ORBA takes concerns to Road Committee

By AUTUMN HUGHES
Posted 2/26/19

A proposed resolution to allow Bradley County to better control how the rights of way on county roads are used is facing opposition from the Ocoee Region Builders Association.

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ORBA takes concerns to Road Committee

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A proposed resolution to allow Bradley County to better control how the rights of way on county roads are used is facing opposition from the Ocoee Region Builders Association.

ORBA representatives attended Monday morning’s meeting of the Bradley County Commission’s Road Committee, giving a lengthy presentation of reasons why ORBA is opposed to the proposed resolution.

Opening the meeting, Road Committee Chairman Kevin Raper said he had “just received some correspondence from ORBA” regarding the proposed resolution. He added he had “no chance to review at length” ORBA’s comments. He recommended now that the committee has ORBA’s correspondence, that Bradley County Road Superintendent Sandra Knight and ORBA “mediate and work out what concerns ORBA may have.”

Knight was not present for the beginning of the meeting, but Commissioner Dennis Epperson, who is a member of ORBA’s board of directors, said representatives from ORBA were present and wanted to speak.

Commissioner Louie Alford said he understood from the Road Committee’s last meeting that ORBA had 30 days to present its response, but it’s been 45 days.

“I have a real problem on doing anything on this today,” he said.

Alford said he also understood ORBA representatives were supposed to meet with Knight, and asked if that has happened yet. No one confirmed that had occurred.

“They basically are against this (resolution) completely,” Epperson said of ORBA, adding that the resolution doesn’t say anything about portable cell towers, which had been mentioned previously. “This (resolution) will have an effect on every property owner in Bradley County.”

Blake Allison, president of ORBA, said he appreciated the opportunity to speak. Allison is also partner and co-owner of Epperson Homes, LLC, along with his father-in-law, Commissioner Epperson.

Allison said ORBA feels the proposed resolution to allow the county to better control its rights of way “is far over-reaching.” He presented the committee with a copy of ORBA’S response to the overall resolution as well as opposing views to several individual concerns.

“The Resolution will have a direct impact on small business owners’ day to day operations,” the response stated. “After reviewing, with all (due) respect, we consider the Resolution that is pertaining to work being performed in the (right of way) as over reaching and a needless regulation on the building industry. We would also caution that our local government will be charting new territory in burdensome ordinances and rules on the small business community.”

Knight arrived late to the meeting, but addressed each of the concerns included in ORBA’s comments when Allison agreed to restart his presentation.

Among the concerns ORBA detailed were:

• That the chief administrative officer of the county highway department and his/her appointed agent shall act on a permit application and provide comment or approval within 30 days of receipt of permit application.

Allison said that allowing 30 days would be “detrimental in providing the services that we currently provide now to our customers. Delays as always incur cost that is always passed onto the consumer. …” He added the city of Cleveland has a five-day turnaround time for a required Stormwater Pollution Prevention Plan (SWPPP), which is a lengthy, detailed process, and questioned why the Road Department would need 30 days.

Knight said she could change the 30 days to within seven days.

“We’d like to have less than that,” Allison said.

He asked what the reason is behind asking for 30 days. Knight said weather and other concerns can cause delays.

Allison also asked who put the resolution together. Knight said the resolution was written by the Tennessee County Commissioners Association and the Tennessee County Highway Officials Association. She said it puts various aspects of rights of way planning in one document.

Allison asked if the proposed resolution had been brought up before, and Knight said it has. She added she has documentation from all local utilities she worked with at that time.

• That “Persons, except public utilities and electric cooperatives, shall pay the salary and expenses for and inspector(s) that the County highway department may see fit to place upon the work site to ensure compliance with such technical specifications while any such inspector(s) may be assigned to the work site.”

ORBA’s response is that inspectors “are provided, at no cost, to the licensed contractor/developer other than a review processing fee by the utility companies. This is to review drawings that are prepared by a licensed Tennessee engineer/firm. We don’t see a need to duplicate inspections that already take place. …”

Knight said this would be for larger projects like water line installation.

“To my knowledge we have never assigned a fee to any utility company,” she said, adding it is already part of Tennessee regulations.

Knight said the Road Department has no involvement in roads until the Bradley County Commission votes to accept a road into the county system. She added the proposed resolution has nothing to do with new roads under construction.

“It’s not holding you up as a homebuilder,” she said.

