The Canary Coalition and the Mountain Voices Alliance say the commissioners' action violated the state's open-meetings law and ignored the potential impacts on county residents' health. In a Feb. 26 letter, the groups asked state Attorney General Roy Cooper "to initiate an investigation of the Buncombe County Board of Commissioners for possible violations of the Open Meetings Law and the Public Records Act, and for failing to act consistent with their duties as public servants in the best interest of the public."
The letter challenges the legality of the contract on several grounds, saying it allows Progress Energy to do whatever it pleases with the property -- including subleasing at a profit -- regardless of whether or not the utility ever builds a power plant. In addition, the contract illegally ties the hands of future commissioners in terms of land use, taxation and condemnation, the letter maintains.
"In negotiating privately with Progress Energy for two years prior to public notification on the Woodfin power plant and lease of public property, there is no doubt the Buncombe County commissioners have violated the spirit of the open-meeting process outlined in the sunshine law," said Avram Friedman, executive director of the Canary Coalition, a regional air-quality activist group. "We're in the process of determining whether or not the letter of the law was violated and [whether] the commissioners have left themselves open to litigation. If we can, we're going to sue the [Board of Commissioners] to invalidate their Jan. 16 decision to lease 70 acres to Progress Energy for $1 a year." The groups have hired attorney Rachel Doughty to advise them on the matter, said Friedman.
On Dec. 7, 2006, the county ran a legal notice in the Asheville Citizen-Times seeking upset bids for "approximately 77.9 acres of land located on a portion of the closed landfill located in Highway 251, Buncombe County, North Carolina." Interested parties were given 10 days to place bids at least 10 percent higher than the $1 per year being bid by Progress Energy. There were no inquiries about the property, Clerk to the Board Kathy Hughes told Xpress.
"The primary concern is public health, followed by the economic impact on the citizens of subsidizing Progress Energy and its shareholders," said Elaine Lite of Mountain Voices, a nonprofit conservation group. "A $1-a-year lease? At a time when land in Buncombe County is in such high demand and so scarce, why should the citizens not be informed in a timely manner when we stand to lose the potential use of and income from a property of this size?"
The open-meetings law prohibits unpublicized meetings involving a quorum of any official body as well as meetings deliberately held without a quorum to circumvent the law. But negotiations between city or county staffers and industrial developers are allowed. In this case, County Manager Wanda Greene was the lead negotiator, Hughes told Xpress. Minutes or other meeting records are not required for such negotiations, she said.
According to professor David Lawrence of the School of Government at UNC-Chapel Hill, a specialist in municipal-property issues, N.C. general statute 158-7.1 allows counties to engage in private negotiations concerning sales or long-term leases for economic-development purposes provided certain conditions are met. The property in question cannot be leased at a discounted rate, and the lessee must be creating a substantial number of jobs paying more than the local median wage. In determining the value of a property, a municipal government may include anticipated tax revenues from a proposed development.
Asked about the Woodfin property's value, Greene told Xpress: "For 30 years after a landfill closes, there is basically no value in the land. In fact, there are annual costs to maintain the site and comply with [N.C. Department of Environment and Natural Resources] regulations. The land may have value at the end of 30 years, if DENR determines the site is appropriately mitigated."
But even though the property in question is adjacent to the former landfill, it was never used to bury trash and is actually pristine river frontage. In a Dec. 4, 2006 e-mail to Progress Energy staffer Ken Maxwell, Assistant County Attorney Keith Snyder wrote, "I talked with [former county General Services director] Bob Hunter last Thursday, and he advised me that the 77 acres has never been used for any landfill operations and that he is not aware of any environmental conditions that should be discussed in Exhibit B [one of the legal documents attached to the lease]."
And according to Ed Mussler, who heads up the solid Waste permitting branch of DENR's Division of Waste Management, his agency's regulations do not ban commercial use of buffer areas around former landfills. "We would approve an amendment to the closure plan, as long as we can continue to monitor the site for leakage from the landfill." Asked about the value of such property, Mussler said: "I can't answer that. It would have whatever value someone found in it, but that wouldn't depend on our regulations."
At press time, the county manager had not responded to an e-mail asking how the county had determined that the land has no value.
Meanwhile, e-mails obtained from the county manager's office suggest that county staff have plotted strategy with Progress Energy. For example, Snyder's e-mail to Maxwell states, "The opponents and detractors have already started their campaign, and we need to stress not only the need for more capacity to avoid [power] outages in extreme heat or cold but the $300,000+ in property taxes that the investment will bring to the county." (During the Jan. 16 Board of Commissioners meeting, however, Commissioner David Gantt characterized the $300,000 as "a drop in the bucket.")
And in a Sept. 28, 2006 e-mail to Snyder, Greene said she preferred to make the contract 50 years rather than 99, because "50 years gives them options," apparently referring to Progress Energy.
At press time, the county manager had not responded to questions concerning these e-mails.