Archived Story

$9,000 question

Published 10:39am Wednesday, January 9, 2013

GATESVILLE – “What we’ve got here is (a) failure to communicate.”

That famous line was delivered by the now late Hollywood actor Strother Martin, playing the role of a prison warden in the 1967 film “Cool Hand Luke.”

Martin’s words could be noted now in Gates County after an apparent breakdown in communication left local government officials holding a questionable $9,000 bill.

That cost was associated with the expansion of the storm water retention pond at Merchant’s Commerce Center, an area of new commercial and possible residential development along US 158 across from Gates County High School. Apparently the need to expand that pond was not made known to a majority of the county’s Board of Commissioners.

Gates County resident Chuck Brothers, also a member of the local Planning Board, initially asked the commissioners at their Dec. 3 meeting of how and why the county wound-up paying for the pond’s expansion in an area of private development. Board Chairman Henry Jordan promised Brothers an answer at the commissioner’s next meeting, which was held Jan. 2.

“We did the research and found that the county manager (Toby Chappell at that particular time) authorized the expansion of the retention pond at the Commerce Center at a cost of $9,000,” Jordan explained. “(That was due) to when the land was given to the county (by the Commerce Center’s developer) to build our new (public) library, there were no provisions in that deed to accommodate or pay for the county to have a retention pond or any other type of storm drain-off requirement that EPA (Environmental Protection Agency) or DENR (Department of the Environment and Natural Resources) would require. Also, we found that the architect we hired, LS3P (for the library project), did not put into their design or construction criteria any provisions for a storm drain run-off. As such, the county was left to make a decision, go to the developer and ask him to expand the (existing) retention pond to accommodate the EPA requirements at a cost of $9,000.

“The decision the county manager made was one that had to be made, one that he was basically authorized to do,” Jordan continued. “As far as the amount of money he was authorized to approve, in our budget ordinance that we annually prepare we have a provision in there that the county manager can authorize changes or amendments to a construction contract when the capital project ordinance contains sufficient appropriated funds.  So, he was authorized to do that; apparently the funds were there and he was able to make that change.”

As far as limiting the amount a county manager can approve, Jordan said as it currently stands there is not a dollar figure that can be arbitrarily approved unless it’s given to the manager in an ordinance or allowed under the state’s General Statutes (GS 143-131). That particular statute says there cannot be changes made without an informal bid process and notification to the county commissioners if the amount is $30,000 or less.

“The bottom line is that he was authorized to do what he did, to include the amount, and any changes in the amount that our next county manager can approve would have to be addressed in our next budget ordinance we prepare for 2012-13,” Jordan stated.

The other commissioners also weighed in their thoughts on this topic.

“Some time ago when that subject came up at around budget time I remember addressing that (approval limitations) specifically and the county manager informing the commissioners of change orders,” said Johnny Hora. “I never received a change order (on the retention pond). This liability should not fall on the county; we did not make the mistake. The mistake was made by the developer. I’m not in the business of paying for someone else’s mistake. I don’t think this is the right thing for the taxpayers of Gates County to be expected to take up for someone else’s mistake. This is the developer’s responsibility, not the county’s. The developer should be receptive to its customer to point out certain things that are missing. It’s not our responsibility when we do not have that knowledge. We should have had some type of warranty, but that was not done in this case.”

“I wasn’t on the board when this occurred, but I do have a problem with this board not being informed when there was a change to be made,” Linda Hofler stressed. “We are a team of five. If the county manager had informed everyone on the board, that would had been the decent, the ethical thing to do. The ball was dropped by several people and that greatly concerns me. The right questions were evidently not asked and now we’re left with a $9,000 bill.”

Commission Vice Chairman Jack Owens asked if it was DENR that brought this issue (expanding the retention pond) to the developer or the county manager.

