By Jesse Wood
Jan. 9, 2013. Litigation between the Town of Beech Mountain and Genesis Wildlife Sanctuary is proceeding slowly.
On March 19, town attorney Stacy “Four” Eggers sent a letter to Leslie Hayhurst, director of the wildlife rescue, rehabilitation and release center.
Eggers notified Hayhurst that Genesis breached the 30-year lease for .84 acres of town property nearby the Buckeye Lake. The lease was signed in 1999 for $1.
Eggers noted that the space wasn’t being used as an education center; Genesis didn’t provide proof of insurance; structures were in violation of setback variances and would have to be demolished; and a great deal of debris existed on the property.
To this, Hayhurst responded in a letter dated April 2. She said the letter from Eggers was “factually incorrect, heartless and non-caring” and contained numerous “erroneous allegations.”
A few weeks after Hayhurst’s letter was drafted, the town filed a complaint in Watauga County Small Claims Court seeking an immediate eviction of Genesis from the property. A magistrate then ordered Genesis to relinquish the property and pay for any court costs incurred by the town.
However, Genesis quickly appealed and countered, in September, with a claim of its own, alleging breach of lease, inverse condemnation, unfair and deceptive trade practice and violation of civil and constitutional rights. It requested damages worth more than the limit in small claims court allowed, which is $5,000, and to maintain the original $1 lease.
On Oct. 25, the Town of Beech Mountain responded to the counterclaim in an 86-bullet response, basically denying most of all the allegations of Genesis’ counterclaim, and filed a motion to dismiss the counterclaim and again requested Genesis’ eviction and monies for lawyer services.
In the motion for dismissal of Genesis’ counterclaim, attorneys for the town, the plaintiff, states:
– plaintiff pleads all applicable governmental immunities
– the counterclaim by Genesis is based in whole or in part by doctrine of “unclean hands”
– states its actions, practices and policies are based on legitimate and non-discriminatory reasons
– denies that Genesis Wildlife Sanctuary has been injured or damaged in anyway
– alleges parties agreed to lease modification that would ban counterclaims
Due to a health issue of one of the lawyers involved in the proceedings, the case has been continued through November and into December.
A Good Relationship Until 2010
From 1999 to most of 2010, the Town of Beech Mountain and Genesis had a “harmonious and unfettered relationship,” according to a news release on Genesis’ website.
In February 2009, Beech Mountain Town Council adopted the Buckeye Lake Protection Ordinance, which stated that “no animals can be caged or housed within 200 feet of Buckeye Lake or within 200 feet of any stream that drains into Buckeye Lake.”
To utilize the Buckeye Lake as a recreation lake the protective ordinance must be adopted, wrote Tom Boyd, senior environmental specialist for the N.C. Department of Environment and Natural Resource, in an email filed in court documents.
“It is clear that Genesis Wildlife Habitat is located within the 200 foot buffer that is specified in the ordinance,” wrote Boyd. “Our concern is the protection of Buckeye Lake as a drinking water source.”
With the passing of this ordinance, it caused the Genesis Wildlife Sanctuary to be in violation of town ordinances – and in breach of its lease.
However Beech Mountain officials didn’t notify Genesis until halfway through 2010. In court documents, Town Manager Randy Feierabend said he wasn’t aware of the violation until someone notified his office.
In September 2010, Beech Mountain Town Council voted to give Genesis $1,000 to assist Genesis in moving all animals off the property with a deadline of six months.
According to meeting minutes, Council Member Cindy Keller said that Genesis had come into compliance with the lease agreement by March 2011.
(Animals were dispersed to private properties, including a modular unit on Hayhurst’s property, and one bobcat had to be euthanized because there was no sufficient home for it to reside.)
Nearly one year after that March town council meeting Hayhurst received that March 19, 2012, letter from Town Attorney Eggers.
Supporters of Genesis have mentioned that town officials have a “hidden agenda.”
