Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 1 of 18 PageID #: 80 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION MOUNTAIN VALLEY PIPELINE, LLC, Plaintiff, v. CIVIL ACTION NO.: 2:17-cv-04377 HONORABLE JOHN T. COPENHAVER MATTHEW D. WENDER, in his official capacity as President of the County Commission of Fayette County, West Virginia; DENISE A. SCALPH, in her capacity as a Commissioner of the County Commission of Fayette County, West Virginia; JOHN G. BRENEMEN, in his capacity as a Commissioner of the County Commission of Fayette County, West Virginia , Defendants. DEFENDANTS’ ANSWER TO PLAINTIFF’S VERIFIED COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF NOW COME the Defendants, Matthew D. Wender, Denise A. Scalph, and John G. Brenemen, in their official capacities as Fayette County Commissioners, by counsel, Wendy E. Greve and the law firm of Pullin, Fowler, Flanagan, Brown & Poe, PLLC, and without waiving any defenses hereby answers the Plaintiff’s Complaint: 1. Defendants deny the statements and allegations contained in Paragraph 1 of Plaintiff’s Complaint. 2. Defendants admit that the Stallworth Compressor Station is a focus of Plaintiff’s action and is without information as to admit or deny the remaining allegations in Paragraph 2 and therefore denies the same if they are construed against these Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 2 of 18 PageID #: 81 Defendants. 3. Paragraph 3 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 3 as containing allegations against these Defendants, Defendants deny the same. 4. Paragraph 4 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 4 as containing allegations against these Defendants, Defendants deny the same. 5. Defendants admit that on October 13, 2017 the Federal Energy Regulatory Commission issued a contingent Certificate Authorization. Defendants deny the remainder of the allegations in Paragraph 5 of Plaintiff’s Complaint. 6. Defendants deny the statements and allegations contained in Paragraph 6 of Plaintiff’s Complaint. 7. Defendants deny the statements and allegations contained in Paragraph 7 of Plaintiff’s Complaint. 8. Defendants deny that the Fayette County Zoning Ordinance is preempted by the NGA and the PSA and deny that Plaintiff has a legal basis for a “permanent injunction” to enjoin the Fayette County Commission from enforcing its zoning ordinances. Defendants deny the remaining allegations in Paragraph 8 of Plaintiff’s Complaint. 9. Paragraph 9 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 9 as containing allegations against these Defendants, Defendants deny the 2 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 3 of 18 PageID #: 82 same. 10. Paragraph 10 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 10 as containing allegations against these Defendants, Defendants deny the same. 11. Paragraph 11 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 11 as containing allegations against these Defendants, Defendants deny the same. 12. Defendants admit the statements and allegations contained in Paragraph 12 of Plaintiff’s Complaint. 13. Paragraph 13 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 13 as containing allegations against these Defendants, Defendants deny the same. 14. Paragraph 14 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 14 as containing allegations against these Defendants, Defendants deny the same. 15. Paragraph 15 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 15 as containing allegations against these Defendants, Defendants deny the same. 3 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 4 of 18 PageID #: 83 16. Paragraph 16 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 16 as containing allegations against these Defendants, Defendants deny the same. 17. Paragraph 17 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 17 as containing allegations against these Defendants, Defendants deny the same. 18. Paragraph 18 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 18 as containing allegations against these Defendants, Defendants deny the same. 19. Paragraph 19 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 19 as containing allegations against these Defendants, Defendants deny the same. 20. Paragraph 20 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 20 as containing allegations against these Defendants, Defendants deny the same. 21. Defendants deny the statements and allegations contained in Paragraph 21 of Plaintiff’s Complaint. 