Legal wrangling heats up in Jackson’s bid to wrest Dillsboro dam away from Duke

Jackson County and Duke Energy squared off this week over the Dillsboro dam, marking the first major head-to-head courtroom battle in the nearly eight-year saga.

Duke Energy wants to tear down the Dillsboro Dam, while Jackson County hopes to save the historic landmark as the focal point of a riverfront park.

Jackson County devoted part of its court time this week to pleading with the judge for a restraining order that would prevent Duke from tearing down the Dillsboro dam.

It could be months before Jackson County gets a legal ruling on its attempt to seize the dam by the power of eminent domain. By then, however, it will be too late, as Duke previously announced it would start demolition in January.

“This is a historic structure that once taken out can’t be recreated,” Attorney David Ferrell argued on behalf of the county. “It’s a structure that means a great deal to this county. The commissioners of Jackson County believe they are speaking for the citizens in trying to preserve this dam and power house. Without an injunction that’s not going to happen.”

Jackson County wants to preserve the historic dam as the focal point of a river park, replete with walking paths, fishing piers, boat docks and picnic tables.

Kiran Mehta, a Charlotte attorney for Duke, said there would be no lasting harm to Jackson’s river park if Duke tears out the dam. If Jackson County wants a dam so much, it can build a new one in its place, Mehta said.

The protracted arguments in Superior Court this week centered on whether Jackson County can use the power of eminent domain to seize control of the dam and stop Duke from demolishing it.

Duke countered that it was obligated to tear down the dam, citing an order by the Federal Energy Regulatory Commission.

“The county’s suit for condemnation is nothing more than a collateral attack upon and an end run around the FERC order,” said Mehta.

Sherin disputed Metha’s characterization of FERC’s order.

“He talks about this FERC order as if it was the tablet that Moses brought down with the Ten Commandments on it. But it’s not that,” Sherin said. “Duke asked to remove the dam. The FERC said OK.”

Sherin said FERC’s order even contains alternative provisions should circumstances change and the dam not be removed after all.

Duke argued that the interplay of federal agencies and the Federal Power Act make federal court, not state court, the proper legal venue for the case. If successful in getting the case kicked up to federal court, Duke could more easily bog down Jackson’s bid to save the dam.

Jackson County argued that state condemnation law, which gives counties the power to seize property for the creation of parks and recreation areas, stands on its own two legs.

“Duke acts as if federal pre-emption is some sort of blanket that wraps itself around this whole controversy and nullifies all of the county’s rights,” Sherin said.

Who wins and loses

Mehta said that Duke would be irreparably harmed if the dam’s removal is delayed by an injunction.

Mehta claimed Duke could be fined by the Federal Energy Regulatory Commission if it didn’t remove the dam on schedule.

The company is currently in the process of dredging decades worth of sediment from behind the dam before its demolition, a process that might have to be repeated if more sediment accumulates during the delay. Duke also had to relocate bats that nested in the old powerhouse, which is also slated for demolition. The bats could take up residence again, prompting a second round of relocation.

Mehta put a price tag on the delays of $3.4 million in costs to Duke.

Ferrell said the claims were “disingenuous.” He said it was ludicrous to suggest Duke would be fined for failing to remove the dam, if a court order was preventing them from doing so. Ferrell asserted that the federal energy commission doesn’t really care if the dam comes down or not, having granted Duke permission at the company’s own request.

Mehta countered that there are other parties who do care immensely if the dam comes down. Removing the Dillsboro dam was a carefully crafted compromise intended to please disparate special interests concerned with the impacts of Duke’s hydropower network in the region. Duke’s permits for 10 other dams are up for renewal, and to get new permits, it had to come up with environmental mitigation that satisfied everyone. Tearing down the dam pleased environmental agencies who want to see the river restored to its natural state. It also pleased paddlers who wanted a free-flowing river.

Jackson County protested, not only out of a desire to save the historic dam, but also on the premise that another form of mitigation would benefit a greater cross section of the public, such as an environmental trust fund to pay for greenway construction along the Tuckasegee.

Mehta said Jackson lost that fight, but hasn’t been able to give up. The attempt to seize the dam for a park is a last ditch effort to bring down the hard-fought compromise, which could send Duke back to the drawing board, he argued.

“There is no way to calculate the loss that would result from a collapse of the settlement agreement,” Mehta said. “It is incalculable really.”

Ferrell called the injunction a “lynchpin” in Jackson’s case. Unless the judge grants an injunction barring Duke from destroying the dam, Jackson County will be precluded from getting its day in court down the road, Ferrell said.

“That’s what we need first and foremost,” Ferrell said.