“What happened I believe is when we went to apply for the permits we had to get DENR and EPA to sign-off and that’s when the question about the size of the retention pond arose,” Jordan recalled. “At that point, LS3P came back to the county and let us know that the library would create a need for the Merchant Center’s retention pond to be enlarged. That’s when the county manager went to the developer and the developer said he did not have any provisions. He gave us three acres of land to build the library, but the deed did not specify that he would incur any additional costs for any environmental requirements.”

“My question is what happens moving forward,” asked Hora. “Do we have a pond that’s big enough now or do we get someone else in this position. Who’s going to pick that (cost) up?”

“Several things have been addressed,” Jordan stated. “Obviously there was a mistake made. I think the board has to take some of that responsibility. When LS3P presented the contact, the building specs to the board, the board had to approve that. Apparently we did not recognize that the provision for the retention pond was not in there (contract). I’m not sure that we have the expertise to recognize that we should have had a retention pond. We left that to LS3P. Perhaps we need to hold LS3P accountable. This is something that cost us $9,000.”

Interim County Manager Kenneth Windley said the retention pond either had to be on the (library) property or somewhere else in order for storm water from the area of the library to properly drain.

“It is to my understanding that a decision was made by someone, I not sure who, to not put the retention pond on the (library) property because the county would have to maintain it,” Windley said. “Let the total project maintain the retention pond where it’s currently located.”

Windley added, “It seems like a classic case of just poor communication and not keeping the board up to date of what was going on. All of this should have been in writing. I can’t find anything in writing from back then. I think this is a good lesson to learn for the next manager here and this board that there has to be good communication from the manager and the board to whoever you have a contract with. The architect meets with the manager and the construction company every month. If there is something that is going to cost the county more money that comes from those meetings, there should be communication between the manager and the board on what those additional costs will be. It appears this wasn’t done (in this case), that’s where the downfall lies and you guys were not kept in the loop and you should have been.”

In hindsight, Windley said the commissioners were not left with much of a choice either way.

“You had to put the retention pond where it is instead of on the same lot of the library,” he noted. “It wouldn’t have looked good there and you would also have some liability with it there. I think the decision to put the pond where it is was the correct decision. Most of the problem with this is poor communication.”

“When you see how this property was developed and you see all the ditching, you would believe it was being done that way so that one retention pond would take care of everything,” Owens remarked. “That’s an incredibly large and deep retention pond. I was under the premise that when x number of acres were developed, that pond would be sufficient just like we had an engineer determine that the county’s sewer system at that development was large enough to meet the needs. LS3P are professionals, but I question if they should be questioned about this ($9,000). Maybe they should be the responsible party to write this check.”

“That’s an option we can look at; perhaps we need to consult with our county attorney,” Jordan noted. “We need to find out why this requirement was not included in the construction bid price or the (library) building specs. It appears to me that it should have been included.”

Jordan requested that Windley follow up on that option as the county has already paid the $9,000.

“I guess I’m the one that stirred up this can of worms,” said Brothers after he asked and received permission to address the board. “I want to be better education with my position on the Planning Board. I was 100 percent in the know that when the (Commerce Center) plat was submitted in its preliminary and final stages, there were sign-offs from DENR that was inclusive of the 156 acres approved in that plat and that retention pond was inclusive of what was projected in stages one, two and three (of the overall development). That pond was inclusive in the first stage of development.”

Windley stated that the library was not a part of the original first stage of development. He said there were four lots in the first stage and the library was not among those original parcels.

“My understanding is that pond was enlarged at the time they built it,” said Commissioner Kenneth Jernigan. “The deal to the county was that at the end of building the library if that money was left that’s when they (the developer) would get that $9,000. That pond, to my understanding, has already been enlarged but I would like to have that checked as fact. It’s also my understanding that additional retention ponds will be built on that property when the development moves to stages two and three.”

“I was on the Planning Board when these plats were presented,” said Hofler. “Originally it was 10 lots, then it was cut to four or five lots. I assumed the retention pond was designed for 10 lots.”

“All of these clarifications need to be brought back to the board and consult with our attorney for some type of adjustment from LS3P,” Jordan concluded.

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