Swain sheriff loses suit against county over money
A lawsuit waged by Swain County Sheriff Curtis Cochran against the county was shot down in court this week.
Cochran accused commissioners of cutting his pay in 2006 as a form of partisan retribution. State statute protects sheriffs from politically motivated pay cuts, making it illegal for county commissioners to reduce the sheriff’s compensation or allowances following the outcome of an election.
In this case, Cochran argued the all-Democratic board of commissioners retaliated against him after he narrowly beat out a long-time Democratic sheriff.
However, Cochran’s civil suit was thrown out by Judge Allan Thornburg this week following a hearing on Jan. 24. Cochran’s attorney David Sawyer said they plan to appeal the decision to the N.C. Court of Appeals.
The judge did not stipulate why he was dismissing the case, so it’s unclear which of the many defenses put forward by the county was the winning one.
One interesting argument in the case centered around whether county commissioners indeed reduced Cochran’s compensation as he claimed. While it seems like a clear-cut matter — either they cut his pay or they didn’t — it gets a little complicated.
Following an election upset by Cochran in 2006, commissioners put an end to a long-standing slush fund enjoyed by prior sheriffs. Prior sheriffs were paid a flat rate to feed jail inmates and could keep the surplus to use as they pleased, whether it was pocketing the difference or using it to subsidize operations around their office.
When making his case that the lost meal money equated to lost pay, Cochran needed to prove that previous sheriffs made a profit on the meal deal and by how much.
“The problem is we don’t know what that number is,” said Mark Melrose of Melrose, Seago and Lay, who represented the county in the suit.
Melrose said any dollar amount would be “highly speculative.”
The county never made prior sheriffs document what they were actually spending on inmates’ food, but instead dolled out a lump sum with no questions asked.
The lack of records means Cochran could not conclusively show how much previous sheriffs made on the meal deal, and thus how much he supposedly lost when it was taken away.
The previous sheriff got $10 per inmate per day. Sawyer said Cochran has complete records of his cost to feed inmates, so while the surplus made by past sheriffs remains a mystery, it would be easy to calculate what Cochran was due if the old formula was still in effect.
The state statute not only bars commissioners from cutting the sheriff’s pay, but also for reducing his “allowances.” Cochran and the county sparred over whether the inmate meal fund qualified as an “allowance.”
“His contention was that it was an allowance. Our argument was that it was a reimbursement for expenditures,” said Melrose.
Rather than paying out a lump sum, the county now reimburses the sheriff for actual food costs at the jail — but it still counts as a reimbursement, not an allowance, Melrose said.
In a dual claim, Cochran sued the county for breach of contract.
“Cochran argued there was an implied contract based on the county’s dealing with prior sheriffs, but you can’t piggy back on top of that,” Melrose said.
The county commissioners never “implied” they would continue funding inmate meals the same way they had with prior sheriffs. In fact, government entities legally can’t make verbal promises to do business with someone, Melrose said, but must do business in the open through written public contracts.
The county argued that it had sovereign immunity in this case, meaning it could not be sued for such things. Sawyer said granting the county sovereign immunity in this case renders the state statute moot.
“If soveriegn immunity applies here, it is questionable whether there is any mechanism to enforce that statute,” Sawyer said. “We feel it is an important issue for the Court of Appeals to look at.”
But the county did not hang its hat on that defense alone, and it is ultimately not known whether it was the deciding factor for the judge.
“In order to defend the county, we had to recreate all the events of the food being supplied to the inmates for a long time to see what was the practice, what was paid, how was it paid, was there a profit. It was very fact intensive,” Melrose said.
Mike McConnell, an attorney with the same firm as Melrose, was the primary lawyer for Swain County in the case.
Lowest sheriff salary
Auditors had repeatedly warned the county the meal deal wasn’t exactly kosher and should be ended, but it wasn’t until Cochran came into office that commissioners heeded the advice. The county claimed it was simply time to embrace a new, better way of doing business.
At the time, Cochran asked commissioners for a salary increase if they were going to cut out the meal deal.
When Cochran filed the suit he was one of the lowest paid sheriffs in the state with a salary of just $38,000. He’s gotten incremental raises from commissioners since then, bringing his salary to $47,000, but he is still one of the lowest — if not the lowest — paid sheriffs in the state. His salary is the lowest according to a list of sheriff salaries put out by the UNC School of Government, but it shows no data for a few counties. Only two other counties showed sheriff salaries of less than $50,000.
In the end, the county may have been better off giving Cochran more of a raise to offset the loss of the meal deal rather than paying the costs of the lawsuit. County Manager Kevin King said he did not know how much the county had spent in legal costs defending the suit so far.
“To be honest I have not received any bills yet,” said King.
However, Melrose said the county has been billed regularly for work in the suit since 2008.
“There has been a good bit of billing,” Melrose said. “There have been three or four depositions and court hearings and time spent preparing the case. The legal arguments took a lot of time and research.”
King did not return subsequent messages and emails again requesting the cost of the lawsuit to the county. The county hopes to be reimbursed for court costs, but those amount to less than $1,000, a small sum compared to the legal fees for the attorneys.
“The sheriff is willing to talk with the county at any time and would like to resolve this in amicable but if not the appeal is the only other route that we have,” Sawyer said.
When asked whether the county was pleased the suit was dismissed, King directed questions about the lawsuit to county commissioners. Commissioner Chairman Phil Carson did not return a message.
Civil suit targeting Jackson sheriff fails
“The only reasonable verdict here is for Sheriff Ashe,” Patrick Flanagan told the jury. “He did not commit any wrongdoing here.”
The eight-person jury in the Bryson City federal courtroom agreed, taking slightly less than an hour to clear Jackson County Sheriff Jimmy Ashe on five complaints that alleged he used his position and influence to interfere with the business operations and free speech of David Finn, owner of Blue Ridge Public Safety. Blue Ridge Public Safety is a private security force hired by upscale developments in the greater Cashiers area to patrol their communities.
The case pitted two of Jackson County’s leading law enforcement officers against one another in the federal district courtroom of U.S. District Judge Martin Reidinger.
