The history of the landfill purchase and the waiver of eminent domain represents a critical turning point in the Pocahontas County solid waste crisis. The land acquisition process spanned several years, originating from a failed attempt to expand the county's disposal capacity and culminating in a highly controversial property deed.
The Background and Failed Expansion Historically, the Pocahontas County Solid Waste Authority (SWA) operated the Dunmore landfill on 43.23 acres of land that it had leased from the Fertig family since 1986. As the facility approached its physical capacity limits, the SWA began negotiations in 2017 to purchase an additional 25 acres of adjacent property from landowner Jody Fertig. Engineering studies confirmed that 10 acres of this tract were highly suitable for new landfill cells, which would have provided the county with an estimated 50 years of additional disposal capacity and allowed toxic leachate to gravity-feed directly into the existing treatment facility. However, Jody Fertig passed away in October 2017, and his surviving heirs refused to sell the land. The SWA abandoned its expansion plans, stating publicly that it lacked the "ability or desire" to take the family's land via eminent domain at the time.
The 2025 Purchase with COVID Funds With the landfill slated to close, the SWA still needed to acquire the property to manage the site's mandatory 30-year post-closure liabilities, which are estimated to cost at least $75,000 annually. The transaction was heavily delayed by legal disputes between the SWA, the County Commission, and the Grantors' attorneys regarding side agreements for fencing, water rights, and liability insurance on a public access road. Ultimately, in March 2025, the Pocahontas County Commission completed the purchase of the 40.6-acre site from Renee Fertig-Hill for $154,207.50. The Commission utilized $155,000 of unused federal COVID-19 relief funds to complete the transaction and immediately transferred the property title into the SWA’s name.
The Deed Restriction and Waiver of Eminent Domain The finalized deed of conveyance included a highly controversial restrictive covenant that specifically prohibited the SWA from utilizing its sovereign power of eminent domain to seize any adjoining land to expand the landfill. SWA Chairman David Henderson and the other board members accepted this deed restriction, and County Commission President John Rebinski later noted that the SWA failed to object to the covenant during the lengthy negotiation process.
Practical and Legal Consequences The practical consequence of accepting this deed restriction was massive: it contractually foreclosed the SWA's ability to expand locally, forcing the county to pivot to a highly controversial $4.12 million, 15-year lease agreement with a private developer (JacMal, LLC) to build a transfer station.
However, this waiver of eminent domain is considered legally void and unenforceable. Under the constitutional "reserved powers doctrine," certain sovereign powers—including the police power and the power of eminent domain—are inalienable attributes of a government's existence. A government body cannot contract away, surrender, or alienate these powers to facilitate a transaction with a private party. Therefore, the SWA's acceptance of the deed restriction was an ultra vires act (acting outside its legal authority), rendering the covenant a "legal nullity" that is void ab initio (invalid from the very beginning). If the SWA were to reverse course and initiate condemnation proceedings to acquire the adjacent property, the waiver in the 2025 deed would be completely unenforceable in court.
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The transaction to purchase the landfill property and accept the deed with its restrictive covenants involved a collaborative, albeit contentious, effort between the Pocahontas County Commission, the Solid Waste Authority (SWA), and their respective legal counsel.
The specific public officials involved included:
The Pocahontas County Commission The Commission was responsible for formally purchasing the land using federal funds before transferring the title. The commissioners involved in the negotiations and the transaction included:
- John Rebinski: Commissioner (and later Commission President) who participated in the deed discussions and later pointed out that the SWA failed to object to the eminent domain waiver during the lengthy negotiation process.
- Jamie Walker: Served on the Commission and was heavily involved in discussing the specific deed stipulations, water requirements, and rent payments.
- Thane Ryder: Commissioner who weighed in on the financial transition of the property.
- Walt Helmick: Served as Commission President during the late 2024 negotiations, urging all parties to resolve their differences to get the transaction settled.
The Solid Waste Authority (SWA) Board The SWA board members negotiated the specific terms of the property transfer (such as fencing, road maintenance, and water rights) and ultimately received the title subject to the restrictive covenants. The board included:
- David Henderson (Chairman): Handled much of the direct negotiation and formally accepted the deed restriction on behalf of the Authority.
- David McLaughlin (Vice Chairman): Actively participated in the negotiations, advocating for an agreement with the property owners.
