News

Legislators want city and county to work out utility and growth dispute

In its 600-word letter to state legislators, the city of Hendersonville said it had agreed to compensate rural fire departments for lost tax revenue when it annexed property, obtained grants to pay for a quickly constructed water line extension to serve Academy Road homeowners whose wells were contaminated with pesticides, partnered with the county to create Garrison Industrial Park, joined the county, UNC Health Pardee, Wingate University and Blue Ridge Community College to build the Health Sciences Center and Pardee Cancer Center, extended sewer at the county’s request to Halfway Tree Mobile Home Park to eliminate a failing septic system and partnered with the county to extend sewer to Atkinson Elementary School.

By Bill Moss, Published: April 11, 2024

The Hendersonville City Council last week fired a preemptive strike as the decades long city-county water war erupted again, spelling out to the county’s legislative delegation the ways the city had tried to “resolve the long-standing dispute over governance of the utility system.”

“At the county commission meeting that they adopted the comp plan (on March 20) everything they said regarding growth they talked about the city,” City Manager John Connet said last Wednesday. “We got wind later on that they may attempt to reach out to our legislative delegation requesting local bills that would potentially impact the city.

“We want our legislative delegation to know we’ve tried to work with the county,” he continued. “All along, we’ve tried to deal with their concerns regarding growth and we thought we should tell our side of the story. The city continues to try to work with the county to resolve their concerns regarding growth and their concerns regarding our utility system — and it is our utility system. We tried to negotiate a joint governing board and that fell apart.”

The letter the council unanimously endorsed last Thursday night was sent to state Sen. Tim Moffitt and Reps. Jennifer Balkcom and Jake Johnson, three legislators who represent Henderson County voters.

“We have worked very hard to ease those concerns the county and commissioners might have,” Connet told the council.

Moffitt and Johnson both told the Lightning in interviews this week that the county had not asked them to draft legislation involving the city utility system and both said they'd prefer the city and county resolve the disputes themselves without General Assembly intervention.

 

During the council meeting last week, council members Jeff Miller and Jennifer Hensley told Connet they liked the letter before council took the vote. Mayor pro tem Lyndsey Simpson called the letter a “long, long list.” Indeed it was. The city listed 36 ways it had “strived to cooperate” with the county on water-sewer issues, acceded to its requests, responded to its concerns or partnered on economic development, educational, residential and nonprofit projects.

 

Sewer plant drawn into the fray

At lunchtime during their March 20 meeting, county commissioners heard from County Engineer Marcus Jones that the county had just received a letter from the state Department of Environmental Quality asking for more information on its application to build a sewer plant on Clear Creek near Fruitland.

When Connet and council members “heard second hand that they accused the city of doing something” to block the Clear Creek permit, the city officials immediately called the county manager and commissioners.

“Some of the city council members made it clear that the city has had no contact with the state regarding that permit and we’ve not directed anybody to have any contact with the state,” he said. “I can say that unequivocally. All we’ve said is we have a sewer line that you can connect to but if you want to build a sewer plant have at it. … We stand by our position that we’ll take that sewer and treat it if they want us to. If they do run sewer out there they should have good land-use control.”

City Council member Jeff Miller said it’s his position as well that the city would expect the county, not the city council, to control zoning in the area served by the Clear Creek plant.

Commissioner Bill Lapsley said he grew suspicious of the timing of the Division of Water Resources letter, which called for additional or revised information. The state environmental specialist said the county must either rerun a computer model on the proposed discharge of the Clear Creek plant or develop a revised estimate of the treatment plant’s cost if it were to be held to a higher standard for effluent discharged into the creek.

“If the DEQ had this concern about the level of treatment why didn’t they say this two years ago?” Lapsley said. “They didn’t think it was necessary. Now all of a sudden it’s necessary. My reaction was somebody is putting their thumb on the scale so to speak. I don’t know who it is but it’s gotta be somebody educated enough that knew to raise this question.”

 

‘Permit is still very much in doubt’

County Manager John Mitchell described himself and the commissioners as frustrated with the DEQ and the surprise demand for new information.

“What that letter telegraphs to me is that the issuing of the permit is still very much in doubt,” he said. “I would say that the commissioners have expressed frustration at the way the DEQ has handled the permit process in the last eight months. I’ve heard no county commissioner accuse the city of trying to manipulate the process and no one on my staff has done such a thing.”

Both Mitchell and Lapsley described two other major factors in the new rift between the city and county: the city’s policy requiring a new sewer customer to become annexed into the city and the city council’s actions allowing development on its outskirts that contribute to urban sprawl. Voters mistakenly blame the county, Lapsley said, for the construction on Clear Creek Road at I-26, U.S. 64 East, South Allen Road and Upward Road.

“We’re not the cause of the urban sprawl,” Lapsley said. “We do not have the tools control it. The city council has the tools to control it.”

 

‘Letter was appropriate,’ Moffitt says

The impasse over the city’s annexation policy casts doubt over any progress on joint governance of utilities.

“The question that has always been before the group is about the city council’s ability to use sewer for the purposes of extraterritorial annexation,” Mitchell said. “What occurred effectively at the March meeting is a recognition by the county commissioners that any additional extraterritorial annexation outside of the current city limits was unacceptable to them. When you use the power of water and sewer to change the zoning of a parcel to a higher density, it disregards the county’s zoning of those properties.”

Moffitt and Johnson said they had been hearing from both city and county officials about the dispute.