Finn’s lawyer, Frank Contrivo Jr., spent three days calling witnesses, reviewing subpoenaed phone records, and otherwise building the case against Sheriff Ashe.
Ashe’s lawyer, Patrick Flanagan took only a few hours to offer a defense.
His message was simple: The only evidence that Ashe had interfered with Finn’s contracts was circumstantial, and Ashe’s own testimony that he had not used his office to put Finn under duress was credible.
Finn first sued Ashe in 2007, accusing the sheriff of using his position to scuttle the sale of Blue Ridge Public Safety to an Asheville buyer named John Hale.
The complaints alleged that Ashe, working in concert with a lawyer for an influential group of Cashiers-area residents, inappropriately shared information that led to a slew of investigations into Finn’s business, which holds security and patrol contracts worth more than $1 million.
The day before Flanagan called his defense witnesses, Contrivo withdrew the leading claim driving the case thus far –– that Ashe had actively participated in ruining the sale of Blue Ridge Public Safety to John Hale for $1.5 million.
With that claim off the table, the case came down to whether Ashe interfered with six existing Blue Ridge Public Safety contracts and on whether he infringed on Finn’s First Amendment right to free speech.
According to Finn, Ashe was motivated to disrupt the business of Blue Ridge Public Safety because of a disagreement between the two men over proposed legislation that would have given company police broader powers, including jurisdiction on U.S. highways adjacent to the communities they patrol.
An important component of Contrivo’s case for Finn was the extent to which Ashe communicated with Cary-based Lawyer Mark Seifert and his clients. Seifert created and represented two groups: the Committee of Sapphire Homeowners and the Sapphire Association of Concerned Citizens Committee.
Seifert testified that he was hired by Cashiers property owners in 2006 to investigate Finn and that his goal was to put Blue Ridge Public Safety out of business.
Contrivo alleged that Ashe and Seifert “were singing a duet” as they worked in concert to manufacture claims against Blue Ridge Public Safety that hurt the business and ruined contracts. He showed through phone records that Ashe and Finn had had extensive contact with one another –– nearly 150 calls amounting to 30 hours of conversations.
“What we’ve seen in the past three days is a snapshot of the nightmare experienced by Mr. Finn’s business,” Contrivo told the jury in his closing argument.
Flanagan, who served as a captain in the U.S. Army JAG Corps, presented an argument that was repetitive, process oriented and clinical. He focused on the fact that not one witness testified to Ashe’s direct participation with Seifert or even to the fact that Ashe had spoken ill of Blue Ridge Public Safety.
“What we didn’t hear at all –– there was no evidence, no testimony –– was that the sheriff has ever made a derogatory comment about Mr. Finn or his company,” Flanagan said.
In contrast, Contrivo at times raised his voice to cajole the jury and at other times spoke in a barely audible whisper to contribute to the gravity of the moment. He tried to paint a picture of Ashe as an expert at behind the scenes deal-making who managed to get away with a crime by staying at arm’s length from it.
“We hear about a man who was turf conscious, jealous of his power, and jealous of what he perceived as a threat to his power,” Contrivo said, pointing at Ashe.
Contrivo asked the jury for $200,000 worth of damages to cover Finn’s lost contracts and legal fees. The jury wasn’t convinced. They cleared Ashe on each charge and entered zeroes in the spaces on the verdict sheet that asked for award amounts.
After the trial, Ashe said the verdict upheld his faith in the system.
“This has been a long process that needlessly burdened the taxpayers of our community,” Ashe said. “The quick verdict of the jury attests to what we have asserted from the beginning of the matter.”
Ashe also indirectly expressed his dismay that he had spent so much time over the past two years embroiled in the civil suit.
“There is no business more important than the people’s business, and I am proud of the confidence that the good people of Western North Carolina have shown in me and our deputies,” Ashe said. “I look forward to many more years of public service, and it’s time to get back on task.”
Neither Finn nor Contrivo responded to requests from comment on the case after the trial, so it is not clear whether they plan to appeal the verdict.
Flanagan said a potential appeal could take two forms. In the first scenario, Contrivo could make a motion to Judge Reidinger to set aside the jury’s verdict in his final judgment, which will be entered in the next few weeks.
A second approach would be for Contrivo to file an appeal with the Fourth Circuit Court of Appeals in Richmond, Va. within 30 days of the final judgment being entered.
Malicious prosecution lawsuit unfounded, magistrate rules
A malicious prosecution lawsuit by a woman accused of misappropriating flood relief donations should be dropped, according to the recommendation of a federal magistrate reviewing the case.
Denise Mathis, former director of the Haywood County Council on Aging, claims she was wrongly accused of mismanaging the finances of her former agency. Mathis lost her job and was charged with 14 counts of embezzlement in 2006 for allegedly misappropriating $100,000 in flood relief donations — one piece out of the hundreds of thousands of dollars that poured into the county in the wake of massive flooding along the Pigeon River that wiped out dozens of homes and businesses in 2004.
In an attempt to clear her name, Mathis sued District Attorney Mike Bonfoey and Waynesville Detective Tyler Trantham for malicious prosecution and accused them of inadequately investigating her case. She also sued them for conspiracy and making false public statements.
But the federal magistrate found no evidence that Bonfoey or Trantham set out to malign Mathis. They were acting in their official capacity as a prosecutor and police detective and cannot be sued simply because the target of an investigation doesn’t like the outcome.
“To do so would subject every prosecutorial decision, every investigation that leads to charges, and every decision of a grand jury to be second guessed by a federal court,” Magistrate Dennis Howell wrote in his recommendation.
Whether the case is indeed dropped will be up to a federal judge, who will presumably take the magistrate’s recommendation into account.
“The Magistrate’s ruling confirms the town’s strongly held belief that Officer Trantham acted professionally in all respects and that absolutely no wrongful acts were committed by him or town employees,” Waynesville Mayor Gavin Brown said.
The embezzlement charges against Mathis were ultimately dropped. While the $100,000 in question did not make it into the hands of flood victims as donors intended, it likewise didn’t go into Mathis’ pocket, a police detective and financial investigator determined. It was used to cover salaries and overhead of the nonprofit agency — and it therefore would be hard to make the embezzlement charges stick in court, Bonfoey said of his decision to drop the charges.