Judge Zoro Guice, who heard the arguments in Jackson County Superior Court, said he likely wouldn’t have a decision until January.

An unstable past

Located atop a nearly 3,000-foot mountain in Cullowhee, the Jackson County Airport was built to avoid the low-lying fog that often shrouds the Tuckasegee River Valley. Its unique location provides pilots with an alternative landing strip to lower lying airports like Macon County’s.

However, as a result of its location on a flattened mountaintop, the airport has had to continually deal with issues relating to erosion and runoff. Shortly after its completion in 1976, a landslide forced the closure of approximately 500 feet of the runway. The slide progressively worsened until a repaving project finally restored the runway to 3,003 feet.

In 1990, a storm destroyed the two-story terminal building as it was awaiting renovation. But perhaps the most damning blow came in 2005, when the airport’s inability to cope with a heavy rainstorm resulted in a lawsuit by neighbors on the receiving end of a small landslide.

While commissioners had grown weary of supporting the airport, the county responded to the lawsuit by giving the airport $65,000 in 2007 that triggered the release of approximately $600,000, or four years’ worth, of federal matching grants. The airport authority hired engineers to study the site and make a recommendation.

County Manager Ken Westmoreland, who sits on the airport authority, said the study showed the site was structurally sound but incapable of dealing with heavy rain.

“What was determined was the airport proper is stable, but the problem was it could not handle a major rain event properly. It simply cascaded down the mountain and affected local property owners,” Westmoreland said.

The airport authority subsequently used approximately $500,000 to create a detention pond system capable of handling major rain events and also to upgrade the airport’s communication and approach lighting systems.

Master plan underway for Sylva’s Pinnacle Park

Pinnacle Park, a favorite recreational haunt in Sylva that was once home to the town’s watershed, will benefit from a county effort aimed at mapping and restoring its trail system.

Last Thursday Sylva’s town board signed off on a cooperative deal that would enlist Jackson County’s recreation staff and greenway volunteers to create an inventory of the park’s trail system, including GPS mapping and recommendations for restoration efforts.

Sylva commissioner Sarah Graham, who represents the town on the Jackson County Greenways Project commission, said the new agreement is an unexpected boon that would speed up the pace of developing the parks’ trail system.

“They’re offering a lot of help. I think we’ll get a ton of benefit out of this. It just goes hand in hand with what we’ve been talking about in becoming a walkable town,” Graham said.

The county and town had been working closely on a greenway master plan.

The 1,100-acre Pinnacle Park is within a 10-minute drive for Sylva residents and is a popular destination for hiking, biking and trail riding. The tract once served as the town’s source of drinking water. The town placed it in a conservation easement in 2007 with the Land Trust for the Little Tennessee in exchange for a $3.5 million grant from the N.C. Clean Water Management Trust Fund.

Pinnacle Park, while a favorite among locals in the know, is home to but a few rough trails. Until recently it lacked trail markers and decent parking, improvements which the town has already tackled over the past year with the help of volunteers with the nonprofit Pinnacle Park Foundation.

The town has been making minor improvements from trail signs to foot bridges in a piecemeal fashion by using interest money accrued from the environmental trust fund grant. The new arrangement will add county resources to the mix and speed up the timetable for a finished trail system.

“Slowly over the years we’ve budgeted money out of the interest to improve the park,” Graham said. “It’s just an amazing opportunity to speed up the timeframe for the park’s improvements.”

Emily Elders, recreation project manager for Jackson County, said Pinnacle Park was identified as a priority in the Jackson County Greenways Project master plan adopted in August.

“Pinnacle is one of those places that’s close in so it’s accessible and it was something we felt was really important so we made it a priority in the master plan,” Elder said.


Fixing up trails

The existing trail system, which has developed more or less spontaneously needs significant work, according to Tim Johnson, regional trail representative for the N.C. Department of Environment and Natural Resources.

Johnson provided a report on the current state of the trails, which included a to-do list. Elders said a hands-on action plan is exactly what her volunteer base needs.

“He really recommended that we look at adding some of these things because trail-building is its own profession, and we wanted to lend them the resources we have,” Elders said.

Under the agreement, Elders and the county’s recreation facilities manager, Bryan Cagle, will work in consultation with Johnson to GPS map the existing trail system, identify areas in need of repair or cleanup, and make recommendations for new trails and trail closures. Some of the existing trails have as much as 70 percent slope, which isn’t ideal in terms of safety or erosion control.

The board’s vote also included the stipulation that the county include the Pinnacle Park Foundation in its planning efforts. Elders said the Pinnacle Park Foundation board has already signed off on the mapping of the park and will be closely involved moving forward.

