Oconee County Sitting on $10 Million in Unspent SPLOST Funds

Money to ...

When Oconee County began collecting money in October from the new Special Purpose Local Option Sales Tax voters approved early last year, it still had $10 million in unspent funds from the 1-cent-on-a-dollar sales tax voters approved back in 2003.

The county had $2,423,930 in unspent funds for Water and Sewage projects.

It had $385,344 in unspent funds for Recreation and Cultural projects.

It had $977,879 in unspent funds for Roads.

It had $1,093,223 in unspent funds for Fire Stations.

And it had a whopping $4,281,944 in unspent funds for County Facilities Expansion and Renovation.

The only categories approved by voters for which it did not have any money remaining were for Jail Expansion and the Emergency Operations Center, where the $1.3 million and $600,000 allocated respectively was used to pay off debt.

Much of the money in the 2003 SPLOST for Recreational and Cultural projects also was used to pay off debt at the new Oconee Veterans Park on Hog Mountain road, but the $385,344 remained unspent as of June 30, 2009.

On top of these amounts, the county actually collected an additional $631,266 beyond the $25 million anticipated for the SPLOST.

The county also has an unspecified amount of interest it has earned on the SPLOST monies after they were collected from taxpayers and deposited in county accounts.

The figures on money spent from the 2003 SPLOST come from a report that the county was required to file by law. The report appeared as a legal advertisement in the bottom, right-hand corner of page A-8 of the Dec. 24 edition of The Oconee Enterprise.

The Enterprise did not write a story about the report.

The table shows that the county had spent only $15,837,680 of the $25 million dollars it anticipated taking in from the 2003 SPLOST.

The report notes that the expenditures listed do not include any outstanding commitments by the county, and the report does not specify what any commitments may be.

The data on actual funds collected were provided to me by County Finance Director Jeff Benko. They show that between December 2004 and November 2009 the county collected $25,631,266 from the SPLOST approved by voters in November of 2003.

That is $9,793,586 more than it had spent as of June 30, 2009.

Benko told me in an e-mail message on Jan. 15 that the county is not required to publish any additional reports on SPLOST until next year. “Since we have SPLOST funds remaining in the account (earning interest until expended) the final report will remain open,” he wrote.

The ordinance passed by the county Board of Commissioners in September of 2003 setting up the 2003 SPLOST did not specify clearly what happens to excess funds.

The ordinance said intake from the tax “including interest on the Bonds” is to be allocated based on what was approved by the voters. It calls the figures for each of the projects “an estimated maximum cost.”

Benko said in that Jan. 15 email that “Since the County collected the entire $25M and all program areas were funded to the level that the citizens voted for, the excess collections and interest earned on SPLOST funds may be used as the Board decides necessary for the appropriate area.”

The county began collecting money in December for the SPLOST voters approved in March of 2009. That tax also is 1 cent on the dollar spent.

The issue of money remaining in the SPLOST account came up at the Citizen Advisory Committee on Land Use and Transportation Planning meeting on Jan. 12, when members were guessing about how much the county has to spend toward a new courthouse.

The category, County Facilities Expansion and Renovation, includes monies that can be used for that purpose.

The SPLOST approved by voters in March, however, does not have money designated for a courthouse. That tax will run for six years.

SPLOST must be renewed by the voters in the county when it expires. When county residents spend a dollar in the county, they pay an extra 1 cent for SPLOST. They also pay an extra 1 cent on the dollar for a Local Option Sales Tax (which does not come up for renewal) and 1 cent for an Educational Local Option Sales Tax.

The ELOST currently in effect was approved in July of 2006 and runs for five years. The Board of Education recently decided to spend $900,000 for land for a future local office building from that fund.

Oconee BOC Chairman Raised Contract Employee Salary After Budget Approved

Communication Was Terrible

Although the 2008-2009 budget approved by the Oconee County Board of Commissioners included $33,500 for the salary of Keep Oconee County Beautiful Commission Executive Director John McNally, the county actually paid McNally $35,175.

Oconee County Board of Commissioners Chairman Melvin Davis made the decision to give McNally the 5 percent salary increase, County Finance Director Jeff Benko told me on Dec. 11.

Though not in the budget, the cost-of-living increase was consistent with the contract under which McNally was working.

The amount of money spent by the county for McNally and the KOCBC became an issue last spring as the full commission discussed the 2009-2010 county budget and asserted its right to determine how county money is spent.

On June 23, the commission approved a budget of $19,100 for KOCBC for 2009-2010, including $12,000 for McNally. The budget total was $33,500 less than had been allocated a year earlier and did not include money for advertising, printing and binding, travel, dues and fees, and education and training, which had been included in the budget a year earlier.

McNally, 84, a contract worker rather than regular employee, chose to remain in his position through the end of October, when he resigned. The KOCBC voted on Oct. 5 to elect Esther Porter to serve as its volunteer executive director to replace McNally.

