Pu66ic Service Cornmission

Of West Virginia
201 03root&Weet, P. 0. 030x812 Phone: (304) 340-0300
Charleston, %)estVirginia 25323 FJX: (304) 340-0325

October 4,2007

Sandra Squire, Executive Secretary

Public Service Commission
Post Office Box 812
Charleston, West Virginia 25323

Re: Case No. 05-0087-S-C

Nottingham v. Durbin

Dear Ms. Squire:

Enclosed for filing are the original and twelve (12) opies f the Exceptions on
Remand of the Staff of the Public Service Commission of Wist Virginia in the above-
referenced proceeding.

A copy has been served upon all parties of record.

Sincerely,

c.T E R R Y G ~ W E N
Staff Attorney

CTO/skg
Enclosures
H:\TOWEN\WPDOCS\PLEAD~G\O50087P3exceptions.wpd
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PUBLIC SERVICE COMMISSION

OF WEST VIRGINIA
CHARLESTON

Case No. 05-0087-S-C

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EMMA GRACE NOTTINGHAM v. TOWN OF DURBIN

Case No. 07-0108-S-PWD-C

CHARLES C, SHOMO v. TOWN OF DURBIN and

POCAHONTAS COUNTY PUBLIC SERVICE DISTRICT

EXCEPTIONS ON REMAND OF THE STAFF

OF THE PUBLIC SERVICE COMMISSION
OF WEST VIRGINIA

EXCEPTIONS

1. Findings of Fact Generally - The Administrative Law Judge erred when she failed to
make a finding of fact regarding the inhabitability of the Emma Grace Nottingham
property.

The Public Service Commission’s Order of September 27,2006 remanded this case
to the Administrative Law Judge for the limited purpose of “. . . a determination on whether
the property of Complainant Emma Grace Nottingham is habitable.’’ Order on Remand, P.
7. This was admitted by the Administrative Law Judge in Finding of Fact No. 3. See
Recommended Decision on Remand, entered September 28,2007, p. 14.

2. Findings of Fact Generally - The Administrative Law Judge erred by ignoring the
testimony of the Complainant’s witnesses and the Staff when making her findings of
fact.

The lengthy testimony of three witnesses, Bill Grimes, Dan Casto and Sylvie Steraiika
established that the properties at issue were uninhabitable. Bill Grimes is a retirdd real estate
broker with 27 years of experience. Dan Casto is a a licensed general contractor and real
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estate agent with 40 years of experience. Ms. Steranka has a Master’s Degi-ee in
Engineering. All of these witness found the premises to be uninhabitable. See Transcript
on Remand, pp. 49, 58 and 73. Judge Vandervort made no findings of fact regarding
inhabitability.

3. Conclusions of Law Generally - The Administrative Law Judge erred when she failed
to make a conclusion of law regarding the inhabitability of the Emma Grace
Nottingham property.

The Public Service Commission’s Order of September 27,2006 remanded this case
to the Administrative Law Judge for the limited purpose of “, . . a determination on whether
the property of Complainant Emma Grace Nottingham is habitable.” Order on Remand, P.
7. This was admitted by the Administrative Law Judge in Finding of Fact No. 3. See
Recommended Decision on Remand, entered September 28,2007, p. 14.
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4. Conclusion of Law No. 5 - The Administrative Law Judge erred when she‘found-that
the Town of Durbin is the appropriate government authority to determine habitability
of property.

In the -DiscuSsion Section of the Recommended Decision ’on-.Remm

Vandervort discussed an ordinance which Durbin claims gives it’the rightit-to &&mihe :the
habitability of thexubject properties in this case. First, it is very doubtful that two sentences
buried on the third page of the “Durbin Town Littering Ordinance” constitutes an enforceable
ordinance upon which the Town could rely to order the demolition of a privatelfiLowned
dwelling. Second, the ordinance is limited to the establishment of Durbin’s right to condeinn
structures “due to hazardous or unsafe conditions to the public and to prevdntachealth
hazard.’’ There is a difference between the issue of inhabitability and the issue of protection
of the public from an unsafe structure. Evidence at the hearing establishes that while the
buildings at issue are uninhabitable, they are not a threat to the passing public. Tr. On
Remand pp. 78-79. Third and finally, the only instance the Town has ever in$oked this
ordinance was when shingles were blowing off a building and flying onto the sidewzrl
street. The Town then determined that this was a safety hazard as contemplated by the
ordinance. Tr. Remand, p. 110

5. Conclusion of Law No. 4 - The Administrative Law Judge erred when

the West Virginia Legislature has not granted authority to the Public Service
Commission to determine whether structures owned by any West Virginia ‘citizen is
inhabitable or not.
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W. Vu, Code 5 24-2-2(a) specifically confers upon the Public Service Commission the
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power to investigate the practices of public utilities and to require them to conform to the
laws of this state.

