Brittney Lofthouse – Staff Writer

In the spring of 2008, construction was booming in Macon County, and with new construction came the need for grading services around the county. The work was being done quickly, and the county found itself facing a dilemma in ensuring responsible land management as well as managing the growth. In March of that year, the Macon County Planning Department enacted the grading license program, which was aimed at regulating the industry  to protect Macon County’s natural assets.

“The program was an attempt to stop the practice of persons with inadequate ability and knowledge about grading and sedimentation and erosion control law from performing sub quality work for consumers and leaving the consumers with a considerable and costly problem,” Macon County Planning Director Jack Morgan explained in February 2017. “This was also to give something ‘back’ to grading contractors. In the first county ordinance [2001],  there was an ‘Approved Contractor’ clause that allowed an approved contractor to perform land-disturbing activity for up to an acre without submitting a plan to our office. That was taken out when the ordinance was modified and the Macon Grading License was to replace the older ‘Approved Contractor’ program.”

At the request of Macon County Commissioner Paul Higdon, commissioners voted to temporarily suspend the program last year, and sent the directive to the planning board to review the necessity of the program.

On Tuesday night, the Macon County Board of Commissioners meeting room was standing-room-only with a half a dozen people signed up to speak on proposed changes to the county’s grading license program.

Under the county’s grading license program that is currently suspended, applicants are required to pass an open book test, and pay a small fee. No training is provided by Macon County, but by passing the test applicants provide evidence that they have a basic knowledge of grading practices and the laws and practices of the  North Carolina and Macon County Sedimentation and Erosion Control programs. The proposed changes have the same requirements along with the addition of some technical language. The most significant change would be including the Grading License Program under the existing Soil Erosion and Sedimentation Ordinance. The county’s Soil Erosion and Sedimentation Ordinance was enacted in 2001 and has been active over the last 17 years. The amendment to that ordinance is to include the suspended grading license program under the ordinance, not to change anything about the ordinance itself.

Macon County issued 84 grading licenses in 2016. The proposed changes would mean the license would cost $100 for the test and to secure the license, and require $25 a year to renew. If someone was identified as completing grading work without the proper license, a $500 fee will be applicable, however, Morgan said as far as he knows, no such penalty has ever been issued, rather individuals were given a warning and given the chance to get the license.

Separating Fact from Fiction 

Macon County Manager Derek Roland opened the public comment period by dispelling some myths and misinformation that had been circulating regarding the grading license program and its intent. The majority of the complaints county officials had received from the public about the proposed changes were citizens objecting to provisions of the Soil Erosion and Sedimentation Ordinance, not the grading license program. Provisions of the Soil Erosion and Sedimentation Ordinance were not up for discussion or change and have been in place for 17 years. Despite Roland’s attempt to answer previously posed questions, the speakers who spoke against the proposed amendments mostly involved people against the Soil Erosion and Sedimentation Ordinance, and not the grading program itself.

The Soil Erosion and Sedimentation Ordinance defines land-disturbing activity as “any use of the land by any person in residential, industrial, educational, institutional or commercial development, highway or road construction and maintenance that results in a change in the natural cover or topography AND that may cause or contribute to sedimentation. For any project in Macon County to be considered to need a grading license, the project must first both change the natural cover or topography of the land and cause or contribute to sedimentation. If a project, such as building a child’s swing set, doesn’t both change the topography or natural ground cover and cause sedimentation, then county officials said it wouldn’t need a grading license for completion.

The county grading license would only be required for individuals who do not possess a state license. North Carolina State Requirements say that projects over $30,000 must have a state license. Grading contractors who hold a state license would not also need a county license. The county license is intended as an educational avenue for individuals within the county.

Concern: Nantahala resident Danny Smeltzer shared concerns with commissioners regarding being able to complete work on his property. According to Smeltzer, his property borders Otter Creek in Nantahala. Smeltzer said preserving his land ensures that he protect not only his land, but the creek is always a top priority and something he seeks to do. But he said he was concerned that if he wanted to remove dead trees and dead stumps from the creek bank, he would no longer be allowed to do that if the proposed changes are approved.

Fact: Due to the fact that the Soil Erosion and Sedimentation Ordinance has been in place since 2001, if Smeltzer was to remove the stumps from his property today, even without the amendment and inclusion of the grading license program, Smeltzer would still have to complete the appropriate paperwork from the county.

“Mr. Smeltzer could remove the stumps, but he would be required to obtain a land disturbance permit and comply with regulations to keep sedimentation out of the creek,” said Macon County Planner Jack Morgan. “Otter Creek is also a trout stream which would require a temporary variance for trout stream buffer set back if he is with 25’ from the top of the stream bank.”

In regards to Danny Smeltzer’s questions about removing dead stumps on his property which he says would produce sediment into Otter Creek: If the grading license program is approved, Smeltzer can still complete the project himself and has two avenues available to be able to do so.

