factors reveal the “true purpose” of the school board’s legal action – “to prevent Rockwool from constructing and operating its lawfully permitted facility by taking its property.”
Also Friday, Rockwool sought a restraining order and injunction in federal court to stop the school board from seizing the commercial site where it’s been working since late June.
The school board is offering to purchase “at a fair market value” the site for $1.4 million. The company said it has already spent more than $47 million on what would be a $150 million investment in land, buildings and operations.
“This is a full take of the property, there is no remainder and thus no damages,” the school officials wrote in justifying their compensation offer to Rockwool.
A hearing on Rockwool’s request to halt the property takeover is scheduled for April 30 in the U.S. District Court for the Northern District of West Virginia in Martinsburg.
Rockwool’s legal filing argues, “The BOE should be enjoined from taking in any action to condemn Rockwool’s property because that action is prohibited under State and Federal Constitutional protections relating to substantive due process, equal protection, and takings, and moreover, is preempted and barred by estoppel,” a legal principle where one party acts or does not act based on another party’s “misrepresentation or concealment of a material fact.”
“Regardless of where the public stands on Rockwool specifically,” the company’s filing continues, “every member of the public has an interest in a [temporary restraining order] or injunction that prohibits the government from weaponizing its condemnation authority against disfavored members of society.”
In its nine-age court Circuit Court petition for the public condemnation, the school board contends the factory site will provide “the most convenient and necessary” for building the regional student support center.
In a certified letter sent by the school system to Rockwool on April 9, school officials explained the factory site will “accommodate the extensive facilities that are envisioned for meeting the special needs of our changing student population.” The school board also argues that taking the factory site is necessary because it is close to other schools and school facilities and provides easy access to W.Va. 9.
The regional education center would deliver a variety of educational support services and programs that would serve students with physical or emotional issues, those studying advanced science and technology topics, those taking adult education courses and those enrolled in virtual coursework and instruction.
The school board’s Circuit Court petition was signed by Kathy Skinner, school board president. The petition was filed by Courtney Harden, an attorney with Briglia Hundley in Tysons Corner, Va.
Rockwool argues in its 16-page legal defense that the school board could locate such a student support center on 150 undeveloped acres the school system owns along Currie Road in Ranson. The company’s court filing also said the school board had the opportunity to purchase undeveloped land next to the factory in the former Jefferson Orchards site.
“Condemnation is an awesome and intrusive power, and left unchecked, the potential for abuse – especially in land use disputes like this – is boundless,” the company’s suit states.
Rockwool points out that the school board was among a “wide array of state and local officials” who “recruited” Rockwool “with contractual promises and negotiations” to build its factory in Ranson.
The school board signed onto the Payments in Lieu of Taxes agreement in September 2017, joining the Jefferson County Commission, the city of Ranson, Sheriff Pete Dougherty and Assessor Angie Banks.
Rockwool is won lower real estate and personal property tax payments because of the PILOT agreement arranged by the Jefferson County Development Authority and the West Virginia Department of Commerce.
At that time, the school board made no mention of plans to build a student support center, Rockwool’s suit notes.
“Recently, the BOE had a change of heart,” the suit states. “Bowing to public pressure created and fueled by half-truths and speculation, the BOE now opposes the facility. For instance, it has very publicly demanded a moratorium on construction, and it has repeatedly threatened to terminate the PILOT.”
The lawsuit adds, “The BOE’s motive is transparent; by threatening to condemn Rockwool’s property, the BOE intends to prohibit Rockwool’s lawsuit activities over which the BOE has zero regulatory authority.”
“Jefferson County Schools has been working collaboratively with the West Virginia Department of Education and private providers to develop a multi-year plan for this transition” toward operating the regional education center, school system spokesman Hans Fogle reported.
Kristin Anderson, executive director of the office of communications for the West Virginia Education Department, could not confirm Tuesday when the state first learned about the county’s project.
Angry opponents of the factory came to school board meetings starting last summer, with many saying the factory shouldn’t be built on Charles Town Road near North Jefferson Elementary School.
Many in the county maintain that the factory’s pollution emissions pose too great a risk to nearby school sites. Others criticize the truck traffic the facility would generate and others say Jefferson County shouldn’t become “industrialized.”
A nonprofit citizens group has filed four lawsuits in hopes of blocking construction of the factory, including one questioning whether PILOT agreements violate the West Virginia Constitution requiring equal taxation.
Rockwool also is asking the federal court to make the school board pay its legal costs in filing the lawsuit.