Steep slope rules on the rocks? Jackson planning board seeks middle ground in ordinance rewrite

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Steep slope rules on the rocks? Jackson planning board seeks middle ground in ordinance rewrite

fr jacksonregs Jackson County’s planning board is knee-deep in a page-by-page rewrite of the county’s steep slope rules — a controversial process that seems destined to rekindle past disputes over protecting the mountainsides versus stymieing development.

A sweeping slate of mountain building regulations passed by Jackson County commissioners nearly six years ago were both commended and condemned as some of the most restrictive in the state. They took aim at unsafe building practices on steep slopes, but also reined in over-zealous development some feared would mar the mountainsides.

A major issue unfolding in the rewrite is whether the steep slope regulations went too far in an effort to protect views.

“I think everyone wants to protect viewsheds, but how far do you go to do that?” said Zac Koenig, chairman of the planning board and a builder in Cashiers. “I think this current board is probably more of a mind to protect public safety.”

That question was central to the debate six years ago when the regulations were put in place: should the county regulate aesthetics?

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“I think it is overstepping the limit of what the government should do,” said Clark Lipkin, a planning board member. “The mood on the board is that safety is the most important thing — that if you build a house it doesn’t come sliding down the mountain.”

But to those who support the original ordinances, the importance of protecting the scenic qualities of living in the mountains is paramount.

“If you look at what really precipitated this whole idea of having an ordinance, it was protecting the rural character of the viewshed,” said Ken Brown, an advocate for the original ordinances who lives in Tuckasegee. “How can you say the aesthetic doesn’t apply here? How can you say it is all about safety? Safety is certainly a great consideration, but you can’t take the aesthetic away from it.”

Planning board member Mark Jamison said the rewrites aim to find a balance between two extremes.

“The idea of sticking houses every single place we possibly can, as people say, ‘kills the golden goose,’ the environment and destroys the quality of life,” said Jamison. “On the other hand, the idea we live in this happy wonderland and nobody else should be able to come here, that is unreasonable, too.”

The planning board will spend another six months, at least, finalizing their proposed changes before passing them down the line to county commissioners for final approval. The changes are largely billed as minor tweaks, aimed at making the mountain hillside development ordinance more user-friendly. But some of the changes being mulled will no doubt roll back some of the more arduous rules.

That’s a good thing, according to Koenig. He believes, to a certain degree, the regulations scare away developers and puts Jackson County at a competitive disadvantage with its neighbors — all of which have looser mountainside building laws.

“We’re competing against other counties,” Koenig said. “In a way this ordinance helps us and sets us above another county — we’re guaranteeing when you buy that house the house above you isn’t going to fall on it — but it’s also a hindrance.”

The hope that loosening the regulations will somehow bring back better economic times isn’t rooted in reality, Brown countered.

“I don’t see how they can possibly tie a need to revise the ordinances to stimulating development in the county,” Brown said. “More than that, I think the whole context in which we consider development is way too weighted toward the side of developers and not taking into consideration why we have these ordinances: to maintain and protect the character of this rural setting and rural landscape. What are we tweaking and what for?”

Jackson’s original ordinances were passed at the height of the mountain real estate boom — when the pace of development was fast, furious and unprecedented.

Helicopters took would-be buyers on fly-overs to pick out lots from the air during weekend real estate blitzes. Out-of-state buyers were snatching up lots online, sight unseen. Lots were being bought and promptly flipped for twice the price by investors.

Mountain real estate was being played like the stock market, and many feared if the boom continued unabated there would be little undeveloped land left in a couple of decades. To what extent did the regulations go over-board in reaction to the climate at the time?

“I think some people saw the process as ‘Let’s just shut everything down,’” Jamison said of the original ordinances.

But the boom is over, and perhaps it is now time to reflect more rationally.

“I think we are fortunate in that now we have a more reasonable environment in which to come up with standards,” said County Planner Gerald Green.