The controversy over funding for the KOCBC and its executive director was in the open and the most contentious part of the 2009-2010 budget discussions.

What was not public, however, was the decision by Davis to increase McNally’s salary a year earlier, the growth in the budget of the KOCBC over time, or even the nature of the budget request for KOCBC for the 2009-2010 fiscal year.

I filed an open records request on Aug. 23 asking for the annual budgets for the KOCBC and its forerunner, Oconee County Clean & Beautiful Commission, from 1999-2000 through 2009-2010.

I also asked for the annual expenditures for the KOCBC and the Oconee County Clean & Beautiful Commission for the same time period.

The open records request also asked for job descriptions and/or contract language covering the executive director and/or other employees of the two groups during this time period and "any documents related to agreements between Oconee County and Keep Oconee County Beautiful Commission/Oconee County Clean & Beautiful Commission...relating to office space and/or office services."

Separately, I asked for the documents that Public Works Director Emil Beshara presented to the BOC meeting on April 15 in support of his budget request for KOCBC for fiscal year 2009-2010, as well as the document he used to support his request a year earlier.

The KOCBC funding comes from the Public Works Department budget.

These records show that Beshara, who at that time reported directly to Davis, prepared a budget request for KOCBC for 2009-2010 that did not include any money for McNally or the operation of his office.

Beshara’s budget listed a total request for KOCBC of $9,600, which was for water and sewage, gasoline, supplies, and other general office expenses that any office in the county must include in its budget.

He noted the change very quickly and without comment near the end of his 36-minute budget presentation to the BOC on April 15, saying the requested funds dropped from "fifty-three six to ninety-six hundred" because of the cut in technical services. The actual document released to me shows the 2008-2009 budget was $52,600, not $53,600.

Beshara’s document also showed that McNally had received $40,310 in compensation for the 2008-2009 fiscal year that was not yet ended, rather than the budgeted $33,500.

The final fiscal year figures, which Finance Director Benko produced for me on Aug. 25 in response to my open records request, show that McNally actually received $35,885 from the county in 2008-2009.

Benko explained to me in an e-mail message on Tuesday of this that week that this $35,885 included $710 that was paid McNally to cover his expenses "for disposal of tires."

Benko also explained that the $40,310 in "actual" expenditures for 2008-2009 for McNally that Public Works Director Beshara presented to the BOC in April "included encumbrances," that is, money committed but not yet paid. That document had been prepared for Beshara by Benko’s office.

The budget documents Benko prepared in response to my open records request show that the amount of money the county has budgeted for McNally in the last eight years has increased dramatically.

In 2001-2002, McNally was budgeted to receive $18,500, and that figure increased every year until 2008-2009, when the budgeted figure of $33,500 was the same as the year before. The decision by Davis to increase the compensation above the budgeted figure overruled that salary freeze.

The total budget for the KOCBC grew from an approved $30,955 in 2001-2002 to $52,600 in 2008-2009, or 70 percent in seven years.

Even with the increased spending for McNally’s salary for 2008-2009, however, the final KOCBC spending for 2008-2009 was $5,439 less than had been allocated in the budget.

McNally spent only $7 of the $2,500 budgeted for travel, and only $522 of the $1,200 budgeted for education and training.

Under Chairman Davis, the budgets for the KBOC were prepared by staff who reported to Davis, and the BOC reviewed and voted on the budgets.

Last spring, the four other BOC members asserted their rights to be involved in the budgeting process, with Commission John Daniell being particularly outspoken in making that argument.

The BOC put the new procedure in place for the future as part of the reorganization plan it adopted–over Davis’ objection--on Aug. 4.

In response to my open records request, the county provided me with three contracts between the county and McNally.

The first was signed on Oct. 1, 1991, and provided McNally $400 per month in salary. The second was for Nov. 7, 2005, and set the salary at $25,000. The third was for July 1, 2007, and set the "base" salary at $33,500 and stipulated that the "Board of Commissioners" would set the final figure "during the budget approval process."

This final document stated that the agreement would be continued annually and that the level of compensation would be "contained in the annual budget as approved by the Board of Commissioners."

It also specified that cost of living adjustments would be made to the salary.

Former BOC Chairman Wendell Dawson had signed the first of these contracts, and current Chairman Davis signed the second two.

When I met with Benko in his office on Dec. 11 to go over the Keep Oconee County Beautiful Commission budgets, he explained the discrepancy between the amount budgeted by the BOC for McNally’s salary last year and the amount he received by saying that Davis made the decision to give McNally the "cost of living" salary increase.

The cost of living adjustment had not been applied to McNally by the Board of Commissioners when it approved the budget for 2008-2009.

Davis and McNally live less than a mile apart in the southeastern part of the county. McNally’s address is 1510 Wildcat Ridge Road, while Davis lives at 1772 Oliver Bridge Road.

According to county tax records, the 11-acre tract McNally owns has a small common border with the 11-acre tract owned by Davis and his wife.

