In what may be a last attempt at preventing the DeKalb Utility District from building its own water treatment plant, attorneys for DUD ratepayers and the City of Smithville have filed a petition in Davidson County Chancery Court seeking to overturn a ruling that went against them earlier this year by the Tennessee Utility Management Review Board.
Following a hearing held April 4th in Smithville with an administrative law judge presiding, UMRB members voted to dismiss a petition brought by DUD ratepayers and City of Smithville saying they (petitioners) had failed to meet their burden of proof that DUD rates or services provided were unreasonable. The UMRB entered its final order on June 5.
Calling the UMRB's ruling "arbitrary and capricious", attorneys for DUD ratepayers and the City of Smithville are asking the Chancery Court for a judicial review of the case.
Filed by Jones Hawkins & Farmer, PLC. of Nashville, the petition alleges that "the UMRB acted in violation of statutory provisions and followed an unlawful procedure by failing to apply the appropriate scope of review in its deliberations and otherwise acted illegally, arbitrarily, and capriciously in the case. Further, the UMRB’s decision was unsupported by substantial and material evidence in light of the entire record."
"Petitioners are aggrieved by the actions of Respondent and the decision of the UMRB and request the following relief:
1.That UMRB transmit to this Court the original or a certified copy of the entire record in the case, including all exhibits and all entries made in connection therewith, and in particular, the transcripts of all of the hearings held before the UMRB in this matter;
2. That process or notice be issued to the Respondent;
3. That upon briefs, filings and a hearing of this cause, this Court reverse the decision of the UMRB and decree that its action was illegal, arbitrary, and/or capricious;
4. That this Court grant such further general relief as the equities of this case may require and as the Court deems necessary and appropriate."
The City of Smithville, which has already spent tens of thousands of dollars in the case since the spring of 2012, recently voted to spend another $10,000 to hire Nashville attorneys Bill Purcell and Jason Holleman to file the appeal.
During the July 15 meeting of the Board of Mayor and Aldermen, City Attorney Vester Parsley, Jr. said an appeal of the UMRB's ruling must be filed within sixty days of the filing of the order from that hearing and the deadline is August 5. "Earlier this year (April 4) we had a hearing before the (UMRB) board regarding the application that DUD had made to build a new water treatment plant here outside the city to treat water," said Parsley. " Of course we (city) would lose a substantial part of our income that we receive from DUD if they continue on that way. We had 60 days (from the date the order was filed from the hearing) to file an appeal. That 60 days will be up on August 5," said Parsley.
"I have been in communication with (Nashville attorneys) Bill Purcell and Jason Holleman who were involved with (representation at UMRB hearing) for the ratepayers of the City of Smithville and DUD customers. They need to know whether or not the board (aldermen) wants to make that appeal (to Chancery Court) because it has to be done within that deadline. If it isn't, they (DUD) can go forward (build the water plant) and that's the end of the case. The appeal process is very similar to what you see with the court of appeals. However, you're going to appeal to a Chancellor that is in Davidson County, not a local Chancellor," said Parsley. "The purpose of that appeal is to determine whether or not the (UMRB) board which came to Smithville and had the hearing made the right decision," he said.
"I have also been in communication with Mr. Purcell and Mr. Holleman regarding the cost of that appeal to the City of Smithville. They have offered to prepare an appeal for the hearing. There will be no new proof. No new depositions submitted. The fee is not to exceed $10,000. It is my recommendation to the board that we go forward with that but that's up to the board," said City Attorney Parsley. " As to the outcome of that, we'll have to wait and see how the Chancellor rules. But I think it would be good for us to go forward with that and hopefully we would get a more favorable decision from a Chancellor than we did the (UMRB) board," he said.
Alderman Tim Stribling made a motion to file the appeal. " Mr. Mayor, I'd like to see that this go before the Chancellor. I think it would be more unbiased. I think we all saw that day the deck was stacked against us so I'd like to make a motion that we appeal the decision of the board which allowed DUD to continue with building their own water treatment plant and I'd also like to make a motion that we retain Bill Purcell and Jason Holleman to represent the city with an understanding that they shall be paid a fee not to exceed $10,000," said Alderman Stribling.
Alderman Danny Washer offered a second to the motion. Alderman Jason Murphy and Shawn Jacobs joined Stribling and Washer in voting for it. Alderman Josh Miller was unable to attend the meeting.