In a court document dated in May of this year, Genesis Director Hayhurst said, “In actuality, there exist a ‘hidden agenda’ on behalf of the town. The true issue behind this harassment of Genesis is that the town now realizes that the leased property is highly valuable property because of close proximity to Buckeye Lake Recreational Area and has been trying to break its lease with Genesis.”
Hayhurst added that the property would remain under Genesis’ control for 48 more years – counting an optional extension of the lease.
She said that the Town of Beech Mountain is “trying everything possible” to break the lease because it knows it “will never receive tax revenue and lease income as long as Genesis remains on the property.”
Town Manager Feierabend declined to comment, citing ongoing litigation, as did Eggers, the town attorney.
In past meeting minutes, Mayor Rick Owen said that the town council wasn’t “against” Genesis, but it was in charge with the responsibility of maintaining safe drinking water for the community and had been put on notice by the N.C. Department of Environment and Natural Resources.
James True, a resident of Beech Mountain, presented to the Beech Mountain Town Council in the 2010 meetings as the acting president of Genesis. Regarding the battle between the two entities, he is stuck between a rock and a hard place, as both a supporter of both the town and Genesis. However, True doesn’t believe that the town has a “hidden agenda.”
“The town has tried for decades to help Genesis maintain and grow as a legitimate non-profit. It would be inaccurate to paint the town in any other light than that of a supporter of Genesis,” James True posted recently on Facebook. “There is a giant bag of history here … I spent years in the trenches with Genesis and it’s sad that people don’t know how much the town wanted Genesis to succeed.”
Moving Towards a Passive-Recreation Lake
At a September 2012 meeting, the Beech Mountain Town Council voted 4-1 to adopt the Buckeye Lake Protection Plan and send the plan to the N.C. Department of Environment and Natural Resources for review.
If accepted by the state, this plan would downgrade the water-quality classification of the lake and would allow non-motorized, passive recreation such as fishing, canoeing and picnicking on and around the lake.
“Our lake Buckeye is the highest classification drinking lake there is. We wish for it to be reduced to a drinking-water lake that allows for passive recreation,” Feierabend said. “We hope will we have a lesser restricted lake than what we have now, one that allows passive recreation.”
Feierabend said that this hoop to allow passive recreation on Buckeye Lake was thought to have been taking care of through the Buckeye Lake Protection Ordinance that was adopted in 2009, but somehow that got “messed up.”
“That happened at the same time the previous manager was leaving and I was coming,” he said, adding that he wasn’t sure what was lost in translation.
Council Member Cindy Keller was the lone member to vote against adopting and sending the plan for review to the N.C. Department of Environment and Natural Resources. She said she voted against the plan because “I didn’t think with us in the middle of litigation that that was a good time to possibly be changing policies.”
Keller is the council member who met with Genesis Director Hayhurst and two other board of directors in the winter/spring of 2011 and told her fellow council members at the March meeting that Genesis was “now in compliance with the Town’s existing lease agreement.”
Speaking on Tuesday afternoon, she said she considered herself a supporter of Genesis. Asked if she feels like some of her fellow council members were not supporters of Genesis, she said, “Yes. I do.”
“I tend to be the voice of dissension on pretty much every issue,” Keller said, adding that the current council isn’t the first to be involved in controversy with Genesis.
“It’s been a kind of long ongoing thing, and it’s coming to a head under this council,” she said.
She declined to discuss the matters between the Town of Beech Mountain and Genesis any further because of the ongoing litigation.
An Unwavering Commitment for Vindication
On Friday, Genesis Wildlife Sanctuary sent out an update to supporters and members of the media, mentioning the slow court proceedings and portraying this case as David v. Goliath.
The release mentioned that donors and the board of directors have helped fund costs of the litigation and that Genesis’ resources were much less than the “unlimited resources” of the Town of Beech Mountain, which hired a law firm out of Charlotte to contest the counterclaims using “taxpayer” funds.
“Genesis is committed to defending the original lawsuit,” the release read. “Importantly, Genesis is now unwavering in its commitment to vindicating itself.”
Article originally published on Dec. 19, 2012.