- Phillip Cobb: Engaged in negotiations specifically regarding the SWA's obligation to build fencing in exchange for water access.
- Ed Riley: Board member involved in evaluating the extensive post-closure environmental requirements tied to the land.
- Jamie Walker: Held a dual role, serving as a member of both the SWA board and the County Commission.
Legal Counsel and Administration The transaction required extensive legal review and drafting to navigate the demands of the property sellers (the Fertig-Hill family) and the legal obligations of the county. These officials included:
- David Sims: The SWA’s attorney, who was tasked with revising the deed, removing unfavorable paragraphs, and attempting to secure a clean title.
- Michael Doss: Attorney for the County Commission, who reviewed the deed to ensure it aligned with the Commission's requirements before the purchase was finalized.
- Laura Kershner: Pocahontas County Prosecuting Attorney, who was consulted regarding the property closing.
- Mary Clendenen: SWA Office Administrator, who managed the administrative transition, financial records, and rent agreements associated with the land purchase.
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The provided sources do not contain any information regarding the public's specific reaction to the County Commission using federal COVID-19 relief funds to purchase the landfill property.
However, the sources do extensively document massive public backlash regarding what the Solid Waste Authority (SWA) planned to do with the property immediately after the county purchased it.
When the SWA announced its "Option 4" plan to transition the landfill into a transfer station, the public reaction was intensely hostile. The reaction included:
- Protests and Outrage over Public Land: In March 2026, crowds of 60 to 75 residents packed SWA meetings—which had to be moved to the Circuit Courtroom to accommodate the turnout—and voiced their anger with shouting and disruption. A primary point of outrage was the SWA's plan to sell or deed approximately two acres of the newly purchased public landfill land to the Greenbrier Valley Economic Development Corporation (GVEDC).
- Accusations of a "Giveaway": The SWA intended to use the GVEDC as a tax-exempt "middleman" to lease the land to a private developer (JacMal, LLC), shielding the private company from $250,000 in property taxes. Residents heavily protested this arrangement, viewing the deeding of public land to a private company as a "giveaway of public assets" and a "betrayal of public trust".
- Legal and Ethical Backlash: In response to the land deal, the lack of competitive bidding, and new regulations forcing residents to use the facility, the public initiated formal legal and administrative warfare. Citizens filed formal complaints with the West Virginia Public Service Commission and the State Ethics Commission against SWA board members, alleging financial conflicts of interest and the use of public offices for private gain, and even threatened the board members with criminal prosecution and jail time.
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The Solid Waste Authority (SWA) planned to use the Greenbrier Valley Economic Development Corporation (GVEDC) to execute a land transfer maneuver specifically designed to evade local property taxes.
Under the "Option #4" transfer station agreement, the SWA intended to sell approximately two acres of its existing landfill property to the GVEDC. Because the GVEDC is a tax-exempt public economic development agency, it would act as a temporary "straw-man" or "middleman" to hold the property deed and lease the parcel to the private developer, JacMal, LLC.
This arrangement was structured to shield the private transfer station project from local property taxes, generating an estimated savings of $250,000 over the 15-year lease term. If JacMal had been required to pay those taxes, the private developer would have passed the costs directly back to the SWA in the form of higher monthly lease payments. Therefore, the SWA argued that using the GVEDC middleman was a necessary strategy to keep the project costs and residential fees lower.
Ultimately, the public widely viewed this maneuver as a convoluted "giveaway" of public land to a private developer that bypassed competitive bidding and obscured accountability. Facing intense public backlash, formal complaints, and scrutiny from the Public Service Commission, the GVEDC paused the transfer, and the SWA officially withdrew its Memorandum of Understanding with the GVEDC, abandoning the middleman strategy to put the project out for open public bid.
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By structuring the transfer station agreement so that the tax-exempt Greenbrier Valley Economic Development Corporation (GVEDC) held the deed and leased the property to JacMal, LLC, the project was shielded from local property taxes, saving approximately $250,000 over the 15-year lease period.
This "straw-man" maneuver was specifically designed as a tax mitigation strategy to reduce the overall cost of the project. Because JacMal was constructing and financing the facility, any property taxes levied on the private developer would have been passed directly back to the Solid Waste Authority (SWA) as an operational cost. By avoiding this $250,000 tax burden, the SWA intended to pass the savings directly to the citizens of Pocahontas County by keeping the monthly lease payments and subsequent waste disposal rates lower than they otherwise would have been.
