NEWBERRY COUNTY COUNCIL
MINUTES
MARCH 19, 2008
The Newberry County Council met on Wednesday, March 19, 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
Gary T. Pope, County Attorney
Susan C. Fellers, Clerk to Council
Debbie S. Cromer, Finance Director
Press: Cindy Pitts, The Newberry Observer
Heather Hawkins, WKDK (arrived at 9:00 p.m.)
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. Pope had the invocation followed by the Pledge of Allegiance.
Darryl Hentz, Mayor of the Town of Pomaria, wanted to know if Council still supported the citizens of the Town of Pomaria and the surrounding community and other surrounding communities who are against the landfill. They still have the same concerns, those being the traffic, the dust, and the environmental issues. Approximately a year or so ago when the bridge was built down at Peak, they were hauling dirt out of that piece of property. This tore the roads up, and 202 is a major highway. Also, the road leading down to the bridge in Peak that was built was almost completely destroyed, and this is just dump trucks hauling for several weeks only a couple of hours a day.
There are 70 active permitted C&D landfills in the State, which is 1 ½ C&D landfills per county. There are 7 waiting for permits, which would put it at 77.
A lot of people are still on well water, and you have water flowing through this property through a creek. A C&D landfill does not have a liner. It just goes in on the ground so there are concerns about what may sneak or get in there in the future if trucks come in and it is not monitored properly.
Councilman Livingston spoke at a civic meeting in February and wanted people’s opinions as to how they felt about the C&D. He wanted to know if we would rather have low-income housing or a C&D landfill. He didn’t get a lot of response that night, but he felt that we would not win this battle if we go to the next phase of Court. We haven’t heard anything along that line, but the citizens still want to fight on to the highest level of Court, if at all possible.
Mr. Baker requested that agenda item 3 be postponed until the April 16 meeting. He also requested that item 12 be moved to 18.1.
Mr. Hawkins understood bids were scheduled to be opened tomorrow on a company to grind up the limbs at the Transfer Station. He had some questions about the process and asked Mr. Pope’s advice on whether this should be discussed in public or in executive session.
Mr. Pope advised it came down to a safety issue and wasn’t something that needed to be in executive session so much. He went to the Transfer Station this morning to see where the grinder would be. There was a lawsuit about a tub grinder accident a few years ago. There was a confidential settlement but it cost a good bit of money. The tub grinders have a tendency to throw stuff out in a 360-degree arc, and it is virtually impossible to have it operate safely in an area near where the public is going to be. Because of the size of that site the grinder has a very limited area where it can be and the public is continuously going through there as well as employees. Mr. Pope felt it was a very bad idea from a liability point of view to have a tub grinder out there when there is a safer alternative. That is why Mr. Whitehead requested a horizontal grinder in the bid. This contract is not for the storm damage debris. That will be a separate area and subject to a separate contract. Apparently any kind of grinder could be used at that location because the public would not be near it. Out at the Transfer Station it is a lawsuit waiting to happen and an injury to the public waiting to happen.
Mr. Hawkins didn’t want to get into the substance of the discussion at this point and requested that it be added to the agenda for discussion tonight. (Agenda item 12)
Mr. Dawkins requested the addition of 2.1, which is a resolution honoring Ms. Lynda McCarty, the Plant Manager of Georgia Pacific, who is being transferred back to her native state of Mississippi. She was featured in The Wall Street Journal about a year ago for her success as a female plant manager. Ms. McCarty has truly been one of those people that came into Prosperity in 1997 and became actively involved in the school system, the PTO, and especially with the Sheriff’s Office, Fire Departments and Rescue Squads. Every year Georgia Pacific makes sizeable donations to the fire departments and rescue squads. This resolution will be presented to her later on this week.
There being no further amendments to the agenda, Mr. Waldrop moved to adopt the agenda as amended; second by Mr. Hawkins. Vote was unanimous.
Mr. Hawkins asked if before beginning the regular agenda, he could take a minute to thank law enforcement, emergency services, employees and volunteers, and Public Works and everybody that helped out this past weekend. We appreciate what everybody did to help move things along. Mr. Hawkins was proud of the dispatchers. They kept their cool and kept everybody informed, didn’t lose their heads and was professional from the top down.
2.1 Resolution honoring Lynda McCarty.
Mr. Dawkins moved to approve the Resolution; second by Mr. Waldrop. Vote was unanimous.
Postponed.
Mr. Dawkins moved for third reading; second by Mr. Waldrop. Vote was unanimous.
Mr. Hawkins moved for third reading; second by Mr. Dawkins.
Mr. Baker called Tommy Whitehead about this particular road. Council was informed that the acceptance of Frandeena Court kind of slipped through the cracks, and we didn’t get it in. Now we need to accept it and take it in and that it met all specifications. However, Mr. Baker found two letters from Ron Lilly, former Public Works Director, dated in 2004 and 2005 to Chairman Dawkins where he was asked to verify the road to see if it met specs. On pages 3 and 4 his reply was that the road did not. In 2004 it would take a little over $13,800 just to bring the road itself up to specs without paving. Since 2004 nothing has been done about this road. The man that owns it has not touched it. The County has not been asked to go fix it at his expense so the road still stands as this letter states. Mr. Baker asked Mr. Whitehead how the road stood today.
Tommy Whitehead, Public Works Director, said the owner has neglected the road for 10 years. He understood the owner did do a 66-foot right of way, but he has not checked that with the Clerk of Court. This was handled in executive session. He did not know whether it was a 66-foot right of way. Mr. Whitehead has looked at it. There are 11 homes on the road. It is 1600 feet long. It is a surface of 18 feet and is in need of repair. Equivalent to what you see here upgrading it from 2004 to present day costs, you are probably talking $16,000 to still have a gravel road.
Mr. Baker said we are talking $16,000, and the next thing would be to pave it at a little over $40,000. We are looking at a minimum of $55,000 to take in the road.
Mr. Whitehead thought the question before Council was to take it in as a gravel road and then in turn we would bring it up to standard at the County’s expense and whether it will be paved or not is a question for later. It does have 61 points, and we are paving roads with CTC funds now that have 45 and 46 points so it does have ample points to be considered for paving in the near future.
Mr. Baker said we were told this road didn’t need anything and all of a sudden we find out it will take about $16,000 just to bring it up to grade.
Mr. Dawkins didn’t see where Mr. Whitehead had checked the road and he valued Mr. Lilly’s opinion and his report reflected that if the road were built today, this is what it would take. In order for the road to go into the county system besides some gravel on it, does it need any of this that is in the report?
Mr. Whitehead had Johnny Willis, Road Foreman, to go back in 2007 to verify what we saw in Mr. Lilly’s report. Mr. Willis came back with additional driveways more than what Mr. Lilly had because some lots had been sold. There are 11 houses on there. In some cases the previous landowner on the private road has allowed people to put 8 and 10-inch plastic pipe in the driveways. Most of those would have to be taken out and driveway pipe that we put in to standard. These are individual built houses that the contractor built and did whatever he wanted to with the driveways. There has been little to no maintenance in the past 9 to 10 years. It was supposed to be built to county standards at the time it was built some 10 years ago. Kenny Graham put the road in for the owner.
Mr. Dawkins said the road was in fact built to county standards and inspected by the then Public Works Director to be accepted into the county system. Mr. Whitehead said he did not have knowledge of that, but would have to refer to the Clerk to Council to go back in the minutes at that time. Mr. Whitehead came to work with the county in March of 2005.
