October 18, 2012The High Point City Council, in closed session on Monday, Oct. 15, approved the latest shot in the High Point-Davidson County cross-border wars.
There are several points of friction between High Point and Davidson County, but the currently active one is a vote, on August 6, 2012, by the Davidson County Board of Commissioners to approve a special-use permit that would allow High Point to complete the third and last phase of court-ordered improvements to High Point's Westside Wastewater Treatment Plant in Davidson County.
In Monday's closed session, Tom Terrell, the attorney for Smith Moore Leatherwood who has handled much of the issue for High Point, updated the City Council on the negotiations. And the City Council agreed to have High Point Mayor Becky Smothers send a letter to Davidson County demanding that the permit be filed, or an explanation be provided for why it has not been filed.
Smothers said the trigger for the letter was that the Davidson County commissioners met two weeks ago without signing the permit.
"We continue not to hear from them," she said. "We need to get on record that we have not received word that the order has been filed."
The special-use permit, which is required from Davidson County because the Westside plant is not in the part of Davidson County that has been annexed into High Point, drew intense and organized opposition at meetings of the Davidson County Planning Board and Board of Commissioners. The commissioners on August 6 voted to issue the permit, but only for the plant to operate at 8.2 million gallons per day (mgpd), not the 10 mgpd that High Point had requested.
The Westside plant is now permitted for 6.2 mgpd.
The permit would allow High Point to continue work on the sewage plant. However, two months after the vote, it hasn't been signed and filed with the Davidson County Clerk.
"The order has not been signed and filed," said Davidson County Attorney Charles Frye. "There is an order that has been drafted to grant the special-use permit."
Why the permit hasn't been signed or filed is a matter of dispute. Frye said it has been sent back and forth between Davidson County, High Point City Attorney JoAnne Carlyle and Terrell. Frye said that Davidson County is taking time to get the wording exactly right.
The High Point City Council, which, like the Davidson County Board of Commissioners, is leery of its neighbor, fears that the Davidson County commissioners are sandbagging – delaying signing and filing the permit either to prevent it taking effect before the November High Point municipal elections, which will produce a different City Council, or to put off any effort by High Point to challenge the 8.2 mgpd capacity limit in court.
Smothers said that High Point has applied to the North Carolina Department of Environment and Natural Resources (DENR) for approval of 10 mgpd capacity, and that in any case, DENR won't approve the Phase 3 work on the treatment plant until the Davidson County commissioners sign and file the permit.
Smothers said that Carlyle and Terrell had seen the draft permit and had no problems with it, except for the 8.2 mgpd capacity limit, so it's not High Point holding up the permit.
Smothers said that High Point may challenge the capacity limit in the special-use permit in Davidson County Superior Court, if that's what the City Council decides to do.
"That's what will have to be determined," she said. "The State of North Carolina has in the past deemed that to be the prerogative of DENR. But that's going to have to be tested. It's just like annexation, except this has considerable consequences as far as our mandated responsibility."
The North Carolina General Assembly in June 2012 approved a local act giving the Davidson County Board of Commissioners veto power over annexation of Davidson County land by cities outside the county, even if the annexation was voluntarily requested by the property owner.
The language prevents annexation by Winston-Salem and other municipalities, but was aimed primarily at High Point.
High Point has argued that the local act won't withstand a court challenge, because it limits the property rights of Davidson County residents. The General Assembly tends to pass local bills without much thought to their effect or constitutionality if they are not opposed. The High Point City Council, which thought the anti-annexation bill had no chance of passage, didn't oppose it until it was too late.
Frye said that High Point is jumping the gun, because DENR hasn't approved increasing the capacity of the Westside plant to 10 mgpd. He also said the Davidson County commissioners and Planning Board determined that High Point had not proved a need for the 10 mgpd capacity.
Frye said that, although the Westside plant is permitted for 6.2 mgpd, improvements made to the plant and its sewer lines by High Point have reduced the average flow through the plant to 3.9 mgpd. In other words, the improvements that High Point has made to satisfy DENR and get the agency to approve a 10 mgpd capacity has, ironically, reduced the flow through the plant, making it harder for High Point to prove that it needs the extra capacity.
Frye said that the lack of DENR approval made High Point's objections hard for him to understand.
"Davidson County has acted in good faith on this, and at this point, the Davidson County Board of Commissioners has done everything they could do that High Point has requested that they could legally do under North Carolina statutes and our ordinance," he said. "It's unfortunate that there hasn't been an effort to resolve this. I don't understand the nature of the city's unhappiness with this. They got what they asked for."
That's a reasonable sounding response, but one likely to make the High Point City Council more, rather than less, angry. High Point has argued that Davidson County has dragged its feet at every step of the permitting process, that it's insane to put millions of dollars into a wastewater treatment plant without expanding its capacity and, now that the Davidson County commissioners are trying to drag the process out further by not signing the order.
Smothers said, "We're under the gun from the state to upgrade the plant."
Terrell represents the City of High Point in this and other matters. He also represents clients before the City Council and the High Point Planning and Zoning Commission. Some city councilmembers have argued that his dual roles may constitute a conflict of interest.