Porter, chosen subsequently to be executive director of KOCBC, and two other members of that group appeared at the meeting of the Board of Commissioners on June 23 asking that McNally’s salary be included in the budget.

BOC Chairman Davis sided with the KOCBC at that meeting, pitting himself against the other four members. The full BOC restored the $12,000 part of the salary as a compromise.

KOCBC and its predecessor have been active in the county for nearly 20 years, and its members argued during the controversy that McNally had been instrumental in many of its programs.

The group has a wide range of activities scheduled for this fiscal year, including chipping of Christmas trees, old phone book collection, the Adopt-A-Mile program to encourage organizations to clean up litter, and the Great American Cleanup conducted in collaboration with National Keep America Beautiful, of which the KOCBC is an affiliate.

Among its other activities are school education programs, cleanup of the banks of the Apalachee River, a compost bin sale, electronics recycling, and participation in a teacher reuse store.

At the Oct. 5 meeting, Mary Mellein, chair of KOCBC, said the commission had thought it needed a full-time, paid executive director to meet the requirements to be an affiliate of Keep American Beautiful. The commission learned after McNally’s salary had been cut from the budget that a non-paid, volunteer executive director is sufficient, she said.

Porter will use office space in the Utility Department previously set aside for McNally and coordinate her work with Amy Morrison, stormwater and environmental coordinator in the Public Works Department.

Porter is one of 14 members of the Keep Oconee County Beautiful Commission and a local businesswoman.

Members of KOCBC are appointed by the Board of Commissioners.

On July 16, after the BOC had voted on the 2009-2010 budget and cut McNally’s salary, both Commission Chairman Davis and Commissioner Daniell met with the KOCBC.

According to minutes of the meeting prepared by KOCBC member Marge McKee, Davis opened the meeting and led a discussion of the future of the group. McKee’s reported that Davis said the "BOC felt that the job (of executive director) could be done in-house and save the county $35,000."

Daniell didn’t get much attention in McKee’s notes.

"In retrospect, he (Daniell) agreed that communication regarding John McNally’s position was ‘terrible’," McKee reported.

Oconee County Citizen Committee Continues Courthouse Discussion

BOC Must Wait

The Oconee County Board of Commissioners is going to have wait at least a month before it gets a recommendation from its citizen advisory committee on Land Use and Transportation Planning on what to do about the county courthouse.

The committee spent an hour discussing the issue again tonight but ended the meeting with little sense of what it is going to recommend to the BOC.

Early in the meeting, Abe Abouhamdan, chair of the committee, told the group that "next meeting we need to come up with some sort of recommendation."

At the meeting’s end, however, he said the discussion would continue at the Feb. 9 meeting and may go beyond that point.

On March 31 of 2009 the BOC asked the citizen committee for a recommendation on what the county should do to address future space needs for court and administrative functions of the county.

The Land Use and Transportation Planning Committee began discussion of the issue the next month and has devoted most of its monthly meetings since to the issue.

At the meeting tonight, the committee did create a list of four options: (1) Keep all government activities in one place, (2), Separate judicial and administrative activities, (3) Do nothing, and (4), Combine administrative operations with the Oconee County Board of Education.

Abouhamdan asked committee members at the end of the hour-long meeting, held at the Community Center at Veterans Park, to submit to him questions they felt still needed to be addressed at a future meeting or meetings.

Oconee County Loss of Wetlands to Greene from Mitigation Is the Norm

Making Fully Informed Decisions

Researchers at Florida State University and Duke University have found that federal regulations on the mitigation of wetland damage result in the transfer of the benefits of wetlands from urban areas to rural ones.

Using data they gathered from mitigation banks in Florida, the pair showed that what Oconee County experienced when the U.S. Army Corps of Engineers granted a permit allowing the developer of a proposed shopping mall to pipe and fill tributaries of McNutt Creek and mitigate the damage in rural Greene County is typical.

The researchers found that the benefits of wetlands such as flood control, groundwater recharge, water filtration and sediment control are taken from urban areas and given to rural areas as a result of the federal mitigation procedures.

"So long as federal and state wetland regulation programs do not acknowledge the geographic distribution of ecosystem services as a criterion for regulation and a factor in wetland mitigation policy, the ‘market’ for credits will not do so either," J.B. Ruhl and James Salzman wrote in 2006 in the National Wetlands Newsletter.

Katie Sheehan, a staff attorney at the River Basin Center in the Eugene P. Odum School of Ecology at the University of Georgia, came across the article while doing legal research for a resolution she drafted after talking with me about the mitigation process for the proposed Epps Bridge Centre on Epps Bridge parkway.

The resolution, which I asked the Board of Commissioners back in April of 2009 to consider, would put the county on record with the Corps of Engineers as preferring that mitigation for stream and wetland damage in the county in the future be carried out in Oconee County or upstream from Oconee County, rather than downstream, as was the case for the Epps Bridge Parkway development.

In an article published by the pair in 2009, they argue that changes in Corps of Engineers’ regulations in April of 2008 now "enables the EPA and the Corps to consider the issues arising from the migration of wetland services from urban to rural areas."