For Elders, the cooperative agreement is a way to mobilize a volunteer-base that has had little to do as the Greenway Project works to secure easements for plots along the Tuckaseegee River .

“It’s actually a really good opportunity for us as a greenway group because we have this master plan with all of these long-term projects and the process can start to feel drawn out,” said Elders. “It really helps to have a project under way in an existing space to get our volunteers involved again and keep the public momentum going.”

Elders started as a full-time project coordinator for the county in September 2008, and since then, she has been able to work directly with the municipalities involved in developing the greenway system.

She said the collaboration between the Town of Sylva and the county on Pinnacle Park has been an example for how the greenway project can come to fruition.

“It’s been really excellent. Both boards have been really involved in the planning process,” Elders said. “We’re trying to work with each of the town boards to implement the master plan and get the projects in place.”

According to the plan Elders presented to Sylva’s board, the Jackson County Greenway Project will present a vetted plan to the town for the Pinnacle Park trail system no later than March 1, 2010.


How to get there

Make a left on Fisher Creek Road a short distance out of town. The road gets rough and steep, but keep going until it dead-ends at the trail head.

Future of Jackson airport up in the air

The Jackson County airport has reached a crossroads.

For years the little aviation field above the clouds has been a financial burden on the county. Now, with its governing body dwindling in number and its revenues lagging behind its operating costs, the board of commissioners has to decide whether to invest in its expansion or put a lid on it.

For County Commissioner Tom Massie, the decision is pretty clear.

“The airport has been somewhat of a millstone around the board’s neck since the 1970s,” Massie said. “A lot of people in Jackson County don’t even think we need an airport.”

Massie and fellow Commissioner Joe Cowan see the airport as a county service that is more a luxury than necessity.

“Just to cut to the chase, a lot of people have felt from the beginning with the airport that it really couldn’t be justified in terms of taxpayer dollars when less than 1 percent of the people in the county use it,” Cowan said.

But defenders of the airport argue that it’s fallen victim to local politics and bad luck, and that it offers more than just a luxury playground for handful of private plane owners.

Jim Rowell, a local pilot who sat on the airport authority before being removed and reinstated in 2005, believes the board is punishing the airport for what amounts to political grievances.

Rowell said the airport is an important piece of infrastructure that the county can maintain without a huge investment, thanks to state and federal matching grants. Essentially, the county is eligible for $150,000 of matching grants each year in return for an annual investment of just under $17,000.

“If you want to know the value of an airport to a county, talk to a county that doesn’t have one,” Rowell said. “I don’t understand the mentality of county commissioners who will spend hundreds of thousands of dollars on lawsuits they know they can’t win, give large raises to their highest paid employees when they can’t afford it, and they can’t come up with $17,000 for the airport.”

But the argument over the airport’s future is not just about money. It’s about whether the county can forgive its past.


Economic development or financial drain

In 2005, a major rainstorm became the airport’s latest calamity. It cost the county more than $60,000 in legal fees to beat a lawsuit brought by neighboring property owners whose land was inundated with mud and runoff from the airport.

The county eventually won its lawsuit, but the fallout and expenses are still on the minds of the commissioners, who see the airport as a drain on the budget and not as an engine of economic development.

“We’ve virtually been in lawsuits from day one,” said Massie. “Whatever it’s generated we’ve probably paid out to lawyers. I don’t believe anyone can point to concrete proof that it has created economic development.”

Bill Austin, a local pilot who has been heavily involved with the airport authority, said the airport has both direct and indirect economic development benefits, basically because it offers a way for businesses and property owners to find Jackson County.

Austin relocated to the area after his retirement from the military because of its airport, he said.

“I knew nothing about Jackson County when I bought my first piece of property here,” Austin said. “I saw the airport on the chart. I flew in and said ‘This is it’.”

Austin believes the airport has played a role in bringing in high-profile national corporations like Wal-Mart, because their site development scouts had an easy way into the county. Austin has seen executives with Harrah’s Casino fly in and out of the airport, more anecdotal proof of its importance to the region.

Rowell doesn’t understand how a regional airport that carries the county’s name could be such a low priority for its commissioners.

“This is the Jackson County airport,” said Rowell. “One way or another you’ve got to put some money into it. The airport is working hard to make itself a viable entity and all they need is matching money.”

The ongoing struggle between the airport authority and the county commissioners over the $17,000 required to release the federal matching grants has come to a head.

Board members like Cowan and Massie argue that the airport should generate its own revenue to meet the match. Rowell and Austin argue they would already be self-sufficient if not for the landslide following heavy rains and the county’s stinginess.


