Haywood County commissioner sent a strong message to Raleigh this week, chastising state government for not stepping in to help when the county got sued by a landowner when trying to enforce erosion control standards.
The county spent $282,000 on attorney fees to defend the case. The county lost and chose to cut its losses and settle out of court, forking over another $75,000 from county coffers.
“The state needs to step in with its attorneys and defend a lawsuit like this,” Commissioner Kevin Ensley said. “They should not expect the taxpayers of that county to fund it.”
Fewer than half the counties in the state handle their own erosion enforcement, but instead turn the job over to the state, since the erosion laws are in fact state laws.
Commissioners said it was unfair that the county should bear the burden of liability and was a deterrent to continuing erosion oversight in-house.
The head of the state sediment and erosion control division, Mel Nevils, came to the meeting from Raleigh to beg the county not to give up on local erosion oversight. Nevils said the lawsuit was unwarranted and the county had acted appropriately, even following Nevils’ own recommendation in the matter.
Ensley told Nevils that if the county is doing such a great job then the state needs to ante up should the county get sued in the course of doing its job. Ensley told Nevils to take that message back to “whoever his bosses are.”
Commissioner Skeeter Curtis jumped on Nevils as well.
“Can you tell the people of Haywood County why you refused to come in a defend this case or provide legal fees?” Curtis asked.
Commissioner Mark Swanger said the county wants to develop a threshold or litmus test for high-risk cases, which could then be handed off to the state to absolve the county of the liability.
“The state has deeper pockets and resources than does Haywood County,” Swanger said.
“What we don’t want is for everyone to send us all their problem sites,” Nevils said. “I can’t tell you we would take a case just because y’all felt you might get sued by it.”
Swanger pointed out the hypocrisy of the state’s stance. Haywood County could walk away from local erosion oversight altogether, dumping the entire responsibility on the state. The state would then have to assume oversight of every erosion permit in Haywood County, not just one or two that the county wanted to pass off as high risk.
Swanger didn’t let up, but continued to push the point, asking again and again over the course of the nearly two-hour discussion whether Nevils would make a commitment to take certain cases.
“We need something that can act as a buffer,” Swanger said. “We simply cannot afford that kind of fees for this program without some kind of assistance from the state.”
“The state can’t afford to pay that either. That is taxpayers money as well,” Nevils replied.
Nevils said he couldn’t make any promises, and that perhaps a change was needed at the legislative level.
Swanger said Nevils indeed had the power to accept certain cases referred up the ladder to the state. Nevils said he would not make a wholesale promise but at least agreed to consider it.
The lawsuit has unfortunately made county erosion inspectors gun shy, commissioners said.
“It weakened the local program. There has been a lot of damage,” Curtis said. “It is a shame it has to be that way.”
Nevils said the state has seen a handful of cases with facts very similar to this one — where a landowner claimed roads were for logging but appeared to be for development — and all were won by the state.
“Then why didn’t we win this one?” Curtis asked.
The audience shifted uneasily in their seats waiting for Nevils’ nswer. Critics of the outcome have largely pointed fingers at the judge as being off base. Judge Laura Bridges heard the case while on temporary assignment in Haywood County due to a vacancy on the bench locally.
Nevils hesitated before saying that in his opinion the ruling was “not an appropriate ruling.”
“I was shocked at the ruling,” Nevils said.
N.C. Rep. Ray Rapp, D-Mars Hill, attended the commissioners’ discussion of the issue.
“This is a judicial decision that absolutely leaves me dumbfounded and puzzled,” Rapp said. “Haywood County to me is a model. You have top-notch people.”
What the case was about
When Ron Cameron built a 1.6-mile road network on a 66-acre tract up Camp Branch in Waynesville, he claimed the roads were for logging. Logging activity falls under a laxer set of erosion rules than residential development, which is held to a more stringent standard.
The county questioned the landowner’s true motives, however, citing Cameron’s creation of a development master plan, registering a subdivision name with the county and applying for a septic tank evaluation. The county insisted on holding him to the higher erosion standard and levied him with hefty fines. Cameron sued to get out from under the county’s jurisdiction, ultimately prevailing in a three-week trial in May.
Today, Cameron has the land up for sale. It’s being billed by his Realtor as perfect for development. One of the selling points listed in ads: “Roads already in.”
Cameron recently applied for a septic tank permit for a five-bedroom house on this presumed forestry tract.