However, Epperson said new construction and property development “is in the resolution.” He said the proposed resolution will have an effect on every property owner and small business owner in Bradley County. Epperson added that neighboring Hamilton and Polk counties have not implemented this resolution yet.

• That the chief administrative office of the county highway department may require an applicant, with the exception of public utilities and electric cooperatives, to post collateral to ensure that the county road and right of way will be repaired to the same quality as before the excavation or other work was performed.

ORBA’s response is that posting collateral to work in the right of way “has never been a requirement of the small business owners. Depending on how much collateral that would be required of a business owner would have a negative effect on his/her working capital.”

Knight said that part of the proposed resolution has been in effect for “years and years.”

“This is not anything new,” she said, adding it likely won’t apply to subdivision developers unless the road is approved by the county commission.

Knight added there is a $1 million liability requirement “for larger utility companies that are coming in.” Also, she said a lot of contractors are permitted through utility companies.

• That inspection by an engineering firm, paid for the by applicant, except public utilities and electric cooperatives, and hired or approved by the county, shall be required, at the discretion of the chief administrative officer of the county highway department, for extensive construction or work within the county right of way as a condition to issuance of the permit.”

ORBA’s response is that all “extensive construction work that would take place along the right of way and within a planned development has always been a requirement of any project. It is reviewed by several engineers and inspectors before and during construction. Engineers from the utility companies, city, and county engineers are involved. We also think that a licensed engineer by the state of Tennessee would not need to be approved by the chief administrative officer of the county highway department.”

Knight said if a developer is building a subdivision, once the roads are accepted into the county system, then a utility decides to come back and dig into the road for additional utility work “is when this would come into play.”

“This is for people who come back and tear up your (the developer’s) roads,” Knight said.

• That “the chief administrative officer shall inform the persons as to whether he/she has elected, in his/her sole discretion, to immediately execute settlement of the collateral and use the proceeds to repair the damage or to allow the persons to repair the damage themselves. If the chief administrative officer elects to allow the persons to repair the damage themselves.”

“We would hope that the deficiency that was noted by the chief administrative officer would allow in all cases, be granted the opportunity to remedy the deficiency,” ORBA stated in its response. “Also, we have concerns that it would be certainly relevant in determining the appropriate measure of cost of each deficiency that the applicant/licensed contractor wouldn’t be granted the opportunity for correction.”

Allison said that would give developers an opportunity to remedy issues before legal action is pursued. Knight said she prefers to offer that opportunity.

• Any person violating these regulations “shall also be subject to a fine” of up to $500 per violation, pursuant to Tennessee Code Annotated Section 5-1-121. “A ‘violation’ is defined as each day a person is in non-compliance with these regulations.”

ORBA’s response is that imposing a fine of up to $500 a day “is excessive” if a person is in non-compliance with the regulations. “There are times when materials cannot be purchased, asphalt plants being (temporarily) closed and quarries not being able to produce material needed in road construction.”

Knight said road departments in a lot of areas throughout the state qualify non-compliance as Class B and C misdemeanors, which require an appearance in a court of law. She said this portion was included in the proposed resolution to help avoid court fees and jail time for those in non-compliance.

Commissioner Mike Hughes said the way he reads this portion is it looks like Knight is relinquishing some of her authority, adding it is “not necessarily a bad thing” to take some issues to court.

“We’ll check on that,” Knight said.

Commissioner Charlotte Peak, who is not a member of the Road Committee but works in the building industry and is a member of ORBA’s board of directors, asked why a resolution is being proposed if these issues are covered under state law.

Epperson asked a question about a hypothetical situation involving mailboxes: If a single grandmother asks her grandson to put up a mailbox but he does it without getting a permit, will he be in non-compliance and face a $500 fine?

Knight said there are federal regulations for mailboxes, specifically about being on breakaway posts. She added the proposed resolution is intended to keep a “clear zone” of setting mailboxes back from the roadway.

Peak also asked who receives the fine money, where does it go and what will be done with it. Knight initially did not answer those questions but later said she doesn’t know the answers, but will find out. She added if fines aren’t used and misdemeanor charges are levied instead, part of the misdemeanor fine would go to the county’s general fund and part would go to the courts.

Additional  concerns voiced by ORBA representatives  from Monday's Road Committee gathering will be published in a later edition of the Cleveland Daily Banner.


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