No one enforcing mountain building rules in Jackson

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No one enforcing mountain building rules in Jackson

fr steepslope Jackson County planning and code enforcement staff will be pouring through two years’ worth of building permits and retroactively inspecting certain projects after learning no one has been enforcing the county’s Mountain and Hillside Development ordinance for more than two years.

The ordinance is arguably one of the most important development ordinances the county has on the books as it deals with steep slope restrictions.

The planning department thought it was under the jurisdiction of the permitting department, while the permitting department claims it has always been the responsibility of the planning department.

Tony Elders, permitting and code enforcement director, said his department is responsible for N.C. building codes, the county’s erosion and sediment control ordinance and the flood damage prevention ordinance. As a member of the planning department from 2007-2012, Elders said it was his job to enforce the mountain ordinance and that didn’t change when he was made permitting director.

“I’ve never had enforcement responsibilities of the mountain and hillside ordinance,” Elders told planning board members.

“Who is then?” asked Gerald Green, the outgoing planning director.

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Green recently announced his resignation to take a similar position in Knoxville.

“The planning department,” Elders responded.

The mountain and hillside ordinance spells out building requirements developers must follow that are based on a number of factors, including the property’s proximity to a body of water and the slope of the lot. Once a permit is issued, an enforcement officer should be checking on the project periodically to ensure the required processes are being followed during construction.

When the county decided to shift all the permit application processes to Elders’ department in 2012 to create a “one-stop shop” for builders, Green said County Manager Chuck Wooten told him that enforcement would be handled in that department as well.

In a follow-up interview Tuesday, Wooten confirmed that enforcement of the mountain and hillside development ordinance was the planning department’s responsibility.

“It’s my opinion that the planning department has always had that responsibility so I’m not sure why a statement was made to the contrary,” he said.

Planning board chairman Sarah Thompson said it sounded like the problem lies with “one hand not knowing what the other is doing.”

County Commissioner Vickie Greene told the planning board to ask the board of commissioners to clarify whose responsibility it should be before a new planning director comes on board.

Elders said Commission Chairman Brian McMahan told him that the commissioners would begin a thorough review of the permitting and planning processes once the budget process is completed.

In the meantime, Elders said he and John Jeleniewski, planning department code compliance officer, would go back through all permits issued in the last two years to see if there are any outstanding issues that need to be addressed. The review would include any permits issued on lots that were not lots of record as of August 2007 when the mountain and hillside ordinance was adopted.

“There shouldn’t be that many permits to investigate that were issued on lots that were not lots of record,” he said. “Once we identify those, I imagine we will await guidance from the new planning director on how they wish to proceed. Our department will assist in any way we can to work through these issues going forward.”

Steep slope construction

Finding out no one had been enforcing the ordinance was an alarming revelation for planning board members, especially with the public questioning the legality of a home being built on a steep slope right on the Tuckasegee River in Dillsboro.

Elders had come to the planning board meeting last week to give a presentation about the permitting process for the house. Elders said his department first learned of the new home construction along the river on Cowee Tunnel Road in July 2014. Before issuing any land development permits, his department reviews permit applications to makes they are in compliance.

He cleared up one important misperception about the ordinance — the mountain and hillside ordinance addresses steep slope construction but it doesn’t prohibit it. Depending on the development, the applicant may have to submit additional information or get further environmental studies done before a permit can be issued.

For example, Elders said his department had to check the classification of the body of water running next to the house in Dillsboro because the house is being built 31 feet from the river. It fell into the “class B” stream classification and therefore doesn’t require any buffer, according to the county’s erosion and sediment control ordinance.

“There’s no restrictions under that classification,” Elders said. “Landfills would be allowed on that property.”

Elders was asked point blank by planning board member Dickie Woodard if the house was being constructed within the law.

“Is it a totally legal build?” he asked.

“Yes, it is,” Elders said. “… So far there haven’t been any issues that we haven’t had on any other normal construction site.”

What he believes got everyone’s attention was the mess that occurred when lumber rolled off of a truck and down the bank when construction first started. Elders said it took a while for each individual log to be brought back up the hill one by one.

Elders said the silt fencing was still intact and there had been no runoff into the river as far as he could tell.

Different interpretations

There’s no question that the property is on a steep slope. It’s about a 35 percent grade, but Elders claims the property is exempt from the mountain and hillside development ordinance because the single-lot tract was recorded with the register of deeds in 1991. Elders said lots recorded before the mountain and hillside ordinance was passed in 2007 are grandfathered in and not required to meet the current standards.

But Green and Elders disagree on the interpretation of the ordinance language. The ordinance defines a lot of record as “a lot included within a plat which has been recorded in the Office of the Register of Deeds of Jackson County or a lot described by metes and bounds, the description of which has been so recorded.”

Green said a new plat was submitted in 2013 that divided the Cowee Tunnel Road property into two parcels. In his interpretation of the ordinance, an updated plat means the property loses its exemption and any development now has to follow the ordinance restrictions.

Elders said the 2013 plat doesn’t count because it was never recorded with the register of deeds so he referred to the 1991 deed. When the ordinance was adopted in 2007, he said the land-use attorney that helped write it said to always use the date the deed was recorded to determine whether property was a lot of record. He added that the current County Attorney Jay Coward also said to go by the deed date.

“I can promise you Tony (Elders) didn’t decide the interpretation of a lot of record,” Elders said “That’s been the policy since the ordinance was adopted.”

Coward said it was apparent that the construction on Cowee Tunnel Road was correctly permitted. He added that there wouldn’t have been any question or controversy if the plat hadn’t been submitted in 2013.

In his opinion, the permitting department should determine a lot of record by the registered deed date, but he can also see how the ordinance language could be interpreted differently.

“I’ve watched Tony and Gerald struggle with this for a long time,” Coward said. “I think it would behoove everybody to have a thorough review of the technical language in these ordinances.”

Unified ordinance needed

To help prevent this problem from occurring in the future, Coward suggested that the planning board start looking at putting together a unified development ordinance to replace all the separate development ordinances in place.

“This is an example of how the planning board can tighten up procedures and try to do a better job of meshing the ordinances together so complement each other instead of causing problems,” he said.

Green said that was one thing they could all agree on — the need for a unified development ordinance so that there would be no ambiguity between the separate land development ordinances.

Elders agreed that the ordinances needed to be updated and the board should consider how many properties are currently exempt from the mountain and hillside ordinance.

When the ordinance was adopted in 2007, Elders said there were more than 35,000 lots of record in the county and all those lots are exempt from meeting many of the requirements in the new ordinance. Only about 3,000 new lots have been recorded since then.

“As long as those aren’t split up they will be lots of record forever,” he said. “If the ordinance is not amended, it would be exempt from most of the ordinance.”

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