The power struggle

The current airport authority’s chairman, Greg Hall, announced recently that he was stepping down from his position at the end of the year. The airport board was already operating with just three of the five members it is supposed to have, due to failure by the county commissioners to appoint the additional members.

Hall’s departure will leave only the board with just two members –– County Manager Ken Westmoreland and Sylva business owner Jason Kimenker.

Kimenker appeared at the board’s meeting last week to urge them to appoint new members to the authority.

“I am here to make it pretty clear that we are having trouble at the airport with only three out of the five people were are supposed to have,” Kimenker said. “As of January 2010, we will have only two members. I would appreciate it so much if the county commissioners could have appointments made appropriately so we can run the airport as we have been tasked to do so.”

The airport authority is a state-sanctioned governing body independent of the county. Its original charter set it up as a self-promulgating board with the power to name replacements when a member stepped down.

The county board, unhappy with its lack of oversight, took over the role of appointing airport members in 2007, a move that required special state legislation setting up the new power structure.

Under the new setup, the authority recommends its picks for the board, but ultimately, the commissioners can appoint whoever they want.

Rowell said the board has stood by and watched as the authority’s numbers have dwindled, however.

“Three times the airport authority has submitted names to the (commissioners), and they’ve not chose either of the names nor have they brought forward anyone else,” Rowell said.

At a time when the airport is in need of open, honest discussion, Rowell believes the board is circling its wagons.

“The trouble now is you don’t have the pilots and the public and the commissioners and all the stakeholders sitting down to say what are we going to do with this thing?” said Rowell. “But that’s exactly what we were doing a few years ago.”

The county board and the airport authority worked closely together at one point, working out a 10-year plan and setting aside money from N.C. Department of Transportation grants for the potential construction of revenue-generating “T-hangars,” which are essentially personal parking spaces for private aircraft.

In 2005, the relationship between the commissioners and the airport authority fell apart when the commissioners removed two members — its chair Tom McClure and Rowell.

Rowell said the political struggle that resulted in his removal was merely fallout from a separate controversy over the Economic Development Committee, which McClure chaired as well. The county decided McClure was doing a poor job heading up economic development, and in the process of removing him from that post unseated him from the airport authority for good measure.

Rowell and McClure sued the county over their removal and won. Rowell believes bad feelings from that power struggle have made certain board members opposed to the airport’s best interests.


Where to go from here?

Earlier this month, Cowan said the board needed to revisit the issue of the airport and come up with a mission for the airport authority before appointing replacement members. He said the commissioners would take up the issue at a workshop in December.

The decision facing the commissioners is essentially what to do with an airport they don’t want to run. Because of commitments attached to federal matching grants, the county can’t shut its airport down without paying back nearly a million dollars.

The airport authority has urged the board to release its last two years of matching grant funding. According to Westmoreland, the authority has the potential to tap into as much as $300,000 in grant money currently on the table — essentially two years worth of federal allocations — if the county is willing to put up a 10 percent match.

Coupled with existing money in the airport’s reserves, the grants could fund construction of eight T-hangars at a total cost of $424,000. The airport has more than 50 people on a waiting list for permanent hangars for their private planes. Austin said the hangars would generate about $24,000 per year of revenue to supplant operating costs at the airport.

Meanwhile N.C. DOT and the FAA have indicated they would supply grant money to give the airport a GPS approach system if the airport would widen its runway by 10 feet, a project that would cost around the same amount as the hangars.

“The authority is going to have to make a decision which way it goes first,” Westmoreland said. “We don’t have the money to do both at once.”

Massie, though, said the board is not in the mood to spend any more money on the airport besides what is required to protect the public.

“We will do what is necessary to make sure the flying public is safe and the citizens of Jackson County are safe, but I don’t think our board is going to participate in any kind of expansion of those facilities,” Massie said.

Commissioner William Shelton said he is also against any expansion of the airport. He believes the airport is useful to the county on some level, but he is concerned that it has become a drain on the budget.

“Anytime you can spend $16,000 to get $150,000, that is hard to pass up,” Shelton said of the grant. “But it is still tax dollars so you have to justify it to the taxpayer. So how do you justify it?”

Austin rejects that reasoning.

“$16,000 a year out of a $61 million budget? Is there really such a drain on the taxpayer?” Austin said.

A major sticking point in the argument is that for a long time the airport authority has talked about becoming a self-sufficient entity, capable of covering its operating costs and supplying the money to obtain matching grants, but that goal has yet to materialize.

Recently, the airport suffered another freak setback when its brand new lighting system was hit by a lightning strike. New lights would cost nearly $150,000.

