The courtroom of Circuit Court Judge Bridget Cohee was packed on July 15. After 3 hours, Judge Cohee had added several local landowners, along with the Jefferson County Foundation, as intervenors in the case between Sidewinder/Mountain Pure and the Jefferson County Planning Commission. The judge also set out the schedule for the next hearing, which is expected to take place on November 10, 2025.
Sidewinder filed the lawsuit in April following the Planning Commission’s unanimous decision to reject the company’s plan for a large-scale water bottling facility in Middleway. That plan also included the construction of a large-diameter waterline through the village to connect to wells the company has drilled adjacent to Lake Louise, roughly a mile away from the village.
A Petition To Intervene
Soon after Sidewinder filed the lawsuit, several landowners who own property near Middleway and Lake Louise, along with the Jefferson County Foundation, filed a petition to join the lawsuit. The core of the argument made by the landowners is that their particular interests in protecting their property rights (particularly continued access to water) may overlap with the interest of the Planning Commission in defending its decision, but these interests are also distinctly different. Essentially, the Planning Commission defends the general interest of the county for “orderly development” but it can’t directly defend the interests of specific landowners.
The Court agreed with the landowners’ arguments to add them as intervenors. Judge Cohee also accepted the arguments offered by the Jefferson County Foundation to be an intervenor in the case.
Court Sets Schedule And Asks For Briefs
Following the decision to recognize the intervenors, Judge Cohee addressed the schedule for the case and the focus of the briefs..
In Sidewinder’s initial filing for the lawsuit, the company listed three claims:
- Writ of Prohibition — a claim that the Planning Commission did not have the legal authority to reject the company’s concept plan
- Writ of Mandamus — a claim that the Planning Commission must provide direction for how the company can proceed with its plan
- Writ of Certiorari — a request that the Court review the decision of the Planning Commission
After detailing the schedule for the attorneys to provide briefs, Judge Cohee also ruled that the initial focus of the case would be on the “writ of certiorari” and that her review of the other issues would be deferred until the questions raised in the “writ of certiorari” are resolved.
The judge also took no action on the intervenor’s motion to dismiss the case (which would leave the Planning Commission’s decision in place).
A Burden On Sidewinder To Prove Its Case
Had the Court decided to proceed with a review of the “writ of prohibition” or the “writ of mandamus,” it might have suggested that there was reason to believe that the Planning Commission did not have legal authority to take the action it did. The Court instead decided to review the specifics of the proceedings that led to the rejection of Sidewinder’s plan..
In focusing on the “writ of certiorari,” the Judge appears to be indicating that the Court has reason to believe that the Planning Commission’s actions were a legitimate exercise of its powers — and it is up to Sidewinder’s attorneys to prove that the Planning Commission violated the procedures outlined in the county zoning ordinance, the county subdivision regulations, or West Virginia state code.
Claims For Legal Fees
Sidewinder’s petition for the “writ of certiorari” requested the Court to rule that the Planning Commission should pay the company’s legal fees if the Court found in favor of Sidewinder with respect to this claim.
The standard for awarding legal fees in West Virginia requires demonstrating that the responding party (the Planning Commission in this case) acted in bad faith — that is, the action was frivolous. The Court’s decision to recognize the intervenors, noting their specific interests in the Planning Commission’s decision to reject the bottling plant plan, suggest that the Court does not see the Planning Commission’s action as frivolous.
Claims Of Open Meetings Act Violation
In its initial filing in the lawsuit, Sidewinder also included a claim that the March 11 Planning Commission meeting agenda “did not adequately advise the public that the Planning Commission might take action to reject Mountain Pure’s concept plan.” The company’s petition also requested the Court to rule that the Planning Commission should pay the company’s legal fees if the Court found in favor of Sidewinder with respect to this claim of an Open Governmental Meetings Act violation.
While there have been numerous instances of public complaint about vague items on the Planning Commission’s agendas, the public notice and accommodation in this case seems to have been more than adequate, judging by the public participation. The Planning Commission scheduled the meeting at Washington High School, anticipating that a large number of residents would want to attend the meeting. Approximately 500 individuals attended the meeting and there were 1,700 comments from residents urging the Planning Commission to reject the concept plan, suggesting that in this instance, the public was well informed about the Planning Commission potential for action at this meeting.
Discussions About Settlement
At the end of the July 15 hearing, the attorney for the intervenors requested to be included in any discussions about potential settlement of the lawsuit. Judge Cohee rejected that request after the attorney for Sidewinder voiced strong objection to limiting the ability of the Planning Commission to discuss settlement options. The Judge invited the intervenors’ attorneys to brief their objections to that ruling.
The Planning Commission has scheduled a special meeting for July 22 at 7 pm. The agenda includes “discussion and possible action” on the lawsuit.
Published 2025-07-17 on ObserverWV.news. Updated 2025-07-22 (legal fees).
By Steve Pearson