Investor in Jonathan Creek project claims he was wronged
A Tennessee man claims he was defrauded of $328,000 by the players behind Cataloochee Wilderness Resorts, a planned mega development in Haywood County that is in the preliminary conceptual stages.
Plans for Cataloochee Wilderness Resorts call for a 4,500-acre development in Jonathan Creek. Five years into the project, however, the developers still do not own any land.
They have neither secured financing for the project nor lease agreements from retailers to occupy a massive shopping center. The project remains controversial due to its scale. Locals have expressed skepticism about it ever coming to fruition.
The lawsuit alleges that Dean Moses, a consultant for the project, got an investor to put up money for down payments on land but then diverted the money to other uses, including the personal gain of Moses and his wife, who live in Clyde. It’s not the first time Moses has courted investors for a speculative development in Haywood County. (see “Lawsuit echoes of past business dealings.”)
John Thornton, a developer from Chattanooga, is suing Moses for fraud, conspiracy, and breach of contract for diverting money earmarked for property purchases to other uses.
Thornton was courted by Moses to invest in the project in 2005. He was first introduced to Moses by a Knoxville attorney, Robert Worthington. Worthington was aiding Moses in the pursuit of Cataloochee Resorts and encouraged Thornton to invest in the project. After their introduction, Thornton met with Moses several times in Knoxville to structure the terms of a joint venture agreement.
The two forged a partnership, creating a corporate vehicle to acquire land for the development. Thornton put up $328,000 to be used for down payments on land, stipulating in the joint venture agreement that if the land deals didn’t go through, Thornton would get his money back, according to Thornton’s suit. The money was held in escrow by a title insurance agency, Investors Title.
After putting up the money, Thornton was told in 2005 that the purchase of property was “imminent.”
“Moses continually represented to Thornton that property was being acquired, that loans were being arranged, that contractors were being contacted, that the projects were moving along,” the suit alleges. But nearly a year later, land had still not been purchased.
In June and July of 2006, Moses arranged two separate transfers of Thornton’s money out of escrow and into a new account.
Moses failed to tell Thornton about the transfers, according to the lawsuit. When Thornton learned of the money transfer, Moses refused to tell Thornton how his money had been used, the suit alleges.
Thornton’s money was transferred into an account held by an entity called Cataloochee Companies. The original entity created by Thornton and Moses had been called Cataloochee Corporation.
Thornton claims the creation of a new entity constitutes another violation of the joint venture agreement. To protect his financial stake, Thornton had stipulated that no additional shares could be awarded that would dilute his 50 percent stake in the development, according to the suit. Moses denies agreeing to such a stipulation.
Along with the $328,000 earmarked for land purchases, Thornton loaned another $275,000 to cover operating expenses for the project. The expenditure of those funds are not contested in the lawsuit.
Frank Wood, president of Cataloochee Companies, the entity currently pursuing the development, distanced himself from the lawsuit and from Moses.
“We have absolutely nothing to do with that,” Wood said. “I am not a party to it and absolutely don’t care about it.”
Wood said that Moses is “strictly a consultant” on the project.
In his lawsuit, Thornton objects to the characterization of Moses as merely a consultant, as he considers Moses a major player.
Meanwhile, Moses referred to himself as a “manager” of Cataloochee with the “authority to conduct, manage, and control the affairs and business of the company,” according to Moses’s response to the lawsuit. He also described himself as the primary agent for negotiating deals with property owners, arranging leases with retailers, and securing financing.
Wood said that the company Thornton originally invested in is no longer the developer of Cataloochee Resorts.
“That’s an entity that died,” Wood said.
However, Moses’s response to the suit described Cataloochee Companies as the successor to the original entity created by himself and Thornton, Cataloochee Corporation.
In response to the lawsuit, Moses claims that Thornton isn’t entitled to get his money back because the property deals are still pending. Just because the deals haven’t taken place doesn’t mean they fell through; therefore, there is no reason to refund the money.
At one point, Cataloochee developers had property options on just a few tracts. But those have since expired.
Moses claims that Thornton understood the speculative nature of his investment.
“Thornton was aware that Cataloochee owned no real estate and has no assets other than a business plan and the development plan,” Moses’ reply to the lawsuit states. Thornton “was fully aware of the status, nature, and risks associated with the proposed development.”
Further, Moses points out that Thornton’s loans were to be repaid out of excess funds available — of which there aren’t any.
Moses claims he didn’t need Thornton’s permission nor was it necessary to notify him if his money was transferred out of escrow into another account. He states that the funds were used appropriately “to pay debts and obligations of Cataloochee.”
“Moses denies any fraud or deceit in connection with such transfer,” Moses stated in his reply to the suit.
Moses points out the money in escrow was not actually Thornton’s, but belonged to Cataloochee and had merely been placed in escrow to facilitate property deals. Thornton’s original loan was funneled through Cataloochee on its way to escrow, so when it was no longer needed in escrow, it was appropriate to transfer it back to Cataloochee rather than back to Thornton.
Moses has countersued Thornton for breach of contract. Moses alleges Thornton hamstrung the project by failing to put up more money. Thornton also refused to use his personal credit to help guarantee loans or to help raise additional capital, Moses complained.
Moses described Thornton as “unavailable” and “uncooperative” in advancing the project.
“Moses was left with the task of running the day-to-day operations, as well as arranging for and obtaining loan commitments and all other tasks involved in trying to advance the project’s development,” Moses wrote in his countersuit.
Moses also sued Thornton for defamation for a comment made to the Knoxville newspaper about the suit.
Thornton is also suing Moses’s wife, Colleen. The suit alleges that Colleen withdrew $52,000 of Thornton’s money from the Cataloochee account and deposited it into a personal savings account in her name at a Blue Ridge Savings Bank.
Colleen was listed as a signatory on the Cataloochee account in Knoxville. Thornton discovered that Colleen was writing checks out of the account and depositing them into her personal bank account, thanks to bank records obtained through his lawsuit.
“Substantial other funds were removed from such account for the personal living expenses of Colleen Moses and Dean Moses,” the lawsuit alleges.