Mr. Dawkins realized this road needed maintenance but he would put the road up in its current condition against any of the county’s gravel roads where we don’t even have 66 foot rights of way much less a 200 plus foot cul-de-sac for emergency vehicles to turn around. This road was built to county specs at the time it was built in 1999. The County Public Works Director inspected the work while the road was being constructed, and because of a change in the Public Works Director at that time it never went into the county system. What the County Council is attempting to do is make a right out of a wrong when the landowner built this road to county specs at that time.
Mr. Waldrop said there has been confusion and discussion about this road for some time. The Road Committee did recently recommend taking this road into the system but if there is concern about fixing or repairing this road before the County can take it over, would the landowner be willing to improve the road before the county takes it over. Mr. Whitehead has not talked with the property owner.
Mr. Dawkins has talked with him on numerous occasions but didn’t feel it was the property owners responsibility to bring the road up that has not been maintained in the past 10 years when it has been the County of Newberry’s responsibility to have maintained that road once he was told that it passed inspection when it was built. Mr. Dawkins disagreed with Mr. Whitehead strongly that it would take $15,000 to $16,000 to bring the road up to county standards at this time. Over a period of time maintenance would be needed on the road as any other road in the county system, but to replace driveways because they have a 10-inch pipe rather than a 12-inch pipe, and there are no 8-inch pipes. They have operated fine for the past 10 years. Mr. Whitehead couldn’t say they have operated fine. The have silt build up and the pipes are clogging. Mr. Dawkins said if we are going to be that particular on the maintenance of county roads, Mr. Whitehead should meet him tomorrow so he can show a few more in his district that have been neglected. Mr. Whitehead told Mr. Dawkins to please give them a call.
Mr. Baker said the County has now put in the subdivision regulations and we have a rule that we don’t take any more gravel roads. They have to be paved prior to us looking at them. We have several points to look at. We have the money to put out to begin with on it, and we don’t know what it does on subdivision regulations. We are just saying bring it up to code as to what it used to be. Mr. Baker will have to vote against this.
Mr. Hawkins asked Mr. Whitehead if the road had been taken in in 1999 and these additional lots sold and houses built, is it the county’s policy that we would have installed those driveways for the people. Mr. Whitehead said the county puts in the first driveway for each homeowner on any county road free of charge. Mr. Hawkins said had it been in the system the county would have installed one driveway per household.
Mr. Waldrop said there were roads all over the county where there were problems with the plastic pipe. The developers in his area have been changing them out, and when they do change them out, then we consider taking them into the system. That’s why Mr. Waldrop asked if the property owner would be willing to do some of the work to the road and then the county could consider taking it over. Maybe the Road Committee needs to consider that and ride down to look at the road and get an idea before making a decision with spending this amount of money.
Mr. Hawkins moved to postpone this until the Road Committee reports back to Council; second by Mr. Waldrop. Vote was unanimous.
Mr. Summer called for the public hearing. There being no comments from the public, Mr. Summer declared the public hearing closed.
Mr. Hawkins moved for second reading; second by Mr. Waldrop. Vote was unanimous.
Mr. Summer called for the public hearing.
Harry Greisser, a resident of the Summerset Bay division in Chappells on Lake Greenwood, asked if the people in his community were wrong when they took County Council at its word. In January 2001 the County passed zoning, and when it did, it was a very transparent process. There was some resistance to zoning, but it was a transparent process and people had a chance to comment on the ordinance and to look at the plats to see if their category was appropriate. It was an open process and people should have raised issues if they had them. In that definition their area was zoned RS-1, which meant no manufactured housing and the ordinance called for no RV usage throughout the county. Our RS-1 zoning also meant no RV usage. People took that at its face and made financial decisions based on it. People in our community bought land and built houses believing they were protected by zoning and the prohibition of camping and RV usage in the community. If the RS-1 is now changed to allow camping in our community, it may be tantamount to taking property value from a group of owners without compensation and not for public good like a road but to give the benefit to other private owners who have a lesser usage in mind for their property. There is no one in this room who thinks camping should be prohibited everywhere in Newberry County and especially on your own property. Property rights ought to be protected.
There are common sense limits to how you use your property. Obviously no one wants a chicken farm next to the Opera House or a landfill behind the Hampton Inn. Recently Council made a very wise decision to reject the zoning proposal that would allow a mobile home park in a residential community. This isn’t a community that had RS-1 zoning. They didn’t have covenants and restrictions, but they were able to get zoning protection, and we believe it is just as wrong to allow camping in our RS-1 residential community.
It is easy for the county to default to covenants and restrictions. Covenants and restrictions and zoning are two different things. Covenants and restrictions are civil matters between property owners and are historically expensive and extremely difficult to enforce, and they can generate a lot of ill will in our neighborhood. Zoning is a county policy. Violations bring about real penalties and don’t necessarily set neighbors against neighbors. Those who speak loudest for the right to do whatever they want on their own property are often the first to cry for zoning protection. In that recent hearing about the Airport area, there were those who argued that it was fine for them to camp in our residential neighborhood but didn’t want mobile homes in their residential neighborhood.
You should be able to camp on your own property at the lake if you get the community to agree to a zoning change from RS-1 to a different category that permits camping, a category that at the moment doesn’t exist, but perhaps should be created. RS-1 zoning is supposed to be the most restrictive of categories. If you live on Main Street in Newberry, you don’t need deed restrictions or a homeowners’ association to keep people from camping next door. City zoning prohibits camping within city limits.
Changing RS-1 to allow RVs in our community would allow camping less than 50 feet from the front door of a home in a community that is either more residential than Main Street, Johnstone Street or Harrington Street. Just because we live on a lake doesn’t change the fact that this is primarily a residential retirement neighborhood. In most cases our properties are only 100 feet wide with 10 feet construction set backs. This is a densely populated residential retirement neighborhood of upscale site built homes. To allow camping in this type of neighborhood sets a terrible precedent. It discourages homebuyers and drives down property values.
RS-1 zoning prohibits manufactured homes. In the ordinance a manufactured home is defined as constructed in a factory to be used as a single-family dwelling. Some zoning categories permit mobile homes as long as the wheels are removed and the undersides are skirted. Should mobile homes for recreational use be permitted in RS-1 residential zoning as long as you don’t remove the wheels?
Does the county intend to give more consideration to those who register their motor coaches in a lower property tax county than to the permanent homeowner taxpayers in Newberry County?
To allow any restricted camping in RS-1 means the county will take on complicated enforcement responsibilities. It is going to be very difficult to manage and enforce because it is vague and ill defined.
Many of his neighbors bought in this community counting on RS-1 zoning protection and he asked if Council was going to change the rules now or keep its word to these people.
Recreational camping should be permitted in this county but not in an RS-1 residential zone. Mr. Greisser asked that Council leave their neighborhood the way it is.
Mr. Dawkins said it was a rural county and they were not against camping and mobile homes in parts of the county but the RS-1 district is the strictest regulations of all zoning is only about four per cent of the entire county. Even on Lake Murray 90% of the lakeshore is not even RS-1. Mr. Dawkins agrees that in RS-1 campers or mobile homes should be allowed in any condition. If you don’t allow a mobile home in RS-1, why would you allow a temporary camper?
Jim Smith, who lives in Summerset Bay, has lived most of his life in a zoned community. There has never been any camping allowed in any RS-1 neighborhoods. Camping should probably be allowed in Newberry County but not in a residential area. There are some beautiful streets in the City of Newberry, but no one would want to see campers move in next door to even stay a week. It has a negative effect on property values. There is one property that has campers occasionally but how would he convince a buyer interested in his house that these are nice people and they just camp occasionally. Camping is not appropriate for an RS-1 neighborhood. Mr. Smith has a small motor home but it is stored in a commercial storage place. It is only brought over to pack and clean, and there is some provision in the zoning ordinance about doing things like that, which is appropriate.
