Residents are accusing the Macon County government of impeding their private property rights by proposing new requirements for landowners and contractors wanting to perform grading work, but commissioners say that was never their intention.
A $500 grant was awarded to Haywood Waterways Association by the Haywood County Community Foundation to expand Haywood Waterways’ sediment monitoring program and establish five new monitoring sites in the Raccoon Creek watershed.
The new sites will help identify areas where sediment, the top water quality problem in Haywood County, is running off. Once identified, Haywood Waterways and its partners can seek grants to assist willing landowners correct these problems.
The sediment monitoring program in the Raccoon Creek Watershed is a smaller part of a county-wide effort that was started more than nine years ago.
In 2006, the state designated as “impaired” sections of Richland and Raccoon creeks, meaning there weren’t as many fish and bug species as a clean stream should have. Haywood Waterways and its partners, including Haywood Soil & Water Conservation District, are working to reduce sedimentation throughout the Richland Creek Watershed, which includes Raccoon Creek.
Sediment enters streams and lakes though erosion and runoff. Once in the water sediment fills the spaces between rocks and smothers the spaces where macroinvertebrate insects live and fish lay eggs. Sediment also clogs intake pipes for industry and agriculture, as well as favorite swimming holes.
Over the past month a slow-moving landslide behind the Craftsmen Village development in Macon County has worsened, leaving one property owner facing life without a home.
Michael Boggan’s house was condemned by the county last week, a decision arrived at jointly by the planning, soil and erosion, and building inspection departments. County staff deemed the house unsafe after determining the foundation was compromised. The earth around the home site has shifted, twisting the footings and cracking the foundation.
It’s the first time since the devastating Peeks Creek slide that destroyed 15 homes and killed five people in 2004 that the county has used GS 153.366 to condemn a property that wasn’t damaged by fire.
The county’s soil and erosion control director, Matt Mason, explained Boggan’s predicament to the planning board at its meeting last week.
“I think he honestly was afraid for his safety. He knows now he has to pay a mortgage on a parcel that’s essentially useless,” said Mason.
The implications of condemning the property are far-reaching, but the decision wasn’t taken without careful examination.
The story began in early February when Boggan noticed a crack in his driveway that appeared following a nearby landslide. The landslide originated from the back of a large, terraced retail development called Craftsmen Village that lies adjacent to Ruby Cinemas on U.S. 441.
In the wake of that slide, a noticeable scarp had emerged on the face of the hillside above Boggan’s house.
Boggan called the county on Feb. 11 and asked them to come look at it. Mason went out to examine the trouble. While the landslide had indeed opened up part of the hillside, Mason found that a scarp in some form or fashion already existed on Boggan’s property, but it was unclear whether the slide had exacerbated its movement.
So Mason asked State Geologist Rick Wooten to come take a look the next day along with other staff from the N.C. Geological Survey’s Asheville office.
After examining the hillside, Wooten determined the scarp on Boggan’s property had been growing for several years and said it should be monitored closely.
Fast forward a month to March 11. Boggan called Mason back, because the crack had grown into a 10-inch shelf that made his driveway impassable. Mason and Wooten returned to the site to find out how things could have worsened that quickly.
“Over the course of the month, the scarp had gotten bigger and extended, connecting to the other slide area,” Wooten said. “They’re becoming part of the same slide.”
Wooten estimated that a 13-acre tract of land, 30 to 40 feet in depth, had shifted.
When the county’s inspectors came to the Boggan property March 15, they found a house with a cracked foundation sitting on footings that were twisted and out of true. Meanwhile the hillside was still moving, providing the real threat of an even worse secondary slide.
Those factors left the county’s chief building inspector, Bobby Bishop, with a serious decision. He posted a notice of condemnation, leaving Boggan and his wife homeless.
Wooten hasn’t finished his site assessment on the February landslide yet, but certain details are clear.
It occurred on top of an older slide, and the scarp on the Boggan property had likely been widening since 2006. Meanwhile, the bedrock being excavated at the foot of the hill to make way for the Craftsmen Village development was badly weathered, creating ideal conditions for a slow-moving slide. Add to that the large-scale excavation undermining the base of the slope, and it was almost a perfect storm.
“One thing that can de-stabilize a slope is when you excavate into a hillside and over-steepen the toe of the slope,” Wooten said.
Barbara Kiers, a spokesperson for Joseph G. Moretti Inc., said Mr. Moretti was aware of the damage on Boggan’s land but has not seen any information that links the damage to the slide at Craftsmen Village.
Wooten is a geologist, and it’s not his job to determine if anyone is to blame for Boggan’s loss, but in the wake of the Maggie Valley slide, it’s becoming more and more clear that civil suits are poised to be a new part of the landscape where landslides are involved.