22. Defendants are without sufficient information to admit or deny the allegations 4 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 5 of 18 PageID #: 84 contained in Paragraph 22 of Plaintiff’s Complaint and therefore deny the same. 23. Defendants admit that MVP has represented that it proposes to construct the facilities as identified in Paragraph 23 of its Complaint but states that upon information and belief Plaintiff’s projects includes additional purposes and uses that are not identified in Paragraph 23 of its Complaint. Defendants deny any allegation in Paragraph 23 that has not been specifically admitted. 24. Defendants admit that the property has been referenced by Plaintiff at issue has been referred to as the “Stallworth Property.” Upon information and belief Plaintiff has purchased in excess of 130 acres and that is the property it claims to be at issue (the property they seek to be permanently rezoned from rural residential to heavy industrial) and is the owner of that parcel of land. Defendants specifically deny that the Stallworth Station facility is to be built on the entire acreage as, upon information and belief, the facility is to comprise of 32 acres. Defendants deny any allegation in Paragraph 24 that has not been specifically admitted. 25. Defendants deny the statements and allegations contained in Paragraph 25 of Plaintiff’s Complaint. 26. Defendants are without sufficient information to admit or deny the allegations contained in Paragraph 26 of Plaintiff’s Complaint and therefore deny the same. 27. Defendants are without sufficient information to admit or deny the allegations contained in Paragraph 27 of Plaintiff’s Complaint and therefore deny the same. 28. Defendants are without sufficient information to admit or deny the allegations contained in Paragraph 28 of Plaintiff’s Complaint and therefore deny the same. 29. Defendants are without sufficient information to admit or deny the allegations 5 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 6 of 18 PageID #: 85 contained in Paragraph 29 of Plaintiff’s Complaint and therefore deny the same. 30. Defendants are without sufficient information to admit or deny the allegations contained in Paragraph 30 of Plaintiff’s Complaint and therefore deny the same. 31. Defendants are without sufficient information to admit or deny the allegations contained in Paragraph 31 of Plaintiff’s Complaint and therefore deny the same. 32. Defendants are without sufficient information to admit or deny the allegations contained in Paragraph 32 of Plaintiff’s Complaint and therefore deny the same. 33. Paragraph 33 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 33 as containing allegations against these Defendants, Defendants deny the same. 34. Defendants are without sufficient information to admit or deny the allegations contained in Paragraph 34 of Plaintiff’s Complaint and therefore deny the same. 35. Paragraph 35 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, if the Court were to construe Paragraph 35 as containing allegations against these Defendants, Defendants deny the same. 36. Defendants are without sufficient information to admit or deny the allegations contained in Paragraph 36 of Plaintiff’s Complaint and therefore deny the same. 37. Defendants are without sufficient information to admit or deny the allegations contained in Paragraph 37 of Plaintiff’s Complaint; however, if the Court were to construe Paragraph 37 as containing allegations against these Defendants, Defendants deny the same. 6 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 7 of 18 PageID #: 86 38. Defendants deny the statements and allegations contained in Paragraph 38 of Plaintiff’s Complaint. 39. Defendants are without sufficient information to admit or deny the allegations contained in Paragraph 39 of Plaintiff’s Complaint and therefore deny the same. 40. Defendants admit that the subjects identified in Paragraph 40 of Plaintiff’s Complaint are referenced in the FEIS. Defendants deny that each subject is “addressed” therein. Defendants deny any allegation in Paragraph 40 that has not been specifically admitted. 41. Defendants deny the statements and allegations contained in Paragraph 41 of Plaintiff’s Complaint. 42. Defendants admit that on October 13, 2017 the Federal Energy Regulatory Commission issued a Certificate Authorization but deny that its issuance gave unfettered authorization for MVP to begin construction without contingencies or without requiring MVP’s activities comply with Federal, State and local laws. Defendants deny any allegation in Paragraph 42 that has not been specifically admitted. 43. Defendants admit that Paragraph 43 of Plaintiff’s Complaint is an accurate recitation of Paragraph 29 of the October 13, 2017 FERC Order Issuing Certificates and Granting Abandonment Authority in the “Discussion” section of the same. Defendants deny any allegation in Paragraph 43 that has not been specifically admitted. 