County planning board chairman avoids penalty

Neighbors blow whistle on land-disturbing activity

By Lisa Majors-Duff

Recent statements made by Jackson County's planning board chairman concerning who should be held accountable for soil erosion problems have angered members of a Sylva family who say runoff from his development harmed their property.

The situation involving real estate developer and planning board Chairman Jack Debnam dates back to February of this year, according to information on file with the county building inspector's office. That's when soil sediment control officer Jeff McCall first visited a site being developed by Debnam and others under the corporate name Jackson Land and Timber Co.

The site on Moonlight Drive near the former Ward's Cabins on Mockingbird Lane is located above property owned for more than 35 years by Betty Bradley, who alerted the soil sediment control officer to the land-disturbing activity, McCall said.

"She called me every day there for a while," said McCall.

According to a letter to JLT Co. dated Feb. 18, McCall reported he'd found approximately 1.5 acres of disturbed land when he inspected the site for the first time three days earlier. Sediment control plans are required for sites where an acre of more of land has been disturbed, according to the county's ordinance.

"The purpose of this letter is to inform you that this activity was found to be in violation of the (N.C. Sedimentation Pollution Control) Act and the Jackson County Sediment Control Ordinance," the letter states.

McCall's letter to Debnam goes on to say that Jackson Land and Timber Co. would have 30 days to file an erosion and sedimentation control plan, which should include acceptable erosion control measures to be taken at the site.

McCall said he was unaware at the time that Debnam had notified the building inspection's office on Oct. 9, 2001, of his intent to disturb less than an acre of land at the same location. Though a permit and plan are not required, notification of land-disturbance activities of less than an acre is mandated by the county's ordinance. In addition to general information about who is responsible for the activity, the form asks landowners to specify what measures they plan to employ to prevent runoff.

Debnam's form indicated he planned to use silt fence, install a temporary gravel construction entrance, seed the dozed area and use a rip-rap pipe outlet, all within 30 days of the disturbance. McCall said when he visited the site in February, four months after Debnam turned in his form, none of these measures had been taken.

"If (Debnam) had just seeded, it would have helped. It would have been a different situation out there," McCall said. "But it was just open."

That "situation" changed March 17 when heavy rains began to fall in Jackson County.

"There was mud in my house, my yard, my spring, everywhere," Bradley said. "Jack said his hands were tied. There was nothing he could do."

By the time the rain had stopped, mud from the JLT Co. site above Bradley's house had coated her driveway and covered her lawn. Her reservoir and spring had filled with silt, and she went without water for five days.

Even after the reservoir had been shoveled clean and the water began to run clear again in her home, Bradley said she was afraid to use it after a health department test indicated traces of E-coli bacteria.

"I was afraid to wash my dishes in it after that," said Bradley. Instead, she said she carried water to her home for six months.

Meanwhile, Debnam, who said he first learned that more than acre had been disturbed at the site when McCall notified him in February, had failed to meet the 30-day deadline to submit a sediment control plan, McCall said. After making another site visit on March 21 and finding control measures had still not been taken, McCall sent Debnam a second notice of violation.

This letter, dated the same day as the inspection, indicated the following violations: failure to install sedimentation control devices; failure to take all reasonable measures to protect public and private property from damage; failure to plant exposed areas with ground cover; and failure to maintain erosion control measures during site development.

McCall's letter goes on to establish a second deadline - April 4 - for a plan to be filed or "... the Jackson County manager will be requested to take appropriate legal action against you..." The action indicated was a penalty of up to $5,000 a day per violation, as is stated in the county's ordinance.

"If the violations are corrected within the time period..., no further legal action will be pursued," the letter states.

When the second deadline was not met, McCall wrote a memo to Jackson County Manager Ken Westmoreland, in which he detailed steps he'd taken to notify Debnam of problems at the Moonlight Drive location.

"I visited the site with Charles Koontz, an environmental technician with (N.C. Department of Environment and Natural Resources). We spoke with Ms. Betty Bradley and neighbors who informed us that during a recent rain event, that sediment had gotten into her spring and all over her yard from this land disturbing activity," McCall wrote the county manager. "There were sediment deposits in her drive, all around the adjacent property, and in the swale leading up to her spring."

McCall further stated that as of April 5, "some seeding has taken place on the site, but no other measures have been taken." He also reported that he'd had conversations with Debnam, who informed him that an erosion control plan "is being worked on, but was only started sometime this week."

