NEWBERRY COUNTY COUNCIL

MINUTES

MARCH 12, 2008

The Newberry County Council met on Wednesday, March 12, 2008, at 7:00 p.m. in Council Chambers at the Courthouse Annex, 1309 College Street, Newberry, SC, for a regularly scheduled meeting.

Present were: Henry B. Summer, Chairman

William D. Waldrop, Vice-Chairman

John E. Caldwell, Councilman

Mike Hawkins, Councilman

John David Dawkins, Councilman

Edgar Baker, Councilman

Henry H. Livingston, III, Councilman

Wayne Adams, County Administrator

Susan C. Fellers, Clerk to Council

Debbie S. Cromer, Finance Director

Absent: Gary T. Pope, County Attorney

Press: Cindy Pitts, The Newberry Observer

Heather Hawkins, WKDK

Notice of the meeting was duly advertised as required by law.

Mr. Summer called the meeting to order and determined a quorum to be present.

Mr. Livingston had the invocation followed by the Pledge of Allegiance.

1. Personal Appearances:

a. Consideration of adoption of Proclamation proclaiming March 2008 as Disabilities Awareness Month in Newberry County.

Fred Owens, Executive Director of the Newberry County Disabilities and Special Needs Board, requested Council’s consideration of adoption of a Proclamation proclaiming March 2008 as Disabilities Awareness Month.

Mr. Dawkins moved to adopt the Proclamation; second by Mr. Waldrop. Vote was unanimous.

b. Newberry Airport business proposal.

Trent Purcell requested Council’s consideration of the establishment by Rigging Solutions, LLC of a business at the Newberry County Airport to include parachute sales and repair shop, manufacturing of parachute components and accessories, skydiving school and center, and snack bar/restaurant. (Copy of business proposal attached) This proposal has been presented to the Airport Commission, who has given its okay.

Mr. Purcell said they would need a building and had investigated a leasing arrangement where they would put a building up. Details will have to be worked out if Council approves the business proposal.

On an average day of skydiving, they would do about 10 to 12 take offs and landings and felt this would help the Airport.

Mr. Dawkins moved that Mr. Purcell and his business partner get with the County Administrator to come up with a proposal to present to Council at a future date; second by Mr. Livingston.

Mr. Hawkins asked if the business was being moved to Newberry from Rock Hill or if this was an expansion. Mr. Purcell said this was moving the business.

There being no further discussion, Mr. Summer called for the question. Vote was unanimous.

c. Consideration of approval of records management system for Newberry County government.

Susan Fellers, Clerk to Council, Bob Gilliam, President of Palmetto Microfilm Systems, and Jesse Morris, IT Director with Palmetto Microfilm Systems, requested Council’s approval of a records management and storage program for County records, The initial and one time cost of this system will be approximately $90,000 with that cost being absorbed from a combination of line item transfers and unobligated lease purchase funding from the current budget year meaning that these expenditures could be made in the current budget year without an overall budget increase. Recurring costs for the second and succeeding years are estimated at less than $10,000 per year though this amount would rise with participation from additional departments of the County government. Increasing the number of participating departments would only make the initial major capital expenditures, which would not increase, more economical.

Mr. Gilliam presented information about their company, and Mr. Morris addressed technical issues. This system will assist with storage of permanent records, faster retrieval of records, and will provide disaster recovery of permanent records.

Mr. Dawkins moved to approve the records management system; second by Mr. Baker. Vote was unanimous.

d. Presentation of Property Tax Petition.

[The following is a transcript of the discussion of this item.]

Mr. Summer: Next we have presentation of property tax petition. Sam Martin.

Mr. Martin: Mr. Chairman, would you do me a favor? Would you read that? I kind of got stage fright when it comes to reading stuff.

Mr. Summer: All right. (copy of letter attached to minutes)

“Dear Newberry County Council:

We ask—in the name of the thousands of residents who signed the No Property Tax Petition—to place this referendum on the 2008 General Election Ballot. We believe the Home Rule Act gives Newberry County the authority to do this. The residents have a legal right to petition their county for a referendum.

Charleston and Horry Counties permit Casino Boats to dock in their counties for fees. If this activity is legal in Charleston County and Horry County under the Home Rule Act, the No Property Tax Petition is certainly legal in Newberry County.

The courts have consistently ruled, in a variety of cases, that unless an activity is prohibited by the Home Rule Act, county and local government can engage in such an activity. When the No Property Tax Petition is placed on this November’s ballot, and the referendum passed, Newberry County will be able to replace property taxes with fees from video poker legally.

Is the South Carolina Education Lottery gambling? If the Education Lottery were a game of skill, wouldn’t the same individuals win every time? The only real difference between the Education Lottery scratch off cards and video poker is that video poker has much better odds at winning! If it’s legal for South Carolina’s state government, then it’s certainly OK for Newberry County’s business community.

The State of South Carolina provides an 800 number to call if one has a gambling addiction. If one calls that number, the counselor can only discuss gambling addiction in regard to the Education Lottery. The fact that state funding provides this service, at all, is proof that gambling is already legal In South Carolina de facto!

Since the Home Rule Act does not specifically prohibit replacing property taxes with fees from video poker machines, this activity is completely legal. County Council has a duty and responsibility not to ignore Newberry County voters’ intent. . . .and to instruct the Election Commission to place this referendum on this November’s ballot.

Sincerely,

Sam Martin”

Mr. Martin: Mr. Chairman, I just – what I was told was by the Election Commission that I would have to come here and present the petition here and you would be able to instruct them to count and see how many – you know, to certify the 15% required by state law.

Mr. Summer: All right. Does anyone have any questions of Mr. Martin?

Mr. Waldrop: Yes. I would like to ask Sam a question. Sam, are we talking about just Newberry County? You talking about not every county in the state?

Mr. Martin: We are talking about Newberry County, but any county in the state has the right to do this. And let me also say one thing. There has been a lot of talk about whether this is legal or not. The fact of the matter is that we have – the fourteenth amendment to the Constitution guarantees equal protection under the law. This activity is legal under local option in Charleston and Horry Counties. You can’t do something in one county and prohibit it from another county.

