The John Locke Foundation, a conservative think tank based in Raleigh, has taken a big interest in Jackson County’s development regulations in recent months. The foundation has dedicated staff to study and follow the writing of the ordinances. They’ve spoken at public meetings, written news articles on the ordinances in their magazine and met with Realtors and developers in the Cashiers area to discuss legal weaknesses in the ordinances.

“There are risks the county is taking,” said Michael Sanera, an analyst with the John Locke Foundation. “The degree of risk is really the key question. It is very difficult to know until all this goes to court.”

One risk is a mandate that developers set aside 25 percent of a new development as open space. The measure applies to all subdivisions of eight lots or more. The open space has to be held in trust by the homeowner’s association of the subdivision. That could be a taking — a legal term for when the government denies someone use of their property without compensating them for it, according to Daren Bakst, legal and regulatory analyst with the John Locke Foundation.

“Not only do you have this open space requirement but you actually have to convey title to somebody else. That is a flat out taking of property — either give us the property or you don’t get your permits,” said Bakst.

Michael Egan, an attorney and consultant hired by the county to help draft the ordinances, disagreed. Egan said anyone can file a lawsuit, of course, but that doesn’t mean they will be successful.

“I feel pretty confident in the ordinance that it would not be a regulatory taking,” Egan said. “Typically, something is found to be a taking only when there is no reasonable use of the property left.”

In this case, the developer is not being denied use of the property. He is still allowed to build a subdivision. He just has to set aside 25 percent of the acreage in the process, Egan said.

“It just says if you are going to do a major subdivision, you need to plan for open space,” Egan said. “In this particular situation the evidence suggests that a conservation design subdivision actually increases the profitability of the development.”

The open space requirement becomes more arduous, however, when coupled with limits on the number of homes a subdivision can have. The standards — no more than one home per five acres on slopes of 40 percent and one per 10 acres on slopes of 45 percent or more — could potentially be seen as a taking as well, Bakst said. Towns have long regulated lot sizes in neighborhoods, but how far is so far that it amounts to a taking?

“There is no magic way of determining a taking. The key component is to look at what the expectations of the property owner are and the character of the governmental actions,” said Bakst. “This is all part of the analysis that the court would undergo.”

For example, if someone bought 50 acres with the intention of putting 25 homes on it, but now they could only build 10 after complying with the ordinance, it could be so limiting that it qualifies as a taking, Bakst said. The cornerstone of this argument would rest on the character of the government’s actions, which Sanera and Bakst claim are arbitrary.

“Is there a public purpose being served by this?” Sanera asked of the lot sizes. “To me, there is no connection to the size of the lot and the purpose they are trying to accomplish. They have no scientific evidence that a 10 acre lot will contribute to the water table or keep the home from sliding down the hill.”

Again, Egan disagrees.

“It is not just an arbitrary number,” Egan said. “It’s clear that the steeper your slopes, the thinner the soil, the more storm water run-off you have, the bigger issues you have with groundwater recharge. So this ordinance is reflective of that.”

A graduated scale in the ordinance calls for larger lot sizes as the slope gets steeper. The larger the lot on steep slopes, the more likely it is that the lot will have a decent building site somewhere on it. When too many homes are packed in on steep slopes, building sites tend to be more marginal and less safe than when developers spread out the lots to incorporate a relatively flatter building siteon each one.

Too much discretion?

Another legal issue with the ordinance is the broad discretion the planning director has in requiring or waiving certain measures, according to Sanera.

“If the county commission passes too much discretion to the county planning director, that amount of discretion can be viewed as making the law instead of just administering the law,” Sanera said. “Go through and count the number of times the planning director has to make calls on very nebulous and non-objective areas.”

The answer is dozens. The ordinances are riddled with such language. In the measure protecting stream buffers, the planning director decides whether an access area to the stream is acceptable or not. In a measure that requires homes to be either positioned or screened so they aren’t readily visible from the valley below, the planning director decides what is “readily visible.” The planning director can even require a developer to preserve certain trees.

Egan said the discretion is intended to make the ordinance more flexible and easier to navigate.

“I don’t think this is beyond the pale as far as the amount of discretion the administrator has,” Egan said. “This additional discretion is becoming more commonplace because ordinances are becoming more complicated. I don’t think it is overreaching discretion.”

Egan said the problem arises only when the level of discretion meets a litmus test of “vagueness” — when it is impossible to discern what the ordinance is actually requiring.

“If a court says ‘I don’t know what’s required here,’ that could be a problem. Even if that happened, and I don’t think it will, it would not imperil the legislation. The court would simply say you need to be more specific in these areas,” Egan said.

One fear among opponents is that Jackson County could set an example for other counties to follow, making it all the more crucial for anti-regulation camps to nip Jackson’s bold measures in the bud. Jackson County has already been a trend setter simply in their move to enact a moratorium on new subdivisions while writing the ordinances. Environmentalists in Henderson County have launched a campaign for a slope development moratorium in their county. Jackson’s lead has also given neighboring counties cover to enact smaller measures: Swain’s proposed safety standards for roads in mountainside development seem like child’s play now compared to Jackson’s measures.