Negotiations between Haywood and Buncombe counties over how to divide the assets of the former Air Pollution Control Agency have alarmed board members of the agency's successor, the WNC Regional Air Quality Agency.
Buncombe County Manager Wanda Greene, Haywood County Manager Jack Horton and the two counties' finance directors met earlier this month and reached a tentative agreement on Haywood County's share of the former air agency's assets, Greene confirmed last week. Neither the city of Asheville nor the current Air Quality Agency was represented at that meeting, although the city was an equal partner with the two counties in the original air agency.
The fate of the agency's sizable fund balance, much of which consists of permit fees paid by industry, has been a source of controversy since the Haywood County Commissioners voted a year ago to withdraw from the agency, forcing its dissolution. Asheville and Buncombe County created a new agency last summer.
Rumors of the meeting disturbed local activist Hazel Fobes, the chair of Citizens for Safe Drinking Water and Air. Fobes told Air Quality Agency board members at their Feb. 12 meeting that she was deeply concerned about the Buncombe/Haywood discussion.
"We don't feel it is fair for any kind of action or meeting to take place without a written procedure on this," she said, adding that the city and the air agency should also be represented in any such discussions.
Later in the meeting, Air Quality Agency board members voted unanimously to have their attorney write a letter to Buncombe County's attorney asking that all the parties be represented in any future negotiations, said Air Quality Agency board member Nelda Holder, a city appointee.
"That would include the city and the agency," Holder said after board members had discussed the matter in a marathon closed session that spanned nearly three-and-a-half hours.
Asked why air-agency representatives weren't at the Haywood/Buncombe meeting, Greene said it was because the current air agency wasn't a party to the original agreement.
"This is an agreement between three units of local government that created the old agency," Greene said.
Asked why there were no city representatives at the meeting, Greene replied: "By contract in the interlocal agreement, we are the administrator of these funds. As the administrator, we were trying to work up a plan. The city will be presented a proposal."
She also pointed out that Buncombe County Finance Director Nancy Brooks had met with Holder and Air Quality Agency Director Bob Camby so they wouldn't be left out of the loop (that meeting, Holder noted, happened after the Haywood/Buncombe meeting).
Greene said the original two-county meeting was the result of a memo that Buncombe County officials sent to their Haywood County counterparts last August proposing that they sit down together to settle the question of how to distribute the assets.
She characterized that discussion as a "meeting of the minds between Haywood and Buncombe about how we should go forward," adding that she's now ready to talk to City Manager Jim Westbrook about it.
"Any correspondence that we sent to Haywood County ... we copied Jim Westbrook on," noted Greene, adding, "I don't feel like [the city's] not in the loop."
She said the proposal for allocating Haywood's share would be submitted to the Buncombe and Haywood County commissioners and the Asheville City Council. But Greene said she's not sure all three parties would have to agree to the proposal for it to take effect.
"I think two out of three agreeing to it would be enough, but I'd certainly defer to our attorney," she said.
The issue of cooperation between Asheville and Buncombe County has taken center stage in recent weeks after the Buncombe County commissioners bought property on the edge of downtown for a satellite jail, despite a City Council plea to delay action. After county leaders met with a barrage of criticism over the surprise move, the two sides worked out a tentative agreement to put the jail next to the current Detention Center.
But Greene said late last week that the jail and the air agency are unrelated issues.
Lawsuit ties up assets
Further complicating any agreement on distributing the assets is a lawsuit that attorney Albert Sneed filed on behalf of Buncombe County resident Betty Donoho against the city of Asheville, Buncombe County and the former air agency. (The Buncombe County Board of Education, which stands to profit if Donoho wins, signed on as a plaintiff after the suit was originally filed last summer.)
The lawsuit seeks to block the formation of the Clean Air Community Trust Fund, which would receive Asheville and Buncombe County's share of the assets and use the money for projects to help curb air pollution. The suit claims that the state Constitution requires that the money be diverted to the public schools.
The Air Quality Agency's letter to the Buncombe County attorney will also ask that no disbursements be made from the former air agency's funds until the lawsuit is resolved. Holder considers the Buncombe/Haywood negotiations premature because the amount of money at issue won't even be known until the lawsuit is settled.
"But any decision would be premature if it doesn't involve all the parties," said Holder, adding, "We would like to resolve it equitably."
"I don't think we're being premature," insisted Greene. "I think we're being responsible to say [that] when the time is right, this is how we'll proceed."
The two counties tentatively agreed that Haywood's share would be two-sevenths of the former agency's assets, Greene said. That formula is based on Haywood County's having had two appointees on the former agency's seven-person board.
"I'm confident that two-sevenths is a good distribution," said Greene.
Applying that formula, Greene said Haywood County would be entitled to just short of $51,000 in equipment and vehicles as well as $79,300 in cash. In addition, Greene calculated that Haywood County would be entitled to a proportionate share of the agency's building, which is appraised at $329,500.
The Buncombe County school board owns both the agency's building (which was built with air-agency funds) and the property it sits on, Camby said after the meeting. The Air Quality Agency subleases the property from the county, which leases it from the county schools, he said. The building is on Mt. Carmel Road in western Buncombe County.
Greene said the former agency had $437,595 available that isn't governed by federal Title 5 restrictions. Of that money, Buncombe County's Finance Department estimates that about $160,000 must be held until the lawsuit is resolved, Greene reported.
But Buncombe County Attorney Joe Connolly has advised against disbursing any of the former agency's funds while the lawsuit is pending, Greene said.
The old agency also had about $325,000 in Title 5 funds, Camby reported. The Title 5 funds -- fees collected from big sources of emissions, such as large manufacturing plants -- must remain with whatever program is regulating them, he said.
"There does seem to be some ruckus over whether or not we should be giving Haywood County anything, but it's very clear in the agreement that they're entitled to their proportionate share," Greene asserted.
However, the precise amount of money that Haywood County is entitled to may be a matter of debate. The interlocal agreement says only that, if the agency is dissolved, "the personal property owned by the agency will become the property of the three participating governmental units on a pro-rata basis."
Meanwhile, Air Quality Agency Chair Alan McKenzie, who is a Buncombe County appointee, said he hopes that "relationship issues" won't distract officials from working on air-quality issues.
"We're not feeling alienated or polarized, even if the meeting did take place," McKenzie said later about the Haywood/Buncombe discussion. "We just want to get back on track as soon as possible to make sure that we proceed in a collaborative fashion, and to make sure fund-balance [monies] that are in question are handled properly. ... I'm not saying it's not a big deal; if it did happen, it's regrettable. But let's not let that distract us and derail us from moving ahead in this process."
-- additional reporting by Steve Rasmussen