W. Vu. Code 9 24-2-7 (a) and (b) specifically confer upon the Public Service
Commission the power to find that practices of public utilities are unjust and unreasonable
and to establish by order what utility practices arejust and reasonable and should be followed
by the utilities instead of those practices found to be unjust and unreasonable.

The Public Service Commissionhas explicit statutory authorityto review the practices
of public utilities and the implied authority necessary to carry out its statutory mandates. In
doing so, it must frequently measure public utility conduct against standards established in
federal law, state law, federal rules and regulations and state rules and regulations. In West
Virginia, the International Property Maintenance Code has been adopted by the State Fire
Marshall’s Office as a standard to determineinhabitability. 87 W.Va.C.S.R. 4-4-4. Because
no explicitly authorized state agency is enforcing the provisions of that‘Code; the
Commissionmust look to it to determinewhether the Town of Durbin’s utility operations are
engaging in unreasonable practices. In the Staffs Reply Brief, the Staff pointed out that
looking to the statutes of other jurisdictions as well as the rules and regulations of.other
agencies, both state and federal, is required throughout the Commission’s rules and
regulations. When the Staff reviewed the first seven of the Commission’sthirty’separdtesets
of regulations, it found five pages of references to other jurisdictional statutes, rules and
regulations, both state and federal to which the regulatory community is directed for
performance standards. See Staff Reply Brief on Remand, p. 2 and attached Appe

6. Conclusion of Law No. 5 - The Administrative Law Judge erred when she found that
the Town may bill the Complainants for all service rendered at their respective
properties at the flat rate of $22.75 per month from December 30,2004, through July
29, 2005, and at the metered rated of $19.50 for zero to 2,000 gallons of usage per
month on and after July 30,2005, the day the Town’s most recently apfr
became effective.

This conclusion is a restatement of the AdministrativeLaw Judge’s position from her

first Recommended Decision. In that Decision, the Judge found that a municipality may bill
for sewage service when the Town is aware that no water is being consumed and that the
property is uninhabitable. See Recommended Decision, June 30,2005, Discussion, pp. 6-7.
This conclusion completelyignores the Public Service Commission’sfinding in its Order on
Exceptions entered on September 27,2006 that “. . . the Commission finds that the facts of
the present case indicate that if Ms. Nottingham’sproperty is uninhabitable and the dwelling
is not connected to a source of water, then that property should be disconnected from the
sewer system and she should not be charged a sewer fee by the Town of Durbin”. Order on
Exceptions, p. 3.
 In Finding of Fact 5 in the first Recommended Decision, Judge Vandervort found that
Durbin was allowed to charge a mininum bill to customers who consume zero to 2,000
gallons per month. The Public Service Commission’s Rules and Regulations for the
Government of Sewer Utilities, 150 WI Vu, C.S.R. 5 defines “customer” as “. . . any such
person, firm, corporation, municipality, public service district or any other entity who
purchases a product or services of any utility . . . .,’ The Complainant is not purchasing, nor
does she wish to purchase, water service from the Town of Durbin.

7. Conclusions of Law Generally - The Administrative Law Judge erred by rendering a

decision that effectively left the Complainant without a remedy at law.

In its Order on Exceptions,the Commission found that “ . . , an uninhabitableproperty

is one that must have been condemned for human occupation or otherwise found to be
unsafe, unsanitary, dangerous or detrimentalto the public safety or welfare by an appropriate
governmental authoi-ity.” During the Staffs investigation,it was determinedthat neithe?$the
State of West Virginia nor Pocahontas County makes inhabitability determinations.:: *See
Transcript, Remand Hearing, p: 66. The Staff also determined at hearing that the TGwn
Durbin, which claimed to have an ordinance which made it the appropriate governmental
authority to make the inhabitability determination. However, upon c r o s s - e x a m i n ~ ~ i o ~ ~ ~ ~ e
Mayor of Durbin: (1) didlnot havesplans to bring in a property inspector to defemiine the
inhabitability of the properties at issue in these proceedings ; (2) did not have plans to bring
in a qualified individual to determine whether the properties at issue are in an unsafe
condition; and (3) refused to answer an inquiry about whether Durbin planned to condemn
the Nottingham property. If the state, county or municipalityhas not made the determination
that the properties are uninhabitable - and the Town declines to do so, this effectively leaves
the Complainant without a remedy unless the Commission intervenes to determineewhether
the utility operations of Durbin are acting in a reasonable manner.