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The public accessed documents and information about the Pocahontas County Solid Waste Authority (SWA) through several different methods, though citizens sometimes complained that getting certain documents was "like pulling teeth".
Meeting Notices and Agendas The SWA stated they were only legally required to post their meeting agendas on the courthouse entrance, which they did. For regularly scheduled meetings and public hearings that required publication, they also sent notices to the local radio station (WVMR) and the local newspaper (The Pocahontas Times). However, because The Pocahontas Times is only published weekly, the SWA noted they were frequently unable to get notices for unexpected "special meetings" published in the paper in time.
Financial Audits The public can access the SWA's annual financial audits online. These audits are prepared by a CPA and officially posted on the West Virginia State Auditor’s Office website under the Chief Inspector’s page.
Freedom of Information Act (FOIA) Requests For specific historical documents, meeting minutes, or regulations, citizens could submit formal FOIA requests. In the case of a 2014 FOIA request submitted by a citizen, the SWA required the individual to pick up the copies at the Solid Waste Authority Office and pay a fee of $1.00 per page. During that meeting, the SWA board noted that they also had the legal right to charge the citizen for the staff time required to locate the information.
Exempt Legal Records Certain financial records were completely exempt from mandatory public posting. Because the SWA hired its private legal counsel (David Sims) under a standard hourly contract rather than a state-level contingency agreement, the authority was not legally required to publish the detailed transactional records of the attorney's billings on any centralized state registry for public inspection.
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The Pocahontas County Solid Waste Authority (SWA) justified deeding approximately two acres of public landfill property to the Greenbrier Valley Economic Development Corporation (GVEDC) primarily as a tax mitigation strategy designed to save money for the county's citizens.
By utilizing the GVEDC—a tax-exempt public economic development agency—to hold the deed and lease the land to the private developer (JacMal, LLC), the transfer station project would be legally shielded from local property taxes. This "middleman" arrangement was projected to generate approximately $250,000 in tax savings over the course of the 15-year lease period.
The SWA and GVEDC representatives argued that if the private developer were subjected to these property taxes, the developer would pass those costs directly back to the SWA in the form of higher monthly lease payments. Therefore, by eliminating this tax burden, the SWA justified the land transfer as a necessary financial maneuver to pass the savings directly to the public by keeping the facility's leasing rates and subsequent residential disposal fees as low as possible.
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The Greenbrier Valley Economic Development Corporation (GVEDC) paused the land transfer primarily due to severe public backlash. Citizens widely protested the arrangement, viewing the maneuver as an illicit transfer of a valuable public asset to a private entity that bypassed open competitive bidding.
In response to this intense public pressure and scrutiny, the GVEDC's Executive Director officially confirmed that the agency's involvement was "paused" and stated that they would not accept any land transfers from the landfill property until all environmental reviews were finalized and the Public Service Commission's (PSC) Certificate of Need requirements were fully resolved.
Concurrently, the Solid Waste Authority (SWA) decided to yield to the citizens' demands and put the entire transfer station construction project out for open, competitive public bidding. Because of this pivot, the SWA's attorney advised that the tax-shielding Memorandum of Understanding (MOU) with the GVEDC no longer served a legal purpose, leading the SWA to officially withdraw from the agreement and table the land transfer.
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Based on the provided documents, the public learned about the Memorandum of Understanding (MOU) following the Solid Waste Authority's (SWA) regular meeting on February 25, 2026, where the board officially voted to approve the "Option #4" transfer station agreement and sign a Letter of Intent with the private developer.
The dissemination of this information and the public's realization involved a few key factors:
Standard Public Notices and Accusations of Secrecy The SWA communicated its activities through standard public notices, though citizens accused the board of not properly posting their meetings. The SWA maintained that they were in full compliance with the Open Meetings Act by posting their agendas on the courthouse entrance and sending notices to the local radio station (WVMR) and the local newspaper (The Pocahontas Times). However, because The Pocahontas Times is only published weekly, the SWA admitted they were often unable to get notices for special meetings published in the paper in time for the public to see them before the meetings took place.
