Dam fight between Duke, Jackson goes to federal court
Jackson County’s lawsuit against Duke Energy to seize the Dillsboro Dam and surrounding river shore through eminent domain has been kicked up to federal court.
Jackson County filed the condemnation lawsuit in state court in August, but Duke attorneys argued that federal law is in play and therefore the case belongs in federal court. While state law allows for the condemnation of land by a county to create parks and recreation facilities, Duke claims that the Federal Power Law governing utilities preempts state statutes.
The case could ultimately come down to the interpretation of both state and federal laws.
Meanwhile, the county was seeking a restraining order against Duke to keep the utility from demolishing, altering or removing any part of the dam or nearby powerhouse while waiting for the condemnation suit to be heard. Jackson County wants to transform the dam and surrounding shoreline of the Tuckasegee into a river park and promenade, replete with walking paths, benches, fishing areas and river access. The dam and powerhouse are intended as focal points and therefore must be protected through a preliminary injunction, Jackson pleaded.
But Duke says it does not plan to start demolishing the dam until January 2010.
For that reason, Jackson County’s request for a restraining order to stave of demolition is unnecessary for the time being, Judge Martin Reidinger ruled.
Jackson County can “refile such motions for a temporary restraining order as may be necessary,” Reidinger wrote in his ruling.
WCU ranks highly among master’s degree universities
The latest U.S. News & World Report guide to “America’s Best Colleges” ranks Western Carolina University 10th among public universities in the South that offer master’s degrees.
It is the first time WCU has made the U.S. News top 10 list of Southern public master’s institutions.
“Western Carolina has moved steadily up the rankings over the past few years, and we are glad to see that trend continue again this year,” said WCU Chancellor John Bardo. “In recent years, our College of Education and Allied Professions has received two major national honors, and our academic programs in business administration, project management, criminal justice and entrepreneurship have earned high national rankings.”
Still, Bardo cautioned prospective students against putting too much stock in rankings when they are making the important decision of where to go to college. “After students narrow down their list of prospective colleges to a handful, they should visit the various campuses to get a feel about which one is right for them,” he said.
WCU representatives will hold open house sessions on the Cullowhee campus to allow prospective students to do just that on Oct. 3, Nov. 14, Feb. 17 and April 17.
For information about those events and other information about undergraduate and graduate admissions at WCU, visit admissions.wcu.edu.
WCU partners with Dillsboro
Western Carolina University has entered into a partnership with the municipality of Dillsboro to provide assistance in building the town’s economy after the recent departure of the Great Smoky Mountains Railroad.
WCU has become involved with the town through its Quality Enhancement Plan, an effort to enhance undergraduate education by linking student experiences in and out of the classroom, and its responses to UNC Tomorrow, a university system initiative to help solve critical statewide problems.
“What a tremendous opportunity this gives the students, and the citizens and the merchants of Dillsboro,” said Mayor Jean Hartbarger.
WCU Chancellor John Bardo said the university will recruit students who are academically prepared, conduct a strategic program analysis of all academic programs and examine the structure of the university to ensure the university is well-positioned to provide assistance to surrounding communities.
The university will try to emphasize quality in spite of an 8 percent budget cut of approximately $8 million, and the loss of 92 positions last fiscal year, Bardo said. Although the majority of those eliminated positions were vacant, about 31 of them were filled. “The WCU family was hurt by the state budget situation,” Bardo said. “All of us have had to take furloughs. We have had to lay off members of the family, and that hurts.”
The university is facing an additional $200,000 in cuts but can manage those without additional layoffs, he said
Lawsuit filed to seize Dillsboro dam
Jackson County has formally filed a lawsuit against Duke Energy to seize the Dillsboro Dam and surrounding river shore, using eminent domain to create a public park and in the process save the dam from being torn down.
The county is also seeking a preliminary injunction against Duke to keep the utility from demolishing, altering or removing any part of the dam or nearby powerhouse.
“Duke intends to immediately begin preparing the Dillsboro Dam and Powerhouse for demolition and removal,” the lawsuit states. But any forays toward removal would cause “irreparable harm as these historic structures cannot be replaced.”
Jackson County wants to transform the dam and surrounding shoreline of the Tuckasegee into a river park and promenade, replete with walking paths, benches, fishing areas and river access. The dam and powerhouse are intended as focal points in the county’s Dillsboro Heritage Park Plan, and, therefore, must be protected through a preliminary injunction against Duke, Jackson pleads.
The injunction also seeks to allow county officials to come onto Duke’s property. Duke had threatened the county with trespassing charges if it attempted to do so, keeping the county from surveying the property it plans to seize or conduct an appraisal.
The lawsuit claims the county is within its rights to seize the property under a state statue allowing for eminent domain for the purpose of creating, enlarging or improving a park or other recreational facility.