Also, if you will recall in 2006 we had a state wide referendum placing a cap of 15% on property tax hikes over a five year period. You remember that. Well, the reason they got that was they – in order to change the power of county and local government under the Home Rule Act, that required a two-thirds majority vote of the House and Senate placing that on a state wide referendum. Unless the Home Rule Act specifically prohibits an activity, it is legal, and the only remedy against anything like that would be a two-thirds vote of the House and Senate followed by a state wide referendum. And I know – I know, and I understand and I appreciate those who have said well this is not legal, but the fact of the matter is this is unchartered waters. This has never been tried before. No one really knows.

Mr. Waldrop: Well, Mr. and Baker and I was on the plane with the Attorney General this past week, and he said it is very illegal. This is no way to compare. He brought that to our attention while we were coming back from Washington this past week.

Mr. Summer: Mr. Baker.

Mr. Baker: Mr. Chairman, Mr. Martin has let it be known that he is not going to believe anybody sitting at this table no matter what they say. My suggestion is we accept this as information, have it forwarded to the Attorney General in Columbia and go through him and/or through the Court to give us a ruling because at present video poker is illegal in South Carolina.

Mr. Martin: In all due respect, Mr. Baker, it is – it was ruled illegal under the – under the 1999 condition in which it was legal at the time when the court made the ruling. This is entirely different. And state statute says that if 15% of the registered voters sign a petition, they have a right to vote on something.

Mr. Baker: I agree.

Mr. Martin: And that is part of the law, too. And – and – and I think that the voters of this county deserve to be counted and – and listened to.

Mr. Baker: Mr. Martin -

Mr. Martin: And I think this is ignoring them.

Mr. Baker: I have a motion on the floor that it be sent to the Attorney General.

Mr. Summer: You made a motion?

Mr. Baker: I will make a motion to that affect.

Mr. Summer: Okay.

Mr. Baker: And until we hear from him nothing is going to be legal or illegal.

Mr. Summer: All right. Motion by Mr. Baker. Is there a second to the motion?

Mr. Waldrop: I’ll second it.

Mr. Summer: Second by Mr. Waldrop. Is there any discussion? Mr. Hawkins.

Mr. Hawkins: Go ahead. I think he was first.

Mr. Dawkins: It doesn’t matter. Mr. Chairman, I disagree with the motion on the floor, and I’ll say it again. I support the – when what is it 4600 people or whatever signed a petition to hold a referendum on the ballot, I support to allow the people to voice their opinion. And I in no way, like I stated several months ago, I have never played a video poker game in my life nor have I ever bought a lottery ticket or like I said – 90% of the people don’t even play the lottery. They play them scratch cards and chunk them up in the air, and I pick about a hundred a day out of the daycare parking lot from the Citgo next door. They are not playing the lottery. They are doing that quick chance, pay two bucks and see if you can’t win five. I believe in allowing the people to voice their opinion in November and I totally support the referendum. If the state says the referendum is illegal and can’t act on it once the people have voiced their opinion on it, that will be up to the state. I do agree with Sam Martin if people think that – the state is not supposed to legally according to the Constitution pass any law for any particular county alone without passing it for the state. And I can show you, it was in The State paper, they passed about six last year for just – a law for just a particular county and not state wide. As a matter of fact they got a bill trying to correct that this year to give the State Legislature authority that they can do that. We can pick and choose what counties we want to pass law, and you know, that is a Senate bill up on the floor now, which completely goes against Home Rule. The same thing to get around in Horry County and Charleston County as far as the casino boats, they said well we are going to charge you to gamble on them boats, and we get some amount of fees and get a certain percentage of the proceeds that you gamblers are going to do, but you can’t do it in Charleston, you have to go out just a couple of feet and do your gambling out there but you pay us. They are racking in big time, but I mean that is for them. They say that makes it legal. The gambling is actually not taking place in Horry County or Charleston County. It’s out there in the ocean about a mile out – three miles out, but when you come in Charleston is got their hand out and the county gets rich off of it. Like I said I wasn’t particularly wild about the lottery. I think the lottery has been a big disappointment where 75% of the lottery money goes to higher education and K through 12 gets 25%. And they can’t teach the kids K through 12, I don’t know what good it is going to do to send them to college but I totally support a referendum to let the people voice their opinions, and if the State of South Carolina or the Attorney General says that we can’t do it, then let him tell the people and tell me.

Mr. Summer: All right. Mr. Hawkins.

Mr. Hawkins: Now at one time video poker was legal in the State of South Carolina. The state took in over $500,000,000 a year from video poker. How did it become illegal? What changed that? Was it a vote by the people? Was it the court? The Legislature?

Mr. Waldrop: I think it was the Legislature.

Mr. Hawkins: Who decided we couldn’t have video poker?

Mr. Martin: Could I answer?

Mr. Hawkins: Please. Please.

Mr. Martin: The court did that. The court did that. They didn’t allow the people to vote. And in all due respect to the Attorney General’s office the Home Rule Act time and time again has shown that – the court has upheld it time and time again that if it is not prohibited, you can do this. It only – only through a two-thirds vote. That is the reason why we have a two-thirds – why we had the referendum which required a two-thirds vote of the House and Senate to place a 15% cap on raising property taxes every five years. And – and as far as the Attorney General saying this, I think he did that for political reasons, not legal reasons, because everything is to the contrary in the history of the Home Rule Act. And I think it is a terrible thing to say well we are going to ask Mr. Henry McMaster what he thinks of it. By the way we are going to give the voters the finger and just not even count them. I think you ought at the very least ask him an opinion and at the same time have the Election Commission to do what the law says, and that is start counting the registered voters.

