REGULAR BOARD MEETING of September 19, 2007, with Mayor Pro Tem Amy
Patterson and Commissioners Alan Marsh, Hank Ross, H. N. James, and
Dennis DeWolf present. Mayor Don Mullen was out of Town.
Also present were Richard Betz, Bill Coward, Josh Ward, Selwyn Chalker,
Kim Lewicki, Jim Lewicki, Linsey Wisdom, Eric NeSmith,
Jeff Weller, and Gary Nicholson.
I. Call to Order.
The Mayor Pro Tem called the meeting to order at 7:00 p.m.
II. Approval of Agenda.
Copies of the agenda had been distributed by mail.
MOVED BY COMM. MARSH, SECONDED BY COMM. DEWOLF, AND UNANIMOUSLY CARRIED
TO APPROVE THE AGENDA AS DISTRIBUTED.
III. Special Order.
The Mayor Pro Tem announced that the Board needed to go into closed
session to consult with the Town Attorney, who had to leave the meeting
early, on several legal matters.
MOVED BY COMM. MARSH, SECONDED BY COMM. DEWOLF, AND UNANIMOUSLY CARRIED
TO GO INTO CLOSED SESSION PURSUANT TO G.S. §143-318.11(A)(3) TO
CONSULT WITH THE TOWN ATTORNEY. The Board adjourned to the
adjacent conference room with the Town Administrator and Town Attorney.
The Board consulted with the Town Attorney
concerning a lawsuit which had been filed by Richard D. Oliver and Jo
Karen Busch, the Office of Administrative Hearings decision on
Riverwalk, an offer of settlement in the Bowery Road condemnation
cases, and proposed contracts with Verizon and Northland Cable.
MOVED BY COMM. ROSS, SECONDED BY COMM. DEWOLF, AND UNANIMOUSLY CARRIED
TO GO INTO OPEN SESSION. The Board returned to the meeting room.
Mayor Pro Tem Patterson said that the Board had agreed by consensus to
the following Press Release; copies were provided to the Press who were
present.
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PRESS RELEASE
FROM TOWN OF HIGHLANDS
SEPTEMBER 19, 2007
On September 13, 2007, Administrative Law Judge Beecher R. Gray entered
summary judgment against the Town of Highlands, finding that as a
matter of law the evidence before the Town Board at the hearing on
December 6, 2006 was insufficient to support the BoardÆs levying
of civil penalties of $400,000 against Riverwalk. In his remarks
to the audience, the judge stated that Riverwalk should have been fined
some amount, but that the Board heard, at the December hearing,
insufficient evidence as to the degree and extent of harm and the cost
of rectifying the situation to justify a $400,000 fine. The Town
vigorously opposed the judgeÆs actions, arguing that the evidence
of siltation in the Cullasaja River caused by RiverwalkÆs project
was clear, even if not measured before and after the rain storms with
scientific precision, and that the cost to clean up the silt would be
substantial, even though the Town did not hear evidence of the exact
amount that such clean up would cost.
Judge Gray also denied the TownÆs motion to dismiss
RiverwalkÆs petition on the grounds that the Office of
Administrative Hearings did not have subject matter jurisdiction to
hear the case. The town attorney argued that the Administrative
Procedure Act applied only to "agencies" in the State and the
definition of "agencies" in the Act specifically excludes towns.
Judge Gray agreed, but said that the Sedimentation Pollution Control
Act carved out an exception to this general rule by providing for
appeals in such cases to go through the Office of Administrative
Hearings.
It appears that the rulings by Judge Gray came as a surprise to all, as
the parties were engaged in settlement discussions involving
substantial payments by Riverwalk immediately prior to the
rulings. Whether obtained in settlement or after hearing, all
amounts collected from Riverwalk were, under North CarolinaÆs
Constitution, destined to be collected by the State and ultimately
distributed to the Macon County School Board.
The Town Board has not decided whether to appeal Judge Gray's
decision. The Board feels that the levying of the civil penalties
last December was necessary to send a clear message to Riverwalk and
others that the Board takes all violations of its erosion ordinance
very seriously and that it is committed to protecting the
environment. The Board emphasized that the maximum penalty for
violations of the erosion ordinance remains $5000 per day. Anyone
with questions about the requirements of the ordinance should contact
the Town office before commencing any land-disturbing activity.
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IV. Approval of Minutes.
