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Lawyers delay appeal of fines triggered by June 7 dam failure
By Justin Goble
An appeal to the local sediment and erosion control board has been put on hold until lawyers for Jackson County and Balsam Mountain Preserve can determine who has jurisdiction.
According to county attorney Paul Holt, he and lawyers representing the 4,000-acre gated community are trying to figure out where the case should be heard.
The development is appealing a $300,000 fine levied by county planning staff in the wake of a June dam failure and numerous infractions to local sediment and erosion control guidelines.
“The only issue is that there is some disagreement as to where the hearing should take place,” Holt said. “We’re trying to decide if it should be heard by the state or by our appeals board.
“We think, since it’s a local case, it should be heard before our appeals board,” Holt said. “(Balsam Mountain) wants to take it to a higher court.”
The decision to delay the appeal was a mutual one between him and BMP’s attorney’s, Holt said.
“We’re hoping to get it all straightened out pretty soon,” Holt said.
County Manager Ken Westmoreland said Holt had contacted him, and he had agreed to the delay.
“There’s really been some confusion in the legislature,” Westmoreland said. “The law changed as to who should actually hear these cases, and right now we’re uncertain about that. That has to be unravelled before we can move forward. It’s being looked into by the state attorney general and our sediment control office.”
Though this move has delayed the appeal hearing, Westmoreland said county officials want to make sure it’s handled properly.
“We run the risk of having to do it all over again if the hearing is held in the wrong place,” Westmoreland said.
According the Mell Nevils, section chief with the N.C. Department of Environment and Natural Resource’s Land Quality division, the case should be heard in Raleigh. While NCDENR officials would hear arguments from both the county and BMP, their ruling would only be a recommendation, he said.
“The Office of Administrative Hearings only makes recommended decisions,” Nevils said. “It’s heard like a court trial – a judge takes arguments then makes his recommendations. That goes back to the county board, who then makes a final decision.”
Nevils said this came about when the state’s Sediment Act was changed in 1993. It has caused some confusion, because many state and local government officials were unaware that the state had been given authority to hear such cases.
“The state and local governments have been working under the assumption that the local boards would handle it,” Nevils said. “But from now on, unless the law changes, all hearings would have to go through the administrative hearings process.”
Officials from BMP were supposed to make their case to the Soil and Erosion Control Appeals Board on July 20. BMP was notified of fines based on numerous infractions on June 26.
County planning staff cited BMP for failure to follow an approved plan, failure to provide groundcover; inadequate sediment retention and buffer zones; and unprotected, exposed slopes.
The most recent incident involved an earthen dam that impounds an irrigation pond for BMP’s golf course. That dam gave way around 8:30 a.m. June 7, sending thousands of gallons of water and mud down Sugarloaf Mountain and into a tributary of Scotts Creek.
Doug Hoffman, BMP’s vice president of operations, said at the time that the pond was half full when the dam failed and estimated that less than 400,000 gallons of water were released.
According to Jackson County Erosion Control Officer Robbie Shelton, the dam break was “the straw that broke the camel’s back.” While BMP officials had been made aware of their violations, he said developers had been working to come into compliance with county ordinances.
However, those improvements had not been moving forward as fast as the planning office would have liked, Shelton said.
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