Mr. Waldrop: That’s – Mr. Chairman, that’s what I meant. I think we still need to get an opinion regardless and then –

Mr. Martin: That’s fine but the thing of it is there was an opinion at one time Plessy v. Ferguson was the law of the land and there were a lot of people including, I would imagine, the Attorney General of South Carolina who thought that Harry Briggs and the black children of Summerton, South Carolina, where I grew up, didn’t have a leg to stand on in court, but they won anyway.

Mr. Summer: Mr. Hawkins.

Mr. Hawkins: I want to follow up on my question about the fact that we had video poker and it was determined to be illegal. And you said the court made that decision.

Mr. Martin: The court said that it was illegal under its current status, and that’s important –

Mr. Hawkins: Who brought the suit?

Mr. Martin: Who brought the suit was a man – the late Fred Collins, and he is dead. Like I say he is dead now. And it was a trick in the field that if anyone brought a lawsuit, they would automatically given and that was what it was done. It was done before (inaudible) but it doesn’t matter – the court said at that time it was only illegal under the current status. This is a different status. This has never been tried before. Just because it’s never been tried before doesn’t mean that it is illegal any more than the argument was that (inaudible) and there cannot be separate equity. I just think that the voters of this county deserve to have these things counted. You can ask an opinion of the Attorney General. The Attorney General I believe is playing politics because he has done everything the world not to say anything himself publicly.

Mr. Summer: Mr. Hawkins.

Mr. Hawkins: I guess my concern is that I am afraid we are going to get peoples’ hopes up that they are going to get immediate property tax relief.

Mr. Waldrop: Right.

Mr. Hawkins: And this thing is going to get dragged out, dragged out, dragged out. I am afraid we are misleading folks when we make them think they are going to get relief from this. Have we asked our Citizens Advisory Committee what they think of this? They were appointed to give us advice.

Mr. Dawkins: I think 4800 of them just did.

Mr. Martin: Yeah. Yeah. Would you like for me to read some of the names of them for you?

Mr. Baker: No, sir. Let’s don’t start in that.

Mr. Dawkins: No. That’s good.

Mr. Baker: No.

Mr. Hawkins: Mr. Chairman, could we ask the Voter Registration people to go ahead and start verifying this list in the meantime?

Mr. Martin: At least do that. At least do that.

Mr. Summer: We could do that but we have a motion on the floor.

Mr. Caldwell: May I ask Mr. Martin a question?

Mr. Summer: Mr. Caldwell.

Mr. Caldwell: Mr. Martin, are you saying that – well, we all know that we got 46 counties, right?

Mr. Martin: Yes, sir.

Mr. Caldwell: So then if each county wanted to have it, they could have it? All 46 counties?

Mr. Martin: There are two ways you could do it. One way is the majority of you could have voted to put this on the ballot. That didn’t happen so state statute says that 15% of registered voters can put it on the ballot. And that’s what I been doing this past year.

Mr. Caldwell: You haven’t answered what I asked. Maybe you can’t answer -

Mr. Martin: Any county can put this on the ballot if they want to. Any county. And the reason I came up with this was because of all the people that were suffering under the property tax crunch this past year, and that’s what gave me the idea.

Mr. Waldrop: Well, I would like to ask you a question, Sam. Don’t you think gambling is an addiction just like smoking and drinking and whatever? What is your opinion of that?

Mr. Martin: I just don’t see how it can be okay if it is the Education Lottery. It is not gambling, and if it is not gambling, and it is not addiction, why do they have one and they won’t counsel anybody except people who go to the Education Lottery. (inaudible) state government. Government shouldn’t be doing anything that would be not good enough for people.

Mr. Waldrop: Well, I disagree with that. I think it is very much addictive.

Mr. Martin: So you mean government should be engaged in activities that should be criminal for individuals? Because that is what you are saying, and the Home Rule Act does not say that. Mr. Summer, you are an attorney, and you have seen this over and over where the Home Rule Act always trumps. And unless it is specifically prohibited you can do it.

Mr. Caldwell: I think that sometimes Home Rule Act really doesn’t because a lot of things have a state mandate and they don’t fund it. It’s for us to do in this county. So what do you think about Home Rule there?

Mr. Martin: I think it is terrible when they do these unfunded things. One reason why – but what – I stood out all of December and most of January in front of the Treasurer’s Office, and I can count on one hand the people that turned me down.

Mr. Caldwell: You didn’t ask me. I came by.

Mr. Martin: Well, I had asked you earlier.

Mr. Caldwell: No, you hadn’t. You never have.

Mr. Martin: Well, then I’m very sorry. Would you like to sign now?

Mr. Caldwell: No, I won’t.

Mr. Summer: Mr. Adams has –

Mr. Martin: But –

Mr. Adams: Mr. Martin, if I may. Given that the Supreme Court was the last body to speak on this and said that it was illegal, don’t you think the county might have some trouble trying to put this into place even if it is passed by referendum. And also when you talk about whether – that it is allowed under Home Rule if it is not specifically prohibited, I talked to the Attorney General’s office today, and they pointed me to Code Section 12-21-2710, which states that video poker is illegal in the state. How does Home Rule trump that?

Mr. Martin: Because we have certain rights in this county and we have a right under the local option. That’s my opinion, and my opinion is just like their opinion. We all have one and until the court rules on this specifically, and this has never been done. This is unchartered waters. I admit that.

Mr. Adams: Wouldn’t it seem wise though to ask the court for an opinion perhaps a declaratory judgment in advance before we lead voters down that road?

Mr. Martin: I think it would be very unwise to ignore the voters of Newberry County –

Mr. Adams: I’m not talking about ignoring the voters. I’m talking about asking the Supreme Court if it is legal to have such a thing.

Mr. Martin: If you don’t want to ignore the voters of Newberry County, I would suggest that you all get the Election Commission to obey the law yourself and that is by having the Election Commission to do this because there is a state statute – and I don’t believe that is under any dispute that if you get 15% of the registered voters to sign this, you can put it on the ballot. And that isn’t under dispute. I don’t even think that the Supreme Court would object to that or the Attorney General.