Copies of the minutes of the September 5 Regular Board Meeting had been
distributed by mail.
MOVED BY COMM. MARSH, SECONDED BY COMM. DEWOLF, AND UNANIMOUSLY CARRIED
TO APPROVE THE MINUTES AS DISTRIBUTED.
V. Reports.
1. Comm. Marsh reported that the Public Works
Committee had met earlier in the day with D.O.T. District Engineer
Wesley Grindstaff and Senator John Snow concerning the paving of
several roads now maintained by the State. Mr. Grindstaff had
agreed to provide an estimate on paving with BST to existing width
Hickory Hill Road, Chowan Drive, and Cullasaja Drive; the roads would
then become Town-maintained. Senator Snow had offered to apply
for discretionary funds, in cooperation with Rep. Roger West, for the
paving when the cost was known. Comm. James said that Sen. Snow
had seemed optimistic about obtaining the funding.
2. The Town Administrator reported on two interns
working through the Institute for the Environment at the Highlands
Biological Station; one would be mapping perennial streams and meeting
with DWQ officials, the other would be working with ordinances and GIS
technology on the Greenways Program. He also said he had
discussed with Mayor Mullen re-scheduling the November 21 meeting to
November 14 because Thanksgiving was November 22; the Board
agreed by consensus to re-schedule the meeting. He reported that
Brian McClellan had asked him to poll the Board to see if they could
meet with the County Commissioners in an informal dinner meeting on
October 4 to discuss Recreation Funding and the Solid Waste Transfer
Station; Board members had no conflicts with the date. He also
recommended that the Board appoint an ad hoc committee to select
benches for the new planters on Main Street; Comms. Dewolf and Ross
agreed to serve on this Committee.
VI. Old Business.
1. The Board discussed at length its recreation
facilities, including those facilities listed on the previous
Memorandum of Understanding for County funding. The consensus of
the Board was that the Community Building (formerly Conference Center)
and the Performing Arts Center should not be included because the Town
currently had lease agreements for these facilities. It was also
agreed that Pine Street Park should not be included. Jeff Weller
was present and expressed concerns over equitable treatment; he said
Recreation in Highlands provided a lot more services than down in the
County. Recreation Director Selwyn Chalker pointed out that the
80-page plan included only 21 lines for Highlands. Comm. DeWolf
also said that he felt the Town's representative on the County
Recreation Commission should be a resident of the Town of Highlands;
Comm. Ross agreed, and said he felt representation should be
proportional.
Comm. James pointed out that the other topic of discussion in the
proposed joint meeting was the Solid Waste Transfer Station. He
felt that this was an extension of the County's solid waste services
and should be funded by the County, and the Board agreed by consensus.
VII. New Business.
1. Josh Ward briefed the Board on the upcoming
Floodplain Ordinance which the Town would be mandated to adopt.
He said that maps had been finalized by the North Carolina Floodplain
Mapping program, and he reviewed them with the Board; areas around the
lakes and rivers, and a large area in the vicinity of Laurel and
Chestnut Streets, were all included in the 100-year- flood areas.
He said a public meeting was scheduled for October 2 on the map, there
would be an appeal time of 90 days, and then the Town would be required
to adopt an Ordinance within six months. He recommended adopting
a similar ordinance to that which Macon County had been working on for
some time, with input from the Upper Cullasaja Watershed Association,
implemented through a Floodplain Overlay District on the zoning map
similar to the watershed regulations. The Ordinance would also
allow residents to obtain flood insurance, and would open the door to
FEMA funding for the Town in the event of future flooding.
2. MOVED BY COMM. MARSH, SECONDED BY COMM. DEWOLF,
AND UNANIMOUSLY CARRIED TO GO INTO CLOSED SESSION PURSUANT TO G.S.
§143-318.11(A)(6) TO REVIEW APPLICATIONS FOR EMPLOYMENT, AND TO
DISCUSS A PERSONNEL MATTER. All those present left the meeting
room except the Town Administrator and Gary Nicholson.
A. The Board reviewed applications
for the Planning Director position with consultant Gary Nicholson.
B. The Board reviewed a personnel
and legal matter concerning former Police Officer Jimmy McCall.
The Board agreed by consensus to go into open session.
VIII. The Board agreed by consensus to adjourn.
There being no further business to come before the Board, the meeting
was declared by the Mayor Pro Tem to be adjourned at 9:10 p.m.
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Richard Betz, Town Clerk