Cort Nagel just moved here about 18 months ago. Several weeks ago Council was given packages from approximately 100 people who support the RS-1 zoning as it stands now. Mr. Nagel is only 2 lots away from property that allows, and has, a lot of camping and RV. When he goes out, he sees two large RVs, 3 or 4 pick-up trucks on all parts of the three lots these people own on the lawn, sun canopies, a tent, and at any one point in time there might be 8 to 12 people plus. This does not typify a residential area. This is a state park usage, and he is personally affected by it. He has a lovely house and pays a lot of taxes. Their tax digest is over $4 million on the 100 properties they have. This usage, if compounded, and the ordinance, if changed, will directly affect the entire community.
Mr. Nagel stated there could be no vagueness in the ordinance to allow this type of usage. He asked that Council take that under consideration.
Ed LaRoach, resident of Summerset Bay, said in the book given to Council there were 87 replies from residents on their position on any change to RS-1. Eighty-seven of the people who responded do not want to see this changed. They like RS-1 and bought here with the understanding of RS-1. If there is ever a clearer mandate by a community of what they want to see, it is the kind of rules you have for RS-1.
There is an option, which he didn’t recommend, but Council could set the rules for RS-1 as they now are and make it an RS-1A and let that be just for our community and then do whatever else you think is appropriate for Newberry County. It wouldn’t help on Lake Murray necessarily but it would go with the will of the people who have registered their feelings on this matter. If you do decide to change the ordinance over our objections, there are some real problems that need to be addressed with the ordinance.
The first deals with the 14 days, and they recommended changing it to 7.
The second, and more importantly, is the days of usage ought to be consecutive. If they are not consecutive days of usage, which you have just put in place, an RV will show up on lot on a Friday night. It will be used through Saturday or Sunday. The rest of the week it will sit there while the residents return to work or wherever they live. They will come out the following weekend; occupy the RV again for another couple of days. They have used under the way this is written 4 days out of 14. They could practically use it all summer under that. This is a permanent location of an RV with temporary usage, and that is not the kind of thing we would like to see.
There is no provision in the ordinance for how many 14-day periods you can have. One or two in a year would cover what most people would have if they have company in and they want to use the RV or you want to bring your RV on and use it for company as an extra bedroom. The way this is written drive the RV off the property, bring it back and you have 28 days out of 29, and that could go on indefinitely so you have an open ended usage of RV’s. This is confusing and almost impossible for anybody to enforce.
Another issue is the use of the word storage in a rear yard. The rear yard of lakefront property could be the water or the other side, and there would be RVs all over the place. On lakefront property the only appropriate storage of an RV is in an enclosed area in a garage or a carport. Otherwise, it is going to be in somebody’s view and 50 feet away from them regardless of whether it is the front yard or back yard. The ordinance defines a front yard as being where the road is, but if there is a side road, that is frontage. On a lake, there is more traffic down the lake than down the road so what is the front and what is the view seen by people. Storage in a rear yard should not be done on any lakefront property.
Mr. LaRoach requested that the reference to “parked trailer” be eliminated because that conjures up a rental property where a trailer is pulled into a location like a state park set up to be used and rented. Those are not mobile and RV in nature. They are semi-permanent, if anything. They didn’t see any temporary use out of something called a parked trailer.
Section 4 (I) talks about a permit if you are constructing a house and putting on an RV for usage to stay there. There should be an addition like Section 4(C) where it says “if not prohibited by covenants or deed restrictions” because if you issue the permit and the person thinks he can bring his RV out and live in it and he’s got a permit to do it, he will not have checked covenants and restrictions capabilities. When he comes out there with his RV already set up, he is not going to be very welcome to someone telling him it is not allowed. He needs to be told in advance when applying for a permit that he needs to make sure that he is not going to violate a covenant condition at the same time.
There is concern about the county’s ability to monitor and enforce the ordinance. It can be put on the books but the ability to have some of the current ordinances enforced is difficult and if you have multiple days of usage, it will be even more difficult as to how it is monitored. There is an ordinance on the books that can’t really be enforced or it becomes debatable as to how many days were really used and how many weren’t.
We believe RS-1 as it exists now should be kept as is even if it means making us an RS-1A kind of community if that is the only way to do it.
Mr. Waldrop understood that 90% of the people in their community would consider RS-1A as being suitable for the community if it were the same as the zoning for RS-1 now.
Mr. Waldrop recommended that Council consider, and moved, that Council go with the old zoning rules of the seven days if somebody wants to come and visit and go with the RS-1A in this community.
Mr. Dawkins asked if he was saying that RS-1A would not permit it even for seven days or no period. Mr. LaRoach said it would permit 24 hours, which is turn around time.
Mr. Waldrop repeated his motion as follows: recommend in this community to with the RS-1A; second by Mr. Dawkins.
Mr. Dawkins asked that Mr. Waldrop state the developments. Mr. Waldrop said it was Waters Edge, Summerset Bay, Summerset Point and Windmill Landing.
Mr. Waldrop said this was not for the entire rural areas of the county. We are talking about areas similar to Summerset and Windmill communities.
Mr. Dawkins asked if that was an amendment to the motion. Mr. Waldrop said it was an amendment.
Mr. Hawkins said we didn’t have a motion on the floor yet. We needed the motion and then an amendment.
Mr. Summer said the original motion was to have first reading to have special conditions but Mr. Waldrop made an amendment to the first reading that in certain areas we are not going to have special conditions. Mr. Waldrop said that was correct in certain areas of the county.
Mr. Hawkins moved for first reading as amended; second by Mr. Baker.
Considering the nature of this and the publicity, Mr. Hawkins requested another public hearing prior to third reading.
There being no further discussion, Mr. Summer called for the question.
Mr. Pope asked for clarification for the purpose of drafting the amendment. Council is going to create a new zoning district called RS-1A and these amendments would not apply to that zoning district. Mr. Summer said that was correct.
Mr. Pope said we would then define those areas. Mr. Summer said that was correct.
Mr. Summer said we are creating a new zoning district. Mr. Pope said these amendments wouldn’t apply to that zoning district.
Mr. Livingston asked for a point of clarification. We are creating an RS-1A strictly for this territory. Does that mean we are completely aborting this or are we still keeping this in place for the rest of the county?
Mr. Waldrop said that was a good question. Mr. Pope’s understanding was that Council adopted the ordinance but you would carve out an RS-1A and this would not apply to it. This wouldn’t be the only place. You are creating a new district classification, and if there are other areas that need to be classified RS-1A, they would go there, too.
Mr. Hawkins said he would vote for it for all RS-1 areas so it may not be necessary to create this special district. He didn’t hear anybody objecting to this for all RS-1 areas.
Mr. Baker felt it should be left RS-1. He asked Ms. Peters if the County could create a new zoning district.
Anne Peters, Planning/Zoning Director, said it could. They can also create an overlay district that can keep everything as is plus something on top.
Mr. Summer asked if Mr. Hawkins wanted to make a motion that instead of having an RS-1A just to prohibit it in all RS-1 areas.
Mr. Dawkins said we just had first reading on an RS-1A. Mr. Dawkins made a motion to have first reading as the ordinance was presented to Council tonight with the exception that recreational vehicles be excluded from all RS-1 and not just this area. Next meeting we will have two ordinances, and we may be able to eliminate one of them. Mr. Dawkins moved that it goes as read except the only change in it is that recreational vehicles are prohibited in the RS-1 area so hopefully we will be able to do away with one or the other. In other words at the next meeting we may not need this RS-1A, but may be able to make it county wide RS-1.
Mr. Waldrop’s problem with that was there are places on Lake Greenwood and probably Lake Murray that will have a problem with it being RS-1 that may already have mobile homes or campers. Mr. Dawkins said any mobile home in RS-1 is grand fathered in but as far as a portable camping trailer, it would not.