Bankruptcy in the midst
Meanwhile, another player in the Cataloochee Wilderness Resorts development has filed for bankruptcy in Knoxville. Robert Worthington, the Knoxville attorney who introduced Thornton to Moses, has accumulated more than $75,000 in credit card debt and a $240,000 bank loan tied to Moses and Cataloochee Companies, according to bankruptcy filings.
Worthington listed more than $75,000 in debt on six credit cards that he claims were jointly used by Moses, who is listed as a co-debtor for the six cards. Worthington is disputing debt on those cards, with a citation in the filing that they were “used by Cataloochee.”
Moses is also listed as a co-debtor on a $240,000 loan from BB&T. Worthington used his name to guarantee the loan for Cataloochee Corporation.
Fraud lawsuit echoes of past business dealings
Does the name Dean Moses, the subject of a financial fraud lawsuit by an investor in Cataloochee Wilderness Resorts, ring a bell?
It should. Moses was the figurehead behind a string of failed business proposals for the closed-down Dayco factory in Waynesville — a saga that spanned several years and eventually ended in bankruptcy court.
Moses and his business partners created one company after another with plans to develop the dormant industrial site. They solicited capital from private investors and lending institutions, racking up debts on company credit cards in the meantime.
When one company hit a financial dead-end, it was dissolved and a new one created.
The third company in the chain actually landed in bankruptcy court. Undeterred, Moses and his partners created yet a fourth company touting an all-too-familiar development plan. They hoped to leave their debt behind in bankruptcy court while walking away with the property intact and trying again under a new entity.
The bankruptcy court balked and instead ended the cycle by foreclosing on the property. The Dayco site eventually became the property of the Haywood Advancement Corporation and is now a shopping center anchored by Super Wal-Mart.
Haywood erosion enforcement shot down in court
Landowners have won a lawsuit against Haywood County claiming they were victims of overbearing enforcement of erosion control laws.
Judge Laura Bridges issued her ruling this week, although the case was heard six weeks ago. Bridges ruled in favor of the landowners, Ron and Brian Cameron, who had sued the county to get out from under its erosion enforcement citing a state forestry exemption.
Landowners engaged in forestry are held to less stringent erosion standards than developers. Ron Cameron thinks the county’s erosion control officer Marc Pruett simply doesn’t like the fact that the state forestry exemption trumps the county’s erosion laws.
“Is his argument really with the forest exemption, and I am really just being used as scapegoat?” Cameron said in an interview this week. “Between our costs and the county’s costs, we have spent half a million so far arguing over whether Marc Pruett should have control over this land or the state forest service should have oversight of this land.”
The Camerons built a 1.5-mile road network on a 66-acre tract in the Camp Branch area of Waynesville, claiming it was for logging.
The county argued that the Camerons were merely hiding behind the logging exemption, however. The county claims the Camerons’ real intention was to develop the property, witnessed by the creation of a development master plan, registering a subdivision name with the county and applying for a septic tank evaluation.
Ron Cameron said he was merely exploring options. At the time he built the roads in question, his only motive was forestry, he said. Cameron points to the four different foresters he hired since buying the property six years ago as proof that he was interested in pursuing forestry. The county counters that he never did any logging other than cutting trees that lay in the path of the roads he built.
Judge Bridges apparently wasn’t comfortable assigning hidden motives to the Camerons.
“The Camerons have not logged the property but neither have they developed the property,” Bridge wrote in her ruling. “There are no signs on the ground that a development is planned. No lots have been surveyed or staked. No subdivision roads have been created.”
Bridges, who toured the property as part of the trial, called the road network built by the Camerons “crudely constructed logging roads and not development roads.”
The county claimed the Camerons needed to bring their roads into compliance with the county’s erosion laws. After the Camerons filed a lawsuit protesting the county’s jurisdiction over their roads, the county responded with a retroactive $175,000 fine against the Camerons for refusing to come into compliance.
“The fine was issued in my opinion as an intimidation technique,” Cameron said in an interview this week.
Cameron is seeking his attorney fees and court costs in the amount of $260,000 to be paid by the county.
“We tried various ways to not let this progress this way,” said Attorney Jeff Norris, who represented the Camerons.
Cameron said he offered to drop the case and not pursue damages or attorney fees if the county would drop its fines and let Cameron return to his forestry exemption. The county would not let the Camerons walk away without bringing the roads up to county standards, however.
It is not yet known whether the county will appeal the ruling, staving off the Camerons’ demand for attorney fees barring a second ruling.
“The county is disappointed,” Chip Killian, the county attorney, said of the ruling. “We are looking at it closely and will have to make a decision whether to appeal or not.”
The county has to file notice of its intent to appeal within 30 days. The county could preserve its right to an appeal by filing notice within the window, buying time to work out the details of its appeal and make a final decision whether to go through one.
Both sides in the case have argued that a terrible precedent would be set if the other side won. If the county wins, landowners everywhere will shy away from logging for fear they could never change their mind without their motives being questioned and triggering retroactive fines. On the other hand, if the county loses, it would provide a road map for developers who want to exploit the forestry exemption.
Erosion laws put to the test
Haywood County’s sediment and erosion control policies are the subject of a bitter legal battle poised to set statewide precedent.
A landowner slapped with a $175,000 fine by the county is fighting back with a lawsuit claiming he is being held hostage by the county’s overbearing enforcement of erosion laws.
The two-and-a-half week court case heard in Haywood County Superior Civil Court concluded last week (May 5). A decision now rests in the hands of Judge Laura Bridges, but will likely not be made for several weeks.
The landowners, Ron and Brian Cameron, built a 1.5-mile road network on a 66-acre tract in the Camp Branch area of Waynesville. They claimed the roads were for logging and were exempt from county erosion laws. The state allows such an exemption, based on the premise that logging reaps a much smaller economic return than development. Should loggers be forced to comply with the more rigorous erosion standards that apply to developers, it would effectively discourage logging.
The county claims the landowners were falsely hiding behind the forestry exemption, however, with no real intention to conduct logging. After building their road network, the Camerons drafted and submitted a development master plan calling for 18 lots, registered a subdivision name with the county and applied for a septic tank evaluation.