Mr. Adams: Well, there are certain items that are excluded from the petition and referendum statute and those have to do with appropriating money levying taxes.

Mr. Martin: But we are not appropriating money and levying taxes. We are charging fees. You can only charge taxes in the case of property taxes and sales tax. If you call it a fee, it is legal. That is how the state government has been cutting the fees on these big corporations – taxes on these rich corporations and raising everybody else’s fees.

Mr. Adams: If you have a referendum that says you are going to get rid of the property tax levy, is that not an inverse way of dealing with levying property taxes?

Mr. Martin: No, it is not. You are eliminating the property tax with a fee and that is perfectly legal under the Home Rule Act.

Mr. Adams: So we shouldn’t get an opinion from – a declaratory judgment from the Court before doing this?

Mr. Martin: I think you should get an opinion but I don’t think a person’s opinion should substitute for a court decision. That’s all I am saying.

Mr. Adams: Well, how about a declaratory judgment from the Court because that is in case law prescribed as the method for determining whether these types of petitions are legal?

Mr. Martin: Well, all I can say is that a lot of people signed this. A lot of people didn’t want to sign it because they said when you go here you will be ignored. And I said, no they won’t do that. They can’t do this because 15% of you signed this, they have to – first of all they have to have these counted. And if 15% sign this, they have a right to do this.

Mr. Adams: And the fact that it is illegal –

Mr. Martin: Just because you don’t agree with it or don’t like it, doesn’t mean that this negates their right –

Mr. Adams: It’s not about whether anybody here likes or dislikes –

Mr. Martin: I understand.

Mr. Adams: But if – don’t you think we might have a problem with people setting up these video poker machines if there is a state law that says it is illegal to do so and how can we bank on revenues from that source?

Mr. Martin: The Home Rule Act is very different and no one has ever tried this way so we don’t know, and you don’t know and neither does the Attorney General. The reason we have a state Supreme Court and Judges and all is because they do things that the Attorney General and others do not do.

Mr. Dawkins: Mr. Chairman.

Mr. Martin: That’s why we have a court system.

Mr. Dawkins: Mr. Chairman, I feel – certainly – like I said I agree with putting it on as a referendum. As far as the day in November that the referendum whether it passes or fails, if people think they are going to go out January 1^st and start video poker machines, I doubt will ever happen. But to allow the people to voice their opinion whether or not they would like to see the video poker back to produce that revenue rather than property tax, I believe that is a proper referendum for them to vote on. And, I mean, like I said it is okay to gamble for schools, even though the way the lottery is set up, I don’t exactly agree with. It is okay for the Charleston Senator Glenn McConnell to introduce a bill to make it legalized to gamble in churches. Now, my Lord, you know that’s a Senate bill on the floor now. Glenn McConnell thinks that churches ought to be able to have the right to gamble in churches for fundraising. I can see that happening in my Lutheran church but anyway I see it – I think it is a good referendum, and I call for the question.

Mr. Summer: All right.

Mr. Dawkins: They can vote it up or down.

Mr. Summer: Okay.

Mr. Hawkins: If Mr. Dawkins will withdraw his call for the question, I have an amendment – I would like to offer an amendment to Mr. Baker’s –

Mr. Dawkins: I withdraw.

Mr. Summer: All right.

Mr. Hawkins: I move that instead of getting an Attorney General’s opinion that we get a declaratory judgment from the court. I think Mr. Martin makes a good point that the Attorney General spouts out opinions all the time, but a declaratory judgment from the court might give us some advice about which way to go.

Mr. Summer: All right. Motion by Mr. Hawkins. Is there a second?

Mr. Waldrop: Second.

Mr. Summer: Second by Mr. Waldrop. Any discussion on this substitute motion?

Mr. Hawkins: It was just an amendment to it.

Mr. Summer: On the amendment to the motion.

Mr. Baker: Accepted.

Mr. Livingston: I’ve got one request I would like. “The courts have consistently ruled, in a variety of cases that unless activity is prohibited by the Home Rule Act, county and local government can engage in such an activity.” There were no court cases referenced there. I would like to have the court cases referenced to make a judgment on that.

Mr. Martin: A perfect example of that was 2006 they had to get a two-thirds vote and put it in on a statewide referendum to cap property tax increases 15% every five years.

Mr. Livingston: That is –

Mr. Martin: Because it is not specifically listed in the Home Rule Act, therefore they had to do this. They had to do this time and time and time again.

Mr. Livingston: I understand, Mr. Sam, but it says “a variety of cases.” I know that is a sample of, but I would like to see the variety of cases that you are actually referencing there before the next discussion on this.

Mr. Martin: Okay. So – okay – yeah – okay – fine.

Mr. Summer: All right. And my comment is, you know, I think the people want to vote on it. I don’t know if it is legal or not, but even if it is not legal, if they just want to have an advisory thing, they ought to vote on it. If you want to eliminate gambling in South Carolina, you better close all the football stadiums and close all the golf courses because that is the only way we are going to stop gambling in this state.

Mr. Martin: Mr. Chairman. Mr. Chairman, all I would like to ask you if you all while you are getting the opinion and stuff, that you would submit this to the Election Commission and let them start certifying the votes.

Mr. Dawkins: You have a motion and a second on the amendment, and I call for the question on the amendment and then vote on it as amended.

Mr. Summer: All right. So as amended – what was the motion again as amended? What was it Mr. Hawkins?

Mr. Hawkins: The amendment was that we get a declaratory judgment from the court, not an opinion from the Attorney General.

Mr. Summer: All right.

Mr. Waldrop: Go through the court instead of the Attorney General.

Mr. Summer: Did you want to have the Election Commission certify this while waiting for the declaratory judgment?

Mr. Hawkins: Yes. They should be moving forward.

Mr. Summer: Moving forward. Okay. All right. All in favor raise your hand. All right. It is unanimous.

Mr. Martin: Just give this to Ms. Fellers?

Mr. Dawkins: That was for the amendment only. You have to go back to the original motion as amended.