The Formal Public Statement Following the February 25 vote, news of the multi-million dollar agreement and the plan to deed public land to a private developer sparked protests at a March 17 County Commission meeting.
To address what SWA Chairman David Henderson called a "large amount of public concern and misinformation that has been stated since the last meeting," the SWA prepared a formal public statement. During a special meeting on March 19, 2026, Office Administrator Mary Clendenen read this statement aloud to a crowd of approximately 70 attendees, explicitly confirming the existence of the MOU to the public by stating: "This lease agreement has not been finalized. There is only a Memorandum of Understanding that has been signed—nothing more".
To ensure the broader public was informed, the SWA also published this full explanatory statement in The Pocahontas Times on March 25, 2026.
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The March 19, 2026, special meeting of the Solid Waste Authority (SWA)—attended by approximately 70 members of the public and two County Commissioners—served primarily as an informational session, and no formal votes or final decisions were made.
The specific outcomes and events of the meeting included:
- Reading of the Public Statement: To address the significant public backlash and what the board characterized as "misinformation," Office Administrator Mary Clendenen read a formal, prepared statement. This statement outlined the SWA's financial challenges, the history of the transfer station negotiations, and explicitly confirmed to the public that while "Option #4" had been approved, only a Memorandum of Understanding (MOU) had been signed, not a finalized lease agreement.
- Deferral of Public Comment: Despite the large turnout, the board did not allow public comments or questions during the special meeting, which caused verbal frustration among some attendees. Chairman David Henderson deferred all public input to the next regular meeting scheduled for March 25, 2026, noting that attendees would be given three minutes each to speak at that time.
- Review of Proposed Regulations: SWA Attorney David Sims presented draft updates to the county's Mandatory Garbage Disposal Regulations, which included strict "flow control" requirements designed to ensure all county waste is routed to the new transfer station. The board also discussed the possibility of repealing the monthly "Free Day" and altering future Green Box operations, such as requiring proof of payment to use the sites. Henderson confirmed that no votes would be taken on any of these regulations until all updates were finalized, pushing the decisions to a future meeting.
- Announcement of Board Vacancy Process: At the conclusion of the meeting, County Commission President John Rebinski announced that the County Commission had held its own special meeting earlier that day regarding the recent resignation of SWA board member Ed Riley. Rebinski informed the crowd that the Commission would be advertising the vacancy for two weeks, giving interested citizens the opportunity to submit their qualifications to fill the unexpired seat.
Following these announcements and discussions, the meeting was adjourned at 3:05 p.m..
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Based on the provided records up through March 2026, the SWA has not yet made a final decision on the exact dollar amount for the new Green Box fees, though they have made final decisions rejecting certain controversial billing methods.
During the special meeting on March 19, 2026, the SWA confirmed to the public that "no decision" had been finalized regarding how much the fee will increase, deferring the final vote to a future meeting.
However, several other final determinations regarding the Green Box fees were made during this period:
- The "Every Parcel" Proposal was Abandoned: The SWA officially dropped a highly controversial proposal that would have charged the Green Box fee on every single deeded parcel of land in the county (including unimproved lots, timber tracts, and vacant farmland) to broaden the revenue base. Facing intense public backlash, Chairman David Henderson publicly clarified that the SWA will not charge the fee on unoccupied parcels.
- Property Tax Integration was Rejected: The SWA attempted to have the County Commission add the Green Box fee as a line item on residents' annual property tax tickets. This was proposed to help collect the $264,000 in delinquent fees owed by 529 residents. The County Commission rejected this proposal because West Virginia state law only permits tax-ticket billing for fees owed directly to the county government, not to independent public corporations like the SWA.
- A "Drastic" Increase is Unavoidable: While the final rate hasn't been set, the board has acknowledged that the fee will have to "increase drastically" from its current $135. To cover the $16,759 monthly lease payments for the new transfer station and the costs of long-haul trucking, officials estimate the fee will need to be raised to between $300 and $600 per year. State officials have recommended raising it to $300 to align with other parts of West Virginia, though the SWA board has expressed hesitance about inflicting such a large price shock on residents.
The current Green Box fee regulations will remain in effect until the billing cycle concludes on June 30, 2026, meaning the SWA must finalize the new rates soon for the upcoming fiscal year.