Duke has previously countered that condemnation would interfere with an order from the Federal Energy Regulatory Commission to tear down the dam. Jackson claims that the “order” to tear down the dam is being misrepresented by Duke and that FERC merely granted Duke permission to tear it down. Once Duke no longer owns the dam, the FERC ruling will become moot, Jackson argues.
Jackson points out in the suit that the hydropower operation at the Dillsboro dam has been offline for five years, and therefore isn’t a core part of Duke’s business operation. In addition, Duke no longer has a federal license to operate the dam, having relinquished it in anticipation of demolition.
The county would be required to compensate Duke for the monetary value of the dam if condemnation is successful. At the time of filing the condemnation suit, the county was supposed to deposit the money upfront in an escrow account with the courts.
However, Jackson County only deposited $1. The county argues that by seizing the dam, Duke has been saved the trouble and expense of tearing it down, an undertaking that would have cost more than $1 million. That savings should more than suffice as the monetary compensation Jackson would otherwise owe Duke, the suit argues.
Region to get assisted living campus
A groundbreaking was held last Thursday (July 16) at the site of a new assisted living complex being built in Dillsboro. The event was more symbolic than most of its kind because some of the facility has already been erected; it even has a roof on it. That makes a planned opening early next year doable.
Called The Hermitage, the facility combines assisted living and a memory care community. The “Jackson Memory Care Retreat” will be a self-contained community on the campus.
“It will be a secure area; they will have their own dining room, an activities area, and an outdoor area,” said Allen Osborne, president of the operation’s management company, Third Street Management of Hickory.
Overall, the facility will be home to 90 residents, with 46 in the assisted living side, and 44 beds in the memory care unit for residents suffering from Alzheimer’s disease or other dementia-related problems. Each side will have its own specially trained staff, according to Osborne, with total target employment of between 40 and 50.
“We are recruiting from all over North Carolina,” Osborne said. “We need a licensed administrator — the person who manages day-to-day operations — a resident care coordinator and a special care coordinator. They oversee all the clinical and nursing aspects of our residents’ care.”
Osborne said the facility would also have a full dietary staff, certified nursing assistants, drivers to provide scheduled transportation and other support workers.
The structures will enclose close to 30,000 square feet on more than four acres of land. “It’s a beautiful site, convenient but secluded enough, very residential in feel,” Osborne said. He said the facility would work with WestCare in addressing residents’ medical needs.
“We’ll also be partnering with Western Carolina University on interesting initiatives in gerontology and long-term care,” Osborne said.
Integrated of Florida has done most of the construction, Osborne said. Third Street manages several similar facilities in the state, including Hayesville House and Yancy House in Burnsville.
Osborne said there is definitely a need for the kind of care the facility will provide.
“I’ve talked to the local skilled nursing facility. They have a lot of residents appropriate for this level of care as soon as we open,” he said.
Osborne said need is assessed in terms of drive times in a specific market area.
“Seventy-two percent of folks who live in an assisted living community moved there from within a 30-minute drive time of their previous residence,” he said. “There are 2,700 residents within that 30-minute drive time from this facility that are apparently not served.”
For the memory care unit, the drive-time measure is about 45 minutes.
“That’s because it’s such a specialized demand and specialized service,” Osborne said. “Those who would be in need of this facility within that drive time number about 1,500.”
The existence of a memory care facility within that distance from a resident’s former home is a great benefit, Osborne said.
“That proximity makes it more likely for people’s family to be able to visit and spend time,” Osborne said. “That’s important for any residents, but especially for memory care residents. It does wonderful things for the residents, and also wonderful things for the family.
“We talk about creating five minutes of joy in the memory care facility,” he said. “If you do that several times, by that time you’ve created a very nice day for someone.”
Osborne said the facility expects to be registering residents in late December and open by January 2010.
Dillsboro ups the ante as a green town
Two electric vehicles will soon be tooling around the town of Dillsboro thanks to a state grant aimed at reducing air pollution from vehicles.
Dillsboro hopes the move will raise its profile as a “green” town. The vehicles will be plugged in and recharged rather than running on gas. They have zero tailpipe emissions.
“The electric vehicles will act as a constant advertisement for environmentally sound strategies at every level of town living, and will be the first taste many of our visitors have of the town’s unique character, at once both historic and modern,” according to Kelly McKee, Dillsboro town clerk.
The $30,000 grant will purchase an electric shuttle to move tourists from off-site parking into downtown during festivals. The second one will be an electric maintenance truck to replace the town’s only current vehicle, a 1975 Dodge pickup.
It is estimated that over seven-year cycle, including fuel and maintenance, the two electric vehicles will save a total of $2,000 versus similar conventional vehicles. The town hopes to have them in place by August.
The Mobile Source Emissions Reduction Grant was applied for through the Sustainable Mountain Initiative, a coalition of Dillsboro and the Jackson County Green Energy Park.
Dillsboro quietly assessing merger with Sylva
It appears Dillsboro has launched an official study into the pros and cons of merging with neighboring Sylva, although the planning board chairwoman leading the process was unwilling to release many details.
