20071505 Ver 4_Motion for Continuance_20150206

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF HENDERSON FILE NUMBER 13 CVS 454
COUNTY OF HENDERSON,
Plaintiff,
V. MOTION FOR CONTINUANCE
SEVEN FALLS LLC, etaZ,
Defendants C, I
NOW COMES the Plaintiff, Henderson Count y, and moves the Court as follows:
1.. As found in this Court's previous Order herein, entered December 8, 2014:
5. Because of the lapse in a permit from the United States Army Corps of Engineers (for
stream crossings needed in the designed road network within the Subdivision) and the lapse in an
agreement with Duke Energy (for the installation of electrical power within the Subdivision), both
caused by the Developer's defaults, a significant expenditure for a Corps of Engineers permit (as noted
below) will be required to build any of the road network in the Subdivision.
6. Consultants employed by WGLAI estimate that the cost of the Corps of Engineers permit
for the Subdivision (in the form of a "remediation fee" paid to the Corps, as opposed to the Corps'
favored method of actual off -site wetlands remediation) will be in excess of $1,100,000.00 (on February
8, 2013, the Corps estimated such fee as $1,131,500.00), and must be paid prior to any improvement
of the road network for the Subdivision.
7. WGLA estimates that once the remediation fee is paid to the Corps of Engineers, there
will be insufficient of the Surety Bond Proceeds remaining to pay for all of the Improvements.
2. Further the Court decreed in said Order:
1, That the Plaintiff County shall request proposals for the construction of all and various
parts of the Improvements as shown on the plans referred to above and found on the website indicated
above.
2. This matter shall come back before this Court for further hearing on February 16, 2015,
for the Plaintiff County to present the Court with a recommended plan for the Improvements, or such of
them as can be paid for with the remaining Surety Bond Proceeds, At that time all parties will have the
right to give input on such plan, or present their own plan, and the Court will make its determination of
the plan to be followed for the Improvements.
I WGLA is the engineering firth whose use by the Plaintiff has been approved previously by the COMA.

3. /V such time $sbids are received, the County shall post the same 0n the worldwide web,
*ithliOksh0OdathMp://www.hcVlUnnin0.Ora/sevenh\Us/indew.h8ni Further, the County shall post
notice of its proposed plan upon such website by not later than one week prior to February 18.2U14.
3. In order to provide the Court with all costs related to a recommended plan the
County, through the Office of the County Attorney and the County Engineer, spent much time with
VVGL&in preparing plans and specifications tohe submitted tobid. These were io fact subject toa
Request for Proposals ("RPP") created bv the Plaintiff County. As a part of the RPP process, the
County conducted pre-bid meeting with all interested contractors on January 19, 2016.
4. The County also held a meeting with the DSArmy Corps of Engineers [USACG]and
the North Carolina Department of Environment and Natural Resources /NCDKNNjnn January 22,
2015. Representatives from the County, VYGL& and ClearN/ater Environmental Consultants (the
company used by WGLA in obtaining USACE approval for the project) participated in the meeting,
S. &t the meeting, the DSAC8 informed the County that contrary toprevious
discussions, it would not be possible to revive the revoked Seven Falls LLCpermnit granted by
USACE, and it would be necessary for the County to apply for a new Individual Permit. USACE will
require a new application and this application must go through the permit review process. At the
request of the County, US&CEcoofirmmed this |u writing Lo the County by letter dated February 4,
2015, referred tn below and attached omaoexhibit.
6. The reason a new permit will be required is because the Seven Falls permit was
revoked and the scope of the work proposed by the County is different (that is, less) than the
original project,
7. WGLA and ClearWater Environmental have estimated it will take approximately 60
days to prepare the application prior to providing it tmOS8CE.
8. USACE states in its letter of February 4, 2015 that the average review process is four
to six months though because of the "uniqueness and history of the Seven Falls property" it may
take more review and processing time.
g. The County |m currently awaiting a final determination from the North Carolina
Department o[ the Environment and Natural Resources Division of Water Quality (^DVY0'')esto
what would be required to apply for a new permit from the state department. The O3ACE permit ia
contingent ona similar parallel process with the state agency.
10. To apply for the USACE, the County must work with WGLA and environmental
consultants to do an assessment of the property and determine mitigation measures (on-site) or
cost ofa fee iu lieu ofreuued|adon.
11. Construction bids were due back to the County nn February 5,3015.
12. However, based on the USACE permitting process, no construction could start on
the project for a minimum of 6 months and possibly 12 months after the bids were returned,
13. To insure the prices provided in potential bids, contractors may require a large
contingency which would greatly increase the cost of the project even further beyond the ability of
the bonded proceeds tnfund.

1'L The County requests a continuance on this matter in order to give all parties iothis
matter as much notice as possible regarding the current status of tile project.
VV8ERFORE, Plaintiff moves the Court Uo permit it to continue tile hearing scheduled herein,
and move the matter forward with a new hearing tobe noticed after receipt ofpermits from USA(8
and0VV0.
This the Gday of February, 2015.
OFFICE 8F THE COUNTY ATTORNEY FOR
DENDDRBONC0UNTY
Attorneys for Henderson County
6�
SARAH GRACE %AK4BON/N.C. Bar |D3568Ol
Deputy County Attorney
Office of the County Attorney
1 Historic Courthouse Square, Ste 5
Hendersonville, NC28792
Telephone: (D28)647-4719
Facsimile: (O28)697'4536

This is to certify that a copy of the foregoing motion has been served on all parties hereto by
depositing a copy of the sarne in a postage prepaid envelope, properly addressed to the persons and
entities listed on the attached pages.
This the y
.a— day of February, 201.5.
Sarah Grace Zaonbon
Attorney for Plaintiff