ol,JyT. West E-Filing Notice

.„\\';" V I RC1. ' CC-19-2018-C-171 Judge: David Hammer To: Christopher Stroech [email protected]

NOTICE OF ELECTRONIC FILING

IN THE CIRCUIT COURT OF JEFFERSON COUNTY,

Jefferson County Vision Inc., a West Virginia Non-Profit Corporation v. ROXUL USA INC., d/b/a ROCKWOOL, a Delaware Corporation CC-19-2018-C-171

The following complaint was FILED on 11/2/2018 1:26:17 PM

Notice Date: 11/2/2018 1:26:17 PM

Laura Storm CLERK OF THE CIRCUIT Jefferson 119 N George Street CHARLES TOWN, WV 25414

(304) 728-3231 [email protected] E-FILED | 11/2/2018 1:26 PM CC-19-2018-C-171 COVER SHEET Jefferson County Circuit Clerk Laura Storm

GENERAL INFORMATION IN THE CIRCUIT COURT OF JEFFERSON COUNTY WEST VIRGINIA Jefferson County Vision Inc., a West Virginia Non-Profit Corporation v. ROXUL USA INC., d/b/a ROCKWOOL, a Delaware Corporation

1=1 Business ❑ Individual 1=1 Business ❑ Individual First Plaintiff: First Defendant: 1=1 Government 1=1 Other 1=1 Government 1=1 Other Judge: David Hammer ACOMPLAINT INFORMATION Case Type: Civil Complaint Type: Other

Origin: Initial Filing Appeal from Municipal Court Appeal from Magistrate Court

Jury Trial Requested: Yes No Case will be ready for trial by: 6/3/2019

Mediation Requested: Yes No

Substantial Hardship Requested: Yes No

Do you or any of your clients or witnesses in this case require special accommodations due to a disability?

Wheelchair accessible hearing room and other facilities

Interpreter or other auxiliary aid for the hearing impaired

Reader or other auxiliary aid for the visually impaired

Spokesperson or other auxiliary aid for the speech impaired

Other:

I am proceeding without an attorney

I have an attorney: Christopher Stroech, 208 N George St, Charles Town, WV 25414 SERVED PARTIES

Name: ROXUL USA INC., d/b/a ROCKWOOL, a Delaware Corporation Address: 4594 Cayce Road, Byhalia MS 38611 Days to Answer: 30 Type of Service: Secretary of State - Certified

Name: JEFFERSON COUNTY COMMISSION Address: 124 East Washington Street, Charles Town WV 25414 Days to Answer: 20 Type of Service: Plaintiff - Private Process Server

Name: JEFFERSON COUNTY DEVELOPMENT AUTHORITY Address: 1948 Wiltshire Road, #4, Kearneysville WV 25430 Days to Answer: 20 Type of Service: Plaintiff - Private Process Server

Name: BOARD OF EDUCATION OF JEFFERSON COUNTY Address: 110 Mordington Avenue, Charles Town WV 25414 Days to Answer: 20 Type of Service: Plaintiff - Private Process Server

Name: SHERIFF OF JEFFERSON COUNTY Address: 102 Industrial Blvd., #100, Kearneysville WV 25414 Days to Answer: 20 Type of Service: Plaintiff - Private Process Server

Name: ASSESSOR OF JEFFERSON COUNTY Address: 104 East Washington Street, Charles Town WV 25414 Days to Answer: 20 Type of Service: Plaintiff - Private Process Server

Name: RANSON CITY COUNCIL Address: 312 S. Mildred Street, Ranson WV 25438 Days to Answer: 20 Type of Service: Plaintiff - Private Process Server E-FILED | 11/2/2018 1:26 PM CC-19-2018-C-171 Jefferson County Circuit Clerk Laura Storm

IN THE CIRCUIT COURT OF JEFFERSON COUNTY, WEST VIRGINIA

JEFFERSON COUNTY VISION, INC., a West Virginia Non-Profit Corporation, and DONALD SUTHERLAND,

Plaintiffs, v. CIVIL ACTION NO.: 18-C-

ROXUL USA, INC. d/b/a ROCKWOOL, a Delaware Corporation; the JEFFERSON COUNTY COMMISSION, a Public Corporation of the State of West Virginia; the JEFFERSON COUNTY DEVELOPMENT AUTHORITY, a Public Corporation of the State of West Virginia; the BOARD OF EDUCATION OF JEFFERSON COUNTY, a Public Corporation of the State of West Virginia; the SHERIFF OF JEFFERSON COUNTY; the ASSESSOR OF JEFFERSON COUNTY; and the RANSON CITY COUNCIL, a Public Corporation of the State of West Virginia;