44. Answering Paragraph 44 of Plaintiff’s Complaint, Defendants admit the certificate includes the language alleged and deny that the benefits outweigh any adverse effects on landowners and surrounding communities. 45. Defendants admit that Paragraph 45 of Plaintiff’s Complaint contains an 7 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 8 of 18 PageID #: 87 accurate recitation of Paragraph 308 of the October 13, 2017 FERC Order Issuing Certificates and Granting Abandonment Authority. Defendants deny any allegation in Paragraph 45 that has not been specifically admitted. 46. Defendants admit that Paragraph 46 of Plaintiff’s Complaint contains an accurate recitation of Paragraph 308 of the October 13, 2017 FERC Order Issuing Certificates and Granting Abandonment Authority and footnote 315 to the same. Defendants deny any allegation in Paragraph 46 that has not been specifically admitted. 47. Defendants deny the statements and allegations contained in Paragraph 47 of Plaintiff’s Complaint. 48. Defendants admit that the Fayette County Zoning Ordinance incorporates a zoning map and that zoning includes both Zoning Districts and Overlay Districts. The Ordinance further identifies both Permitted Uses and Uses by Special Exception by Zoning District. Defendants deny any allegation in Paragraph 48 that has not been specifically admitted. 49. Defendants admit that the Fayette County Zoning Ordinance includes application requirements for Rezoning Applications; the remainder of the allegations in Paragraph 49 are incomplete and Defendants therefore cannot admit the same. Defendants deny any allegation in Paragraph 49 that has not been specifically admitted. 50. Defendants deny the statements and allegations contained in Paragraph 50 of Plaintiff’s Complaint. 51. Defendants deny the allegations in Paragraph 51 of Plaintiff’s Complaint and further state that Plaintiff’s reference the Fayette County Zoning Ordinance but cite to the Fayette County Unified Development Code. 8 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 9 of 18 PageID #: 88 52. Defendants admit that there are procedures for the approval of improvements or special uses. Defendants deny the remaining allegations in Paragraph 52 of Plaintiff’s Complaint and any allegation not specifically admitted. 53. Defendants deny the statements and allegations contained in Paragraph 53 of Plaintiff’s Complaint. 54. Defendants deny the statements and allegations contained in Paragraph 54 of Plaintiff’s Complaint. 55. Defendants admit that the Stallworth Poperty is currently zoned in a rural residential district and admit those districts are designed to accommodate single family housing in areas within the County that may not be served by public sewer facilities and are not appropriate for development at higher densities and state that other select uses compatible with the open and rural character of the district are also permitted and admit that Plaintiff’s proposed use is incompatible with the permitted uses, select uses and the character of the district. Defendants deny the aforementioned language is contained within the Fayette County Zoning Ordinance and deny any allegation in Paragraph 55 not specifically admitted. 56. Defendants admit the statements and allegations contained in Paragraph 56 of Plaintiff’s Complaint except Defendants deny the correct reference is contained within the Fayette County Zoning Ordinance. 57. Defendants admit the statements and allegations contained in Paragraph 57 of Plaintiff’s Complaint. 58. Defendants deny the allegations in Paragraph 58 of Plaintiff’s Complaint. Defendants state that Plaintiff identified topics including a “Safety Overview” and 9 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 10 of 18 PageID #: 89 “Emergency Response Plan” but none in fact were included. 59. Defendants admit that two public meetings were held and deny the remainder of the allegations in Paragraph 59 of Plaintiff’s Complaint. 60 . Defendants admit that an August 28, 2017 hearing was held and admit that the Zoning Enforcement Office’s Resource Coordinator attended and reported on her review of the information available regarding the Rezoning Application which was reduced to writing. Defendants deny that Plaintiff was entitled to insert itself in the review process. Defendants further deny that the Coordinator recommended that the Application be denied. Defendants deny that Plaintiff was entitled to a copy of the Coordinator’s work product and rebuttal time prior to the presentation of her Review to the Planning Commission but state that nevertheless, the Plaintiff was provided an opportunity to address information, questions, concerns and opinions and provided an additional hearing. Defendants deny any allegation in Paragraph 60 that has not been specifically admitted. 