These new rules, they argue, encourage the Corps to locate mitigation where it is most likely to replace lost functions and services from the streams and wetlands destroyed.

I contacted Ruhl in November after Sheehan sent me a copy of the 2006 article. Ruhl referred me to his web site, where that article and the more recent one are posted.

Ruhl is the Matthews and Hawkins Professor of Property at the Florida State University College of Law. Salzman is Samuel F. Mordecai Professor of Law and Nicholas Institute Professor of Environmental Policy at Duke University.

The researchers examined 24 mitigation banks operating in Florida and matched them with the projects for which mitigation credits from the banks were sold.

The Corps of Engineers allows developers and others who want a permit to put dredged or fill material into streams and wetlands to purchase credits sold by mitigation banks as a condition for issuance of the permit. The mitigation banks often operate as businesses.

Ruhl and Salzman used data from the U.S. Census Bureau for the census tracts in which the projects were located and for the census tracts within three miles of the mitigation banks. They computed an average for all the projects of a given bank.

The data they report for the 24 Florida banks show that the population density for the projects was on average 1,114 persons per square mile, while for the banks population density was only 440 persons per square mile.

The researchers also used census data to look at differences between projects and banks in terms of the wealth and minority status of those affected, but they found little difference in either case.

Because of the differences in terms of population density, Ruhl and Salzman said the Corps should change its "incentive structure" by giving more credit for mitigation that is "closer to the urban areas losing wetland resources."

Developer Frank Bishop is planning a $76 million shopping center east of Lowe’s on Epps Bridge parkway and has been given permission by the Corps to mitigate the damage he will do to streams and wetlands on the site at a mitigation bank he developed on land he purchased in Greene County.

Bishop filed his application for his permit to pipe and fill the streams and wetlands on his shopping center site in 2007, and public comment was taken in late 2007 and early 2008 before the new regulations went into effect. He was granted his permit in January of 2009.

Once the state completes the Oconee Connector Extension, now under construction, additional land near Bishop’s development will be open for development.

The streams that Bishop is piping will flow above ground on some of that undeveloped land, and developers will need permission from the Corps of Engineers if they wish to alter those streams.

I asked the Board of Commissioners in April of 2009 to pass the resolution stating its preference that any future mitigation for damage to streams and wetlands in the county be carried out in the county or upstream of the county so the county would benefit from the restoration.

The 113-page Compensatory Mitigation for Losses of Aquatic Resources Final Rule issued by the Corps of Engineers in April of 2008 stipulates procedures for the Corps to follow to make sure information is available to the public during the review process.

A separate "Questions and Answers" document carrying the Corps and the Environmental Protection Agency logos states that one of the "primary goals" of the new Rule is to "Enhance public participation in compensatory mitigation decision-making."

Were the Oconee County BOC to pass the resolution, citizens or the county government itself could inform the Corps during the review process for permit applications in the future that the county had passed the resolution.

The BOC sent the resolution to the Citizen Advisory Committee for Land Use and Transportation Planning, which held a hearing on the resolution on November 10.

Wayne Provost, director of Strategic and Long-Range Planning for the county, invited Bishop to provide feedback on the resolution and also argued against it himself at the meeting, according to the draft of minutes of that meeting.

The Committee voted 9-2 not to recommend the resolution to the BOC, which has yet to act on the recommendation.

In the 2009 article, published in the Stetson Law Review, Ruhl and Salzman wrote that the April 2008 Rule of the Corps replaces a "mish-mash of guidances, inter-agency memoranda, and other policy documents" controlling mitigation.

In that article, they also summarized other research findings that are consistent with their 2006 research showing that the current procedures for mitigation result in the shift of benefits associated with wetlands from urban to rural areas.

Ruhl and Salzman were joined in writing that article by Iris Goodman of the U.S. Environmental Protection Agency.

Policy discussion about wetlands in the past was "biocentric in focus," they wrote, meaning that the discussion was on whether the wetlands that were restored to mitigate the loss associated with issuance of the permit performed the same function and were comparable ecologically.

Wetlands provide "economically important services to human populations as well, such as flood mitigation, groundwater recharge, water filtration, and sediment capture," the researcher wrote in the article. These have not been taken into consideration in past discussions, they said.

Other benefits of wetlands not included in the discussion, they wrote, are air filtration, micro climate regulation, noise reduction, rainwater drainage, sewage treatment and recreational and cultural values.

"The economics of compensatory mitigation inherently shift wetlands…from urban to rural areas, because developers seek high-value land in urban areas whereas mitigation bankers seek less expensive properties in rural areas where opportunities exist to restore aquatic resources," the researchers said in the 2009 law review article.

Given that past Corps procedures did not focus on these shifts, the public probably has not been aware of what was gained and lost in the permitting process, they said.