“These are local jurisdiction issues. We try to provide the factual information and our best understanding of the causes of events to any interested parties,” Wooten said.
Mason took the case to the Macon County Planning Board as an example of the need for a steep slope ordinance.
“The question is would the new ordinance have helped him?” Mason said.
The answer isn’t entirely clear, but the slope standards proposed by the Steep Slope Committee last month would have put three measures in place that may have helped Boggan’s cause.
The condemned house lies on property that has 30 to 35 percent slope in some places, which would fall within the threshold for county oversight. Under the proposed ordinance, county planners would have had discretion to require engineering.
In addition, another proposed standard could require geotechnical engineering for properties that lie in the certain landslide hazard areas.
Also the cut-and-fill guidelines proposed in the ordinance would likely have forced Craftsmen Village developer Joseph Moretti to seek geotechnical engineering expertise when excavating the property at the foot of the hill.
Planning Board Chairman Lewis Penland thanked his colleagues for their foresight and greeted the event as a sign the county needs the steep slope ordinance in place as soon as possible.
“When we started this whole process, it wasn’t near the issue it’s become,” Penland said.
The Town of Maggie Valley recently transferred the responsibility for building inspections to Haywood County. Now, Maggie is considering handing over soil and erosion control, too.
“We could really become a one-stop shop,” said Maggie planning director Nathan Clark.
Town officials from Maggie Valley and Clyde will meet Tuesday, March 23, with the Haywood County manager to discuss the potential takeover.
Both towns are also interested in exploring the possibility of adopting a county ordinance that regulates construction on steep slopes. Currently, neither town has such a policy.
The joint meeting follows a massive mudslide in Maggie Valley, which traveled 3,000 feet down the mountainside and damaged four homes.
Roads have been cleared, but up to 16,000 tons of unstable material still looms over the Rich Cove community.
Haywood’s steep slope ordinance allows the county government to force a property owner to clear debris from landslides. It can also coerce a landowner into stabilizing a slope that the county engineer deems unsafe.
If the Town of Maggie Valley adopts that ordinance, the county would have authority to deem the Rich Cove area an unstable slope, forcing Ghost Town in the Sky amusement park to take action.
Haywood County commissioner sent a strong message to Raleigh this week, chastising state government for not stepping in to help when the county got sued by a landowner when trying to enforce erosion control standards.
The county spent $282,000 on attorney fees to defend the case. The county lost and chose to cut its losses and settle out of court, forking over another $75,000 from county coffers.
“The state needs to step in with its attorneys and defend a lawsuit like this,” Commissioner Kevin Ensley said. “They should not expect the taxpayers of that county to fund it.”
Fewer than half the counties in the state handle their own erosion enforcement, but instead turn the job over to the state, since the erosion laws are in fact state laws.
Commissioners said it was unfair that the county should bear the burden of liability and was a deterrent to continuing erosion oversight in-house.
The head of the state sediment and erosion control division, Mel Nevils, came to the meeting from Raleigh to beg the county not to give up on local erosion oversight. Nevils said the lawsuit was unwarranted and the county had acted appropriately, even following Nevils’ own recommendation in the matter.
Ensley told Nevils that if the county is doing such a great job then the state needs to ante up should the county get sued in the course of doing its job. Ensley told Nevils to take that message back to “whoever his bosses are.”
Commissioner Skeeter Curtis jumped on Nevils as well.
“Can you tell the people of Haywood County why you refused to come in a defend this case or provide legal fees?” Curtis asked.
Commissioner Mark Swanger said the county wants to develop a threshold or litmus test for high-risk cases, which could then be handed off to the state to absolve the county of the liability.
“The state has deeper pockets and resources than does Haywood County,” Swanger said.
“What we don’t want is for everyone to send us all their problem sites,” Nevils said. “I can’t tell you we would take a case just because y’all felt you might get sued by it.”
Swanger pointed out the hypocrisy of the state’s stance. Haywood County could walk away from local erosion oversight altogether, dumping the entire responsibility on the state. The state would then have to assume oversight of every erosion permit in Haywood County, not just one or two that the county wanted to pass off as high risk.
Swanger didn’t let up, but continued to push the point, asking again and again over the course of the nearly two-hour discussion whether Nevils would make a commitment to take certain cases.
“We need something that can act as a buffer,” Swanger said. “We simply cannot afford that kind of fees for this program without some kind of assistance from the state.”
“The state can’t afford to pay that either. That is taxpayers money as well,” Nevils replied.
Nevils said he couldn’t make any promises, and that perhaps a change was needed at the legislative level.
Swanger said Nevils indeed had the power to accept certain cases referred up the ladder to the state. Nevils said he would not make a wholesale promise but at least agreed to consider it.
The lawsuit has unfortunately made county erosion inspectors gun shy, commissioners said.
