Demand for referendums impractical, says county attorney

Haywood County Attorney Chip Killian had his response ready for the citizen activists who have incessantly demanded referendums on a string of controversial county decisions.

At Monday’s commissioners’ meeting, Killian informed them that state law actually forbids counties from holding such referendums without approval by the state legislature.

In recent months, a few citizens have insisted on holding a vote of the people on purchasing the former Wal-Mart shopping center to house the county’s DSS and health departments.

They’ve also asked for a vote on supporting overtly Christian prayers by commissioners to open public meetings, despite the risk of a lawsuit.

County commissioners are required by law to hold referendums on general obligation bonds, but they cannot initiate a vote by the people on any other issue without first obtaining permission from the General Assembly.

“It is unlawful to use public funds to set up and hold a referendum that the General Assembly has not authorized,” said Fleming Bell, a professor of public law and government with University of North Carolina-Chapel Hill.

Commissioner Mark Swanger estimates that it would cost at least $30,000 in taxpayer money to fund a referendum. “It’s not something that can just be done because you want to do it,” said Swanger.

A vote by the people is required every time a loan is backed by the “full faith and credit” of taxing power of the county, according to Commissioner Kevin Ensley.

Since the county is purchasing the former Wal-Mart property, it can use that property as collateral. Because the county is not completely relying on its taxing power to back the loan, it is exempted from the referendum requirement.

Moreover, Ensley said a referendum in this case is just not practical.

“I don’t think the seller would wait for November for us to do that,” said Ensley.

Ensley admitted that even he would not wait for a vote if he were selling property, adding that real estate agents would be similarly reluctant to wait months for a referendum to secure a deal.

Not every decision requires county commissioners to run down to Raleigh to get approval for a referendum, Ensley added.

“We don’t live in a democracy, we live in a constitutional republic,” said Ensley. “You vote for people to represent you.”

Unlike most voters in a referendum, commissioners and county staff spend hours researching issues before they make a decision, Ensley added.

“If you aren’t educated on the issues, how will you know?” said Ensley. “Your vote might not be informed.”

Swanger emphasized citizens don’t need a referendum to express how they feel on pressing issues. They have other avenues for expressing their opinions, like commenting at public meetings or through letters to local newspapers.

While Ensley and Swanger said a referendum would have no legal effect, Fleming said his understanding is that the General Assembly can actually require a referendum to be binding.

Both commissioners had cited a referendum Buncombe County held on zoning in the 1990s. In that case, the advisory vote was nonbinding, and commissioners later passed zoning changes despite a majority of voters opposing the measure.

Commissioners defend Wal-Mart purchase

Swanger said it’s a “very small number” of opponents who are requesting a referendum. He said the handful of people who make regularly public comment at county meetings don’t necessarily represent the rest of Haywood County’s 60,000 residents.

Swanger said he’s spoken to many people who have studied the issue and are in favor of the Wal-Mart purchase.

However, Swanger admits that there were opponents who have legitimate concerns about spending taxpayer money or have a philosophical disagreement with the commissioners. But he suspects the motives of a few who demand a referendum.

“I think some of it is a political agenda of being against anything the government does unless it benefits them,” said Swanger. “There’s a group of people who are just anti-government, and I don’t think it matters what the decision is.”

Ensley said in his experience, public opinion is split 50-50 on the Wal-Mart renovation project, but those who are for small government and against the Wal-Mart purchase often change their mind once Ensley explains the county’s justifications. Ensley tells them that state would require the county to build a new facility that could cost between $20 and $25 million if commissioners don’t take action.

“They see the common sense behind doing it and taking care of that situation,” said Ensley. “Unless you don’t want to do it at all, it makes sense to do it.”

Ensley said renovating the DSS facility would not solve parking problems or provide additional space for necessary expansions. “The building was built for a hospital, not for offices,” said Ensley.

Ensley also tells opponents that much of the debt payment would be offset by outside funds.

Of the annual debt payments, Haywood County would pay $260,000, about $260,000 would come from state and federal reimbursements, and $125,000 would come from Tractor Supply, which is leasing part of the old Wal-Mart building.

According to Swanger, Congressman Heath Shuler has also requested $6 million from the federal government to fund the Wal-Mart project.

Finance director Julie Davis says that Haywood County’s preliminary Rural Development loan application has been approved at the state level. Commissioners have not discussed a tax increase to finance the project, Davis added.

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