"Urban dwellers might prefer a shopping center to a wetland and might not mind losing the services associated with the wetland," they wrote. "But if they do not know what and where those services are and the values conferred, they cannot make fully informed decisions."

Oconee Voters Say They Lack Information to Decide on Reorganization

Don’t Know Dominant

Three months after the Oconee County Board of Commissioners passed an ordinance that changed the organizational chart for the county, about half of the voters in the county said they didn’t know enough about it to have an opinion on the change.

Of those who did have an opinion, most thought the changes were good for the county.

These are the findings of a scientific survey of 181 Oconee County registered voters conducted from Oct. 21 to Nov. 4. Most were interviewed by telephone, though a few were interviewed in-person.

The findings contrast with those presented to the board before it voted to adopt the ordinance on August 4.

Commission Chairman Melvin Davis, who opposed the changes, said that three-quarters of the people in the county opposed the changes proposed in the ordinance. He said he reached that conclusion based on public comments at the three public hearings and on email messages received by the county.

The survey participants were responding to the following question:

“The Oconee County Board of Commissioners recently passed an ordinance changing the organizational chart for the county so that the county administrative officer and finance director report directly to the full board of commissioners rather than just to the board chairman. From what you know, was this change good for the county or bad for the county? If you don’t know enough to have an opinion, just tell me that.”

The survey was conducted by graduate students in the Grady College of Journalism and Mass Communication at the University of Georgia enrolled in a class designed to teach them about social science research methods.

I was the instructor for the class.

As part of the class, the students designed and conducted a survey of Oconee County registered voters that included questions on a variety of topics, mostly dealing with national issues. To localize the survey, which was only conducted in Oconee County, the students included two questions about the county, including the one on the reorganization.

The students followed all standard procedures for such surveys. In the end, they were able to complete interviews with 26.3 percent of the persons whose names were selected randomly from the voter registration list for the county.

They completed interviews with 30.5 percent of those persons whose names were selected and used and who were judged to be living in the county.

The sampling error for the survey was 7.3 percent. This means that the odds are high–19 to 1, in fact–that had all registered voters in the county been surveyed rather than the sample, the actual answer would have been within plus or minus 7.3 percent of the answer obtained from the sample.

The survey found that 51.4 percent of the registered voters said they didn’t know enough to have an opinion on the reorganization, and 35.4 percent said they thought the change was a good idea. Only 5.5 percent said they thought it was a bad idea for the county.

The best estimate, then, is that between 44.1 and 58.7 percent of the registered voters did not feel they had enough information to have an opinion, and between 28.1 and 42.7 percent felt it is a good idea. Between 0.0 and 12.8 percent thought it was a bad idea.

Of course, the question on the reorganization could have been asked many different ways, and the answer might well have been different. I wrote this question at the students’ request focusing on what I judge to be the key change brought about by the ordinance, passed unanimously by the four commissioners.

Chairman Davis, who votes only in the case of a tie, did ask that his opposition to the ordinance be recorded in the minutes of the meeting.

The other question in the survey that dealt with Oconee County asked the registered voters how often they read the weekly The Oconee Enterprise.

Of those surveyed, 36.7 percent said they read the paper every week, and another 21.1 percent said they read it at least once a month.

Readers of the Enterprise were less likely to say they didn’t know enough to have an opinion on the issue than were nonreaders and were more likely to think the change was bad for the county. The changes were large enough to be likely to reflect real differences among all registered voters.

The Enterprise editorialized strongly against the change and attacked the four commissioners promoting it during the months leading up the passage in August.

Oconee County had 21,853 registered voters on Oct. 4, 2009, when I purchased the electronic file from the Secretary of State’s office.

Oconee County has an estimated 32,221 residents, according to the U.S. Census Bureau, and 23,940 are estimated to be of voting age. So the ratio of registered voters to eligible voters is very high.

The sample of 181 registered voters interviewed for the survey matched the characteristics of the 21,853 total registered voters in terms of race, gender, and region of the county (rural versus urban precinct).

Interviewers were less likely to be completed with persons under 41 years of age. In the final sample of 181 voters interviewed, 20.4 percent were under 41 years of age, while among registered voters overall 37.8 percent are under 41 years of age.

Oconee BOC Struggles with Rezone Concept Plans

Building Number Five

In concept, it was to include 12 storage buildings ranging in size from 3,000 square feet to 9,375 square feet for a total of 50,925 square feet, and an office building of 686 square feet.

All building exteriors facing Hog Mountain road were to be brick facade.

In preliminary design, it was to be eight storage buildings ranging in size from 800 square feet to 17,400 square feet for a total of 50,810 square feet, and an office building of 685 square feet.

What was built as Oconee Safe Storage at 1711 Hog Mountain road was eight storage building ranging in size from 800 square feet to 34,800 square feet for a total of 68,210 square feet, and an office building of 1,270 square feet.

The second floor of built building number 5, shown on the preliminary site plan of July 27, 2007, as a single story tall and 17,400 square feet, is two stories tall and has 34,800 square feet. It does not have a brick facade on the rear, but it is clearly visible from Hog Mountain road.