McCall recommended two civil penalties be assessed against Jackson Land and Timber Co. - $50 a day for the period between Feb. 18 and April 4 for failure to submit an erosion control plan, for a sum of $6,750; and $50 a day from March 21-April 4 for failure to take all reasonable measures to control runoff, for an additional sum of $700. The total fee recommended was $7,450.

"There are several more violations listed in the notice of violation, but I think this would make a sufficient penalty," McCall wrote to Westmoreland.

Speaking through his attorney, Eric Ridenour of Sylva, Debnam contradicted McCall's assessment of the site at the time of the rain, saying that "all reasonable (sediment control) measures had been taken before March 17."

Adopted in July 2000, the county's sediment control ordinance was based on similar state legislation designed to control sediment pollution in waterways. With local legislation in place and the addition of a soil sediment control officer to the county staff, county leaders believed land-disturbing activities would receive more prompt attention.

The local ordinance includes a list of measures designed to penalize those who do not adhere to the rules. In addition to issuance of stop-work orders and injunctive relief brought in Superior Court, the ordinance says the county can require a landowner to restore "...land affected by the failure so as to minimize the detrimental effects of the resulting pollution by sedimentation. This includes damage to properties adjacent to, nearby or downstream of the permitted property..."

The ordinance also calls for a maximum civil penalty of $5,000 for violations. Criminal penalties outlined in the ordinance indicate violators can been found guilty of a Class 2 misdemeanor, which may also include a $5,000 fine.

"It was my impression that we could charge anything up to $5,000 a day," said McCall, who obtained a list of violation fees from neighboring Haywood County. It was from that list that McCall recommended the $7,450 penalty, he said.

But a critical piece of the Jackson County ordinance was still missing, Westmoreland said. Without a schedule of fees to address specific penalties against violators, assessing Debnam a fee would have been "too general and vague to be enforced," the county manager said.

County officials investigating the situation asked questions about holding Debnam's insurance provider responsible for the damage to the spring, but "we couldn't get anywhere with that," Westmoreland said.

Again, speaking through his attorney, Debnam said a Nationwide insurance adjuster visited the site and found no damage that needed to be compensated. "It was always the conclusion that we were helpless," Westmoreland said. "If we could have done something, we would have."

In addition to acting as a mediator between Debnam and the Bradley family - which includes her brother, Clint Mathis, and her daughter and son-in-law, Bobbie and Rusty Rhymer - Westmoreland said he informed county officials of their inability to levy fines during a June 6 closed session meeting of the Jackson County Board of Commissioners.

"Everyone was appalled at the extend of the violation and the results of not having sediment control measures in place," Westmoreland said of the commissioners' reaction to pictures Bobbie Rhymer had taken of her mother's yard during the March 17 storm.

Board members also discussed the public perception of the situation, since the violator in question serves as chairman of the planning board.

"We discussed the fact that Mr. Debnam, as chairman of the planning board and one-fourth interest in (Jackson Land and Timber Co.), was taking the brunt of the situation," Westmoreland said. "There were discussions about removing Jack as planning board chairman. It was a bad situation."

After Westmoreland told commissioners that no action could be taken against Debnam, he recommended the planning board be asked to develop a schedule of fees to be added to the county's ordinance.

"I told Jack that was his punishment," Westmoreland said. "I told him he had to come up with an amendment to the ordinance."

From his recollection of the closed-door meeting and knowing what he knows now about the situation, commission Chairman Jay Denton said the county manager did not present board members with all the facts. Not only was Denton unaware that the sediment control officer had recommended a fine against Debnam, the chairman said the county manager led board members to believe no violation had taken place.

"But I knew there was a problem because I had received a phone call," Denton said. "I didn't have all the facts (during the meeting), so I had to go along with management's recommendation."

Westmoreland's request for a closed session to discuss the Debnam/Bradley situation seemed to Denton at the time to be a violation of the N.C. Open Meetings Law, he said.

"There have been times we've gone into closed session at (Westmoreland's) request when I believe we shouldn't have," Denton said. "When I'm sitting there and the professional manager says we need to go into closed session, I'm taking his word that he knows what he's talking about."

Commission Vice Chairman Stacy Buchanan said he understood the need for the Debnam discussion to be held in closed session was based on the potential for legal action against the county.

"We had heard there was going to be litigation and that the county might be named in the suit," Buchanan said.