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The provided sources do not explicitly detail the administrative or legal justification the Pocahontas County Commission used to allocate federal COVID-19 relief funds for this specific transaction.
However, the sources do confirm that the Commission utilized $155,000 in "unused federal COVID-19 relief funds" to purchase the 40.6-acre landfill property from Renee Fertig-Hill in March 2025.
While the justification for the specific funding source is absent, the Commission's justification for the property purchase itself was to address the impending closure of the landfill and assign the facility's long-term liabilities. By purchasing the land and immediately transferring the title into the Solid Waste Authority's (SWA) name, the Commission ensured that the SWA would be legally responsible for the mandatory post-closure maintenance costs, which are estimated to be at least $75,000 per year for up to 30 years. Additionally, the purchase was part of a broader effort to work with the Meck family—who brings the majority of the paid waste tonnage to the landfill—to find a long-term solution for the county's solid waste needs.
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Under the West Virginia Open Governmental Proceedings Act, the rules for an emergency board meeting are strictly defined regarding how they are noticed and what can be discussed:
- Allowed Purpose: Emergency meetings are only permitted to address "imminent threats to health/safety".
- Notice Requirement: Unlike regular meetings (which require three business days' notice) or special meetings (which require two business days' notice), the notice for an emergency meeting must be provided "Immediate (as much as possible)".
Because the threshold for an emergency is strictly limited to immediate health and safety threats, administrative or financial issues generally do not qualify. For example, the SWA previously held an "emergency meeting" in July 2019 to pay bills and handle an employee's salary because they failed to achieve a quorum at their regular June meeting. State officials formally informed the board that this did not constitute a valid emergency situation; instead, the board should have properly noticed and rescheduled a regular meeting to handle those financial matters.
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In West Virginia, violating the Open Meetings Act (also known as the Open Governmental Proceedings Act) carries several potential penalties and legal consequences:
- Nullification of Decisions: The primary remedy for a violation is that a circuit court has the authority to completely void or nullify any actions, votes, or decisions made by the governing body during the unlawful meeting.
- Civil and Criminal Penalties: Public officials who commit willful violations of the Open Meetings Act can face personal civil or criminal penalties.
- Attorney Fees and Expenses: If a citizen or party successfully challenges a violation in court, the judge may order the governing body to pay the prevailing party's attorney fees and legal expenses.
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The provided sources do not explicitly state whether a board can hold a "re-vote" to legally fix or cure a past violation, such as an action taken in violation of the Open Meetings Act or an ultra vires act.
However, the sources do explain how violations and procedural defects are handled under West Virginia law:
- Nullification by Courts: Rather than a board fixing its own violation via a re-vote, the primary legal remedy for a violation of the Open Governmental Proceedings Act (such as acting without a legal quorum) is judicial. A circuit court has the authority to completely nullify the body's decision and declare the action void.
- "Curing" Eligibility Defects: The concept of "curing" a defect is mentioned in the context of an official's qualifications. If an individual is ineligible for office at the time of their election but becomes eligible before their swearing-in, the act of taking the oath of office officially "cures" the prior defect.
- Re-votes for Procedural Deadlocks: While the sources do not show a re-vote being used to fix a legal violation, they do show the board using a re-vote to fix a procedural stalemate. During a February 2026 special session, a vote on the controversial transfer station agreement ended in a 2-2 tie because the West Virginia State Ethics Commission advised that a member's abstention had to be counted as a "no" vote. To break this deadlock, the board held a re-vote at their subsequent regular meeting on February 25, 2026, where the proposal was ultimately approved.
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If a public governing body operates without a legally valid quorum, the gathering does not legally constitute a "meeting," and any "decision" reached during that time is considered voidable.
Under West Virginia law, these voidable acts specifically include:
- Final Actions and Votes: Any determination, action, vote, or final disposition of a motion, proposal, or measure that requires a vote by the governing body.
- Deliberations: The quorum requirement applies not just to the final vote, but also to the "deliberation toward a decision". This prevents members from lawfully discussing or reaching a consensus on public matters in private and then holding a perfunctory vote.
Because a quorum is a strict jurisdictional prerequisite, any decisions or ordinances passed without one are legally defective. If a body acts without a legal quorum—such as passing a measure when relying on an unsworn member who is legally barred from exercising authority—a circuit court has the authority to nullify the body's actions and completely void the decision.
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