The landowners revealed their motives by these forays into development activity, according to the county. The Camerons lost their forestry exemption and were retroactively fined for two years worth of erosion violations dating back to the initial construction of the alleged logging roads.
Both sides in the case argue that a terrible precedent would be set if the other side won. If the county wins, landowners everywhere will shy away from logging, for fear they could never change their mind without their motives being questioned and triggering retroactive fines.
“We believe the county’s actions are discouraging forestry,” Craig Justus, an attorney for the Camerons, said during closing statements in court last week. “Essentially it would make forestry an unsatisfactory option. It would almost force landowners into developing.”
On the other hand, if the county loses, it would provide a road map for developers who want to exploit the forestry loophole.
“Developers will say ‘I’m going to build a big road system and tell them it is for forestry.’ Then four years down the road, they can say ‘You know I don’t want to log this property. Now, I want to develop it,’” countered Reed Hollander, an attorney for the county, during his closing statements. “No logging ever takes place and in the meantime those roads have sat out there eroding and causing damage to the environment, and yet nobody is out there to regulate it because the county’s hands are tied.”
There are three legal challenges pending over the issue. The one heard in court this month was filed by the Camerons in hopes of restoring the forestry exemption and getting them off the hook for compliance with county erosion laws. A second suit against the county is seeking damages and suffering. A third legal appeal is pending in Raleigh over the amount of the fines.
One or the other
When the Camerons began constructing a road system on their property in late 2005, they did not initially seek out the forestry exemption. They simply hired a crew and started grading without applying for permits, either to the county or the state forestry division.
The grader hired by the Camerons realized there wasn’t an erosion control plan being followed and called Marc Pruett, the county erosion control officer, to report it.
Pruett headed out to the Camerons’ property for an inspection. After a couple hours of walking up and down the freshly carved roads, making notes and snapping dozens of photos, he met with Ron Cameron.
Pruett had uncovered several erosion and sediment violations at the site. The exposed soil and steeply graded slopes lacked safeguards to keep erosion out of the streams, he said. Cameron had also failed to file a sediment and erosion control plan, which is a violation in itself.
When Cameron met with Pruett that day, he inquired about the forestry exemption. Pruett explained it was an either-or proposition: forestry or development. Cameron told Pruett during the property inspection he wanted to build a house on the property one day.
“He did tell me that flat footed, eyeball to eyeball standing right there on the ground,” Pruett said during testimony. “He told us he was considering building a house on the property and doing some logging. I explained those are two different things. It really couldn’t be both.”
If Cameron was building the road to reach even one house site, it wouldn’t count as forestry, and Cameron would have to comply with the county’s erosion control laws. If, however, Cameron’s sole intent was logging, he would be exempt, but would have to sign an affidavit to that effect.
“We require the affidavit basically to keep everybody honest,” Pruett said during testimony.
Cameron did not sign the waiver, but instead returned a month later with an erosion control plan and the intention of complying with county ordinances. But a few weeks later, Cameron changed his mind and wanted to go under the forestry exemption after all. In the summer of 2006 Cameron’s roads were officially classified as logging roads by the N.C. Division of Forest Resources.
“At that point, it was off my radar. Once the forest service has got it, we move on to other work,” Pruett said.
Making a master plan
Over the course of the next year, while still operating under the forestry exemption, the Camerons begin setting the stage for developing the site, according to the county.
They hired a development planner to draft a master plan for the tract. The first plan called for 11 lots. The Camerons then hired a second development planner to draft another master plan. Created by Brooks and Medlock Engineering firm in Asheville, it showed 18 lots on the 66-acre tract.
In fall 2007, the Camerons submitted that master plan to the county planning office. When the master plan landed on the desk of County Planner Kris Boyd, it rang a bell. While Boyd isn’t directly involved in sediment and erosion control, he works just down the hall from Pruett. The two regularly keep each other appraised of the plans and permits funneling through their respective offices.
In this case, Boyd remembered Pruett’s past inspection of the Camerons’ property and his pursuit of a forestry exemption. The appearance of a development plan raised a red flag to Boyd, however. He passed word to Pruett, who started investigating the issue.
“We were told this property is for forestry, but here comes a residential development master plan into the office. That calls into question what are the roads for,” Hollander, the county’s attorney, said in court.
The master plan made Pruett wonder whether the roads were ever intended for logging in the first place.
“I scratched my head and tried to figure out what to do,” Pruett said. “I determined at least in my mind when someone walks into a county office and pays fees to have a plan approved for 18 lots on the entire 66 acres, to me that is an intent to create a subdivision.”
In addition to filing the master plan, the Camerons had applied for and conducted a septic evaluation of their property. They also registered a subdivision name with the county.
Also in the interim, the Camerons sold a 3-acre parcel off the larger tracts. The separate parcel was never part of their forestry exemption, but the alleged logging roads happened to lead right past it, making the lot more valuable.
“What do they do under this time they are under a forestry exemption?” Hollander asked. “They’ve hired not one but two companies to do a residential development plan and they’ve sold property for residential purpose. At the same time they are doing no forestry activities whatsoever.”
Hollander pointed out that Brian Cameron is a developer in Atlanta, while his father, Ron, is a real estate broker.
Justus, the Camerons’ attorney, said the septic tank application has nothing to do with whether the roads were constructed for logging.
“My client always said there might be a possibility in the future that he might build a house somewhere on this 66 acres. Then why is it a shock for you to see a septic tank test on the property?” Justus said in court.
Just “exploring options”
In late 2007, Pruett contacted the state forestry division and shared the news of what Pruett viewed as forays into development. The forestry office ultimately pulled the logging exemption, thrusting the property under the jurisdiction of the county erosion control ordinances in January 2008. For the past two years, however, Cameron had dodged county oversight and all the while caused erosion to the streams, Pruett said.
Pruett inspected the property and wrote up a lengthy report on the erosion status of the roads. The county issued a violation notice outlining a litany of erosion control measures that needed to be complied with right away.
The Camerons countered that they should not have lost their forestry exemption. The development master plan was nothing more than an idea they were exploring.