Mr. Adams said this ordinance is about liberalizing the restrictions on RVs and that the liberalizations in this ordinance would not apply to RS-1. RS-1 would stay as is with those restrictions. Mr. Dawkins said that was correct.
Mr. Waldrop seconded Mr. Dawkins’ motion.
Mr. Livingston said we still have RS-2 where we talk about 14 days. Some of this may not be enforceable or would be difficult to enforce. Mr. Dawkins said there would need to be some amendments. Mr. Livingston said some refining has to be done to this.
Mr. Caldwell asked if the RVs are prohibited and if someone comes to visit for an hour or a day, they can’t come in that area at all. Mr. Dawkins said the use of an RV in RS-1 would be absolutely prohibited.
Mr. Pope attended the Planning Commission meeting at which all of this was discussed. There was a strong sentiment to have no regulation whatsoever anywhere in the county. What was presented to Council tonight was the compromise that the members could finally agree upon. This is one of the most contentious issues the Planning Commission has had in quite a while, and some people looked at it as it is licensed by the State. It is like a pick-up and can go wherever it wants to. For some reason there are really strong feelings on both sides of this question. This was the compromise the Planning Commission reached after tremendous discussions.
Mr. Waldrop said that’s why he recommended the 7 days for this particular area but he didn’t mean all over the county. He could understand their feelings because of the value of their properties and the closeness of the property.
Mr. Baker asked if this was going to be used in the rest of the county, you have in here 3 days, 7 days, 14 days, but it does not specify 3 days of what. Three days of a week? Three days of a month? Three days of a year?
Mr. Pope said the discussion at the Planning Commission was it was 72 hours. Mr. Baker said you could leave for an hour and come back for 72. Mr. Pope said you could but the idea was if someone was going on a trip, it apparently takes a while to load one of these things up. If you are coming back from a trip, it can take more than a day. This was the figure the Planning Commission came up with. They said it was impossible to do it in 24 hours, and it would create a hardship. If you had someone to come for the weekend, it would allow that to happen. By having 72 hours, they are talking about consecutive hours. There were strong feelings about how long it would take to pack and unpack one of these vehicles.
Mr. Baker said this would be an enforcement problem. Mr. Pope said a lot of this is common sense. If neighbors respect each other, then it won’t be a problem. If it becomes a problem, you do have a mechanism for solving that problem.
Mr. Livingston asked if enforcement would be based on complaint base or 3 days. If it is parked for 3 days, then they drive it to Columbia and come back, do the 3 days start over? If they drive it to Billy Dreher and spend the night and come back, do the 3 days start over? He felt it would be an enforcement nightmare. Mr. Pope advised that was the reason for the definition of a recreational vehicle and what temporary use was and that it was not a substitute for a permanent residence. If the person is driving in and driving out, but they are registered to vote there, have a driver’s license at that address and get their mail there, then they have taken up residence there and are in violation of the ordinance. There will be some people who will cut it close and whatever we end up with may have to be fine-tuned. All of these issues were discussed and this was the compromise of the Planning Commission.
Mr. Waldrop felt we needed to go back to what he stated the first time. In this certain area of the county we need to consider RS-1A for these developments, and that would solve the problem. As far as the other parts of the county, if they want to do that, they can come before the Council and we can change it.
There being no further discussion, Mr. Summer said the motion is to prohibit RVs in all RS-1 districts throughout the county. Mr. Dawkins said this was first reading. Mr. Summer said Mr. Waldrop’s was to create a new RS-1A prohibited.
Mr. Summer called for the question. Voting for the motion: Councilmen Summer, Waldrop, Caldwell, Hawkins, Dawkins and Baker. Voting against the motion: Councilmen Livingston. Motion passed by majority vote.
Mr. Adams said to be clear this is to say that the new liberalizations on RV restrictions don’t apply to RS-1 and RS-1 remains as it is. Mr. Summer said that was correct.
Mr. Hawkins moved for second reading; second by Mr. Livingston. Vote was unanimous.
Mr. Caldwell moved for second reading; second by Mr. Baker. Vote was unanimous.
No committee reports.
No appointments.
A local contractor, who wanted to bid on this job, approached Mr. Hawkins. If we are concerned about people being injured, he understood the position taken. The note he received said we were concerned about this lawsuit. If it is just about being sued and monetary damages being paid, this contractor says that he carries a $2 million liability policy and $5 million umbrella. He also says he can control the direction of the debris that exits the tub grinder. Mr. Hawkins didn’t know if tub grinders had been improved since the County had its tub grinder. He felt we needed to know why he is not being allowed to bid.
Tommy Whitehead, Public Works Director, explained that a tub grinder is a big tub about 10 to 12 feet across and spins round and round clockwise or counter clockwise, as the operator moves it. At the bottom of the tub there is 2 to 3 feet of a drum that is turning high speed RPMs because of a 1,000 to 800 horsepower motor that is turning that drum. It has hammers on the top of the drum as big as a fist that come over and over and over. Under the grinding tub and under those hammers are screens with holes in them and things have to be hit, pulverized and beat in that tub to get through the screen before he can control the direction of the debris, which is then mulch going over a chute out into a pile. The problem that Public Works had with its tub grinder and the lawsuit we had when people got hit was that you couldn’t control what comes out of the top of that tub. That high speed RPM hammer drill on the bottom turning a high rate RPM, loading it up, and from time to time, there has been submergible well pumps in debris pile. Think about that hitting at a high RPM in the bottom of the hammer tub. It then explodes and everything comes out of the top of the tub at 360 degrees going anywhere it wants to go at a high rate of speed.
A horizontal grinder has a conveyor that pulls all debris forward as a backhoe that he loads it with himself. He has a button and a pouch that stops that grinder instantly. Once he hears metal hit or anything clogs it or there is too much in there, having trouble with a log, he can hit that button and stop that forward progress and reverse that chain reaction. It will not get into the hammers if it hits because he is trying to get it out so it will not tear up his machine. At the same time it gets pulverized into the screens and goes out the conveyor.
The only problem is the tub slinging around 360 degrees. All pictures Mr. Whitehead has seen on tub grinders say, “Stand clear.” “Flying Objects.” The county’s did and most that he has seen have that warning.
Tub grinders were great when they first came out and they are great in the woods. Tub grinders do a good job with stumps. The debris Public Works has coming in is from the city, all municipalities in the county, and they do a clamshell operation on the side of the road. They try to pick up limbs but from time to time, we get tire rims, submergible well pumps, brake shoes and things of metal. We try to watch that really close, but when he sets on site, he becomes owner of that tub grinder. If he hits anything, it is up to him to take the damage. This tub grinder when he hits something in the bottom of the tub that is loaded, all operations stop, the clutch is disengaged and it free wheels for a while. Then the whole tub has to be turned up and dumped to find out what has been hit and to clean the stoppage and redo that particular tub grinding.
That is the reason Mr. Whitehead put in his specifications that he didn’t want a tub grinder in the proximity of the Transfer Station where they have 320 to 325 cars a day coming in to drop off solid waste. We have municipality trucks coming in to drop off debris and we have citizens and employees in that area.
Mr. Hawkins said the county has a pile of debris from the storm behind Piedmont Tech and that you might allow a tub grinder for that. Mr. Whitehead said they would rebid that at the time. Because of the isolation of that location and being able to control who is within 100 yards of that new debris pile, a new bid will allow a tub grinder to be bid and horizontal to be bid. The only reason Mr. Whitehead didn’t want a tub grinder at the Transfer Station is the safety proximity of the property and people.
