Swain County moratorium could stop Duke substation

Swain County has entered the fight over Duke Energy’s proposed electrical substation that would mar views in a rural farming valley near a highly sacred Cherokee site.

Swain commissioners are considering a moratorium that would halt any electrical and telecommunications substations that require either a county building permit or soil and erosion permit. The county has scheduled a public hearing on the moratorium for Tuesday, March 9, at 1 p.m. at the county administration building.

According to County Manager Kevin King, the moratorium is intended to give the county time to develop an ordinance regulating substations.

County Chairman Glenn Jones said the moratorium was not aimed at the Duke Energy substation project directly, but it was an outgrowth of talks between the commissioners, Duke leadership and Cherokee tribal leaders over the issue.

“We’re not going to pass anything that’s just going to be detrimental, but we wanted to pass something so people can’t start scratching around without talking to us,” Jones said.

Site preparation for the substation pad began last November on a mountainside tract in the Ela community between Bryson City and Cherokee. Duke never received any county permits for the work and did not file an application with the North Carolina Utilities Commission.

Swain County commissioners learned of the extent of the substation and line upgrade projects only after members of the Eastern Band of Cherokee Indians came to a board meeting to complain. Cherokee is upset that the substation and associated transmission lines will impact the character of Kituwah, which historically served as the spiritual and political center of the Cherokee.

Jones said the commissioners plan to pass the moratorium at the special public hearing next week and have an ordinance in place within 60 days.

“Within 60 days, we’ll have some kind of ordinance in place so we can move forward,” Jones said.

King said county commissioners came away from the meeting last month in Cherokee realizing they needed their own regulations. At that meeting, Duke Energy Carolinas President Brett Carter made it clear the reason his company had consulted with Jackson County over the substation and transmission line project was that their ordinances required it.

“He made it clear that if you have a local ordinance, you’d have a seat at the table, and if you don’t have an ordinance, you don’t have a seat at the table,” King said.

Swain Commissioner David Monteith said the moratorium was a way to bring Duke to the table now and in the future.

“I think the moratorium is a way to get them to sit down and talk with us, not only now but even more so in the future,” Monteith said. “I feel that Duke owes the people of Swain County and Western North Carolina more respect than what they’ve given us ... which is nothing.”

 

Immediate remedy or long-term goal?

It’s not clear whether Duke’s current substation project will be directly affected by the moratorium or the ordinance the county puts in place.

King said Duke’s regional manager Fred Alexander was concerned enough to call and ask him if the moratorium would affect the substation.

“He was basically asking whether this would impeded the project, and I said he’d probably need to consult their attorneys on that,” King said.

Duke spokesman Jason Walls said it was too early to tell how the moratorium would affect the project, but the company’s attorneys would review the documents as they were made available.

“We’re engaged with the county to better understand what the moratorium would entail and until we see the actual document, we won’t know how it might affect the company’s plans,” Walls said.

David Owens –– a professor at UNC-Chapel Hill’s Institute of Government who specializes in land-use law –– believes Duke would have to make the case that they had a vested right in the project to claim exemption from the moratorium. Under vested rights claims, developers who are already underway with a project can be exempt from regulations that come along later.

“They would have to show that they’d sunk some cost in this particular location and those costs would be lost if the structure were moved to a different site,” Owens said.

Owens said the announcement of a public hearing on a moratorium by Swain commissioners sets the stage for whatever legal arguments are to come.

“Once a county sends a notice of a moratorium, that freezes the status quo,” Owens said. “The question is what is Duke’s position at that point.”

In 2006, state legislators tightened the laws governing moratoria imposed by local governments. The statute mandates that counties state the problems that necessitate a moratorium, list the development projects that could be affected, name a date for the end of the moratorium, and develop a list of actions designed to remedy the problem.

 

Us and them

Duke is currently in negotiations with the Eastern Band over whether to mitigate the visual impact of the substation or move the project altogether. Swain County’s actions have added pressure to the energy giant.

King said the fact that many tribal members are Swain County residents motivated the commissioners to act.

“Every tribal member that lives in Swain County votes in our election, so as far as the board is concerned there is no ‘us’ and ‘them.’ It’s all ‘us,’” King said.

Both the county and the tribe have offered Duke alternative sites for the substation. King said he offered a site in the county’s industrial park.