“In a down timber market they were merely exploring options on other uses of the property,” Justus said. “A land owner has a right to explore options without losing forestry exemptions. We should never have been kicked out of forestry based on planning documents.”
The Camerons tried to get their forestry exemption restored. They even withdrew their application for the development master plan. They also signed the county’s affidavit stating their intention was forestry.
But the county claimed it was too late, that the Camerons had already revealed their motives and couldn’t simply duck back under the forestry exemption.
The Camerons filed a lawsuit against the county in protest. When it became clear the Camerons weren’t going to bring the roads into compliance with the erosion law, the county issued its $175,000 fine.
Justus claims the county is trying to make an example of the Camerons, and only slapped them with the fines after the Camerons fought back with their lawsuit.
“Why? Because we didn’t acquiesce. We got whacked because we didn’t capitulate,” Justus said. “There are reasons why we don’t want to be placed into the county’s world until we want to be there by choice.”
The Camerons never conducted any logging on the property, a point the county chalks up in its corner.
The Camerons didn’t formally hire a forester until after they were embroiled in a disagreement with the county over their motives. The county claims the belated engagement of a forester was nothing more than the Camerons trying to cover their tracks.
“At that point they can’t unwind the clock,” Hollander said.
The Camerons claim it is inconsequential whether they actually logged anything.
“They county says, ‘Ah-ha! You haven’t cut any timber. You must not have meant the road for that purpose,’” Justus said. But the forestry exemption isn’t contingent on when, if ever, logging is actually conducted. While the Camerons haven’t conducted logging, they likewise haven’t engaged in development activity either, other than on paper.
“There have not been any house sites on that property. There are no driveways placed off the road. A surveyor hasn’t gone out and staked and put pins on every lot, not even one lot,” Justus said.
The Camerons had reasons for not logging right away, namely a depressed timber market, according to forester David McGrew who created the timber plan. McGrew said the Camerons’ roads were built with an eye toward logging — although he wasn’t hired until more than two years after the roads were already built.
The Camerons had talked to a forester in 2003 shortly after the purchase of the property to sign up for forestry property tax breaks. Landowners can get tax breaks by claiming forestry, but to do so requires filing a forestry plan with the county tax office. The Camerons hired a forester in 2003 to write the plan for tax purposes.
That plan revealed there would be no economic return in logging the upper half of the property, particularly because building a road to reach the timber would be difficult.
“This area would be a very sensitive area to harvest due to the soils, rock formations and topography,” according to testimony of William Teague, a forester in Haywood County. “Road construction would be very expensive and difficult due to underlying bedrock. I felt the cost of logging would not have an economical return in portions of (the property) due to access problems.”
Good business sense?
If the Camerons’ motive behind the roads was logging, they are poor businessmen indeed, Hollander argued. They spent $200,000 building roads to access timber worth only half that. Some roads went to tracts that clearly weren’t candidates for logging.
“There has got to be another explanation. It makes no sense if their end goal was forestry,” Hollander said.
When the Camerons hired a grader to start building roads, their only criteria was that it lead to the top of the property.
“He wasn’t told it was for forestry. He wasn’t told, ‘Make sure you get roads to this area because that’s where the better trees are,’” Hollander said. “He’s just told carte blanche go up to the top of the property. He’s giving them weekly invoices and the cost is ticking up and up and up. It makes no sense for two intelligent successful businessmen.”
By the same token, if the Camerons’ aim was to build development roads under the guise of forestry, they didn’t do a very good job of that either. Many of the roads they built wouldn’t work for a development.
“Not only would additional roads have to be constructed in order to implement the subdivision plan, there also would have to be substantial additional work done in order for any of the logging roads to be converted into subdivision roads,” said Kevin Alford, an engineer who provided testimony for the Camerons.
Alford went so far as to say none of the roads appeared to be subdivision roads to him.
When the Camerons hired a development planner to create a master plan, they weren’t adamant about using the existing roads.
“He realized they might not be up to the county codes for subdivision roads, and they might need to be changed,” said Paul Sexton, the development planner.
Ultimately, only half the road network was incorporated into the development master plan. The rest are either too steep or too narrow.
Tim Howell, an officer with the state forestry division, testified that in his opinion, the Camerons’ roads were indeed logging roads. Howell ultimately proved one of the Camerons’ best witnesses. He testified that the roads looked like logging roads, not development roads. He testified that there was nothing unusual about building logging roads to timber tracts that weren’t financially viable. He testified that it was fine to build logging roads and never log, yet remain under the forestry exemption.
Justus asked Howell if he made a mistake by granting the forestry exemption in the first place, and Howell said “no.” A landowner changing their mind down the road or exploring other options doesn’t make the initial designation wrong, he said.
Howell also testified that he would gladly place the roads back under a forestry exemption again, but was held up from doing so until the county relinquishes its enforcement claim over the property.
The county pulled out a heavy-hitter in its camp, too, however. Mel Nevils, the section chief of land quality with the N.C. Department of Environment and Natural Resources, said the county was justified in assuming erosion enforcement of the property.
Nevils said if a landowner is building a road that theoretically could be used for logging but has the dual purpose of serving development, then it should follow the erosion control standards for development.
“Even though the roads may be used for logging that is not the end purpose for the roads,” Nevils said. “If anything other than forestry is going to happen, those roads come under sediment rules the minute they are put in.”
Nevils said in his opinion, the Camerons’ roads weren’t intended solely for logging. In the Camerons’ case, Ron Cameron admitted from the beginning that he wanted to build a retirement house for himself on the property.
In Pruett’s testimony, he shared albums of photos documenting erosion violations. He cited freshly graded earth bulldozed right up to the creek bank. Slopes lacked silt fences to keep erosion back. Ditches weren’t properly lined with rock to slow the scouring effect of water. Basins intended to trap sediment were clogged up, compromising the ability to catch incoming silt as it washed toward the creek. Shot-gun culverts dumped out in a free-fall fashion, eroding the creek banks below, according to Pruett’s testimony.
Justus wanted to know whether Pruett had any photos of sediment actively running into the stream.