According to B.R. White, Oconee County Planning Department director, the important discrepancy was not between the concept plan submitted by Beall & Company for the site with the original rezone request in October of 2006 and the preliminary site plan submitted in July of 2007.

The key discrepancy was between the preliminary site plan and the buildings actually built.

Code enforcement, not his office, discovered that discrepancy when doing inspection before the occupancy permit could be issued, White said.

Concept plans are just that, White told me when I visited his office on Friday.

According to White, the site plan often is quite different, as Ken Beall told the Board of Commissioners on Dec. 2, when Oconee Safe Storage was back before the commissioners because of the discrepancy.

The BOC granted a rezone and special use approval.

This means that Oconee Safe Storage will get to use the extra space it built. It will be required to put brick facade on the top of building number 5.

The public may assume that if a developer proposes to build 12 storage building and an office that the final project will include 12 storage buildings and an office.

What the planning office is focusing on is the total square footage, however, not the number of building, White said.

Commissioner Chuck Horton made it clear at the Dec. 2 meeting that he felt the discrepancy between the concept plan and the buildings actually built was too great, and he said Beall should have come back before the board with new plans before building what he built.

According to the Unified Development Code for the county, "no building permit, other permit or certificate of occupancy shall be granted except for uses or structures conforming substantially with the Concept Plan and related documents submitted with the application."

The BOC has struggled frequently with what "substantial compliance" means within the last year and a half–a relatively slow period in terms of rezone activity.

On Oct. 7, 2008, the Board debated at length whether the developer of the Epps Bridge Centre on Epps Bridge Parkway could develop the center in substantial compliance with the submitted concept plan if the state did not build the planned roadway to the shopping mall.

It concluded developer Frank Bishop would not be in compliance, so it rewrote the enabling ordinance to stipulate that he could not start work on the shopping mall until the state let the contract for the roadway.

The state let that contract in June.

Bishop at that time also did not have his permit from the U.S. Army Corps of Engineers for filling and piping the streams and wetlands on the site or his variance from the state of Georgia for violation of the buffers on those streams. The Board was willing to ignore this issue entirely.

Yet Bishop could not have built his shopping center in "substantial compliance" with the concept plan had he not gotten the permit and variance.

He got his permit from the Corps in January and his variance from the state in April.

On Jan. 6 of this year, the Board rezoned property at the corner of LaVista road and U.S. 441 owned by Fred Gunter Property LLC for office-institutional-professional use.

The concept plan that had been submitted was for a shopping center, which requires a business classification.

No concept plan at all had been submitted for the office park.

White told me on Friday that anyone who develops the site with the current rezone classification (O-I-P) simply will have to meet the UDC requirements, since there is no concept plan for the site to use as a guideline.

About an hour later at the Jan. 6 meeting, the BOC debated whether a second rezone–for a shopping center on U.S. 78 at Dials Mill road–would meet the requirement of being in substantial compliance with its concept plan if a proposed roadway inside the development could not be built.

The developer needed approval of a pipeline company before it could build the roadway, and it did not have the approval.

The board ultimately included in its rezone language a stipulation that the developer would have to come back to the board with a new plan if it did not get permission for the roadway.

At the Feb. 3 meeting of the BOC, this issue came up again when state Rep. Bob Smith was before the board because he needed to modify the concept plan for the subdivision he has developed on Porter Creek drive off Barnett Shoals road east of Watkinsville.

White explained at that time that Smith already had built as many houses as the original concept plan allowed. If Smith wanted to add more lots and houses, he needed a new concept plan, White said.

The board approved a new concept plan for Smith’s subdivision.

Despite these inconsistencies in how the concept plan is viewed by the commissioners, the lesson for citizens of the Oconee Safe Storage rezone is clear.

What you see at the public hearing on the rezone is not necessarily what you are going to get.

To know what you are going to get you’ll have to monitor processes and activities currently carried out away from the public spotlight.

Oconee Official Lined Up Opposition to Mitigation Resolution

Calling on Bishop

Prior to the Nov. 10 meeting of the Land Use and Transportation Planning Committee, Oconee County Strategic and Long-Range Planning Director Wayne Provost sought input from developer Frank Bishop.

Provost asked Bishop for his reaction to a resolution before the committee that would put the county on record with the United States Army Corps of Engineers as favoring local mitigation for damage to streams and wetlands in the county.

One of Bishop’s businesses–a mitigation bank in Greene County--could be at a disadvantage if the resolution were to pass.

Provost did not seek input from two other businessmen who could be positively affected by the resolution.

Mike Kelly owns land on Rose Creek in the southern part of the county and went through the permitting process with the state and federal governments to operate a mitigation bank there.

Jay Thrower is in the final stages of setting up a mitigation bank on tributaries to the Apalachee River in the western part of Oconee County.

Kelly’s and Thrower’s banks, if they become operational, will be in competition with Bishop’s bank in Greene County.