The airport’s defenders claim that if the county releases its portion of the matching money, then the airport will be back on the road to self-sufficiency. But the commissioners say they’ve heard that line before, which is why they refused to release the matching grant last year.

Jackson commissioners faced with resigning EDC members

Four of the nine members on the Jackson County Economic Development Commission have resigned in the past month, signaling growing frustration among a board that lacks clear direction from the county commissioners.

The director of the EDC had already resigned this summer, and on her way out, she called the EDC board and its relationship with the county dysfunctional. Her parting recommendation was to dissolve the EDC and create a new entity. The current EDC continued to be haunted by old baggage and controversy, including a power struggle with the county.

The EDC board complained this summer that it had no real authority but had been relegated to a mere advisory role, and furthermore, the county didn’t seem interested in its advice. The county provides the lion’s share of funding for the EDC, however, and saw no problem with the entity serving in an advisory-only capacity.

The county commissioners had shown no movement to acknowledge the concerns nor hire a replacement EDC director, prompting the resignations.

“The county administration has more or less taken over the work of the Economic Development Commission,” Attorney Jay Coward wrote in his resignation letter, adding that he “cannot justify further participation.”

The county commissioners are planning to talk about a new strategy for the economic development commission during a workshop in December.

Commissioners perplexed by white paint samples

Jackson County Commissioners pondered paint samples at their meeting this week in an attempt to pick an exterior color for the new library beside the historic courthouse.

“I like white,” said Chairman Brian McMahan. “It’s historically been known as a white building and should be kept that way.”

Fellow commissioners seemed to agree that the new library should be white in keeping with the historic icon perched on the hillside over Sylva, but the decision didn’t end there.

“There are different types of white. There’s an eggshell white and a bright white,” McMahan said.

McMahan recently got a lesson in the myriad hues of white when he tried to buy a can of the stuff to repaint the hallway in his house.

“They said, ‘What color white do you want?’ I didn’t realize there were so many shades of white,” McMahan said.

He ultimately made what he called the right choice: deferring to his wife.

When McMahan turned to the other commissioners and asked them to weigh in, they shifted uncomfortably in their chairs.

“I don’t know. I will have to ask my wife,” Commissioner Tom Massie replied. “I am smart enough to know to get any good woman’s opinion on this.”

Commissioner Mark Jones explained that he was colorblind, recusing himself from the discussion.

Commissioner William Shelton said his wife has ample experience when it comes to paint colors.

“You would be shocked to know how many times my wife has changed colors in our house,” Shelton said.

Shelton said the color on a tiny swatch never seems to look the same once it gets on the wall.

“I think it would be a good idea to slap some on there to see what it looks like,” Shelton said.

The architect for the library, Donnie Love, said that approach could certainly be arranged, perhaps by painting a few choices on a wall or two.

“We could let anyone who wanted to go have a look at it,” Love said.

Shelton suggested eliciting feedback from the Friends of the Library group, which is raising money for the new library.

“We’d be happy to,” responded Mary Otto Selzer, co-chair of the library capital campaign committee, who was sitting in the audience.

Sylva ColorFest showcases work of regional artists

Downtown Sylva will host ColorFest: Art of the Blue Ridge from 10 a.m. to 4 p.m. Oct. 24. The event spotlights Western North Carolina artists’ work in shops and on Main Street sidewalks.

Artists will be demonstrating their work throughout the day, with several venues also featuring live music by performers including Karen Barnes, Chris Cooper and Ron Smith among others.

• It’s By Nature hosts Jack Stern, a national award-winning artist who creates large scale paintings of “mountains, water and light”

• Peebles spotlights well-known watercolorist Pamela Haddock showing original art based on local scenes of the Great Smoky Mountains and Michael Rogers, famed painter of the Appalachian Trail Series.

• Blew Glass has a fellow glass artist, Neal Hearn, who will show his glass boxes.

• Nichol’s House features artist Mark Copple, painter of still life and nature.

• Shot in the Dark Cafe shows two sisters’ artwork, Audrey Hayes and D. Hayes Mayer.

• Lulu’s Restaurant showcases Jane Revay, who shows her vividly colored mountain landscapes painted in oil on canvas.

• Underground Cafe & Coffee Shop shows the paintings of artist, Scottie Harris.

• Guadalupe’s Restaurant’s guest artist is Nikki Hinkie, a pastel painter who spontaneously creates scenes of nature and mountain life.

• Gallery One’s resident artists Joe Meigs and Tim Lewis demonstrate watercolor and computer design

• Lily’s Treasures shows the art of Linda A. Barrick, a children’s book illustrator and fine artist.

• Jackson’s General Store features the art of James Smythe, oil and pastel painter.

