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Wednesday, 13 May 2009 16:41

Erosion laws put to the test

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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.”

 

Never logged

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.

 

Sediment control

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.”

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