The resolution before the committee would favor Kelly’s and Thrower’s sites over Bishop’s, since it states that the county, in the future, would prefer that the Corps grant permits for mitigation for damage to county streams and wetlands at restoration sites in the county or upstream from the county rather than elsewhere in the watershed.

Before that Nov. 10 meeting and in response to Provost’s initiative, Bishop provided Provost with a document called "A White Paper to Help Understand Stream and Wetland Mitigation in Oconee County."

Before the meeting, Provost sent that document to the committee–minus any identification on the cover that it came from Bishop.

Provost also sent the committee a marked-up copy of the resolution itself and a marked-up copy of a legal justification for the resolution. The marking on the documents challenges statements in them.

And at the Nov. 10 meeting, Provost made it clear how he felt about the resolution.

According to the draft minutes of that meeting, which I obtained through an open records request, Provost told the committee the resolution could "drive up the price of mitigation credits" and that "limiting the scope of available mitigation remedies would dilute free market competitiveness."

Provost "noted that he doesn’t see this as a valid area for local government intervention since both the state and federal governments are already involved," according to the minutes. "He expressed a concern about exposing the county to lawsuits if it gets involved in this arena."

Bishop also spoke at the meeting "about his experiences with the mitigation process from a developer perspective and the problems with buying credits," according to the draft minutes.

Greg Smith, a vice president of Wildlands, an environmental company, also addressed the committee, according to draft of the minutes.

Smith told the committee members that "mitigation sites almost never allow public access," so there would be no recreational advantage to creating mitigation banks in the county at least during the "7-10 years" during which monitoring of the sites occurs.

Wildlands lists on its web site the Greensboro Mitigation Bank that Bishop developed. According to that listing, the Greensboro site has 8,900 feet of stream restoration credits and three acres of wetland restoration credits available.

As it happens, Smith also is chair of the regulatory committee of the "newly formed" Georgia Environmental Restoration Association (GERA), which also sent a letter to the county opposing the resolution.

Provost sent that letter to the Land Use and Transportation Committee members before the Nov. 10 meeting.

After hearing from Provost, Bishop and Smith, the committee voted 9-2 on Nov. 10 not to endorse the proposed resolution.

Chairman Abe Abouhamdan reported that vote to the Oconee County Board of Commissioners on Nov. 24, but the BOC took no action. Commissioner Chuck Horton said he wanted to see the minutes of the Nov. 10 discussion before he made any decision about what to do next.

I had offered the mitigation resolution to the Board of Commissioners at its April 28 meeting, and it was referred to the Land Use and Transportation Committee for review at the May 5 BOC meeting.

The resolution, written by Katie Sheehan, a staff attorney at the River Basin Center in the Eugene P. Odum School of Ecology at the University of Georgia, "urges the Army Corps, when making compensatory mitigation site decisions for impacts to wetlands and streams in Oconee County, to compel permitees to engage in compensatory mitigation in the following order of preference: (1) on-site, in-kind mitigation; (2) mitigation in Oconee County in wetlands or streams with a high conservation value; (3) mitigation in Oconee County; (4) mitigation upstream of Oconee County."

The Corps, which has responsibility for waters in Georgia and throughout the country, can and often does grant permits for destruction of wetlands provided the permit recipient mitigates those damages with stream and wetland restoration elsewhere.

Mitigation credits are often purchased from commercial bankers, who develop sites and sell credits.

Bishop bought land in Greene County and developed a mitigation bank there to sell himself credits for the piping and fillings of streams and wetlands he plans on the site of his $76 million shopping center on Epps Bridge Parkway near Lowe’s.

Those streams and wetlands feed to McNutt Creek, which forms a border between Clarke and Oconee counties near the shopping center site.

After leaving Bishop’s site, the streams flow through currently undeveloped land that likely will be developed in the future.

If the developers of those sites want to pipe and fill the streams for their development, they will have to mitigate that damage. One option would be to purchase credits from a commercial mitigation bank, such as the one Bishop developed in Greene County or the two under development here in Oconee County.

Atkel Development Company of Greensboro owns 160 acres on Rose Creek on the west side of SR 15 just north of the Green County line and was in the process of developing 60 acres of that land for a mitigation bank.

Kelly told me via an email message on Dec. 9 that he has a contract on sale of the 160 acres and expects the deal to close by the end of this month.

Kelly was one step away from finalizing the mitigation bank when he put it up for sale. He never put the restrictive covenants on the land required to make it a bank, but the new owner could still do that.

Tim Funk, who is working with Jay Thrower in development of the mitigation on Goat Farm road in western Oconee County, told me in a telephone conversation on Dec. 7 that all that remains to finalize that mitigation bank is the filing of the protective covenants.

Attorneys currently are working on that process, said Funk, who is with Wetland & Ecological Consultants in Woodstock.

While the Corps of Engineers determines the number of credits needed to mitigation a permit to damage streams and wetlands and it must approve the final sale, it does not set the price. That is up to the market.