“The county has not asked me to draft any legislation on this issue,” Moffitt said Tuesday. “My position at this time is to encourage both sides to continue to discuss the issue and to arrive at a mutually agreeable resolution locally. I’ve purposely sat on the sidelines wanting them to resolve it themselves.”

Among the points of conflict Moffitt had heard about was different views the two bodies had on the city’s growth outside its boundaries and county commissioners’ feeling blindsided by the DEQ’s new questions regarding the Clear Creek sewer permit application.

“I’ve got to believe that the two sides can come together with a workable plan for the future,” he said. “I get a lot of information from both sides. The letter was appropriate, I appreciated it and I thought it did provide more context on the city’s history and its willingness to work with the county.”

Johnson said he’s ready to respond with legislation if that’s needed but prefers the two sides work it out.

“Between the county and the city or I've heard there's conversations going on,” he said. “I'm not necessarily privy to it because my general sense is let them work it out unless there’s a legislative solution that needs to happen. My biggest concern is you’ve got a bad situation in a couple of areas where the (city) response times are actually longer than the (rural) departments that are serving the area. That's something I can see us potentially legislatively addressing at some point if that continues to be an issue.”

Johnson said he was aware of talks to try to bridge the key disagreement between the two boards over growth beyond the city limits.

“What I've heard is negotiations were under way but have hit some snags,” he said. “I've responded back and said, I want this to be solved locally. I've told John Mitchell this and commissioners and others.

“I would rather us not have to do anything legislatively,” he said. “I'd rather everyone sit down around the table and do it. But if worse comes to worst, I think there's a valid argument to be made on public safety that if that's still a concern, and the response times are still an issue, we've got to address legislatively.”

Letter cites 36 instances of cooperation

Here is the letter city council endorsed:

 

Based on a recent Henderson County Board of Commissioners meeting, Hendersonville City Council feels that it is beneficial to provide our State Legislators additional context and background.

The city of Hendersonville has acted in good faith and tried to negotiate with Henderson County over the past twelve months to resolve the long-standing dispute over governance of the utility system and growth of the city of Hendersonville. In addition, the city has strived to cooperate with Henderson County over the last twenty-four years, as illustrated in the list below.

• Executed the 2000 Contract of Purchase and Interlocal Cooperation and Settlement Agreement
• Re-established the Water and Sewer Advisory Committee comprised of representatives across the utility service area (Henderson County, Mills River, Flat Rock, Fletcher, Laurel Park etc.)
• Partnership with Henderson County, UNC Pardee, Wingate University and Blue Ridge Community College to construct the Health Sciences Center
• Partnership with Henderson County and Housing Assistance Corporation to construct Apple Ridge Affordable Housing Development
• Partnership with Housing Assistance Corporation to construct Oklawaha Affordable Housing Development
• Partnership with Housing Assistance Corporation to construct infill affordable housing units
• Inside water rates for all Henderson County Public Schools
• Agreed to equalize inside/outside City water rates over a ten-year period (currently in 5th year)
• Compensating rural fire departments for annexed properties. Lump sum payment for 5 years of lost tax revenue.
• Adopted formal resolution ensuring that no water and sewer lines serving new development are extended without approval of respective governing boards.

The city partnered with economic development agencies to extend public utilities to new industry:

• School House Road, Mills River – AgHC
• Ladson Road, Mills River – AgHC
• Demmel / Elkamet – HCPED
• Garrison Industrial Park – HCPED

The city also said it had:

• Offered to purchase distressed Etowah Sewer Company. Henderson County objected and City of Hendersonville withdrew the offer to purchase.
• Assumed responsibility of Laurel Park Water System in April 2021 and have since made significant investments in the system. Customers in Laurel Park immediately noticed a reduction in water rates and an improved level of service.
• Obtained grants with help of Henderson County staff and installed public water lines to homes in the Academy Road area of Henderson County. Private wells were contaminated with pesticides.
• Assisted with the relocation of public sewer line under Hendersonville High School
• Partnered with Henderson County to extend sewer to Atkinson Elementary School
• Worked with Henderson County to extend Jackson Park Interceptor Sewer eliminating a large pump station from the park.

And the city said it completed utilities improvements, addressed county’s concerns and proposed solutions including:

• Etowah Water Improvement Project
• Northside Water Improvement Project (Fletcher)
• Hebron Pressure Zone Project (Laurel Park)
• Water System Hydraulic Model development assists rural fire departments with improving ISO ratings.
• Assistance of the provision of sewer to the Halfway Tree Mobile Home Park (Flat Rock) to resolve a public health/failing septic issue.
• Replacement of Clear Creek Sewer Interceptor, which was installed to accommodate anticipated future growth in the Edneyville Community.
• 2023 Joint Water and Sewer Commission Proposal
• Proposed an Urban Growth Boundary / Annexation Agreement
• Eliminate ETJ
• Limited annexation to new developments
• Established a joint Water and Sewer Commission
• Established a joint planning area around the City of Hendersonville
• Included a land use map that limited high density development to the west side of I-26
• Offered to assist with sewer provision in the Edneyville community

The City Council will continue to attempt to resolve this dispute at the local level with a balanced approach of protecting the interests of utility customers, Hendersonville residents and businesses while attempting to address the concerns of the Henderson County Board of Commissioners. We thank you for your consideration in this matter and request a formal meeting to discuss it further.