City Attorney Updates Board on Appeal in DUD Case

November 5, 2013
Dwayne Page
Vester Parsley, Jr. (older photo)
Darden Copeland (older photo)

The City of Smithville's legal fight to keep the DeKalb Utility District from building its own water treatment plant remains pending in Davidson County Chancery Court.

City Attorney Vester Parsley, Jr. informed the mayor and aldermen Monday night that the transcript from April's Tennessee Utility Management Review Board (UMRB) hearing has been filed and that a brief for the city is forthcoming. "I talked to Jason Holleman today. His firm as you know is representing the city with the appeal. The transcript of the hearing that was held here in April has been filed with the Chancery Court in Nashville. It was filed on October 28. Jason and Bill Purcell have until November 27 to file our brief for the city. Thereafter, DUD will have up to 30 days to file their brief which will basically put it at December 27. Of course, they can file that brief early. If they do then Jason and Bill will have an additional fourteen days to reply to that. It looks like the earliest that we probably will have any real hearing before the Chancellor in Nashville will be somewhere in January. Probably toward the middle (January) but those dates are not certain because the time for filing briefs has just gotten started. That's where we're at right now," said Parsley.

In July, the aldermen voted 4-0 to hire Nashville attorneys Bill Purcell and Jason Holleman to file an appeal of the UMRB's dismissal of a petition brought by a group of DUD ratepayers and the city who were hoping to halt DUD plans to build the water plant.

Following a hearing held April 4th in Smithville with an administrative law judge presiding, UMRB members voted to dismiss the petition 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 filed an appeal in August asking the Davidson County Chancery Court for a judicial review of the case.

The attorneys for the city and DUD ratepayers allege 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."

The court is being asked to reverse the decision of the UMRB and decree that its action was illegal, arbitrary, and/or capricious and that any such further general relief be granted as the equities of this case may require and as the Court deems necessary and appropriate."

During Monday night's city council meeting, Darden Copeland of Calvert Street Group said it appears that because of the city's appeal, the DUD has not yet moved forward with it plans to build the water plant. He added that public opposition to the proposed facility remains strong. "We still continue to monitor whether or not the bonding authority has put the bonds out for bid. As of right now, everything is completely on hold pending the outcome of the (court) hearing. We continue to monitor DUD meetings. We are also in touch with some of our key members of the DUD committee that were anti the bonds. We still continue to collect petition signatures here and there that still trickle in both on line and through paper. We still have a great database of folks who are as still fired up today as they were a year ago despite the delays," said Copeland. Calvert Street Group is a Nashville public relations company, hired by the City of Smithville to lead opposition efforts to the proposed DUD water treatment plant.

Parsley said it's not yet known when there will be a ruling on the city's appeal. "There is no date set for the hearing. The Chancellor could give a ruling from the bench. Most likely the Chancellor will study it and give us a written opinion after the hearing. It most likely will not be, although it can be on the day they have a hearing. The Chancellor has that discretion in deciding whether she will rule from the bench or whether she will give a written opinion later. It's impossible to tell right now," said Parsley.

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