Rebecca McPhail and Steve Roberts: Be warned W.Va. businesses: Your land could be taken (The State Journal)

May 1, 2019

As leaders of the West Virginia business community, every business in the state should be deeply concerned about an extraordinary legal action being driven by the Jefferson County Board of Education (BOE) to condemn the private property of ROCKWOOL Group, a global manufacturer of building insulation which is constructing a new facility in the county.

If this legal maneuver succeeds, it will have a chilling impact on current and future business development, and destroy the ability of the state to attract new employers.

On April 12, the Jefferson Board of Education filed a petition in state court to take immediate possession of ROCKWOOL’s private property in order to construct facilities for students with special needs.

In its lawsuit, the Board of Education ignores that ROCKWOOL obtained all required environmental permits from the DEP (air, water, land), all required site plan approvals from the city of Ranson to ensure its use complied to city law, all building permits, and is within all zoning uses applicable to its site.

But in the BOE’s judgment, none of that actually matters. In an interview given by Dr. Gibson, superintendent of the Jefferson County BOE, she stated that there is, in effect, a new burden of proof — one that is completely without definition.

In her view, ROCKWOOL’s responsibility is to prove to the board that it is not placing Jefferson County students at risk. If ROCKWOOL is in full compliance with all federal and state laws, then clearly the BOE believes there is a burden of proof all businesses must meet which transcends full compliance to state and federal laws.

Let’s be real for a moment. No one wants to place students at risk. But by what standard do we evaluate risk if not by compliance to law?

The truth is, we have a comprehensive set of laws on the books — federal, state and local — all designed to protect our children.

But what Dr. Gibson and the BOE are advancing through the courts is a new undefined burden of proof that would mean every West Virginia Board of Education would have the power to condemn the land of every business in their region if, in their subjective judgment, those businesses had not adequately proven that they were not placing students at risk.

Exactly what technical expertise does a BOE have in subjectively assessing whether a West Virginia business has met this new burden of proof?

And if this new burden of proof is not defined or codified in the law, how does the BOE insure it treats all businesses equally as opposed to invoking arbitrary decisions of who it deems worthy?

ROCKWOOL, a leading global manufacturer who’s been in operation for more than 80 years, was recruited to Jefferson County by state and local government officials. Since ground was broken on its site in the city of Ranson, the company had invested more than $47 million in the facility, and it will bring a total of 150 well-paying jobs to our state.

Businesses and residents alike should be cheering the fact that a company with a strong global reputation for integrity in its operations and environmental stewardship would seek to locate in our state.

Instead, they have been met with a barrage of unfounded criticisms resulting in an unprecedented lawsuit by a Board of Education seeking to exercise arbitrary and capricious powers.

To add insult to injury, the BOE’s aggressive legal maneuver — that would effectively prevent 150 jobs from coming to the region — was filed less than two weeks after vending machine manufacturer Royal Vendors announced it would be closing its Jefferson County facility in June and eliminating more than 200 jobs.

Let’s resolve to protect children, and let’s resolve to foster the strongest educational system for West Virginians so that they choose to stay and work, build new businesses and foster a better way of life in our great state.

Boards of education are vested with the great power to condemn private property, but that power should never be wielded against any business simply because in the subjective view of a board, a business has failed to meet a burden of proof neither defined nor imposed by state or federal law.

We hope the courts see it the same way.

Rebecca McPhail is president of the West Virginia Manufacturers Association. Steve Roberts is president of the West Virginia Chamber of Commerce.