Mr. Summer: All right. That original motion is amended. All in favor raise your hand. All right. It is unanimous. Yes, you can give them to Ms. Fellers.

e. Consideration of amendment to lease of old landfill.

Al Morrison proposed extending his lease of the old landfill by 20 years at $100 per year.

Mr. Caldwell moved to extend the lease for 20 years; second by Mr. Waldrop.

Under discussion, Mr. Adams believed this would require three readings of an ordinance and a public hearing.

Mr. Waldrop asked if it was going to be the same lease except for the extension of the lease and the $100 per year. Mr. Morrison said it would be.

Mr. Waldrop was concerned about what would happen if Mr. Morrison passed away. Mr. Morrison said according to the contract as it stands now, his heirs or members of the club could take it over and run it.

Mr. Waldrop also expressed concern over the future use of the landfill and felt the contract should be worded that if it could be used for something else, the county should be able to get out of the lease. Mr. Morrison said those terms were in the contract now.

Mr. Dawkins said Mr. Morrison has approximately three years left on the current lease. This is 59 acres located at Highway 219 and I-26, which used to be an old landfill. Currently Mr. Morrison pays the County $1 per year. The County Administrator and the Economic Development office have been asked to research the uses of this property. The County does monitor it according to DHEC regulations. Before Council jumps into signing an additional 20 year lease, he felt the use of the property should be investigated.

Mr. Morrison indicated he would be interested in purchasing the property provided the County assumed responsibility for monitoring. Mr. Baker advised the county was under obligation for monitoring this site for a period of 99 years from 1991.

Mr. Livingston was concerned about the buy out clause because he was not sure who set the price of the buy out. Mr. Morrison said it was in the contract. The county would appoint an appraiser; Mr. Morrison would appoint an appraiser; and there would be a third neutral appraiser. Mr. Morrison estimated the current investment to be right at $100,000. Mr. Livingston said $100 a year for $100,000 risk on the County is pretty minimal.

Mr. Morrison has to add more equipment to compete, and he doesn’t want to spend the money if he won’t be able to recoup it.

Mr. Waldrop asked about the noise from the gun club. Mr. Morrison said DHEC stated the trucks on the Interstate made far more noise than he did.

Mr. Dawkins said if administration had already directed Teresa Power, Economic Development Director, to do a study, we should wait to hear the answer.

Mr. Adams had discussed briefly with Ms. Powers developing a request for proposal for the purchase and/or use of that property. The idea would be for the county to take into account the economic benefits of the use that might be proposed in addition to any purchase price that might be received for the property. It could be that at the end of the period for proposals there are no offers, and if that is the case, that would be a clearer indication to Council that it is indeed worthless. The purpose of the exercise is so that Council before it signs the lease for $1 a year or $100 a year for 20 years that it at least knows what the property is worth. Mr. Adams felt this process could take six months.

Mr. Hawkins moved to postpone this matter; second by Mr. Dawkins. Voting for the motion: Councilmen Summer, Waldrop, Hawkins, Dawkins, Baker and Livingston. Voting against the motion: Councilman Caldwell. Motion passed by majority vote.

f. Consideration of replacing bridge on Clayton Memorial Church Road.

Virginia Wicker and Allan Wicker requested that Council consider replacing the bridge on Clayton Memorial Church Road that leads to St. John’s Baptist Church cemetery. The funeral homes cannot get to the cemetery for burials. Six families cannot get to their property and have sold their property. The people of St. John’s want to clean up their cemetery and get it in shape for a burial and go there when they want to. Ms. Wicker was tired of hearing the county didn’t have the money to replace the bridge. A petition has been signed by people from Clayton Memorial and St. John’s. They have been to the bridge and transportation people and Mr. Whitehead.

Mr. Wicker has been trying for the last 10 years to get the cemetery at St. John’s cleaned up. His aunt couldn’t be buried by her husband because the funeral home could not get to the cemetery. We need to get loggers over there so we can clean the cemetery. There is a bridge on Oxner Road but you can’t drive trucks over it. Wilson and Pratt Funeral Homes will not cross the wooden bridge on Oxner Road.

Mr. Waldrop said this road has been discussed in the past by the Road Committee. He asked if there was another way to get to the cemetery. Tommy Whitehead, Public Works Director, said you could get in from Oxner Road.

Mr. Waldrop said this bridge has been out for 15 to 20 years. There have been questions about this road because of no one using it. As far as getting the timber out, the timber companies will put in a temporary road to get the timber off of the property. We need to address the problem with getting to the cemetery to bury people.

Mr. Livingston looked at the location last week, and there was no sign of a bridge ever being there as it currently exists. Is the one off Oxner Road a currently maintained road by the county? If it is not secure enough for funeral homes to take the car across there, should the road actually be open or should we look at improving that bridge. Should we refer this back to the Road Committee and let them look at it and explore the alternatives that would best benefit the needs of the people. Mr. Waldrop said he didn’t mind bringing it before the Road Committee. This has been discussed by the Road Committee in the past.

Mr. Livingston said if a bridge was put in it may be that people would build there and bring in tax dollars to the county. The bridge will have to be pretty high and wide because of the deep creek. It also has the potential of a lot of water coming through it at one given time. He didn’t think a pipe would withstand.

Mr. Hawkins said several years ago there was an estimate of what it would cost. Mr. Whitehead said the estimate was $225,000 to $250,000 for a concrete span bridge at that location. Presently there are 25 bridges in Newberry County.

Mr. Whitehead said the Public Works Department takes their backhoe across the bridge to maintain Oxner Road. We do not take it on a truck, but drive the backhoe itself across the bridge. A funeral home could do the same thing on Oxner Road. As far as getting wood out of the cemetery, you cannot bring it back across there on a pulpwood truck. There are some large trees in the cemetery. It would be hard right now to find a place to bury a person in that cemetery.