Defendants,

COMPLAINT FOR DECLARATORY JUDGMENT AND WRIT OF MANDAMUS

The Plaintiffs, Jefferson County Vision, Inc., and Donald Sutherland, by and through their counsel, Christopher P. Stroech, Esq., S. Andrew Arnold, Esq., the law flan of Arnold &

Bailey, PLLC, and Robert M. Bastress, Esq., pursuant to W.Va. Code § 55-13-1, et seq. (2018),

W.Va. Code § 53-1-1, et seq. and other applicable law, hereby bring the following Complaint for

Declaratory Judgment and Writ of Mandamus against Roxul USA, Inc. d/bla Rockwool, the

Jefferson County Commission, the Jefferson County Development Authority, the Board of

Education of Jefferson County, the Sheriff of Jefferson County, the Assessor of Jefferson County and the Ranson City Council. Plaintiffs request that this Court declare the Payment in Lieu of Taxes Agreement, executed by all party-Defendants' and identified herein, as unconstitutional for the reasons set forth herein. Plaintiffs further request that this Court order Rockwool to pay ad valorem taxes on its real and personal property in a manner equal and uniform to other

Jefferson County taxpaying citizens. Plaintiffs allege the following in support of this Complaint:

The Parties

1. Plaintiff, Jefferson County Vision, Inc. ("JCV") is a West Virginia Non-Profit

Corporation, formed for the purpose of preserving and protecting the quality of life for all

Jefferson County, West Virginia residents. JCV has a primary business address of P.O. Box 103,

Shenandoah Junction, West Virginia, 25442.

2. JCV was formed for the specific purpose of ensuring that Rockwool has complied with and will continue to comply with all applicable federal, state and local laws. To that end, JCV is also charged with ensuring that any federal, state and/or local governmental agency involved with the approval of any required permit for Rockwool, or any utility or system that would service the Rockwool site, complies with all applicable law.

3. JCV has a Board of Directors consisting of six (6) members, all who own real and personal property in Jefferson County, West Virginia, located within two (2) to six (6) miles from the proposed Rockwool Site and Facility. Amanda Foxx, a Board Member, has one (1) minor child who attends North Jefferson Elementary School, located directly across from the proposed Rockwool Site and Facility, and two (2) minor children who attend T.A. Lowery

Elementary School, located about one (1) mile east of the proposed Rockwool Site and Facility.

Krista Guido, another Board Member, also has a minor child that attends T.A. Lowery

1 The Jefferson County Development Authority did not execute the subject Payment in Lieu of Taxes Agreement, despite being an indispensable party thereto.

2 Elementary School. Members of the JCV and of its Board of Directors pay equal and uniform property taxes as assessed by public bodies of Jefferson County.

4. Plaintiff, Donald Sutherland, is a West Virginia resident who owns 1.6 acres of real property with a residential address of 866 Warm Springs Road, Shenandoah Junction, West

Virginia, 25442, and personal property located thereon, in close proximity to the proposed

Rockwool Site and Facility, as defined herein. Mr. Sutherland pays equal and uniform property taxes as assessed by public bodies of Jefferson County.

5. Defendant, Rockwool a/k/a Roxul USA Inc. ("Rockwool"), a Delaware Corporation, is a manufacturer of stone wool insulation, and offers a full range of insulation products for the retail, commercial and industrial markets. Rockwool is a private foreign corporation that does not serve any public purpose.

6. Defendant, the Jefferson County Commission ("JCC"), is a public body organized pursuant to W.Va. Code § 7-1-1, et seq. (2018).

7. Defendant, the Jefferson County Development Authority ("JCDA"), is a public body organized pursuant to W.Va. Code § 7-12-1, et seq. (2018).

8. Defendant, the Board of Education of Jefferson County ("BOE"), is a public body organized pursuant to W.Va. Code § 18-5-1, et seq. (2018).

9. Defendant, the Sheriff of Jefferson County ("Sheriff'), is charged with collecting ad valorem taxes pursuant to W.Va. Code §§ 11A-1-1, et seq. (2018).

10. Defendant, the Assessor of Jefferson County ("Assessor"), is charged with assessing ad valorem taxes pursuant to W.Va. Code §§ 11-3-1, et seq. (2018).

11. Defendant, the Ranson City Council ("Ranson"), is a public body organized pursuant to

W.Va. Code § 8-1-1, et seq. (2018).

3 Jurisdiction and Venue

12. Jurisdiction and venue are both proper in Jefferson County, West Virginia as all parties are located herein and both the real and personal property subject to taxation is located herein.

Undisputed Facts

13. Rockwool plans to acquire, construct, own and operate a heavy industrial manufacturing facility (the "Facility") on a parcel of real property comprising at least 130-acres on a 400-acre tract of real property located in the City of Ranson, in the vicinity of West Virginia State Route 9, in Jefferson County, West Virginia, known as Jefferson Orchards (the "Land" or the "Site").