“Show me where there is a plume of sediment leading from any road going into the creek,” Justus said. “You don’t have any photo of sediment physically going off the road into the creek.”
“I don’t have a video of sediment actively washing into the creek,” Pruett admitted. But Pruett said he could put two-and-two together based on mud in the creek below exposed soil and scoured slopes.
“It’s a fair assumption to say water runs downhill,” Pruett said.
Justus countered that creeks and ponds are naturally muddy on the bottom. However, Pruett said that most creeks in the mountains have rocky bottoms and aren’t supposed to be silted up.
Justus said the county exaggerated erosion at the site. In one site inspection, Pruett’s paperwork only classified the erosion as “slight.”
While the Camerons were exempt from the county’s erosion laws, they still had to comply with the lesser standards laid out by the state forest division, which they did.
“Forestry is not an exemption from protecting water quality. It’s just a different set of standards that apply to people who are conducting forestry,” Justus said.
If loggers were treated like developers and made to comply with a more rigorous standard for sediment control, the cost of doing so would effectively deter logging. State lawmakers recognized this in creating the forestry exemption, Justus said.
Justus argued that the Camerons should not be subjected to a $175,000 fine by the county while they were under the forestry exemption.
“That’s very significant to us and one reason this case is important,” Justus said of the fine.
Further, the Camerons should be allowed to stay under the shield of forestry rather than dragged under county jurisdiction, Justus said.
“There are 600 pictures here of what Marc Pruett says is wrong with this property. If we lose this case, that’s the world we are going to be put into,” Justus said. “They are going to hold us responsible for every dirt clod in the stream. We don’t want to do that. We simply don’t.”
When to comply?
Justus claims it is the right of any landowner to ponder possibilities. Drafting and submitting a development master plan was just that: an exploratory move. The Camerons ultimately withdrew the master plan and decided not to go forward.
“As a property owner we can’t get kicked out of forestry merely by pursuing options,” Justus said.
Justus argued that landowners aren’t told that filing a master plan could trigger a loss of their forestry exemption.
“The rules need to apply clear and objective thresholds, so a landowner knows if you go this far, this is the consequence,” Justus said.
The county claimed the Camerons were trying to back-peddle.
“Whether the roads can be used for forestry is not the question. The question is why were they built at the time they were built,” Hollander said, pointing to the development master plan as proof. “They pushed to get those plans done and into the county office and ultimately withdrew them when they realized what the consequences would be.”
Justus said the Camerons were being subjected to the whims of the “rule of man” rather than an objective playbook of laws.
“The rule of man is something that happened in cubicles and behind closed doors,” Justus said. “That’s government officials saying ‘I woke up on this side of the bed and decided this.’”
The county argued that Pruett’s job is to enforce erosion laws, a power granted by the state and the county. Not to do so would be shirking the county’s responsibility to the environment.
“They don’t have a right to pollute. They don’t have a right to put sediment in the creeks,” Hollander said. “All the county ever wanted is to get that site stable to prevent continued erosion.”
All airport documents requested in lead up to runway lawsuit
An environmental group out of Asheville plans to sue the Macon County Airport Authority and other parties involved in the proposed extension of the runway.
The group, Wild South, wants to stop the runway from being extended, saying the project is unnecessary, will harm the rural character of the Iotla Valley and endanger Cherokee artifacts and burial grounds, as well as other historic sites.
Lamar Marshall of Wild South said a 60-day notice to sue the Airport Authority will soon be filed. Afterwards, Wild South will seek an injunction to stop the project from moving forward, Wild South attorney Stephen Novak said.
Novak said he is unclear at the moment who will be named in the lawsuit.
The organization has also filed a federal Freedom of Information Act request and state public records request to obtain documents related to the proposed runway extension. The records request seeks documents from the Advisory Council on Historic Preservation in Washington, the Federal Aviation Administration, the N.C. Department of Transportation Division of Aviation, the state archaeologist, and the Macon County Airport Authority.
Novak said he hopes the public records will give Wild South a better idea of who should be named in the lawsuit.
The Airport Authority will comply with the records requests, said the board’s attorney Joe Collins.
“If it’s something they’re entitled to see, we’ll certainly give it to them,” Collins said.
Reviewing all the documents associated with the runway extension will give Wild South an understanding of “who said what to whom” in regards to the runway extension, Novak said.
Marshall with Wild South said the Airport Authority is “trying to brush us off,” but it won’t work.
“We’re taking them to court,” said Marshall. “We’re going to sue them.”
The hope is that “damning” information will be found through the public records requests, said Marshall.
The Airport Authority has “definitely not followed the letter of the law,” said Marshall.
Marshall asserts that the Airport Authority and other parties violated the National Historic Preservation Act by ignoring the archaeological significance of the airport site.
Marshall also charges that the Endangered Species Act and the National Environmental Policy Act were violated.
He claims that endangered species in Iotla Creek and the Little Tennessee River will be endangered by runoff from the airport.
An environmental assessment found that the runway extension would have “no significant impact” on the site. But Marshall said the environmental assessment was done without consulting the U.S. Fish and Wildlife Service and based on out of date information.
Marshall said taxpayer money should be withdrawn from the proposed $3.5 million runway extension. The nation is facing an economic crisis, and there are better things to spend money on than extending an airport runway, said Marshall.
“Why dump money into this when it is only going to benefit rich people in Highlands?” Marshall asked.
Moreover, extending the airport runway is just laying the groundwork for more development to take place in the tranquil valley, said Marshall.
Jackson leaders grapple over ending fight with Duke
An effort to end a six-year-long dispute between Jackson County and Duke Energy failed in a 3-2 vote last week, as the county commissioners decided to move forward with the case to save the Dillsboro dam.
County Commissioner Tom Massie made a motion to end the legal fight against Duke, allowing the utility to dredge the river and move forward with tearing down the dam.
Massie has been the lone commissioner in favor of ending the fight against Duke, saying it is a waste of time and money for the county to continue. For the first time he was joined in that sentiment by Commissioner William Shelton.
By continuing to fight the matter, Jackson County is “squandering” taxpayer money on an “un-winnable case,” Massie said, adding that some $200,000 has been spent by the county so far on legal fees and technical assistance in the case.