8. Findings of Fact and Conclusions of Law Generally - To the extent that‘hJudge

Vandervort failed to make any findings of fact and conclusions of law with regarding
to the inhabitability of the subject properties, she exceeded the jurisdictiou of the
Commission conferred by the Order on Remand which expressly liniited the hearing
on remand to “whether the property of Emma Grace Nottingham is habitable:” It>also
exceeded the Commission’s instructions to issue a second Recommended Decision
consistent with this opinion.

The Recommended Decision on Remand ignored at least thirty-five violations of the

criteria established by the sole criteria to be followed in West Virginia to be used to
determine inhabitability of premises. See Staff Initial Brief on Remand, pp. 9-10. Judge
Vandervort’s opinion also ignored the Commission’s prior finding that Durbin could not
charge for sewer service to uninhabitablepremises if the premises is not connectedto a water

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source. Order on Remand, Finding No. 5.

Jurisprudentia est divinarum atque humanarum rerum notitia, justi atque injusti
scientia. [Jurisprudenceis the knowledge of all things divine and human, the science of what
is right and what is wrong.] Judge Vandervort’s opinion on remand is completely devoid of
divinity, humanity, science, equity and justice in any form. It violated the Public Service
Commission’s Order on Remand by failing to make any finding of fact or conclusion of law
regarding the condition of the premises or inhabitability. It allowed a municipality which
claims to have the authority and right to determine inhabitabilityto refuse to do so at the peril
of the customers of its affiliated utility operations. The Recommended Decision on Remand
ignores the prior holding of the Commission. And in a manner completely abhorrent to any
recognized system of justice, it violates one of the cardinal principles of equity - it allows a
wrong without a remedy to continue. Equity suffers not a right without a remedy. The Judge
should not be rewarded for ignoring the Commission’s findings, exceeding her jurisdiction
on remand, and using the remand process to once again advance her original theory of the
case - all at the expense of the Complainants, whom she left without a remedy at law by her
decision.

The Staff is not asking fora broadly applicable statement of policy which wo~ldinvite‘
frequent applications of the statutes, rules and regulations of otherjurisdictions in‘thefutme.
However, the Staff does request that the Public Service Commission authorize reli
rules and regulations of otherjurisdictions whenever directed to do by the Commission’s own
rules and regulations, as well as in circumstances wherein no other agency is authorized to
provide or, if authorized, will not provide, the guidance necessary to determine whether a
utility practice is reasonable.
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For these reasons, the Staff respectfully requests that the Commission reverse the
Recommended Decision entered on September 28, 2007 and find that the properties in
question are uninhabitable, and therefore, as has already been held by the Commission,
Durbin may not charge a customer for sewer service when a parcel of improved realty is
found to be uninhabitable and no longer connected to a source of water.

Respectfully submitted on this, the 4thday of October, 2005.

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STAFF OF THE PUBLIC SERVICE
COMMISSION OF WEST VIRGINIA

Staff Attorney"
West Virginia State Bar I.D. No. 2793

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 PUBLIC SERVICE COMMISSION
OF WEST VIRGINIA
CHARLESTON

CASE NO. 05-0087-S-C

EMMA GRACE NOTTINGHAM v. TOWN OF DURBIN

CERTIFICATE OF SERVICE

I, C. TERRY OWEN, Staff Counsel for the Public Service Commission of West
Virginia, hereby certify that I have served a copy of the foregoing Exceptions on Remand of
the Staffof the Public Service Commission of West Virginia for upon all parties of record by
First Class United States Mail, postage prepaid this 4th day of October, 2007.

Thomas R. Michael, Esq.

Counsel, Town of Durbin
PO Box 250
Lost Creek, WV 26385-0250

William Rexrode, Chairman

Pocahontas County Public Service District
HC 63 Box 122
Frank, WV 24920

David H. Wilmoth, Esq.

Counsel, Emma G. Nottingham and Charles C. Shomo
PO Box 933
Elkins, WV 26241

West Virginia State Bar I.D. #2793