Mr. Baker asked if Mr. Whitehead had the costs to repair the bridge on Oxner Road. Mr. Whitehead did not. It is a wooden structure, 115 feet long. It is in good shape with a 3 ton/5 ton limit. He has driven across it in his truck and his maintenance people go across with a backhoe tractor.

Mr. Waldrop recommended that it be brought before the Road Committee and invite them to present this to see if there is anything that can be done about this old bridge. We are trying to improve the roads, and we have a priority list.

Mr. Livingston moved to refer this matter to the Road Committee for further study and at the same time study the possibility of re-enforcing the current bridge on Oxner Road until we can do better; second by Mr. Waldrop. Vote was unanimous.

2. Adoption of Consent Agenda.

Mr. Caldwell moved to adopt the Consent Agenda consisting of approval of minutes of February 20, 2008; second by Mr. Waldrop. Vote was unanimous.

3. Additions, Deletions and Adoption of Agenda.

Mr. Baker requested the addition of a contractual matter under Executive Session.

There being no further amendments to the agenda, Mr. Caldwell moved to adopt the agenda as amended; second by Mr. Waldrop. Vote was unanimous.

4. Ordinance #01-03-08: An Ordinance approving a request to amend the Official Zoning Map established pursuant to Zoning Ordinance #12-24-01, codified in Chapter 153 of the Newberry County Code of Ordinances, so as to rezone a tract containing approximately 30/100 of an acre, designated as TMS Parcel No. 340-1-43, from Residential (RS-3) to General Commercial (GC).

Mr. Summer called for the public hearing.

Milton “Mickey” Haltiwanger, who lives next door to this property, requested that Council deny the rezoning request. Mr. Haltiwanger was always promised that he could buy the lot if the lady died, but now her son-in-law is selling it. The Zoning Commission turned down rezoning the property, and when it came before Council, Council did not turn it down. Mr. Haltiwanger said a driveway could not be put in on Wilson Road.

Mr. Dawkins and Mr. Livingston asked if Mr. Haltiwanger was offered this piece of property prior to it going up for sale. Mr. Haltiwanger said yes sir, but she wanted to wait until she retired to sell the land, but she died. Her daughter died and now her son-in-law is trying to sell it. Mr. Dawkins asked if Mr. Haltiwanger was offered the property prior to the son-in-law trying to sell it. Mr. Haltwanger said no. He said the Hometown Realty lady came up and talked with him, but he told her he would wait and see what it was before making any move on it. Mr. Livingston asked if any dollar value was offered at that time or if he was willing to give a certain amount for it. Mr. Haltiwanger said he had not talked with the real estate lady about any money.

Mr. Dawkins said DHEC has approved the site for a commercial septic tank. It will not support a residential septic tank. Council has been told that Mr. Haltiwanger was offered the property before it actually went on the market. Mr. Haltiwanger went down to talk with the lady twice about it, and she is always out when he goes.

Mr. Baker said the tract off of Wilson Road down Whitener Road is maybe 50 feet wide and 150 feet long. It is right in the middle of a residential area. Wilson Road probably one day will be commercial but this area is residential. Mr. Baker could not vote to take a 50 foot wide strip and turn it commercial right beside the road while the rest of it is sitting there residential.

Mr. Waldrop asked if not all of Wilson Road was commercial. Anne Peters, Planning/Zoning Administrator, stated not all of it is zoned commercial. Some areas that are zoned commercial are still being lived in in a residential manner. The used car lot and the mobile home across the road are zoned commercial. There is only one block left that is zoned residential. Various parcels within that block are becoming commercial.

Mr. Haltiwanger said he was willing to buy the property but the price he wanted was twice what the lady told him he could have it for. Mr. Haltiwanger has kept the property up all these years by cutting the grass.

Mr. Livingston said back in February Ms. Bedenbaugh told Council that the property had been offered at $2,000 below appraised value. County Council cannot get into the appraised value of the land. Council can only act on whether it is legitimately zoned or not and Council cannot get into promises made by a deceased person.

Dale Green, owner of the property, said the property in question belonged to his wife, who inherited it from her parents. Mr. Green inherited it when his wife died last March. The frontage on the current plat is 50 feet frontage, but it makes an angle, and the widest part of the property is about 80 to 85 feet. It is about 130 feet long and tapers down to 32 or 33 feet on the far end away from Wilson Road. The property was appraised by Wishart’s Appraisal Service. Mr. Green knew from his wife’s desires that the people living next door to the property were interested in it. When he got ready to sell it, he directed Ms. Bedenbaugh with Hometown Realty to go to that individual and offer them the property before putting up a sign. She offered it to him and it was at $2,000 less than the appraisal, and Mr. Green never heard anything from him. Mr. Haltiwanger did call Mr. Green to try to negotiate a price, and he told Mr. Haltiwanger to contact his realtor. Mr. Green said no counter offer had been made on the property to even negotiate. It is not suited for residential use because it is not big enough, but it could be used for commercial. If it stays residential, Mr. Green has a piece of property he can do nothing with except pay taxes every year. It was offered to Mr. Haltiwanger first before it ever went on the market.

Mr. Dawkins moved to postpone third reading until March 19^th so the parties could try to get together on this. Mr. Summer advised that we couldn’t have a motion until the public hearing was over.

Brenda Bedenbaugh with Hometown Realty personally contacted Mr. Haltiwanger, as instructed by Mr. Green, and offered him the property for $16,000, which was below the appraised value. Even though Mr. Haltiwanger thinks that is a lot of money, Ms. Bedenbaugh had another appraiser in town approach and ask how they came up with such a low value on the property. She didn’t feel that asking $16,000 was unreasonable. She has had several people call and say they might be interested in the property if it was rezoned commercial.

There being no further comments, Mr. Summer declared the public hearing closed.

Mr. Dawkins moved to postpone third reading for one week to give both parties the benefit of the doubt; second by Mr. Waldrop.

Mr. Hawkins is only supporting the motion because if the people get together Council won’t have to turn around and rezone it again, but all of this talk about price is not something Council can get into. We just have to determine if this is a viable commercial piece of property based on its size and location.