Mr. Adams discussed recently with Mr. Whitehead the wisdom of even having this residential garbage dumping traffic at the Transfer Station. We have a lot of things in a congested area there and introducing tub grinding into that is problematic. We applied for some grant funding for a larger paved site that we hope we can perhaps operate in Newberry for 6 or 7 days a week and we could eliminate traffic at the Transfer Station for dumping household garbage. There is really a lot of heavy-duty activity that goes on there such as grinding and operation of the Transfer Station and is not conducive to residential traffic.
Mr. Caldwell asked Mr. Whitehead that with the revolutions of the tub grinder the area can’t be predicted. Mr. Whitehead said that was correct. He could predict what grinds and comes through the screen but that 360 degrees it hits he doesn’t know where it is going at that particular time.
Mr. Pope said from a legal point of view it would be reckless to do it. Unless the County is named as an additional insured under the policy, our insurance will not cover this because it is a third party who is doing it. We would be sued for exposing people to a known unsafe condition. The suit we had before has been settled and is over with, but that put us on notice that tub grinders are very dangerous to have around that close to people. Knowing that problem to exist, when you allow the public or force the public to go through there to get rid of their garbage and recycling, with the tub grinder there we will have a real problem. What you are saying is somebody could bring a suit against the tub grinder company and for the person who is injured or killed that will not be much consolation. There is no way to make that operation safe that close to people. That is very congested area. It is not a sole source issue. This is a public safety issue. Both types of grinders are dangerous, but you have a little more control over the horizontal grinder. Until we can find a better location to have a grinding operation, it would not be safe to have a tub grinder right there.
Mr. Livingston asked what kind of insurance coverage the provider had to provide. Mr. Whitehead said they were asking for $1 million and a hold harmless agreement against the county and worker’s compensation.
Pat McGehee, Dean of Newberry Campus of Piedmont Technical College, introduced Dr. Ray Brooks, new President of Piedmont Technical College.
Mr. McGehee said Piedmont Technical College was trying to do something about a backhoe for its Construction Management Program. The students build houses off campus and to do the job and learn the trade, they need all the equipment they would need on a normal job site, and a backhoe is one piece of equipment. He asked Council to consider gifting the backhoe declared surplus property at its last meeting to Piedmont Technical College Foundation to be used with the Building Construction Department.
Mr. Baker moved to give the surplus backhoe to the facility; second by Mr. Waldrop.
Tommy Whitehead, Public Works Director, said it was a JCB 215 and was a nice backhoe. Right now it is valued at $20,000. We have an ordinance that says we will sell everything on GovDeals so he wanted to know if that ordinance was still standing or if we give this to Tech, can we borrow his machine shop for work we need such as welding and things of that nature within the County Public Works Department. Mr. McGehee felt Dr. Brooks would be willing to work with the county.
Dr. Brooks said he came from a technical college in Georgia and was president there for 22 years. We had a very close relationship with the 4 counties, and he looked forward to working with Newberry and having great things happen in Newberry. Anything the county needs, call and Dr. Brooks will make sure it happens.
Mr. Waldrop said if Piedmont Technical College decided to get rid of the machine, would it be feasible to receive the funds of what it is worth later on. Mr. McGehee said that was no problem.
Mr. Hawkins said he would like to know why we are getting rid of it if it is worth $20,000. Mr. Whitehead said a new one would be $85,000. We have two new Komatsu backhoes, and they are much more efficient. This one has 8,862 hours on it, equivalent to two years of actually running a 40-hour week. It is a good backhoe, but it is a 1987 or 1989 model, and with that we are moving it out and renewing the fleet so we don’t always run them in the ground, and they are worth nothing when we sell them. We are trying to sell now when there is a value. We have had great results on GovDeals and have saved the County a lot of money with GovDeals. Deviating from this particular GovDeals, Mr. Whitehead was trying to get as much money back to the County as he could.
Mr. Caldwell asked if it was already used equipment, what value would it have to get it back from Piedmont Tech? Mr. Waldrop said he didn’t know but the metal might be worth something.
Mr. Pope said Section 34.47(A) of the County Code says that Council has the power to transfer surplus property to other agencies. You are declaring this surplus and then transferring it.
There being no further discussion, Mr. Summer called for the question. Vote was unanimous.
No requests.
The following persons all spoke about the C&D landfill and the pending lawsuit.
Nora Stuck said they have been waiting for a Supreme Court date. We finally get a date for the month of April and then we get another letter saying the date has been changed to May because of negotiations. What kind of negotiations? Council goes into Executive Session to discuss the C&D landfill and the Sheriff’s Department on 219. She asked as Council goes into Executive Session tonight, that it think about the people in the Pomaria area and the community there and not the dollars that Council thinks will roll into Newberry County.
Tom Evers asked Council to deny the landfill. He was concerned about the negative impact of the landfill on the quality of life and the increased truck traffic throughout the area. Other concerns are the pollution of noise, the pollution of air from the dust and truck emissions, the visual eyesore. The debris and trash litter that typically accompany this type of operation are a concern as well as the negative economic impact. Why the secrecy of closed doors and how that looks to the community of voters and taxpayers. With today’s emphasis of going green, why does there even need to be a landfill like this when all of it can be recycled. He asked that Council consider the family friendliness and quaintness of Pomaria and the surrounding areas in the decisions.
James Redden has a home valued by his insurance company at about $220,000. He can’t sell it in Pomaria for $220,000, but if a landfill is built, he couldn’t sell it for $60,000. Everybody wants the county to grow, and it has the opportunity to grow and move in the right direction. The most prime homeland to move into is in the Pomaria/Prosperity area. Pomaria has done an environmental survey, and it came back pristine clean. We have a base when this landfill goes in to go back and say the pristine clean creek, pristine clean air and pristine clean noise, isn’t there any more. Money is an issue in the county. Pomaria has a chance to grow. Taxes bring in a lot of money, but if you can’t get people in, you can’t get new taxes. The only way to get people in is to have a place for them to buy and Pomaria is where Newberry is going to grow. Highway 773 is going to grow. If you want what is good for Newberry, don’t allow the landfill to come in. You made a promise to fight it, fight it. If we lose, then we lose, but let’s fight it and see what happens.
Representative Walt McLeod said this Pomaria landfill project has been going on for 5 years. He said 5 years ago this project was conceived in sin, and it hasn’t acquired a strain of legitimacy since that time. It was big time bad 5 years ago, and it is big time bad tonight. On June 2, 2003 Eagle applied for a zoning permit to build a C&D landfill. A county employee issued the permit to the applicant, and it was a surprise to every person in this room. On June 4, 2003 the County revoked the permit on the grounds that it was erroneously issued. Any time anybody acquires an entitlement of any kind, everyone who possesses one of those things is entitled to three things under the United States Constitution and the State Constitution. Those three things are adequate notice of a hearing, the conduct of a fair hearing and a right to appeal. In this case the County revoked the permit. A lawsuit was brought. The Circuit Judge decided against the County and said you were mistaken. Then the case was heard by the Court of Appeals on October 12, 2005 and about a month later the Court of Appeals decision was 19 pages in length. Any time any Judge anywhere issues a 19-page opinion, he either wants to teach you a lesson or it is a very very difficult decision to write and this guy had a tough time. We now find ourselves at the Supreme Court. I read in The Newberry Observer that the Supreme Court agreed early last year to hear the case but the hearing had been delayed a couple of times. The Citizens for Responsible Government applied to be party to the lawsuit, but the Court turned them down, which was a mistake. This proposal has not acquired any goodness or legitimacy since 5 years ago.
