CUMMING — The Cumming Zoning Board of Appeals has upheld a city employee’s decision to place a stop-work order on Lake Alice remediation efforts earlier this summer.
During a hearing, which was held following the city council’s regular meeting Tuesday night, the board heard from Michael Carvalho, an attorney representing the Mashburn family trust, and City Attorney Dana Miles.
The main question addressed by both sides was if the order was an appropriate action based on whether an excessive amount of sediment from banks around the remediation area had flowed into nearby waterways.
Carvalho maintained that the order, which was placed on the site June 24 by Chief Building Inspector Everett Thompson, was unnecessary as there was no evidence that any work there was causing harm to the environment.
Miles countered that the appeal should be dismissed since Carvalho failed to file it within the required five business-day time frame.
The board is made up of the mayor and city councilmen.
The city and Mashburn family trust, which owned the Mary Alice dam, are under a joint consent order issued by the Georgia Environmental Protection Department to remediate Lake Alice and remove sediment from nearby Little Ridge Creek and Lake Lanier.
The remediation plan includes the construction of a weir, a barrier that forms an obstruction smaller than most dams, pooling water behind it while also allowing it to flow steadily over the top.
Once the sediment is stopped, the city will dredge and clean the sediment that’s collected in a nearby cove of Lanier since Lake Alice’s dam collapsed in May 2013.
Tuesday night, Carvalho questioned Brian Wellington, a civil engineer who was hired by the Mashburn trust to develop and implement the remediation plan, about the work that was going on that day.
“In your professional opinion was there any imminent threat to public health or waters of the state based on evidence that you have before you?” he asked.
Wellington, who replied that there was none, was also questioned about the city’s ordinance for stormwater and erosion.
Wellington said he had reviewed it and believed there was no violation the day of the order.
The order was in effect for less than a week, but Carvalho said the delay still ended up costing his clients more than $24,000.
Miles first asked for dismissal. However, Mayor H. Ford Gravitt said he wanted to hear from both sides since he hadn’t been aware of the matter.
Miles then questioned Wellington, showing him photos of hay bales, which were one of the measures put in place to prevent sediment from washing away at the site.
In the photos, Miles noted, some of the bales were missing from the stakes intended to hold them in place and one was floating in nearby water.
“The hay bales didn’t just leap up out of their own accord and leave the stake and jump into the middle of the creek,” Miles said. “They were washed in there by water or sediment or by some force, correct?”
After cross-examining Wellington, Miles questioned Thompson on his perspective of events.
After every significant rainfall, Thompson said he “always makes it a point to go out and look at job sites that have open ground, that are in the middle of land-disturbing activity.”
When he arrived at the Lake Alice site June 24, he saw “a good amount of mud had been tracked out onto Sanders Road.”
He also noticed “an area where they had stockpiled all the dirt that they pulled out from the stream bank … that had been left, so it didn’t have any silt fence around it, any kind of anything to keep it from eroding in any way.”
Thompson said he didn’t place the stop-work order on the site for those issues, but did discuss them and they were eventually remedied.
The order came, however, after he saw hay bales that had traveled between 75 to 150 feet.
“So [with] significant water pushing all these hay bales downstream, it stands to reason that if the hay bales are gone and no longer providing protection that there’s erosion taking place as well,” Thompson said.
“We are talking about this discharging into a cove that has already been compromised due to the breach of the dam,” he said. “And the cove exists in Lake Lanier and, of course, we all know that’s used for people to draw water and used for municipalities and everything. So I would contend that it is a little more important than what has been led on.”
Thompson said he went on vacation a day later, returning the following Monday, June 30. At that time, he found that all of the measures he had asked for had been completed and the stop-work order was lifted.
Carvalho also quizzed Thompson, asking him if he was aware that the city, as well as his clients, are being sued by a third party in relation to dam breach and sediment.
“If you’re trying to say that that would have any bearing on my decision on [June 24], it would not,” Thompson said. “I think anybody that I have dealt with in the past would not have anything to say about me but that I am fair, I’m across the board, I don’t treat anyone any different than anyone else. I have a standard that I go by.”
Ultimately, Councilman Rupert Sexton made a motion to dismiss the appeal since it hadn’t been filed within the required time frame. It carried in a 5-0 vote.
After reviewing the evidence, Gravitt said he felt that the stop-work order had been justified.
In an email Wednesday, Carvalho wrote that his clients were considering whether to appeal the decision in Superior Court.