N.C. Press Association attorney Amanda Martin expressed doubt about the legitimacy of the closed discussion.

"I think it's a bad closed session, though I don't think it's clear cut," Martin said Tuesday. "Theoretical litigation is not a basis for closed session in my opinion."

The issue has not been addressed "head-on" by the N.C. Court of Appeals, but "general discussion" shouldn't be closed just because an attorney is present, Martin said.

With regard to why Debnam was not fined, Buchanan placed the blame on the ordinance's lack of a fee schedule.

"We wanted to fine him; the problem was we couldn't," Buchanan said. "We dropped the ball when we passed the ordinance. We meant to add fines, but we never did. We talked about what was appropriate, but somehow the final copy didn't have a fine schedule."

The fact that Debnam was serving as chairman of the planning board had nothing to do with his not being fined, Buchanan said.

"We were upset that anyone - especially someone who should have known better - had violated the ordinance, but we didn't have a fine structure," Buchanan said.

Debnam filed a sediment control plan with the building inspections office on April 29. McCall's site visit report of May 6 indicated the area was no longer under notice of violation, but that control measures still needed to be implemented. By his May 16 visit, McCall reported the plan had been implemented and that seed and mulch had been applied to the disturbed areas.

Both McCall and Westmoreland visited the site May 28 and reported it was "stabilized; no off-site sedimentation after weekend's two rainfall events."

"I never wanted to hurt Jack or cause him any problems. All I asked was to be left alone," said Bradley, who said she's spent a greater portion of the last six months on the telephone in an attempt to find someone to help her.

A story in The Sylva Herald Sept. 27 that included Debnam's statements as planning board chairman about the need to amend the sediment control ordinance to levy fines against grading contractors when damage occurs was "the straw that broke the camel's back," Bradley said.

"That made me so mad," she said. "He was wrong, and he was sitting there saying those things and knowing what he'd done. He knew he did it all without a plan."

In addition, Bradley said she remains unsatisfied with Westmoreland's recommendation that no action be taken against Debnam.

"Westmoreland was the one who said to let that slide," she said. "He's a smooth talker. He didn't do anything to help me."

A little compassion on Debnam's part could have swayed Bradley's decision to seek legal advice from Sylva attorney Paul Holt and consider a lawsuit against Debnam.

"It just hurt me so bad that he didn't care," said Bradley, who began keeping a detailed daily journal March 17, the day the rain washed dirt into her yard and spring.

"I didn't ask for this; I didn't want to get involved," she said. "I was forced into dealing with this, and it has been a headache. Sometimes I'd just cry because there was nobody to help me."

"If this development has harmed any landowner in any way, I will do everything possible to remedy the situation," Debnam said through his attorney.

"Jack is on the planning board because he is a good citizen, and even though he said he was busy, he said he'd be willing to serve," attorney Ridenour said.

Debnam was appointed to the planning board in January 2000, six months prior to the adoption of the sediment control ordinance. He was elected chairman in January 2001 and re-elected to the post a year later.

Even now Bradley said she wouldn't do anything to hurt Debnam and that she's looking forward to having neighbors when the development is completed. "But it's not right for him to do this to me," she said. "If he did it to me, he might do it to somebody else.

"If he'd just come to the door and said he was sorry and said 'Here's a gallon of water,' then it'd be different because all a man can do is offer to help," she said.

Debnam, speaking again through his attorney, said he did ask Bradley what he could do to help and went as far as offering to put in a ditch between the two pieces of property to divert rain water. That offer was rejected, Ridenour said, through a letter from Bradley's attorney, who threatened legal action if Debnam proceeded.

"The good thing about all this is that it alerted us to a problem with our ordinance," McCall said.

That problem was remedied July 25 of this year, when a fee schedule based on the one used in Haywood County was added to Jackson's ordinance. Action is currently pending against at least two landowners believed to be in violation of the ordinance, said McCall.

"To my knowledge the problem (with Debnam) is solved from the county's point of view," McCall said. "Now it's a civil matter."

"We couldn't have helped the people who were damaged because the fines deal strictly with the development site," said Westmoreland. "The only thing the property owners would have gained was the satisfaction of knowing (Debnam) had been fined."

Westmoreland went on to say that Debnam's position as planning board chairman had nothing to do with the county's decision not to pursue a penalty or other legal action against him.

"But I don't know that we'll ever be able to make the property owners understand that," he said.

Associate Editor Lynn Hotaling contributed to this report.

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