• Massies Furniture displays the artwork of Margot Johnson, an pastel and watercolor artist.

• Blackrock Outdoor’s artist is Bruce Bunch, an internationally-acclaimed artist who has won England’s “Queen’s Award” and many other awards of excellence for paintings of birds, dogs and fly fishing.

• In Your Ear Music is exhibiting fine art pottery by Julie Fawn Boisseau, an artist of Native American descent and Jadwiga Cataldo’s fine art jewelry.

• Advanced Medical Supplies features the bold palate knife paintings of William Clarke.

• Appalachian Log Homes showcases photographer Karen Lawrence’s award-winning wildlife photography, with close-up images of wildlife in their own habitat.

• Ironstone Grille features Doreyl Ammons Cain’s paintings of Appalachian culture.

• 553 Restaurant features Gayle Woody, fine painter, teacher and musician; JoAnn Meeks, pastel and acrylic artist; Frank Meeks, photographer; Kathy Rowe demonstrates fiber art and dyeing.

• Friends of the Library presents nature photographer, Etheree Chancellor.

• Penumbra Gallery’s own fine artist, Matthew Turlington, demonstrates his photography techniques.

• Livingston Kelley’s Photo showcases two artists, Jane McClure, a fine painter of local life and Lucius Salisbury, a sculpture artist who has turned to painting with pastels in an impressionistic style.

• Annie’s Bakery displays the pastel paintings of Becky Nelson.

• Yesterday’s Tree’s features Dave Punches, a painter .

For more information, visit or call 828.293.2239.

BMP’s problems not apparent

At first glance, it is hard to see why Balsam Mountain Preserve has been unable to satisfy the lenders behind a $19.8 million loan dating to 2005.

The exact amount of the payoff on the loan has not been revealed, but is the only debt Balsam Mountain Preserve is carrying, according to Chris Chaffin, managing partner of the development. Chaffin did say Balsam Mountain is current on the interest portion of the loan.

Since taking out the loan four years ago, Balsam Mountain Preserve has had $65 million in lot sales, according to real estate transactions and records. That’s enough to pay off the principle of the loan three times over.

However, the majority was spent constructing amenities. Chief among them is the Arnold Palmer golf course, a dream course that was no small feat to pull off given the mountainous terrain. The golf course likely ate up much of the revenue from lot sales, but Chaffin did not provide an exact price tag.

In addition, the development boasts an equestrian center, a sports center with tennis courts and a pool, a nature center, a dining room and lodge, guest cabins and a road network.

Of the 354 lots in the master plan for the development, two-thirds have been sold. There are 120 lots left, and with the infrastructure and amenities mostly in place, any profit to be realized would largely rest with the remaining parcels.

Lot sales have declined in 2009 over previous years, but are strong in comparison to what most developments have seen since the recession. Balsam Mountain Preserve sold 12 lots so far this year, bringing in $6.17 million at an average of $514,000 a lot. If the rate is sustained for the remaining 120 lots, the development would realize an additional $60 million in revenue.

That begs the question of why the lenders aren’t being more patient on the undisclosed balance of the $19.8 million loan.

At the 2009 pace of lot sales, it would take three years to pay off the principal, not taking into account the inevitable overhead expense of maintaining a sales presence or the construction of additional road infrastructure, which is still needed in new phases of the development.

Sustaining operations and the additional capital for more road construction would drag out the payoff much longer than basic calculations allow for, and thus make the lender uneasy. The question, it seems, is whether TriLyn is willing to keep waiting or will attempt to take matters into its own hands.

Of the 120 lots that remain, 40 are scattered through existing phases of the development, while 80 are in new phases. The 40 scattered through existing phases require no additional infrastructure in order to market, but are merely waiting for buyers. The other 80 lie in two future phases and would require a capital investment to upgrade old logging roads into development-caliber roads before aggressively marketing the lots.

In some developments, the last lots to sell are likely the least desirable and lowest in value — whether they’re too steep, lack a view or are otherwise unappealing. Some are so flawed they may never sell.

But given the sparse number of lots in Balsam Mountain Preserve — 354 sites on 4,400 acres — the layout and design was likely more thoughtfully considered on the front end, making it less likely that the remaining lots are of less value or won’t sell at all.

Saving Judaculla Rock: Preservation work begins on local artifact

By Julia Merchant • Contributing writer

Priceless artifacts often end up tucked safely away behind the protective glass cases of museums — but not Judaculla Rock.

A thin, twisted piece of rusty rebar is all that separates this well-known boulder, covered with mysterious Native American petroglyphs, from the thousands of visitors who flock each year to the rural Jackson County field where the rock lies. A few hastily tacked newspaper articles do little to convey the importance of this sacred prehistoric site.