The Little Mountain and Pomaria areas are a part of the county’s landfill plan. Little Mountain has its own landfill plan. We are trying very hard in the lower end of our county to maintain a beautiful environment, attractive roads, and handsome new schools. We are trying to elevate the tax base of Newberry County.
Will the tipping fees for this proposed landfill be in excess of property taxes that would be generated in Mr. Dawkins and Mr. Livingston’s districts? Not a chance. The tipping fees are going to be chicken feed compared to the property taxes that the rapidly growing and developing areas of Newberry County are going to generate. If you want to kick yourself in the foot and get less income and revenues in the future, the way to do it is by all means have one landfill or several so that the property values can be diminished extensively.
There will be an excessive number of large dump trucks at highway 202. Highway 202 is going to be perpetually in disrepair. How does it feel to go to a fresh expensive subdivision on a roadway, which is in perpetual disrepair and will continue to be so because of the extensive number of dump trucks. The motoring public will also be at risk because the bigger the trucks the more they push you off the road.
The future is a rosy one for the tax production projections in Pomaria and Little Mountain, and if we have the measly amount of money generated from this tipping fee, that potential will never reach fruition because all of the property values will diminish.
There are a lot of citizens who do not support the creation of the Pomaria landfill. Two Mayors, Mayor Johnson and Mayor Hentz, they and their councils are not supportive of this landfill. The citizens and people of Little Mountain, Peak and Pomaria do not support this landfill, and we urge you to take no further steps toward resolving and settling this case and make a determination we will live with whatever the decision of the Court is. After that the applicant has to apply to DHEC to get a certificate of need to have the landfill. That is subject to a hearing before DHEC, the Administrative Law Court, the Court of Appeals and the Supreme Court. We would like for Council to decline and deny this request for the landfill without further negotiation.
Mr. Waldrop asked if money was available in the House to help Newberry County fight this landfill. Representative McLeod said absolutely not. Mr. Waldrop asked why. Representative McLeod said this was a county function but the Legislature would laugh at him if he tried to get money for Newberry County to fight a landfill.
Mr. Waldrop said the county has spent $42,000 thus far in this case of taxpayer’s money. How far do the taxpayers want to go? Representative McLeod said $40,000 is a mere penitence compared to the property values in the districts represented by Mr. Livingston and Mr. Dawkins.
Mr. Waldrop asked if the county loses this case, unless the people in Pomaria are willing to help fight this case, what is the county supposed to do. Are we to keep getting money out of the sky to fight the case from now on? The Helena deal went on for over 10 years, and this has been going on for 5 years. How long are you willing to fight it? Representative McLeod suggested that each member of the Council had a supreme duty to represent the best interests of the citizens of this county, and he wouldn’t even think about the $40,000. Representative McLeod did not feel the county was well served by adding another C&D landfill. It was the decision of this Council for one C&D landfill in Helena, and he wanted to know what has happened since then to change that notion. What has changed to cause the County Council to think that in the past 5 years the decision to have one C&D landfill in Helena is erroneous and there should be some concerted effort to have an additional C&D landfill? What causes this change of posture?
Mr. Waldrop said years ago the State of South Carolina said each county had to have a plan for a construction and debris landfill. We didn’t have to have a plan for two, but we did have a plan for one.
Mr. Livingston said Representative McLeod’s dancing around some of his words indicates sometimes why things are done in Executive Session because you don’t want too much said to give your opponent too much ammunition against us. On Saturday, March 15, there was an article in the paper by Sammie Fretwell about a bill putting new landfills on hold. The article indicated that the bill had drawn criticism from the construction industry. How much impact are the lobbyists having on shutting this down? The homebuilders have a voice, but the citizens of the State have a greater voice.
Representative McLeod said he would vote for this bill if it comes up. He was slightly surprised by the article and had anticipated that the bill would pass the House.
Representative McLeod said sometime between the Court of Appeals decision in June 2003 and June 2005, the Eagle Company applied to DHEC for a certificate of need. On July 8, 2005 Mr. Braswell of DHEC wrote to Mr. Spotts and said the decision was limited to one thing; that is, does it meet the zoning requirements. He said the Department’s final decision is that the proposed Eagle Container part IV construction demolition and land clearing debris landfill is not consistent with the February 2005 revision of the Newberry County Solid Waste Management Plan. Representative McLeod called Mr. Braswell and he said DHEC’s decisions are made based on any plan in effect on the day that DHEC makes the decision. Eagle’s effort to secure a certificate of need from DHEC for this landfill was denied because the plan says there must be only one and it must be Helena. The section of the Solid Waste Management Plan states that in the event the Helena Landfill known as the Southeastern Resource and Recovery Landfill cannot provide disposal capacity for the C&D waste generated in Newberry County, C&D waste will be accepted at the Newberry County Transfer Station for disposal at an out of county landfill. This section of the Solid Waste Management Plan of 2005 concludes by stating that no additional C&D landfill will be needed in Newberry County for the next 20 years.
Buddy Johnson, Mayor of the Town of Little Mountain, said Central Midlands Council of Governments in 2006 projected the population growth for Newberry County for the next 25 years. The Peak, Pomaria, Little Mountain, the area below Prosperity to the lake, is growing between 25% to 60%. In the year 2000 the area from Little Mountain below Prosperity to the lake grew at 57%. The other 42% of the growth in Newberry County essentially came from Hispanics outside the corporate limits of the City of Newberry. It says the highest growth rate is along I-26 around Prosperity and Little Mountain. It further cites that the increased projection can be attributed to younger families attracted by lower land costs, utility extension by the Newberry County Water and Sewer Authority and the action of developers along Lake Murray. The charm of small communities like Little Mountain, Pomaria and Prosperity will be the draw for both retirees and for the benefits of living near but not in the more congested suburban areas around Irmo.
We worked for 9 years to get sewer to the interchange at Little Mountain, and it will be there this summer. We are working to get it up the hill. It could also go toward Pomaria just as easily, and it can handle both sides of the capacity of any development that goes there.
Mayor Johnson said the last time he was here he remembered that Council’s vote was unanimous, and there are only two things that have changed since then. We have a new Councilman representing the Pomaria district, and we have a new County Administrator. We know of the schemes that were going on earlier. We fortunately came out of the effort that we started in 1999. Council has made a significant and progressive decision to launch the Mid-Carolina Commerce Park. At just the other end of the road you have $26.5 million being invested in a new Mid-Carolina High School.
If you are not in the City of Newberry, the perception is that it is either the City of Newberry or it is everybody else. Something happened in the year 2000 with the census change when there was reapportionment in dividing up the Council seats. The power shifted from the City of Newberry. We would not have seen that new high school down there or the Mid-Carolina Commerce Park if there hadn’t been a progressive change in the leadership that you all have shown to do the things that are necessary for our county.
October two years ago Mid-Carolina High School’s SAT scores were 16 points higher average than Chapin High School. Little Mountain Elementary School is the only school in the whole county that does not receive any federal supplements. Mr. Dawkins’ district according to the 2000 census data has the highest household income and the highest per capita income in the whole county.
When the Supreme Court accepts the case, and they didn’t have to accept it, because if on the surface the Court of Appeals said it was there, they wouldn’t take it. The Appeals Court’s decision would rule. They are taking it.
Mayor Johnson asked if Mr. Tommy Pope initiated the negotiation or did the County. Mr. Adams said we would defer to Mr. Stuart on this. Mr. Stuart said Mr. Tommy Pope initiated negotiations.
Mayor Johnson said we were going to Court, and Mr. Tommy Pope wants to negotiate. Isn’t that interesting. Who is going to benefit from this? Mr. Spotts. He has about 300 acres and has already carved it out and used the soil for the Peak by-pass and probably some other projects. He is going to cash out. He is going to sell and make millions of dollars on this. Our county attorney’s brother, and this is going to be the political perception, is going to make tens of thousands of dollars representing Mr. Spotts.