Mr. Summer felt it had value as commercial but no value as residential.

There being no further discussion, Mr. Summer called for the question. Vote was unanimous.

Mr. Hawkins requested a ten minute break.

[BREAK 9:05 P.M. – 9:17 PM.]

5. Ordinance #02-04-08: An Ordinance to provide for the issuance and sale of a not exceeding $1,300,000 General Obligation Bond of Newberry County, South Carolina, to provide for the issuance of General Obligation Bond Anticipation Notes in anticipation of the issuance of said Bond, to prescribe the purposes for which the proceeds of said Bond and Notes shall be expended, to provide for the payment of said Bond and Notes, and other matters relating thereto.

Mr. Summer called for the public hearing.

Les Hipp said it appears based on the fact that construction is underway on the Library that this ordinance is almost a formality because it appears that we will have to pay a contractor since we have already signed with somebody. The way he reads the ordinance the county doesn’t have funds in hand to do that and this ordinance is to issue a bond to get the funds to complete our obligation with the contractor.

Mr. Summer said the county had a pledge of $1.3 million, to fund the completion of the Library. This enabled the County to go with the original plan so we did not have to spend another $200,000 to redesign the Library. This enabled the County to move forward immediately. This anonymous person who made this pledge said they would give $1.3 million to finish the Library project. They also said that they would give the money from the proceeds of a land sale so we knew that up front. The Library project is moving along and the construction company wants to get a draw so we need to be able to have the money in hand to pay them. We are borrowing this money, which we will recover when the anonymous donor gives us the funds.

Mr. Hipp asked when the County signed the contract, did the County have in hand from this anonymous donor a written agreement. Mr. Summer said the County had a written agreement pledging $1.3 million, and the written agreement also says that they want to make the donation through some land they own. The written agreement also says that if the land does not sell in 12 months from the time of the agreement, they would deed an interest in the property to the County for collateral in the pledge. The agreement is dated in July 2007.

Mr. Hipp asked if this agreement was contingent upon sale of the property. Mr. Summer said it was not. The pledge was $1.3 million. The donor said they would give the County $1.3 million. The next sentence says we would like to do it this way, and when somebody gives the community $1.3 million, you might want to argue about the details but Mr. Summer just wanted to say thank you.

Mr. Hipp said anybody that generous, certainly thanks go out to them. He came tonight to get some facts because there are a lot of rumors floating around. The facts as he understands them is that the agreement dated in July of last year has an end date by which that $1.3 million will be given to the County. Mr. Summer said the agreement stated if the land does not sell within 12 months from July, that person at the County’s request would be willing to deed the County an interest in the property equal to $1.3 million, if the county wanted to do that.

Mr. Hipp asked if with that interest, is that still contingent upon when that property is sold, is it actually a deeded piece of property. Mr. Summer said the agreement says it will be a deeded piece of property based on the appraisal.

Mr. Hipp said in July of this year if that property has not already been sold, and we don’t have $1.3 million in the county’s hands, then we will be given a deed to a piece of property appraised at $1.3 million that we can then at the county’s discretion sell to recover those funds. Mr. Summer said one of the other conditions was that we would be deeded an interest in this piece of property. This particular person has already picked a selling agent, and that selling agent would continue to promote and sell the property.

Mr. Hipp understood the property was valued at much higher than the $1.3 million. As such, we have no guarantee when that property as a whole will be sold. Mr. Summer said when you have property for sale, you don’t know exactly when it is going to sell.

Mr. Hipp asked if this July, if the benefactor has not already given us a check for $1.3 million and we get a deeded piece of property, will we be able to sell that deeded piece of property? We will have a defined segment that the county can then sell to get their money back or are we will waiting for the sale of the entire piece of property. Mr. Summer said the agreement states the county will get an interest in the property. The selling agent that has listed the property will continue to list the property. The County would not sell the property separate from the listing agent.

Mr. Hipp said it could be ten years before we get the $1.3 million. Mr. Summer said when you sell real estate, you don’t know.

Mr. Hipp said under section 1.02 of the ordinance, it discusses a state statute. As he understood it, it looks like there is a state statute that limits the amount of indebted bonds that the county can issue to 8% of what their taxable property value is. Mr. Adams said that was a constitutional restriction.

Robert Galloway, bond counsel, said that much could be issued without the requirement of a referendum.

Mr. Hipp said the County currently has outstanding bonds in the amount of $6,540,000 and the taxable property value is $109,344,850 with the constitutional maximum that we could borrow or issue bonds to is $8,747,588. Mr. Galloway said that was correct and the $109,344,850 was a very conservative calculation. Mr. Hipp said this is what the ordinance is written up as. This is as established in 2006. Based on this information if you do the arithmetic, it looks like the county is at less than one million dollars of remaining bond available to the county without going before the election. If you do the math according to what you have here. Mr. Galloway said it is the difference between $8.7 million and $6.5 million. Mr. Hipp said that is if we pass this $1.3 million ordinance as worded, the county will have less than one million dollars in remaining debt available under bond. Mr. Galloway said this is a conservative number. There is actually more but that is what is written in the ordinance.

Mr. Hipp said the county had to do this because it didn’t have the money to pay the contractor at this point without issuing a bond or unless you take funds from another bond area, which has not thus far been mentioned. Mr. Adams said if we don’t do this, there will be a point at which we won’t be able to pay the draws. We are not behind on any draws at this point. We still have sales tax money, and we are meeting the obligations as they occur but we anticipate needing this money sometime in the early to mid summer.

Mr. Hipp said but currently we don’t have the money to meet the construction contract as originally contracted with the company without getting $1.3 million from somewhere, either the benefactor or some other source. Mr. Adams said budgetarily speaking as far as that particular capital budget, Mr. Hipp was right, but the county had an audit presented early this year where the County had $7 million in unrestricted cash. Just because it is not in that budget doesn’t mean we couldn’t pay it if we had to, but generally it is not a good practice to go below 3 ½ months of operating reserves. That money is needed between July and December to fund the operations of County government because state law requires that we begin the fiscal year on July 1; however, the state law also sets the collection cycle for property taxes so that we don’t collect real estate taxes, which is the biggest part of our revenue, until December. State law requires us to begin spending July 1 even though we don’t collect the lion’s share of the money until December so there is an amount of reserve, which we have calculated at 3 ½ months, that we have to have on the snapshot date of June 30, at the end of each fiscal year.