“Judaculla tends to be one of the most complex boulders in terms of the amount of glyphs carved into it, and it’s one of the only public rock art pictographs in the state,” said Lorie Hansen, project director of the North Carolina Rock Art Survey. “It’s not currently being protected environmentally or from visitors.”

But that’s going to change, thanks to efforts spearheaded by Jackson County, the Eastern Band of Cherokee Indians, the North Carolina Office of State Archaeology and the Caney Fork Community Development Council. Last month, the county released the findings of a soil survey conducted on the site in July — the first step of a comprehensive management plan for the artifact that will one day result in a boardwalk, more signage, and erosion and sediment control features.

“I think all the commissioners feel an obligation to take care of it,” said Emily Elders, Recreation Project Manager for Jackson County. “It’s a local landmark.”


Taking action

Over the years, a variety of forces — mostly human — have caused a great deal of damage to Judaculla. Visitors have highlighted the petroglyphs with chalk, talc powder, and shoe polish in an effort to see them better. At least twice, someone has attempted to remove sections of the rock, possibly for a souvenir; others have left behind graffiti or carved their initials. People have stood on the boulder and used it as a mountain bike ramp.

In the past, the county has made some efforts to preserve and protect Judacualla, but even those did more harm than good. A roofed cinder block building constructed over the boulder in the 1960s created a moist environment that enabled the growth of lichen. The roof was later replaced by an open structure, which caused increased sedimentation.

“What you see invariably is people trying to do the best they knew to do at the time to save it and help it,” said Elders. “I think it’s always been motivated by a desire to do right by the site.”

The need to do something more to preserve Judaculla, however, became more urgent in recent years.

“Many people in this part of the state had become aware of Judaculla and the effects on it from visitors and weathering forces,” said Hansen. “We started a committee to talk about what could be done. Jackson County was very responsive and contributed funds to get a conservation plan developed.”

In 2008, the county commissioners asked Georgia-based Stratum Unlimited to develop a comprehensive management plan that would address ways to alleviate damage to the boulder. Authored by renowned archaeologist Jannie Laobser, the report found that the accumulation of soil and sediment around the rock was “of specific concern,” and had accelerated in recent years, obscuring and eroding the petroglyphs.

The report noted that the boulder was still in remarkably good shape, considering all the damaging factors it had been subjected to over the years. However, it also stated that while the county could continue to press its luck, it also had the opportunity to grab the reins and take a proactive approach to preserving Judaculla.

“The fact of the matter is that the site cannot escape being ‘managed,’ be it in an informal or ‘chaotic’ fashion by the visiting public, or in a more formal, or planned, fashion by the county,” wrote Laobser.


Community effort

The county, joined by multiple state and local agencies, stepped up efforts to preserve Judaculla. The Eastern Band of Cherokee Indians was also eager to help protect the site, considered sacred in Cherokee culture.

“In a sense, the Cherokee have a cultural ownership of Judaculla Rock,” says Brian Burgess of the Tribal Historic Preservation Office. “I imagine it’s difficult for any Cherokee citizen, young or old, to visit the rock, and not appreciate the time and work that went into the creation of the glyphs, and not feel some type of spiritual connection to the people that carved the images so long ago.”

The Cherokee Preservation Foundation gave $17,000 to help fund the conceptual site plan for Judaculla.

With the help of public input, it was determined that the best way to preserve Judaculla would be to restore historical stormwater flows and grades to reduce or eliminate the sedimentation that was burying and eroding the rock. But just what was “historical?”

“We don’t have any real records of what the land used to look like around the rock,” said Elders. “When we talk about trying to restore the normal water flow, it makes sense to ask, was anything ever being grown there? Was there a hill behind (the rock) originally? That’s what we were really looking for.”

To gather historical information, the group resorted to creative means.

“We relied on photographs a lot. We ran an ad in all the papers and with the Oklahoma Cherokee Nation and Eastern Band asking for stories, legends, or information about Judaculla rock,” said Elders. “We got all kinds of stuff. People brought in copies of old postcards, old articles, some Citizen-Times articles on microfiche, old pictures.”

The information helped the county complete a site plan for Judaculla, which was released this past May.


New look

Under the site plan, the rusted rebar which currently serves as the sole barrier around Judaculla would be replaced by a raised viewing platform closed in by railings, The plan also calls for the installation of interpretive signage, which would inform visitors about the archaeological significance of the site, explain the Cherokee legend associated with Judaculla, and detail the more recent history of the Caney Fork area.