14. Indeed, Rockwool has purchased the Land as confirmed by a Deed attached hereto as

Exhibit A.

15. Upon information and belief, if Rockwool is permitted to operate at the Site, the Facility will generate noxious air and water emissions, will produce unsightly sounds, odors, lighting, etc., and will create significant truck traffic to and from the Site, all of which will diminish the quality of life and threaten the health and safety of plaintiff Sutherland and of JCV members and their children.

16. Upon information and belief, excavation and construction has commenced at the Site, despite the fact that the BOE has formally requested that Rockwool cease construction until a health and risk assessment can be completed.

17. The Land and the Facility, and the cost of equipping the Facility, including the acquisition and installation of new machinery and equipment therein (the "Equipment"), are collectively referred to herein as the "Project."

4 18. Rockwool, the JCDA, the JCC, Ranson and other county entities have agreed to work together to ensure that Rockwool will be permitted to operate.

19. To this end, Rockwool, the JCDA, the JCC, Ranson and other county entities have executed numerous written documents, including but not limited to several Memorandums of

Understanding. Specifically, a Memorandum of Understanding was executed by Rockwool, the

JCDA and Jefferson Utilities, Inc. ("JUI") on October 17, 2017 regarding the proposed water system that will serve the Site. See 10/17/17 MOU attached hereto as Exhibit B. A second

Memorandum of Understanding was executed by Ranson and the JCDA on November 7, 2017 regarding the construction, ownership and operation of the proposed water system. See 11/07/17

MOU attached hereto as Exhibit C.

20. Additionally, Rockwool, the JCC, the BOE, the Sheriff, the Assessor and Ranson have executed a Payment in Lieu of Taxes Agreement ("PILOT"), that purports to exempt Rockwool from paying ad valorem taxes on its real and personal property. See PILOT attached hereto as

Exhibit D.

21. Pursuant to the PILOT, legal title in the Project will be acquired by JCDA from

Rockwool at the completion of construction. Construction is expected to last for three (3) years after which Rockwool intends to transfer the Project to JCDA who will then lease the entire

Project back to Rockwool for a period of nine (9) years. The Project is subject to a repurchase option held by Rockwool.

22. Pursuant to the PILOT, the Project will be leased by JCDA back to Rockwool in accordance with a Lease Agreement (the "Lease") to be entered into upon completion of the construction of the Project.

5 23. The PILOT requires Rockwool to pay an additional advance rent of all costs in connection with the acquisition and construction of the Facility and the installation of

Equipment. This additional advance rent is to be paid by Rockwool directly to the contractors and vendors engaged to acquire and construct the facility.

24. During the term of the Lease, JCDA will own both the real and personal property which comprises the Project, subject to the Lease and other rights and interests as identified in the

PILOT.

25. Pursuant to the Lease and PILOT, title to any property constituting improvements, repairs, alterations, renewals, substitutions and replacements of, and additions and appurtenances to, the Project or any part thereof, when made or installed in or about the Project shall, subject to the Lease and other rights and interests, immediately become vested in JCDA without further action on its part.

26. At the conclusion of the PILOT period, both the real and personal property shall be conveyed back to Rockwool from the JCDA for nominal value.

27. Pursuant to the PILOT and during the term of the Lease, JCDA's interest in the real and personal property which comprise the Project, and which is covered by the Lease, will be exempt from ad valorem property taxation. As a result, Rockwool will not have to pay the same real and personal property taxes as are and will be assessed against Plaintiffs and all other Jefferson

County citizens.

28. Rockwool has agreed to make payments of certain amounts in lieu of ad valorem property taxes and the JCC, BOE and Ranson have agreed to the acquisition, construction and equipping of the Project.

6 29. Upon information and belief, the Defendants improperly rely entirely upon W.Va. Code §

7-12-10 (2018), for the authority to provide such ad valorem tax exemption to Rockwool. This

Section provides:

The authority shall be exempt from the payment of any taxes or fees to the State or any subdivision thereof or to any officer or employee of the State or other subdivision thereof. The property of the authority shall be exempt from all local and municipal taxes. Bonds, notes, debentures and other evidence of indebtedness of the authority are declared to be issued for a public purpose and to be public instrumentalities, and shall be exempt from taxes.

COUNT I - Violation of Article X, Section 1 of the West Virginia Constitution

30. Plaintiffs incorporate by reference all Paragraphs as if fully set forth herein.

31. The conduct and actions of the Defendants, as aforesaid, violate Article X, Section 1 of the West Virginia Constitution, which provides that all property shall be taxed equally, and violate Article 11, Section 3, Chapter 9 of the West Virginia Code of 1931, as amended, as not being one (1) of the authorized articulated exceptions from ad valorem taxation.

