Pu66ic Service Cornmission
Of
West
Virginia
201 03root&Weet,
P.
0.
030x812Charleston, %)est
irginia
25323
October 4,2007Sandra Squire, Executive SecretaryPublic Service CommissionPost Office Box 812Charleston, West Virginia 25323Re: Case
No.
05-0087-S-CNottingham v. DurbinDear
Ms.
Squire:
Phone:(304) 340-0300
FJX:
(304) 340-0325
Enclosed for filing are the original and twelve (12)f the
Exceptions
on
Remand
of
the Staff
of
the Public Service Commission
of
Wist
Virginia
in the above-referenced proceeding.A copy has been served upon all parties of record.Sincerely,CTO/skgEnclosures
H:\TOWEN\WPDOCS\PLEAD~G\O50087P3exceptions.wpd
opies
c.
TERRYG~WEN
Staff Attorney
I
PUBLIC SERVICE COMMISSIONOF WEST VIRGINIACHARLESTON
C’
4s
-
ase No. 05-0087-S-CEMMA GRACE NOTTINGHAM v. TOWN
OF
DURBINCase No. 07-0108-S-PWD-CCHARLES C, SHOMO v. TOWN OF DURBIN andPOCAHONTAS COUNTY PUBLIC SERVICE DISTRICT
rn
-)
:;-
EXCEPTIONS ON REMAND
OF
THE STAFF
OF
THE PUBLIC SERVICE COMMISSIONOF WEST VIRGINIAEXCEPTIONS
1.
Findings of Fact Generally
-
The Administrative Law Judge erred when she failed tomake a finding of fact regarding the inhabitability of the Emma Grace Nottinghamproperty.The Public Service Commission’s Order of September 27,2006 remanded this caseto the Administrative Law Judge for the limited purpose of
“.
. .
a determination on whetherthe property of Complainant Emma Grace Nottingham is habitable.’’ Order on Remand, P.7.This was admitted by the Administrative Law Judge in Finding of Fact No. 3. SeeRecommended Decision on Remand, entered September 28,2007, p.
14.
2. Findings of Fact Generally
-
The Administrative Law Judge erred by ignoring thetestimony of the Complainant’s witnesses and the Staff when making her findings offact.The lengthy testimony of three witnesses, Bill Grimes, Dan Casto and Sylvie Steraiikaestablished that the properties at issue were uninhabitable. Bill Grimes is a retirdd real estatebroker with 27 years
of
experience. Dan Casto is a a licensed general contractor and real
*.
1
,
estate agent with 40 years of experience. Ms. Steranka has a Master’s Degi-ee inEngineering. All of these witness found the premises to be uninhabitable. See Transcripton Remand, pp. 49, 58 and
73.
Judge Vandervort made no findings of fact regardinginhabitability.
3.
Conclusions of Law Generally
-
The Administrative Law Judge erred when she failedto make a conclusion of law regarding the inhabitability of the Emma GraceNottingham property.The Public Service Commission’s Order of September 27,2006 remanded this caseto the Administrative Law Judge for the limited purpose of
“,
. .
a determination on whetherthe property of Complainant Emma Grace Nottingham is habitable.” Order on Remand, P.7.This was admitted by the Administrative Law Judge in Finding of Fact
No.
3.
SeeRecommended Decision on Remand, entered September 28,2007, p. 14.4.
1
.
Tl,l,
Conclusion of Law
No.
5
-
The Administrative Law Judge erred when she‘found-thatthe Town
of
Durbin is the appropriate government authority to determine habitabilityof property.In the -DiscuSsion Section of the Recommended Decision ’on-.RemmVandervort discussed an ordinance which Durbin claims gives it’the rightit- o &&mihe :thehabitability
of
thexubject properties in this case. First, it is very doubtful that two sentencesburied on the third page of the “Durbin Town Littering Ordinance” constitutes an enforceableordinance upon which the Town could rely to order the demolition of a privatelfiLowneddwelling. Second, the ordinance is limited to the establishment
of
Durbin’s right to condeinnstructures “due
to
hazardous or unsafe conditions to the public and to prevdntachealthhazard.’’ There is a difference between the issue of inhabitability and the issue of protectionof the public from an unsafe structure. Evidence at the hearing establishes that while thebuildings at issue are uninhabitable, they are not a threat to the passing public. Tr. OnRemand pp. 78-79. Third and finally, the only instance the Town has ever in$oked thisordinance was when shingles were blowing off a building and flying onto the sidewzrlstreet. The Town then determined that this was a safety hazard as contemplated by theordinance. Tr. Remand, p. 110
5.
Conclusion of Law
No.
4
-
The Administrative Law Judge erred whenthe West Virginia Legislature has not granted authority to the Public ServiceCommission to determine whether structures owned by any West Virginia ‘citizen isinhabitable or not.
W.Vu,
Code
5
24-2-2(a) specifically confers upon the Public Service Commission the
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2
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Psc Terry Owens 10-04-2007
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