“He can do it himself now, and if the license requirements are passed he would either have to obtain a license or apply for an exemption and comply with the requirements to obtain the exemption,” said Morgan.

Concern: Nantahala resident Howell Jacobs’ told commissioners he didn’t see a need for the grading license program because he didn’t see how such a program would benefit him.

Fact: One way the grading license program would benefit Jacobs would be that  if he wanted to complete work on his own property that would result in sediment into a water source – but didn’t want to rent all the equipment needed to do the work himself, because he lives in Nantahala and that would be difficult – and the project he wanted to have completed was under the $30,000 threshold that would require a state license – Macon County would have a list available for Jacobs’ of approved individuals in the county possessing county grading licenses.

“We would be required to maintain and make available a list of all persons that have a Macon County license,” said Morgan

Concern: Betty Cloer Wallace had several concerns posed to commissioners regarding the proposed amendment and the current Soil Erosion and Sedimentation Ordinance. One question, “does the required test for a county grading license apply to someone who wants to plow up an acre of soil to plant elderberries to sell at the flea market? Or to construct a goat lot, or a hog wallow?”

Fact: If any of the three listed activities do not cause sedimentation run-off into a water source, neither the current Soil Erosion and Sedimentation Ordinance or the ordinance if the grading license program was included would require a license for a property owner to complete any of the listed work. The three activities in questions didn’t require a license or permits prior to consideration of a grading license in the county and wouldn’t after. If any of the activities in question were proposed on a creek bank and would result into runoff into a creek or river, then the project would require a license or the appropriate permits and expeditions to be able to complete it. Those things would be required today, without any changes to the grading license program.

Concern: Cloer was also concerned that proposed changes is “a solution in search of a problem.” She asked, “Why would you want to test, threaten, and manipulate someone ahead of an activity rather than dealing after the fact with the minuscule number of people who actually cause erosion, penalizing them for any actual damage they have caused?”

Fact: Commissioner Ronnie Beale explained that nothing in the proposed changes are new and instead have already been in place since as early as 2001, and when they were created, they addressed a serious problem in Macon County and over the last 17 years have continued to work toward preventing that problem.

“If we waited until after a property owner did work on his property and cause erosion and sedimentation into a creek to flow down the creek, into a neighbor’s property, we are going to have a much larger problem,” said Commissioner Beale. “We have seen that happen and it cost significantly more for not just the property owner, but for his neighbors to clean up that mess. And more important to the cost involved, without doing something proactive rather than reactive, it may be too late for that stream or creek and the damage done may not be fixable.”

Concern: Several comments posed to commissioners were centered around misinformation about the Soil Erosion and Sedimentation Ordinance rather than the Grading License program itself. People speaking during public comment period had objections to the ordinance, which has been active and in place since 2001.

Fact: Both the Sediment Erosion ordinance (2001) and the grading license program (2008) have been active and in Macon County for at least the last 10 years. All the activities in questions during Monday night’s meeting and over the last few weeks that were allowed prior to the license program being suspended last year, would still be allowed if the amendment is placed into the ordinance. This changes nothing other than revising technical language and finding a “home” for the requirement of the program within the ordinance.

“The only change to the ordinance is the license language,” said Morgan. “If a project required a permit in 2001, is still requires a permit today, but no additional permit requirements are included in the proposed addition to the ordinance.”

Concern: David Culpepper, who serves on the Franklin Town Council, has been outspoken regarding his interpretation of the entire ordinance and its “potentially” unintended consequence of taking property rights away from constituents. Although Culpepper spoke to commissioners and said he was not representing the town of Franklin as a member of the council, but rather as an individual citizen, Culpepper did speak as a board member during last week’s town council meeting urging people to attend the county meeting and voice their concerns to the legislation which he compared to “Crony Capitalism.”  Culpepper’s concern was centered around a portion of the grading license program that would allow an exemption to having to pay a fee and secure a license for property owners. The program amendment states that if a property owner completes the work, they would be required to sign an affidavit swearing they would not sell or transfer the property for one year after the land disturbing activity is completed.

Fact: The one year stipulation in the ordinance was intended to address the county’s owner-contractor exemption that allows property owners to serve as a contractor on major projects. After hearing several complaints about the requirements over the last week, commissioners said the one year requirement would be something they would closely look at before consideration of approving the grading license program.

Next Steps: 

The Macon County Soil Erosion and Sedimentation Ordinance is a state modeled ordinance. Macon County does not have the authority to approve the ordinance on its own. Any changes to the ordinance would have to be presented to the state to review and would require state approval before being changed in Macon County.

After Tuesday night’s public comment period, commissioners said they wanted to take the suggestions under advisement, as well as address some of the technical language the county attorney presented. Commissioners will likely make changes and provide the public another opportunity to comment on the new changes before sending a copy of the Soil Erosion and Sedimentation Ordinance with amendments to include the Grading License Program to the state for review and approval.