There being no further comments, Mr. Summer declared the public hearing closed.

Mr. Hawkins moved for second reading; second by Mr. Waldrop. Vote was unanimous.

6. Ordinance #03-09-08: An Ordinance to accept Frandeena Court into the County Public Road System, to be maintained as are all other county maintained roads and matters relating thereto.

Mr. Hawkins moved for second reading; second by Mr. Dawkins. Vote was unanimous.

7. Ordinance #03-05-08: An Ordinance enacting and adopting Supplement 2008 S-4 to the Code of Ordinances for the County of Newberry, South Carolina.

Mr. Hawkins moved for first reading; second by Mr. Caldwell. Vote was unanimous.

8. Ordinance #03-06-08: An Ordinance amending Chapter 153 of the Newberry County Code of Ordinances setting forth special conditions for the use of recreational vehicles, and for other matters related thereto.

Mr. Waldrop moved to postpone first reading; second by Mr. Dawkins.

Mr. Dawkins said there were several legal points brought up by homeowners that need to be addressed by Mr. Pope prior to the next meeting.

There being no further discussion, Mr. Summer called for the question. Vote was unanimous.

9. Ordinance #03-07-08: An Ordinance acting on a request to amend the Official Zoning Map established pursuant to Zoning Ordinance #12-24-01, codified in Chapter 153 of the Newberry County Code of Ordinances, so as to rezone two tracts containing a total of 2.5 acres designated as TMS parcel #583-23 and #583-33, from Rural (R-2) to Light Commercial (LC).

Mr. Hawkins moved for first reading; second by Mr. Baker.

Mr. Hawkins said Mr. Pope has come up with a good idea for the ordinance saying this is an ordinance for you to act on a request and that way Council can go positive or negative but still it would require three readings and a public hearing. We have finally gotten to that conclusion. Mr. Hawkins was puzzled by the note on the agenda that says “this is a new form of ordinance where Council needs to consider the action of the Planning Commission.” Mr. Hawkins felt Council had always considered the action of the Planning Commission. We haven’t always agreed with that action but we have always considered it.

There being no further discussion, Mr. Summer called for the question. Vote was unanimous.

10. Ordinance #03-08-08: An Ordinance acting on a request to amend the Official Zoning Map established pursuant to Zoning Ordinance #12-24-01, codified in Chapter 153 of the Newberry County Code of Ordinances, so as to rezone two tracts containing a total of 4.05 acres designated as TMS Parcel #445-10 (2.24 acres) and a portion of TMS #445-18 (1.81 acres), from General Residential (RS-3) to General Commercial (GC).

Mr. Hawkins moved for first reading; second by Mr. Baker. Vote was unanimous.

11. Committee Reports.

12. Appointments.

Mr. Baker recommended the reappointment of Lewis Lee to the Newberry County Water and Sewer Authority Board.

There being no further appointments, Mr. Waldrop moved to approve the nomination; second by Mr. Hawkins. Vote was unanimous.

13. Consideration of acceptance of Bid #2007-015, dump truck.

Crystal Waldrop, Purchasing Director, said this was the second time this was bid and two bids were received. She recommended acceptance of the low bid from Columbia Truck Center for a Freightliner in the amount of $95,251.

Mr. Livingston moved to accept the low bid from Columbia Truck Center in the amount of $95,251; second by Mr. Dawkins. Vote was unanimous.

14. Consideration of request to declare the following equipment as surplus property and authorizing sale of surplus property on GovDeals:

Public Works 1978 Ford

1983 Kenworth Tractor

1989 Mack Dump Truck

1978 Ford Tractor

1988 Chevy Pickup

1997 JCB Backhoe 215E

1989 Champ Motor Grader

Magistrate’s Court SENTRE Metal Detector

Garret Magna Scanner

Crystal Waldrop, Purchasing Director, advised most of these items were replaced on the current lease/purchase.

Mr. Livingston moved to approve; second by Mr. Dawkins. Vote was unanimous.

15. Requests by Councilmen.

No requests.

16. Public Comments.

No public comments.

17. Vote for Executive Session, when necessary.

Mr. Hawkins moved to go into Executive Session to discuss a contractual matter; second by Mr. Baker. Vote was unanimous.

Cindy Pitts with The Newberry Observer objected because it was not specific.

Mr. Summer asked Mr. Baker if he could go into more detail. Mr. Baker said it was contractual. It’s a contract.

18. Executive Session

a. Contractual matter.

9:40 P.M. – 9:46 P.M.

Mr. Hawkins moved to return to open session; second by Mr. Baker. Vote was unanimous.

19. Necessary action on matters discussed in Executive Session.

No action.

20. Comments from County Administrator.

No comments.

21. Comments from Council Members.

Mr. Waldrop thanked the County Administration and all the people in the county for being with them during their time of grief.

Mr. Hawkins received a call from a reporter with WIS-TV while ago who said that Mr. Martin reported to them that Council had agreed to put it on the ballot in November. We did agree to start verifying the names,

Mr. Summer congratulated Cindy Pitts and the Observer on the press awards they recently won.

22. Future Meetings: March 19 and April 2 at 7:00 p.m.

Council Planning Retreat April 19-20, 2008.

23. Vote to adjourn.

Mr. Hawkins moved to adjourn.

24. Adjournment.

Mr. Summer declared the meeting adjourned at 9:50 p.m.

NEWBERRY COUNTY COUNCIL

________________________________

Henry B. Summer, Chairman

________________________________

Susan C. Fellers, Clerk to Council

APPROVED: April 16, 2008