61. Defendants admit the statements and allegations contained in Paragraph 61 of Plaintiff’s Complaint. 62. Defendants deny the statements and allegations contained in Paragraph 62 of Plaintiff’s Complaint. 63. Answering Paragraph 62 of Plaintiff’s Complaint, Defendants admit that FERC issued a Certificate subject to conditions on October 13, 2017. 64. Answering Paragraph 64 of Plaintiff’s Complaint, Defendants admit that Exhibit 3 to Plaintiff’s Complaint appears to be a true and accurate copy of the correspondence cited therein. 10 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 11 of 18 PageID #: 90 65. Defendants admit, upon information and belief, the allegations in Paragraph 65 of Plaintiff’s Complaint. 66. Defendants deny the allegations in Paragraph 66 of Plaintiff’s Complaint. 67. Answering Paragraph 67 of Plaintiff’s Complaint Defendants admit that Exhibit 4 to Plaintiff’s Complaint appears to be a true and accurate copy of the correspondence and e-mails cited therein. Defendants admit that the Plaintiff was not provided a Special Meeting and was on the agenda for the regularly scheduled County Commission Meeting of November 17, 2017. 68. Defendants admit the statements and allegations contained in Paragraph 68 of Plaintiff’s Complaint. 69. Defendants admit the statements and allegations contained in Paragraph 69 of Plaintiff’s Complaint. 70. Defendants are without sufficient information to admit or deny the allegations contained in Paragraph 70 of Plaintiff’s Complaint; however, if the Court were to construe Paragraph 70 as containing allegations against these Defendants, Defendants deny the same. 71. Defendants are without sufficient information to admit or deny the allegations contained in Paragraph 71 of Plaintiff’s Complaint; however, if the Court were to construe Paragraph 71 as containing allegations against these Defendants, Defendants deny the same. 72. Defendants deny the statements and allegations contained in Paragraph 72 of Plaintiff’s Complaint. 73. In response to Paragraph 73 of Plaintiff’s Complaint Defendants admit that if 11 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 12 of 18 PageID #: 91 Plaintiff violates the law that legal recourse will ensue however, Defendants are without knowledge as to what legal action would result as it is factually dependent upon future unknown acts 74. Defendants deny the statements and allegations contained in Paragraph 74 and subparagraphs a-d of Plaintiff’s Complaint. 75. Defendants deny the statements and allegations contained in Paragraph 75 of Plaintiff’s Complaint. 76. Defendants deny the statements and allegations contained in Paragraph 76 of Plaintiff’s Complaint. 77. Defendants deny the statements and allegations contained in Paragraph 77 of Plaintiff’s Complaint. COUNT I DECLARATORY JUDGMENT – 28 U.S.C §2201 78. In response to Paragraph 78 of Plaintiff’s Complaint, this Defendant hereby incorporates by reference, as fully stated herein, its responses to Paragraphs 1 to 77 of Plaintiff’s Complaint, contained herein above. 79. Defendants deny the statements and allegations contained in Paragraph 79 of Plaintiff’s Complaint. 80. Defendants deny the statements and allegations contained in Paragraph 80 of Plaintiff’s Complaint. 81. Defendants deny the statements and allegations contained in Paragraph 81 of Plaintiff’s Complaint. 12 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 13 of 18 PageID #: 92 82. Defendants deny the statements and allegations contained in Paragraph 82 of Plaintiff’s Complaint. 83. Defendants deny the statements and allegations contained in Paragraph 83 of Plaintiff’s Complaint. 84. Defendants deny the statements and allegations contained in Paragraph 84 of Plaintiff’s Complaint. 85. Defendants deny the statements and allegations contained in Paragraph 85 of Plaintiff’s Complaint. 86. Defendants deny the statements and allegations contained in Paragraph 86 of Plaintiff’s Complaint. COUNT II – PERMANENT INJUNCTION 87. In response to Paragraph 87 of Plaintiff’s Complaint, this Defendant hereby incorporates by reference, as fully stated herein, its responses to Paragraphs 1 to 86 of Plaintiff’s Complaint, contained herein above. 88. Paragraph 88 of Plaintiff’s Complaint contains a statement of law or argument to which no admission or denial is required; however, to the extent a response is required, Defendants state that the legal citation is correct and deny that the Plaintiff can meet the legal standard. 89. Defendants deny the statements and allegations contained in Paragraph 89 of Plaintiff’s Complaint. 90. Defendants deny the statements and allegations contained in Paragraph 90 of Plaintiff’s Complaint. 