A major focus of the plan is getting rid of the sedimentation that has damaged Judaculla over the years. The area’s natural slopes and vegetation will be restored to reduce stormwater runoff. The county is also pursuing a conservation easement that would move access to Judaculla away from the uphill slope above the rock, where visitors currently park.

“That would eliminate a lot of the erosion problem coming from the road. The goal is to get rid of some of the traffic,” said Elders.

Instead, visitors would park further away from the rock and walk along a six-foot wide, compacted gravel access trail.


Preservation begins

Implementation of the site plan began this past July, when a week-long soil sampling survey was conducted at Judaculla. More than 100 soil core samples were extracted around the site and examined to help determine what the natural flow of water had once looked like around Judaculla. The findings will help determine the design and placement of surface water runoff facilities and serve as a guide for removing the soil that has built up to obscure some of the petroglyphs.

The eventual goal is to return the soil surrounding the rock back to the level it was in the 1920s, the last time it was a “natural situation,” says Elders. “After that, there was artificial, exacerbated erosion coming in.”

It’s unclear how much more of the rock will be exposed when the soil buildup is removed, since pictures of Judaculla from that time are rare. But Elders says the process will expose more of the rock’s carvings, and will be followed up with stormwater and erosion protection measures to ensure soil buildup is kept to a minimum.

The next step in implementing the site plan is already underway. Equinox Environmental was awarded a contract last month, funded by the Cherokee Preservation Foundation, to start engineering some of the drainage and erosion control measures.

Putting the whole site plan in place, however, could take some time.

“It’s a multi-year kind of project broken down into stages,” Hansen said.

Slowing the process is Judaculla’s designation as a state historic site. Archaeologists must approve plans for and be present at each state of site work, in case artifacts are turned up in the process. That requirement is the costliest part of the preservation effort. “The actual construction is not that costly,” Elders said. She said she doesn’t know how much the whole project could end up costing, but will seek out grants to help pay for it.

The whole process of preserving Judaculla may seem painstaking, but it must be that way so the mistakes of past preservation attempts can be avoided, Hansen said.

“We want to make sure it’s the right thing for the site, because in years past there’ve been very good attempts on the part of the county to protect it that turned out to be to its detriment,” Hansen said.

Price tag on land a deal killer for Jackson greenway

Despite their conceptual support for a greenway along the Tuckasegee River, Jackson County commissioners expressed hesitation about purchasing land to establish it.

At a meeting Monday, the commissioners unanimously approved spending about $39,580 on a 1.4-acre plot but also unanimously tabled the $178,000 purchase of a 14.2-acre parcel.

Had both purchases been approved, the first mile of the proposed 4.5-mile greenway between Sylva and Cullowhee would have been established remarkably quickly.

Commissioner Tom Massie most strongly opposed the purchase, not on the property’s merits but because of the possibility of setting a precedent that could eventually cost the county dearly.

Massie said the county should try to buy conservation easements instead, where the property remains in private ownership but allows the greenway to pass through it. It’s less expensive than buying parcels outright.

“We do not have enough money to,” said Massie. “We need to be very careful about which tracts we’re going to buy and which tracts we’re going to buy a conservation easement on.”

Massie expressed disbelief that the landlocked 14-acre plot with no road access could carry a $178,000 price tag.

“I can’t believe that price,” said Massie. “I don’t think that’s a fair value.”

Massie suggested the county negotiate further with the property owners.

Commissioner William Shelton expressed the same worry of setting an undesirable precedent by approving purchases rather than pursuing easements.

While County Manager Ken Westmoreland agreed that outright purchases could set a precedent, future deals also depend on the “motivation and interest” of the parties involved.

“We do have one property owner adjacent to these two pieces that will make a complete donation to the county,” said Westmoreland.

According to Westmoreland, the 14-acre plot, owned by Carolyn Cabe, was identified in the greenway master plan as not only a location for the greenway itself but possibly other amenities like a resting area, a picnic area or a shelter.

“It’s relatively flat,” said Westmoreland. “It is a very usable piece.”

The 1.4-acre parcel, purchased from Anita Samuel, fronts the Tuckasegee River and includes a 16-foot existing right of way belonging to the Tuckaseigee Water and Sewer Authority.

The right of way would allow the county to secure Clean Water Management Trust Funds and other funds down the road, Westmoreland said.

The greenway master plan, adopted by the commissioners this year, recommends that the greenway between Sylva and Cullowhee, utilizing an existing sewer line easement as the primary trail corridor, as well as some additional footage for buffering and stream bank protection.

Emily Elders, recreation project manager for Jackson County, said the entire corridor is fairly undeveloped with homes.

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