The Corps does determine that the restoration be in the same watershed. In the case of Oconee County, that is the upper Oconee watershed.

Land prices are a component of mitigation credit pricing, making it harder to profitably operate a mitigation bank in a county in which land prices are high.

Bishop told the Oconee County Planning Commission at its Aug. 18, 2008, meeting that he could not find "affordable" land in Oconee County for his mitigation needs.

According to Greene County tax records, Bishop Farms LLC owns two tracks of land on the east side of SR 15 north of Greensboro, for a total of 183 acres. The land is valued at an average of $2,328 per acre for tax purposes.

The Atkel land on SR 15 in southern Oconee County is valued for tax purposes on the Oconee County tax lists at $1,229,141, or $7,682 per acre.

Westland-TLG owns two tracts, one with considerable frontage on US 78 as it crosses the Apalachee River and the other on Goat Farm road. The mitigation bank Thrower is developing will be carved out of these properties.

Total acreage for these two tracts is 375, and the average land value for tax purposes is $13,358.

Thrower, of course, had the option of seeking a Corps of Engineer permit to disturb the streams and wetlands on the site but decided instead to put them into a mitigation bank, which will be protected via the covenants now being placed on the land.

I asked the Oconee County Board of Commissioners at its agenda-setting meeting on April 21 to consider the resolution written by Sheehan.

At the May 5 meeting, the Board decided it would be best to send the resolution to the Land Use and Transportation Committee for preliminary evaluation.

Commissioner Chuck Horton at the meeting said the county should "invite people in to address both sides to get everything out on the table. It provides an education and a dialog."

Commission Chairman Melvin Davis said he would ask Provost "to take leadership on this."

According to the minutes of the Land Use and Transportation Planning Committee, the committee did not take up the issue until I appeared before it on Aug. 11 and asked Chairman Abouhamdan to put the resolution on the agenda. He then scheduled it for the Nov. 10 meeting.

Abouhamdan did not ask me if that fit my schedule when he selected the Nov. 10 date. I told him after the meeting that I would be unable to attend because of a foreign travel commitment.

Sheehan did attend the Nov. 10 meeting and was the only person who spoke on behalf of the resolution, according to the minutes. Neither she nor I had received the "White Paper" written by Bishop or any of the other materials Provost sent to the committee members.

In fact, from May through Nov. 10 neither Sheehan nor I heard anything from either Abouhamdan or Provost other than Abouhamdan’s confirmation that the resolution would be on the Nov. 10 agenda in response to an email message I sent him on Oct. 26.

The draft minutes are the only record of the discussion at that Nov. 10 meeting.

They show that, in addition to Provost, Sandy Thursby from Public Works, Planning Director BR White, and county Administrative Officer Alan Theriault were in attendance. The minutes of the Land Use and Transportation Planning Committee show that these individuals are not usually in attendance.

Chairman Davis also was present. Provost and the other county officials present report directly or indirectly to him.

Provost told me when I spoke with him by telephone the day after the Nov. 10 meeting that he had contacted Bishop and asked for a response to the draft resolution.

"I asked them, here is the resolution. Give me your take on it," he said.

I filed an open records request with the county on Nov. 29 asking for correspondence between Davis, Provost or County Administrative Officer Theriault and Bishop or representatives of Georgia Environment Restoration Association before the Nov. 10 meeting that dealt with the proposed resolution.

Davis and Theriault reported that there was no correspondence in their files.

Provost said in an email response to Gina Lindsey, county clerk, on Dec. 2 that he had no record of his correspondence with Bishop. Lindsey handles open records requests for the county and forwarded Provost’s message to me.

"As I said before," Provost wrote to Lindsey, "I have provided Mr. Becker with everything I can find on this. I don't recall if I mailed the resolution to Mr. Bishop, faxed it or if he picked it up in person. However, there was no cover letter or memo that went with it. We just talked on the phone and he came by the office at least once but that was about it."

Provost confirmed in a telephone conversation with me on Dec. 8 that he did not talk to Kelly or Thrower or anyone else except Bishop and a representative of the Georgia Environment Restoration Association. He said he thought that the GERA representative had called him on the telephone.

During that conversation on Dec. 8, Provost said that "in conservative Oconee County" people don’t want any more regulation, particularly "given what is happening in Washington," and they don’t want to take a chance on hampering development, even it means "support for other local businesses."

Oconee County has no authority for the issuance of permits for flowing waters and streams, which are under federal control as part of Section 404 of the 1972 federal Clean Water Act.

The resolution written by Sheehan acknowledges that fact and does not propose any additional regulation.

The Oconee County BOC would simply pass the resolution once, indicating its preference on mitigation, and that would be the end of its action.

Abouhamdan told me on Nov. 11 that one of the concerns raised by committee members to the resolution was that the Corps of Engineers would not listen to the county regardless of what it said.

The efforts by Davis, Provost, Bishop and GERA indicate that at least they think the Corps just might listen.