Pomaria has a historical district. They just need to go through the process of getting the federal recognition and recognition by the State. The Town Council and the citizens of Little Mountain are culminating over a two-year effort to do a master plan to retain the village character of our community. Our community fought for 25 years to retain the school. They are making a $12.5 million investment in it to restore the old 1909 building and expand it.
At one end you have the corporate park and on the other end you have got Mid-Carolina High School. You have the investment of over $19 million in the last 9 years in Little Mountain public investment. You have a real diamond over there at Pomaria, and we want to dump on it.
Mayor Johnson said if you are going to continue to negotiate, negotiate for something of significance.
We were dealing with a former Administrator. Mayor Johnson brought to him an alternate location, and you wouldn’t have to travel but a couple of hundred feet to get off the Interstate to go to it. The trustee had said it was available. He didn’t want to listen to it. You and I know why if you read the contract from back then.
Mayor Johnson said based on his conversation with Mr. Adams, there is no remuneration for Little Mountain or Pomaria in this negotiation. If there is, Little Mountain doesn’t want it.
Mayor Johnson read the resolution adopted by Little Mountain Town Council on January 10, 2005.
“Whereas, Eagle Container has proposed to construct a C&D landfill and the County of Newberry has legal action on zoning opposing Eagle’s landfill; and
Whereas, County and Eagle have engaged in negotiations to drop the legal action in consideration of the payment of the sum of $2.00 in tipping fee per ton of fill as to be deposited in this proposed Eagle landfill and also the assumption of certain county solid waste operations; and
Whereas, the County has offered both the Towns of Pomaria and Little Mountain a certain amount of this tipping fee payment as an impact fee; and
Whereas, the proposed Eagle landfill is totally incompatible with adjoining land uses and will disrupt the quiet enjoyment of the citizens in the above-mentioned area; and
Whereas, this Eagle landfill will be the second C&D landfill in Newberry County as Mr. Juan Carroll, one of the owners of the Helena landfill, indicated to certain county elected officials in a meeting in Newberry County in December 2004 that Helena would accept C&D material; and
Whereas, the County has a public trust duty to offer equal protection to all of the citizens of Newberry County and to look after the environment, quality of life and the continued health and economic betterment of all citizens and communities within Newberry County; and
Whereas, the County has been made aware of a more suitable location with nominal impact on citizens and traffic patterns; and
Whereas, in the judgment of this Mayor and Council the County has a duty to pursue an alternate location of this proposed Eagle landfill and continue the legal action against Eagle.”
This was adopted unanimously. If you want to consider an alternate location, Mayor Johnson had another one near a railroad tract consisting of over 300 acres, and it would be in a somewhat depressed area back in the National Forest area in Mr. Baker’s district. It would probably help out significantly.
Mr. Waldrop asked Mayor Johnson what long-range plan he had for Little Mountain. Mayor Johnson said they have a master plan from Clemson University for planning and landscape architecture. Mr. Waldrop asked if it was a conservation easement or what. Mayor Johnson said that would be a lot of it. We are looking at trying to preserve the natural areas. Mr. Waldrop asked if they didn’t want anything down there and just wanted to keep it like it is today. Mayor Johnson said they wanted to retain the village concept and in order to do that, there are certain planning and zoning approaches that allow it. Last week over 35 of the citizens got together with planners and landscape architects to come to some master plan for the area, which includes enhanced residential areas, additional parks, trails and bike paths.
Mr. Waldrop asked if he owned 200 acres down there, could he not put a housing development without permission. What do you want in Little Mountain? Mayor Johnson said it wasn’t what he wanted; it was what the citizens want. They want development that is orderly and that takes into consideration things like you have in your subdivision regulations. We want sidewalks, lights.
Mr. Waldrop asked if they would be willing to build homes there. Mayor Johnson said that was part of it. We are trying to make a better community.
Mr. Waldrop asked if Mr. Spotts put a housing development on his property would that bother him. Mayor Johnson said it would impact Little Mountain because all of the traffic would come through them. You have to plan for that.
Mayor Johnson asked that the County not dump on them.
Mr. Livingston in clarification of one of Mayor Johnson’s comments has been soliciting a lot of information from the citizens of Pomaria at the Ruritan meeting, but one of the comments made while ago about the only two things that have changed since a unanimous vote was Mr. Livingston and the County Administrator. Mr. Livingston assured him the unanimous vote has not changed because of the election of Buddy Livingston. He still fully supports not having this in Pomaria.
Mr. Adams said a rooster crowing doesn’t cause the sun to rise.
Mr. Dawkins moved that there would be no continuances and no negotiation with Eagle Container. He knows of no negotiation on the county’s part whatsoever. Mr. Tommy Pope has an obligation to his client to present to Mr. Stuart any proposals and Mr. Stuart is looking out for the county’s best interest. Mr. Dawkins moved that Mr. Stuart be instructed to tell Mr. Tommy Pope thanks but no thanks; we are not interested in hearing any proposal.
Mr. Summer said Mr. Stuart sat here diligently all night. You don’t want to go into Executive Session to see what he says? Mr. Dawkins said we can certainly go into Executive Session but he can make that motion prior to going into Executive Session. Second by Mr. Livingston.
Mr. Hawkins said for the last few meetings we have gotten second hand information. We paid Mr. Stuart to come up here tonight to give us first hand advice, and he wanted to hear what Mr. Stuart had to say. Mr. Summer said he wanted to hear what he had to say before voting. Mr. Livingston said it was not that he didn’t want to hear what he had to say, but his mind is made up.
There being no further discussion, Mr. Summer called for the question. Voting for the motion of no continuance before talking to the County Attorney: Councilmen Livingston and Dawkins. Voting against the motion: Councilmen Summer, Waldrop, Caldwell, Hawkins, and Baker. Motion failed.
Mr. Summer asked all who wanted to listen to the County Attorney (Mr. Stuart) before making decision to raise their hand: Councilmen Summer, Waldrop, Caldwell, Hawkins and Baker.
Mr. Pope said Mayor Johnson insinuated that he had some financial interest in this, which he took offense at. Mr. Pope has had no association with the law firm of Pope and Hudgens for nine years. He has nothing to do with his brother’s law firm. Mr. Stuart started handling this suit in 2003 before Mr. Pope became county attorney, and has continued to handle it. He is handling all of the negotiations. Mr. Pope knows something about the suit but has not been in the loop. He is not negotiating; he is not drafting the briefs. This is Mr. Stuart’s thing that he is handling for the County and not Mr. Pope. Mr. Pope has no financial interest and did not appreciate Mayor Johnson’s comments.
Mayor Johnson said he was not implying that. He was telling what other people perceive and Mr. Pope can take that or leave it. Mr. Pope said he would take it the way it was intended.
Mr. Hawkins said Mayor Johnson made a statement about a previous Administrator that he didn’t think was just what people perceive. It was very accusatory, and Mr. Hawkins wanted to hear more details about that. Mr. Waldrop said he did, too.
Mr. Waldrop moved to go into Executive Session; second by Mr. Baker. Vote was unanimous.
[EXECUTIVE SESSION
9:40 P.M. – 10:10 P.M.]
Mr. Waldrop moved to return to open session; second by Mr. Dawkins. Vote was unanimous.
Mr. Dawkins moved that there be no extensions or delays granted and no negotiations from either party and that we continue in Court at the earliest available hearing that the Supreme Court will allow; second by Mr. Livingston. Vote was unanimous.