Dillsboro Planning Board Chairwoman Teresa Dowd asserted that the merger is not a priority at this time.
“It’s a back-burner issue,” Dowd told The Smoky Mountain News. “Nothing’s going to happen. If something happens, I’ll call you.”
Dowd offered little comment on what the Planning Board has done so far to study the issue. She said the Planning Board is gathering demographic data, such as the budgets and populations of the towns, to see if merging is a good idea.
She would not elaborate further on what data had been collected and charged The Smoky Mountain News to do its own research.
However, Dowd did say that the Dillsboro Planning Board may take a field trip during its next regularly scheduled meeting Jan. 21 to Hazelwood, a district of Waynesville. Hazelwood used to be its own town but merged with Waynesville in 1991, providing an example the Planning Board could study.
Under review
Planning Board member Beauford Riddle said making Dillsboro part of Sylva is just in the discussion phase.
“At this point in time we’re seeing if it would be feasible,” said Riddle.
If Dillsboro became part of Sylva, Dillsboro could receive police protection and trash pick up from Sylva. In exchange, Sylva’s tax base would increase.
Dillsboro Alderman John Faulk said he has not made up his mind on the possible merger, noting that the issue is being studied by the planning board, and he is waiting to see what it comes back with.
He realizes that many are opposed to the idea, but Faulk said he is going to keep an open mind until he has all the information.
“Tell us the pros and cons,” Faulk said. “It’s very early in the game.”
Dillsboro Alderman Mike Fitzgerald said he would oppose such a merger.
The process
If and when Dillsboro moves forward with the idea, it would be broached with the town leaders of Sylva. But Sylva Town Commissioner Sarah Graham said the merger is far from being in her board’s hands.
“I have no comment on it until they (Dillsboro) bring it to us as a possibility,” Graham said.
For a merger to happen, the town boards of both Sylva and Dillsboro must approve it. The process would include public hearings.
However, a townwide vote allowing residents to decide the issue isn’t necessarily required, according to David Lawrence at the University of North Carolina Chapel Hill Institute of Government.
Lawrence said a referendum would be necessary if Dillsboro had a lot of debt, and Sylva voters could decide if they wanted to take on that debt.
The state Legislature must finalize any merger.
Merger prospect talk of the town
While Dillsboro leaders claim the idea of merging Sylva is in its mere infancy, opinions on the issue are already swirling in the small town.
Several Dillsboro residents interviewed around town last week said they are opposed to the merger. A top concern is higher property taxes.
“I’d like to see the autonomy of Dillsboro remain,” said resident Robert Stevens. “Right now we determine our own taxes.”
Stevens doesn’t think Dillsboro wouldn’t benefit from a merger. One of the only tangible services is patrol by the Sylva police department. But Stevens said the town is already well-served by the county sheriff’s office, which can get to Dillsboro just as fast as the police department, said Stevens.
And Jill Cooper, owner of Haircuts By Jill in Dillsboro, also opposes the merger.
“I think I like Dillsboro the way it is because it has its own identity and uniqueness,” Cooper said. Cooper moved here from Eastern North Carolina, where she said people all over know about Dillsboro.
While Cooper has lived in Dillsboro only three years, she monitors the pulse of the town through her customers. Many of them are older residents opposed to the town being absorbed by Sylva.
Some interviewed around town though are indifferent to Dillsboro becoming a part of Sylva.
Sylva resident Ted Kay said it doesn’t matter to him either.
“It wouldn’t make any difference to me,” he said.
He said he supports whatever it takes to help Dillsboro survive, adding that Dillsboro probably has trouble generating enough revenue on its own.
However, Kay said it would probably be a burden for Sylva if Dillsboro became part of the city.
It may be a good idea if Dillsboro dissolved as a town and became part of the county, said Dillsboro resident John Clark. Clark said as a resident he isn’t getting anything in return for his taxes anyway, including no garbage pickup or police service, and it would drop the taxes if Dillsboro was part of the county.
Lack of due diligence cited as reason for dam removal protests
The state recently gave Duke Energy the green light to tear down the Dillsboro dam, a move that Jackson County and the town of Franklin are now formally protesting.
Commissioners take a more aggressive stance in Dillsboro dam fight
Jackson County commissioners are contemplating drastic measures in their fight against Duke Energy to stop the Dillsboro dam from being torn down.
Duke convinces Dillsboro to ‘retract’ letter
By Sarah Kucharski • Staff Writer
Dillsboro Mayor Jean Hartbarger has retracted a letter that could have led to a legal squabble with Duke Power.
Hartbarger had signed a letter requesting that the N.C. Division of Water Quality hold a public hearing prior to re-issuing Duke Power water quality certifications for its dams on the Tuckasegee River. After Duke officials claimed that authoring the letter violated the rules of the original stakeholder agreement the town signed as part of the re-licensing process, Hartbarger asked for the letter back from the state.