32. As a direct and proximate result thereof, the Plaintiffs have been, or will be, substantially injured and damaged in that the public body Defendants are permitting a form of unequal taxation and Roxul is benefitting from unequal taxation.

33. The Plaintiffs have no other adequate remedy at law.

COUNT II - Violation of Article X, Section 6 of the West Virginia Constitution

34. Plaintiffs incorporate by reference all Paragraphs as if fully set forth herein.

35. The Conduct and actions of the Defendants, as aforesaid, violate Article X, Section 6 of the West Virginia Constitution, which provides that, "the credit of the state shall not be granted to, or in aid of any county, ...nor shall the state ever assume or become responsible for the debts or liabilities of any county...The investment of state or public funds shall be subject to the

7 procedures and guidelines...established by the Legislature for the prudent investment of such funds."

36. The actions and conduct of the Defendants, as aforesaid, amount to the county granting specific aid to a private commercial entity serving no public purpose, and, in essence, is a stockholder of such private commercial entity, all of which is prohibited by Article X, Section 6 of the West Virginia Constitution.

37. As a direct and proximate result thereof, the Plaintiffs have been, or will be, substantially injured and damaged in that the Defendants are permitting a form of unequal taxation.

38. The Plaintiffs have no other adequate remedy at law.

COUNT III - Chapter 7, Article 12, Section 10 of the West Virginia Code of 1931, as Amended, is, on its Face, Vague, Overly Broad, Irrational, Unreasonable and Violates Plaintiffs' Constitutional Rights under Article X, Section I of the West Virginia Constitution

39. Plaintiffs incorporate by reference all Paragraphs as if fully set forth herein.

40. Chapter 7, Article 12, Section 10 of the West Virginia Code of 1931, as amended, is, on its face, vague, overly broad, irrational, unreasonable and violates Plaintiffs' rights under Article

X, Section 1 of the West Virginia Constitution.

41. The conduct of the Defendants, as aforesaid, under the purported authority of Chapter 7,

Article 12, Section 10 of the West Virginia Code of 1931, as amended, is an attempt to allow for unequal taxation and a ruse upon the citizens of the State of West Virginia.

42. Indeed, Chapter 7, Article 12, Section 10 of the West Virginia Code of 1931, as amended, cannot be used in a constitutional manner.

43. As a direct and proximate result thereof, the Plaintiffs have been, or will be, substantially injured and damaged in that the Defendants are permitting a form of unequal taxation.

44. The Plaintiffs have no other adequate remedy at law.

8 COUNT IV - Defendants Do Not Have Authority Under the West Virginia Constitution or the West Virginia Code To Permit the Ownership and Taxing Scheme Contemplated

45. Plaintiffs incorporate by reference all Paragraphs as if fully set forth herein.

46. Property owned by the Defendant JCDA, eventually leased to a third party, such as

Rockwool, is owned not by the county or county commission, but, rather, by the Defendant

JCDA; thus, there is no basis for a claim to an exemption as Defendants contend. The Defendant

JCDA does not have authority under the West Virginia Constitution or the West Virginia Code to participate in a scheme to allow Rockwool to avoid equal and uniform taxation though unlawful agreements to make payments in lieu of taxes.

47. As a direct and proximate result thereof, the Plaintiffs have been, or will be, substantially injured and damaged in that the Defendants are permitting a form of unequal taxation.

48. The Plaintiffs have no other adequate remedy at law.

COUNT V - Violation of Public Policy

49. Plaintiffs incorporate by reference all Paragraphs as if fully set forth herein.

50. The conduct and actions of the Defendants as set forth herein, violate substantial public policy in the State of West Virginia.

51. As a direct and proximate result thereof, the Plaintiffs have been, or will be, substantially injured and damaged in that the Defendants are violating public policy by permitting a form of unequal taxation.

52. The Plaintiffs have no other adequate remedy at law.

COUNT VI - The PILOT Is Defective Because the JCDA Is An Absent Indispensable Party

53. Plaintiffs incorporate by reference all Paragraphs as if fully set forth herein.

9 54. The PILOT Agreement entered into by the Defendants involves real estate to be owned by the Defendant JCDA, which is not a party to the Agreement; however, said Defendant JCDA is a necessary party to any proposed PILOT Agreement.

55. The failure of JCDA to be a party to the PILOT Agreement renders it defective on its face for the reasons set forth herein.

56. As a direct and proximate result thereof, the Plaintiffs have been, or will be, substantially injured and damaged in that the Defendants are entering into an agreement which violates public policy by permitting a form of unequal taxation.

57. The Plaintiffs have no other adequate remedy at law.

Relief Sought

WHEREFORE, Plaintiffs pray that: