BY ERIC MANN
A recent Alabama Supreme Court ruling will allow plaintiffs in a complaint against a utility company to continue to pursue charges in a case that one local attorney said has implications for the growth of every municipality along State Highway 59 in Baldwin County.
In 2009 the town of Summerdale filed complaint against the East Central Baldwin County Water, Sewer and Fire Protection Authority and the Baldwin County Commission alleging the commission approved the expansion of the authority’s coverage area under false pretenses.
According to the complaint, in 2002 the commission approved the expansion of the ECBC’s coverage area into areas already served by North Baldwin Utilities, the town of Elberta, the town of Summerdale, the town of Loxley, the city of Foley and the city of Robertsdale.
The ECBC sought to amend the resolution again in 2008 in order to offer sewer service to customers, a change that was approved by the commission. Summerdale’s complaint claimed ECBC could not have been able to provide that service to a large customer base in 2002 or 2008. The complaint also alleged ECBC misrepresented itself in order to secure additional financing for its water system. In a response filed in November 2009, ECBC denied the claims.
Approved minutes from the Feb. 2, 2002, commission meeting show the ECBC’s application stated there was “no other public water system or fire protection facilities in the area” in which the authority sought to expand its territory. The commission approved the expansion unanimously at its Feb. 19, 2002, meeting.
“Our suit said the County Commission gave them this territory, that is basically everything east of 59, even though ECBC did not meet the requirements,” Summerdale attorney Jim Curenton explained last week. “This is important to Summerdale, and to the rest of the municipalities along 59, because our growth is going to the east. This could impede how our towns grow in the future.”
Representing ECBC, attorney Bob Wills said everything was done openly and honestly and that the plaintiffs did not care about the expansion until they realized there was money to be made from the heavily traveled Foley Beach Express.
“I feel very strongly that we have a good position,” Wills said. “It is aggravating to me that the ECBC first went before the commission in 2002 and the plaintiffs did not file a complaint until 2009. Everything was done openly and honestly at the time. They did not object until ECBC received the ability to offer sewer service, then the Foley Beach Express opened and the municipalities realized they could make money on it. They didn’t care about that in 2002.”
In June 2012 the circuit court entered an order concluding that the County Commission granted the 2002 amendment based on false information, and based on that conclusion the trial court entered a summary judgment in favor of Summerdale, as well as the city of Robertsdale and the privately owned Baldwin County Sewer Service, which had joined the suit.
The case was appealed to the Court of Civil Appeals, which dismissed Judge Langford Floyd’s ruling, saying it did not rule on both the 2002 and 2008 commission resolutions. In 2014 the circuit court entered an amended order in which it concluded its previous order should be amended to include and be applied to the 2008 amendment.
Once again, the case was appealed and in 2015 the Court of Civil Appeals concluded the petitioners lacked standing to file for declaratory judgment challenging the 2002 and 2008 amendments because they did not have standing and failed to establish the existence of “injury in fact.”
“They were just wrong,” Curenton said. “We certainly have suffered significant injury. They ran pipes on the east side of 59 and the whole future of growth for these municipalities is in that direction to the Florida line.”
The plaintiffs filed an appeal with the Alabama Supreme Court. In March, the high court reversed the appeals court’s ruling, saying the plaintiffs did have standing to sue the ECBC. The Supreme Court also said the appeals court must rule on the merits of Floyd’s 2014 order.
“The Supreme Court did not comment on the merits of the case, just that the appeals court must rule on the merits of Judge Floyd’s order,” Wills said. “I am disappointed in the ruling because it is contrary to our interests, but there have been a number of cases where state courts have looked at this idea of ‘standing’ and they are trying to clarify what it means. I think this ruling and a couple others are an effort to make a definitive idea of what ‘standing’ means.”
Attorney Hope Hicks, representing the Baldwin County Commission in the case, said the current commission has tried to remain neutral on the case because most of the commissioners were not in office when the 2008 and 2002 resolutions were approved. Commissioner Frank Burt was the only current member on the commission in 2002.
“Our position has been to let the court decide,” Hicks said. “This commission does not want to take a position that would second-guess or affirm a previous commission’s decision.”
Curenton said it typically takes eight or nine months for the Court of Civil Appeals to rule on a case, but he hopes this ruling will be issued in a timely manner.
“This has been appealed three times now and at some point you’d think they would have to rule on the merits of the case,” Curenton said. “They have seen this three times now, so I think the court knows the facts of the case and they should grasp what the idea is.”
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