County Commission Chairman Brian McMahan voted against dropping the case because he still thinks it is “winnable.”
Commissioner Mark Jones said the county might as well continue to fight the case because it has already invested so much money and it doesn’t look like much more will have to be spent to see it through.
“I am for the preservation of the Dillsboro dam,” said Jones.
Commissioner Joe Cowan also voted against stopping the fight.
Shelton, even though he voted to throw in the towel, also favors preserving the dam, but thinks it is a lost cause because Duke has so much more money and resources that it can bury the county.
“I agree with the fight in principle,” Shelton said.
Hedging its bets
There are basically three different tracks the county is pursuing to stop demolition of the Dillsboro Dam and to exact higher compensation out of Duke for its host of dams straddling Jackson County rivers.
One track is refusing to issue certain permits that the county says are necessary to tear down the dam. The county says it can’t issue the permits until the other matters are resolved, but Duke thinks the county is simply trying to delay the razing of the dam.
Another track involves a challenge to the state water quality permit needed to tear down the dam. According to the county, the permit is flawed for a host of reasons, from lack of public notice to the lack of a proper environmental review.
The county got word late last week that the challenge, which was previously denied a hearing, now has a green light to move forward under an administrative law judge (see related article).
The final track deals with a federal permit issued by the Federal Energy Regulatory Commission. The county says that permit is invalid because it was granted based on the invalid state water quality permit. The county also claims that FERC has not required Duke to provide adequate compensation to the region and overlooked environmental issues related to Duke’s dams.
That case is now pending before the U.S. Court of Appeals in Washington.
Through the years, several decisions have been handed down against Jackson County, and Massie doesn’t think things will change.
“I am against a federal court challenge,” he stated.
Massie added that the county’s arguments against Duke are merely technicalities.
The permits the county refuses to give Duke deal with dredging sediment backlogged behind the dam. The county says the silt must be dredged to prevent it from rushing downstream and causing environmental problems when the dam is removed.
Duke says it may not even need the county permits because it already has a state permit. But Duke has said it will not move forward without the county permits. Meanwhile, the state permit Duke is relying on is what’s being contested by the county.
Massie sees no reason why the county should withhold the permits for Duke to dredge, saying dredging the river “benefits all.”
There are several reasons why some want to save the Dillsboro dam. The dam is seen by some as a water feature that draws tourists, while others think it has historical significance. The dam could also be used to generate hydroelectricity.
Duke must have a federal license to operate it series of hydropower dams, but those licenses are up for renewal. In order to get the new licenses, Duke must give back to the area it has profited from.
Duke has profited from using the Tuckasegee River to generate electricity, and therefore should make some payment to Jackson County when it comes time to re-license its dams.
Duke has proposed that it can pay back Jackson County by tearing down the dam, which will open up the river. Whitewater enthusiasts, such as the American Whitewater organization, have favored this.
Shelton said rather than Duke giving something back that benefits the entire county, it is simply pleasing special interests.
Instead of tearing down the dam (which Duke is no longer using to generate power anyway), Duke could give back to the county by providing slope stability and conservation easements, Shelton said.
What Duke is proposing doing for Jackson County “pales in comparison” to what it and other utilities have done in other areas in re-licensing agreements, Shelton said.
Duke may be refusing to give in to the county because it doesn’t want to set a precedent of giving more than it wants to, Shelton said.
Also Duke has proposed to give Jackson County $350,000 over the term of the re-licensing — potentially 40 years. Massie and Shelton agree that $350,000 over 40 years does not come close to compensating Jackson County for what Duke has made off its series of dams.
Shelton said Duke has not acted in good faith and said it is giving “very little back.”
“Our area deserves to be compensated for our resource,” he said.
Shelton said another option is taking over ownership of the dam through condemnation. By giving into Duke, Shelton said he is waving his white flag of surrender but at the same time the flag says, “Shame on Duke.”
Duke sues Jackson County for holding permits hostage
Duke Energy filed a lawsuit against Jackson County and county Planning Director Linda Cable on Monday (Jan. 5) for failing to issue permits necessary for the removal of the Dillsboro dam.
Duke warned the county about a month ago that if the Land Development Compliance Permit and the Floodplain Development Permit were not issued within a month that further legal action would follow. Yet the county has continued to hold up the permits.
The state is requiring Duke to remove approximately 70,000 cubic yards of sediment backlogged behind the dam before tearing it down.
Duke already has state permits in hand for the dredging, but seems to need permits from the county as well. But the county refuses to grant them until an administrative appeal over tearing down the dam is resolved. It is unclear when the appeal may be resolved.
Duke believes the county is purposely delaying tearing down the dam. The county wants to save the dam and has been involved in a lengthy battle against Duke over the issue. (see article on page 8)
The lawsuit seeks damages in “excess of $10,000 for defendants’ illegal actions.”
The removal of the dam is required by the Federal Energy Regulatory Commission, Duke notes in the lawsuit.
“Jackson County’s actions are utterly without legal foundation and taken for an improper purpose in violation of plaintiff’s constitutional rights and have and will continue to cause the plaintiff damage,” the lawsuit states.
Duke has met all requirements for the permits, and the county’s withholding of them is arbitrary and capricious, according to the lawsuit.
And the county’s refusal to grant the permits violates the due process clause of the U.S. Constitution and the equal protection and law of the land clauses of the N.C. Constitution, the lawsuit states.
Duke Business Relations Manager Fred Alexander of Franklin said Duke does not believe it needs the permits but in an effort to be non-confrontational applied for them. Duke applied for the Land Development Compliance Permit in July and the Floodplain Permit in November.
The normal practice of the county is to issue the permits within one week, the lawsuit states.
Duke received a state permit from the N.C. Department of Environment and Natural Resources in June for the sediment dredging.
County Commission Chairman Brian McMahan had no comment on the lawsuit Monday, saying he had not read it.
Victim’s family sues REACH for negligence
REACH of Jackson County, a non-profit that aids victims of domestic violence, is being sued by the family of a woman shot and killed at a domestic violence shelter last September by her deranged husband.