“That’s an area that’s visually polluted already,” King said. “We’re trying to deliver alternatives. The tribe is trying to deliver alternatives, and hopefully we can all get this resolved.”

Swain County officials have stressed, as has the tribe, that they prefer an amicable resolution to the issue rather than a legal battle.

“If coming out of this we could get an open dialogue with Duke, this can be a positive thing for Swain County in the future,” Monteith said.

Two studies, two takes on moratorium’s effects

When County Commissioner Will Shelton gave up time on his farm and with his four young children to run for political office in Jackson County last year, he made a pledge to voters to address the uncontrolled growth sweeping the county.

Planning office, advisory board to decide who keeps working

Jackson County planner Linda Cable has more than 60 applications on her desk from developers who hope the moratorium won’t apply to them.

Compromise eases moratorium’s chill

Jackson County commissioners approved a five-month moratorium on new subdivisions in a 4 to 1 vote last week, but not without tacking on a compromise measure that will give developers caught in the lurch a way out.

What commissioners said

Chairman Brian McMahan, lone “no” vote

“I’ve thought long and hard about this process. I thought about what will the moratorium accomplish? What would the consequences potentially be? It’s not really going to stop anything. There will be more houses built in the months to come. To say we are going to stop all development, that’s not what’s going to happen. All it is going to do is put a halt for five months. Then I had to weigh ‘What’s the consequences?’ We don’t really know what’s going to happen. If there’s a chance it could put somebody out of work, then I don’t think I could support it. I don’t want to take any chances. Let’s just ride this ship on out and adopt a good ordinance in a couple months.”

Commissioner Tom Massie, “yes” vote

“Despite what some people have said this is not an action this board is undertaking lightly or irresponsibly or anything else. What we do know not only from the public hearings but the hundreds and hundreds of emails, letters and phone calls, is the majority of citizens in Jackson County are agreed on a few things. They want people to continue to work. They want the building to continue to start. But they want responsible development and they also want standards. They want to protect the natural resources. They also want adequate time for the planning board to come up with thoughtful, responsible subdivision standards. I think this is as good a compromise we can come up with in Jackson County.”

Commissioner Mark Jones, “yes” vote

“I have builders and contractors on both sides of this fence. Not only has it been a divisive matter, but it even has in my own district. It has caused quite a lot of pressure on commissioners to come up with a compromise to avoid some of the hardship cases we have heard about.”

Commissioner Joe Cowan, “yes” vote

“Our job is to balance the competing interests as best we can. We did not have our minds made up because we have come up with a significant number of what I call compromises. I would like to thank this board for keeping an open mind. We have something now that nobody is going to lose any jobs from. Development can continue under the agreement yet we can meet our goal of high standards.”

Commissioner William Shelton, “yes” vote

“One word comes to mind and that’s sustainability. How do we balance what is happening in this county? It’s been stated that this area, the Appalachian Region, is the number one area for development over the next how many years. One phrase I hear more than any other is ‘We’ve got to do something. We’ve got to do something.’ The question is what do we do?

I’ve put more thought into this than anything in my life. I have heard these people afraid for their careers loud and clear. (The compromise) will give developers an opportunity to continue with these properties and developments and address the issue of job loss, which is questionable to me to begin with.”

Moratorium debate reveals deep rift in Jackson

The debate over a proposed moratorium on new subdivisions in Jackson County is divided into two main camps: those who claim an economic downturn will result and those who feel protecting the mountains from unsavory development is critical to the county’s future.

Crowded, contentious hearing remains civil

More than 1,300 people crowded into the public hearing last week over a proposed moratorium on new subdivisions in Jackson County.

Emotions build in run-up to moratorium hearing

Frenzy surrounding a proposed moratorium on new subdivisions in Jackson County reached a fever pitch in the run-up to a public hearing on the issue Tuesday night.

Moratorium will preserve building industry, not destroy it

The Jackson County commissioners should move forward with their temporary subdivision moratorium, notwithstanding all the concerns that have been raised about this proposal.

Development industry opposes subdivision moratorium

By Sarah Kucharski • Staff Writer

A group of about 20 angry Realtors and developers showed up uninvited at a special media briefing Thursday to have another crack at Jackson County officials and further express their dissatisfaction with commissioners’ moves toward enacting a moratorium on subdivision development.

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