“It weakened the local program. There has been a lot of damage,” Curtis said. “It is a shame it has to be that way.”
Nevils said the state has seen a handful of cases with facts very similar to this one — where a landowner claimed roads were for logging but appeared to be for development — and all were won by the state.
“Then why didn’t we win this one?” Curtis asked.
The audience shifted uneasily in their seats waiting for Nevils’ nswer. Critics of the outcome have largely pointed fingers at the judge as being off base. Judge Laura Bridges heard the case while on temporary assignment in Haywood County due to a vacancy on the bench locally.
Nevils hesitated before saying that in his opinion the ruling was “not an appropriate ruling.”
“I was shocked at the ruling,” Nevils said.
N.C. Rep. Ray Rapp, D-Mars Hill, attended the commissioners’ discussion of the issue.
“This is a judicial decision that absolutely leaves me dumbfounded and puzzled,” Rapp said. “Haywood County to me is a model. You have top-notch people.”
What the case was about
When Ron Cameron built a 1.6-mile road network on a 66-acre tract up Camp Branch in Waynesville, he claimed the roads were for logging. Logging activity falls under a laxer set of erosion rules than residential development, which is held to a more stringent standard.
The county questioned the landowner’s true motives, however, citing Cameron’s creation of a development master plan, registering a subdivision name with the county and applying for a septic tank evaluation. The county insisted on holding him to the higher erosion standard and levied him with hefty fines. Cameron sued to get out from under the county’s jurisdiction, ultimately prevailing in a three-week trial in May.
Today, Cameron has the land up for sale. It’s being billed by his Realtor as perfect for development. One of the selling points listed in ads: “Roads already in.”
Cameron recently applied for a septic tank permit for a five-bedroom house on this presumed forestry tract.
When Haywood County commissioners convened this week to discuss the fate of the county’s erosion control program, they were met by a deep bench of prominent community members who turned out to show support for Marc Pruett.
Pruett is the county’s lead erosion enforcement officer.
Commissioner Kevin Ensley, a land surveyor, said he has received several phone calls from developers urging him to keep the local erosion department.
“It is running 10 to 1 positive from the people who deal with it on the day to day,” Ensley said. “They prefer dealing with local people.”
Mel Nevils, the head of the state erosion enforcement division, came to the meeting from Raleigh and begged commissioners not to do away with the local erosion department, calling it among the best in the state. If erosion oversight was passed off to state control, the environment would suffer and developers would be more likely to see after-the-fact fines than under Pruett’s proactive approach.
“We don’t have time to work with people to get them back in compliance,” Nevils said. “We don’t have the time to sit there with people and figure out how to get it right.”
State erosion inspectors for the region are based in Asheville. Each one carries a case load of up to 350 development projects spanning three to four counties, Nevils said.
“We would do the best we can. We would pick it up and get here as often as we can, but you will not get the level of service you get from your own folks,” Nevils said.
In Pruett’s approach to erosion enforcement, he strives primarily to educate developers on how to protect the environment.
“My staff can tell you that I often said we must be problem solvers and peacemakers first. Enforcement is a last resort,” Pruett said.
Erosion running off construction sites is detrimental to the environment, muddying creeks, rivers and lakes, Pruett said. But it can also be hazardous when it washes down on public roads, making them potentially slick.
It seemed commissioners never intended to do away with the local erosion control program, but felt compelled to address the issue after the county landed itself in a lawsuit with a landowner as a result of its erosion enforcement. A few members of the public had appeared before commissioners at their meetings calling for them to do away with the erosion enforcement at the local level and pass the duty off to the state.
Members in the audience backing Pruett included General Contractor Ron Leatherwood, Builder Dawson Spano, Rep. Ray Rapp, James Ferguson, Bill Yarborough, Leslie Smathers and more.
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.
A Maggie Valley man alerted Haywood County officials this week of a landslide posing a risk to his home in Smoky Mountain Estates in Maggie Valley.
Marc Pruett, soil and erosion control director for Haywood County, visited the site of the slide on Walt Moody’s property on Tuesday. Pruett reported that “the failure comes up within about three feet of the back edge of the house. It’s not good.”
Moody estimated that the slopes above and below his house are between 45 and 50 degrees.
The cause of the slide has not been determined. Moody said that in recent weeks, rains have appeared to soften the ground around his property.
“I think this started with that rain in January,” Moody said. “I’ve never seen the ground that way. We’re leaving footprints and footprints are filling with water immediately. (It’s) like walking on a sponge.”
As of Tuesday afternoon, Moody had not decided whether he would take steps toward remediation of the slope.
Moody said recent landslides in the area have brought public attention to the challenges of building in the mountains.
“I believe we’re going to see a significant change in the way construction is managed in the mountains of Western North Carolina,” he said.