13 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 14 of 18 PageID #: 93 91. Defendants deny the statements and allegations contained in Paragraph 91 of Plaintiff’s Complaint. 92. Defendants deny the statements and allegations contained in Paragraph 92 of Plaintiff’s Complaint. 93. Defendant denies the statements and allegations contained in Paragraphs 1- 4 of the WHEREFORE paragraphs of Plaintiff’s Complaint as they pertain to these Defendants. AFFIRMATIVE DEFENSES First Defense Plaintiff’s Complaint for Declaratory Judgment and Injunctive Relief fails to state a claim against Defendants upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure and, therefore, should be dismissed. Second Defense Defendants assert that they may be immune from the claims set forth in Plaintiff’s Complaint for Declaratory Judgment and Injunctive Relief in the Underlying Action. Third Defense Defendants assert and preserve the defenses and immunities available under the Constitutions of the State of West Virginia and the United States of America and West Virginia Code §29-12A-1 et seq.. Fourth Defense Plaintiff may lack standing to assert the claims against Defendants. 14 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 15 of 18 PageID #: 94 Fifth Defense Defendants hereby raise and preserve each and every defense set forth in Rules 8, 9, and 12 of the Federal Rules of Civil Procedure and further reserve the right to raise such additional defenses as may appear appropriate following further discovery and factual development in this case. Sixth Defense Defendants deny any allegations construed against them not specifically admitted herein. Seventh Defense Plaintiff has failed to exhaust administrative remedies. Eighth Defense Preemption is not available under the NGA and PSA for Plaintiff to avoid the local governmental laws. Ninth Defense The Court lacks personal and subject matter jurisdiction. Tenth Defense Plaintiff does not meet the equitable requirements for injunctive relief; specifically, there is insufficient likelihood of success, threat of irreparable harm is not shown, the balance of equities does not favor Plaintiff, and an injunction will not serve the public interest. Eleventh Defense Plaintiff may have failed to join an indispensable party. 15 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 16 of 18 PageID #: 95 JURY DEMAND Defendants respectfully demand a trial by jury on all issues so triable. PRAYER WHEREFORE, Defendants, Matthew D. Wender, Denise A. Scalph, and John G. Breneman, in their official capacities as Fayette County Commissioners having fully answered Plaintiff’s Complaint, pray that Plaintiff’s Complaint be dismissed and held for naught; that Plaintiff recover nothing from these Defendants; that this Defendants recover their costs, expenses of suit, and a reasonable attorney’s fee made necessary in defending this Complaint; and for such other and further relief, whether legal or equitable in character, as to which Defendants may be entitled. Matthew D. Wender, Denise A. Scalph and John G. Brenemen in their official capacities as Fayette County Commissioners, By Counsel, /s/ Wendy E. Greve Wendy E. Greve, WV State Bar No. 6599 PULLIN, FOWLER, FLANAGAN, BROWN & POE, PLLC JamesMark Building 901 Quarrier Street Charleston, WV 25301 Telephone: (304) 344-0100 Facsimile: (304) 342-1545 16 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 17 of 18 PageID #: 96 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF WEST VIRGINIA CHARLESTON DIVISION MOUNTAIN VALLEY PIPELINE, LLC, Plaintiff, v. CIVIL ACTION NO.: 2:17-cv-04377 HONORABLE JOHN T. COPENHAVER MATTHEW D. WENDER, in his official capacity as President of the County Commission of Fayette County, West Virginia; DENISE A. SCALPH, in her capacity as a Commissioner of the County Commission of Fayette County, West Virginia; JOHN G. BRENEMEN, in his capacity as a Commissioner of the County Commission of Fayette County, West Virginia , Defendants. CERTIFICATE OF SERVICE I hereby certify that on the 11th day of December 2017 I electronically filed the foregoing Defendants’ Answer to Plaintiff’s Verified Complaint for Declaratory Judgment and Injunctive Relief with the Clerk of the Court using the CM/ECF system which will send notification of such filing. Jennifer J. Hicks, Esquire Dinsmore & Shohl, LLP P. O. Box 11887 Charleston, WV 25339 Counsel for Plaintiff 17 Case 2:17-cv-04377 Document 8 Filed 12/11/17 Page 18 of 18 PageID #: 97 Timothy M. Miller, Esq. Babst Calland 300 Summers Street, Suite 1000 BB&T Square Charleston, WV 25301 Counsel for Plaintiff /s/ Wendy E. Greve Wendy E. Greve, WV State Bar No. 6599 PULLIN, FOWLER, FLANAGAN, BROWN & POE, PLLC JamesMark Building 901 Quarrier Street Charleston, WV 25301 Telephone: (304) 344-0100 Facsimile: (304) 342-1545 18