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12-06-2021 Closed Session Meeting Minutes BOCDecember 6, 2021, Closed Session #1 Page 1 of 2 Person County Board of Commissioners Minutes of a Closed Session DATE: December 6, 2021 MEMBERS OF BOARD OF COMMISSIONERS PRESENT: Chairman Powell, Vice Chairman Sims, Commissioner Puryear, Commissioner Gentry, and Commissioner Palmer OTHERS PRESENT: County Manager, Heidi York, Assistant County Manager, Katherine Cathey, Planning Director, Lori Oakley, Clerk to the Board, Brenda Reaves, and County Attorney, Ellis Hankins CLOSED SESSION #1 A motion was made by Commissioner Puryear and carried 5-0 to enter into Closed Session at 8:33pm to consult with the County Attorney on a matter within the scope of the attorney- client privilege, and to consider and give instructions to the attorney concerning the handling or settlement of a judicial action, under G.S. 143-318.11(a)(3), and to include the following County Attorney, Ellis Hankins, County Manager, Heidi York, Assistant County Manager, Katherine Cathey, Clerk to the Board, Brenda Reaves and Planning Director, Lori Oakley into the closed session. Chairman Powell called the Closed Session #1 to order at 8:36pm. County Manager, Heidi York stated the purpose of the Closed Session #1 was for an update from County Attorney, Ellis Hankins related to legal issues arising from an appeal by a property owner in the Berea Solar Special Use Permit request that the Board of Commissioners denied. Mr. Hankins recalled that Elizabeth Christian, one of the property owners in the Berea Solar Special Use Permit application, initially sent the County a letter requesting that the County issue her, and only her, a Special Use Permit to build a solar facility on her property. Mr. Hankins noted the Board held a closed session and he explained that even if the Board wanted to, the Board was not authorized to do that. Mr. Hankins stated the Berea Solar application included 900+ acres for a proposed solar facility that extended beyond Ms. Christian’s property. Mr. Hankins said he followed up in writing to Ms. Christian, as the Board had instructed him to do, that she would need to file another application with a new site plan seeking approval to build a solar facility if she so desired. Under the law, Mr. Hankins noted an appeal was required within 33 days, and on the last day, Ms. Christian did file an appeal. Mr. Hankins said the process was similar to an appellate process to be conducted by Superior Court of the Board’s quasi-judicial proceedings. Mr. Hankins asked the Board for some direction on preference how to handle the appeal. December 6, 2021, Closed Session #1 Page 2 of 2 Mr. Hankins stated he requested a claim be filed with the County’s Risk Management liability carrier through the NC Association of County Commissioners although he said, he expected they would deny coverage. The reason for the denial of coverage is that the County has coverage against a lawsuit seeking monetary damages and Ms. Christian was not seeking that, but desires a Court Order requiring the Board to issue her a Special Use Permit. Mr. Hankins stated his law firm was certainly willing and able to represent on the appeal unless the Board desired otherwise. Mr. Hankins stated the County has 30 days from the date (November 29, 2021) Ms. Christian served the Petition for Writ Certiorari to file a Notice to Submit the Record to the Clerk of Superior Court’s Office. Mr. Hankins said the County has some defenses in his strategy for this appeal noting the original developer and a necessary party did not join in this appeal. Mr. Hankins stated Mr. Tom Terrell, attorney for the Berea Solar application told him orally that they have unofficially withdrawn from the project after they discovered unexploded munitions. He indicated he was researching to see if any findings with the NC Utilities Commission were in writing that Berea Solar had abandoned the project. Mr. Hankins said he asked Mr. Terrell if he was interested in withdrawing the Special Use Permit application and he was not as he did not want destroy Ms. Christian’s standing. Mr. Hankins noted his law firm was attempting to obtain an affidavit that they have abandoned the project, which would help the County’s legal position. Chairman Powell stated it made sense for Mr. Hankins and the law firm to represent the County. It was the consensus of the Board for Mr. Hankins and his law firm to represent the County. Vice Chairman Sims asked about the associated cost for the appeal to which Mr. Hankins stated it would not be a huge amount, in his opinion as they are making a case for a dismissal. He added if the appeal goes to the Court of Appeals, that would be another matter. A motion was made by Vice Chairman Sims and carried 5-0 to return to open session at 8:54pm.