18.1 Consideration of acceptance of bid for
airport paving, marking and lighting for new Runway 4/22 construction project –
Crystal Waldrop, Procurement Director
|
COMPANY |
BID |
|
BMCO Company |
$1,984,675.00 |
|
Boggs Paving, Inc. |
$1,950,944.00 |
|
C. Ray Miles Construction
Co. |
$1,922,660.68 |
|
Cox & Floyd |
$1,888,895.50 |
|
Eagle Construction* |
$1,877,651.50 |
|
Plowden Construction Co. |
$1,945,657.00 |
|
Richardson Construction |
$1,997,961.40 |
|
Satterfield Construction |
$2,086,399.50 |
|
Sloan Construction |
$2,013,343.50 |
Crystal Waldrop, Purchasing Director, stated bids were received for the paving and lighting of the airport project and recommended acceptance of the low bid, which met specifications. The FAA provides funding for this project with the county’s percentage being 2.5%.
Mr. Adams said there was a question about the low bidder pursuant to Code Section 34.50(A)(3) of the Newberry County Code of Ordinances, which says that a company involved in a lawsuit against the County is prohibited from bidding on county projects. There is some common ownership between this construction company and a company that does have a suit against the County, and we asked the County Attorney to provide advice to Council on that issue.
Mr. Pope said it was not a question of common ownership but a question of whether it is the same corporation the way it is worded. The entity that has a lawsuit with the County is Eagle Container, LLC, which is different from the company that bid on this project, which is Eagle Construction Company, Inc., which is owned by the three children of the late Al Spotts. In looking at this the businesses are not the same. While there is some commonality of ownership, they are legally and completely separate. Our ordinance is not written in such a way to have basically affiliated corporations as being unable to bid. Mr. Pope’s opinion was there was no conflict of interest to disqualify Eagle Construction Company, Inc. from being the low bidder. It is clear the Eagle Construction Company, Inc. is a separate legal entity from Eagle Container, LLC, and in a completely different business. Even though Jeff Spotts has an ownership interest in both companies, the companies are legally separate from him. He is not responsible for their debts and legal obligations, and the companies are not responsible for his personal debts or obligations. The lawsuit involving Eagle Container, LLC relates to its contesting a legal interpretation of a county ordinance by the County and not to a contractual matter. He did not think that Eagle Construction Company, Inc. could be denied the right to bid on a publicly funded project because another company has exercised its constitutional right to litigate the interpretation of an ordinance which is unrelated to a contractual dispute and the outcome of which would have no impact on Eagle Construction Company, Inc. or the airport project. For these reasons, Mr. Pope’s opinion was there was no conflict of interest under Sections 34.50(A)(3) and (4) of the Newberry County Code of Ordinances, which would disqualify Eagle Construction Company, Inc. from being the low bidder on the airport project.
Mr. Dawkins said if the bid was not granted to the legal low bidder, he had a right to appeal. That runway and airport won’t be paved or finished, and we would lose all federal monies because we would be tied up in court for years.
Mr. Waldrop said this company employs around 112 people, and they are a big taxpayer. We have always tried to use local companies to do jobs in Newberry since they pay taxes here.
Mr. Summer said if you are going to disqualify somebody from the bid, it should be done before you open the bid. They shouldn’t be disqualified after the fact.
Mr. Baker moved to accept the low bid from Eagle Construction Company, Inc. in the amount of $1,877,651.50; second by Mr. Waldrop. Vote was unanimous.
Mr. Adams and Lewis Lee, Emergency Management Coordinator, met earlier this week with representatives from the State Emergency Management Division regarding the availability of state and federal funding to assist the county with tornado clean up costs. In order for the county to receive this funding, two thresholds have to be crossed. One, public entities statewide have to document public clean up repairing construction costs of at least $5 million, which would trigger a disaster declaration. Two, Newberry County would have to document clean up costs of at least $112,000. Mr. Lee will work with the County and volunteer fire and rescue groups to document our expenditures using FEMA approved forms, and it will be sometime before we find out if the state meets the threshold and if we meet our threshold. FEMA will have representatives here as early as tomorrow working with individual homeowners and business owners to see if they qualify for any kinds of relief.
We had a petition presented at the last meeting concerning a referendum ordinance request. The Election Commission has provided an initial review of that petition and Council was provided copies of the letter responding to the petition request
Mr. Dawkins having voted on the prevailing side on agenda item 5 called for another vote on agenda item 5.
Mr. Summer said this was the ordinance to accept Frandeena Court into the county public road system.
Mr. Dawkins moved that this be third reading; second by Mr. Hawkins.
Mr. Waldrop asked if the property owner would be willing to improve the road before taking it over under the new county ordinance. Mr. Dawkins said when the county of Newberry gave the man the county’s word that the road would be taken into the county system, these faulty driveways, if they are in fact faulty and need to be replaced, would not have been his responsibility to start with. The County, as Mr. Hawkins brought out, would put a driveway in as the houses were built. Mr. Dawkins said the construction company that built the road said he would talk to any of the council members. He said his work was inspected by the County Public Works Director and the Council Member at that time and was built precisely to county specs with the full intention and knowledge that it would be taken into the county system. Because of Mr. DeHart’s death and because of a change in districts, the County needs to make this wrong a right.
Mr. Waldrop asked if this was a verbal agreement and nothing in writing. Mr. Dawkins said he has seen no documentation besides taking credible people at their word of what was said and done and promised.
Mr. Hawkins said he believed the Public Works Director inspected this road.
Mr. Pope said the plat was drawn in 1994 and clearly shows a 66-foot right of way with a huge cul-de-sac at the end and nobody would have done that unless they were following county road specifications. It wasn’t recorded until 1989 [sic] but it was platted out in 1994.
Mr. Waldrop asked if considering this road would have an affect on other roads in the county. Mr. Pope said the reason we are doing this by special ordinance is the general policy is not to take these roads in. In the future you will have to consider these unusual cases on a case-by-case basis. Particularly back in 1994 nobody would have gone to the trouble to have that extent of a right of way platted off, which is about 2.68 acres, without there having been some talk with the county. The road constructor says the county was out there inspecting it. The landowner says that we were out there inspecting it. For whatever reason it didn’t get into the system when it should have.
Mr. Caldwell asked if there was or was not written documentation. Mr. Dawkins said there was no written documentation stating the road would go into the county system. Mr. Dawkins had discussions with previous County Administrator, Ed Lominack, who can’t remember exactly but said if the road was built to county specification, which it was with the 66-foot right of way and cul-de-sac, there is no reason that the county would not have taken it.
Mr. Livingston said this road got tied up in an election changeover and got dropped. Mr. Livingston talked with the person who did the road, and according to him, he was doing it by county specs at that particular time, which again was a lot more lenient than what we have currently. As far as documentation of promises, Mr. Livingston didn’t know if there was any documentation of promises but based on what he indicated the intentions were, and that is questionable at best, that it would be a road to be brought into the county system. The ditches would not have problems with the pipes currently if we had accepted the road when we should have. Mr. Livingston was on Council at that time and vaguely remembers this road being discussed, but doesn’t remember the details.
There being no further discussion, Mr. Summer called for the question. Voting for the motion: Councilmen Summer, Waldrop, Caldwell, Hawkins, Dawkins and Livingston. Voting against the motion: Councilman Baker. Motion passed by majority vote.
Mr. Summer thanked the Council Members and the County Administrator for attending and representing Newberry County at the NACo Legislative Conference in Washington.
Council
Planning Retreat scheduled for April 19-20, 2008.
Mr. Waldrop moved to adjourn.
Mr. Summer declared the meeting adjourned at 10:28 p.m.
NEWBERRY COUNTY COUNCIL
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Henry B. Summer, Chairman
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Susan C. Fellers, Clerk to Council
APPROVED: April 16, 2008