Tom Massie, a former county commissioner who advocated for the ordinances six years ago, largely disagrees that the ordinances went too far or were intended to halt building.

“In my opinion, the minimum standards we put in place at the height of the boom were justified,” said Massie. “These ordinances didn’t prevent anybody from doing anything in the county. They just said there are certain thresholds you have to meet the bigger your subdivision gets or the steeper the mountain happens to be.”

Heart of the matter

Loosening the development regulations was part of the campaign platform of three county commissioners who swept into office in 2010, setting the stage for the rewrites now underway. The planning board has since taken on new faces as well — six of the 10 planning board members have been appointed in the past two years.

The slope rules aren’t their first rodeo. They have rewritten four sets of development regulations in just two years: the subdivision ordinance, groundwater recharge rules, open space regulations and commercial regulations.

They have all been weakened to varying degrees but have resulted in little pushback from the public — a public that six years ago made impassioned pleas to protect the mountains from over-zealous developers.

There’s a few reasons why the changes thus far may have escaped backlash. One is simply staying power.

“Part of it is the energy to read the darn thing and keep up,” said Clark Lipkin, a planning board member.

Another factor is the lack of a rallying cry. With development on economic hiatus, there’s nothing to rile people up. Another factor is the lack of media coverage: the changes undertaken to date have not been widely reported.

But the absence of any major hubbub is proof to some that the changes to date just haven’t been that big a deal, according to Planning Board Member Joe Ward.

“There haven’t been as many big changes as one would think,” said Ward, who was on the original planning board six years ago and is still on it today.

That could change, however, with the planning board now tackling the slope ordinance. The slope ordinance does the heavy lifting when it comes to curbing mountainside development — and thus is where the rubber meets the road for both sides in the issue.

“I think there is a battle coming on that,” Lipkin said. “What we have done so far has not been hitting the main issues.”

Ken Brown, an advocate for the original regulations, said the people who spoke up and demanded the development regulations six years ago haven’t gone away and are watching the planning board.

“When word got out that they were going to start revising the slope ordinances, it piqued people’s interest who supported it before, and I think they would be apt to follow it now,” Brown said.

Tweaks in the eye of the beholder

The planning board has characterized its changes as minor — simply making the regulations easier to read, more user friendly, even more restrictive at times.

“One of the main things with this rewrite isn’t to make it more lenient but to clarify things,” Koenig said. “Our job as a board is to find a balance.”

“I don’t feel that we have lessened the ordinances at all,” agreed Ward, who helped write the first one six years ago. “It needed to be tweaked. At the time, everyone knew that we could come back to it and revisit it and tweak it.”

Planning board member Clark Lipkin said the ordinance has technical problems.

“I would have revised it from day one,” Lipkin said. “Part of what I hope to see is to make it simpler. It is a confusing, big document.”

The slope ordinance is only 33 pages and the subdivision ordinance 67 pages — 100 pages in all, which isn’t necessarily huge as far as development regulations go.

But revisiting ordinances on the books to clean them up and fix problem areas is simply good practice. Particularly a brand-new ordinance, with ground-breaking regulations, that was written in a hurry. The regulations were written in less than five months in 2007. The county hired a consultant, who some believed had undue influence on the final version of rules and inserted his own opinions instead of what the majority wanted.

“A lot of people felt like they didn’t get a fair shake influencing the ordinance,” Lipkin said.

Jamison said the planning board, this go around, does not have any preconceived notions. They are rationally addressing the ordinance point by point and discussing it as they go.

“One misperception I would really like to correct is the idea that this is some politically motivated process when these new commissioners came in,” Jamison said.

The new commissioners may have spoken against the regulations in their campaigns but have not handed down edicts to the planning board members.

“There has been nothing from any of the commissioners to say ‘I want you to do this, that or the other thing,’” Jamison said.

But nearly all the planning board members have said the slope ordinance is too tough, including Jamison.

“Some of the standards were unreasonable,” Jamison said.

As the old planning board members rotated off the board, the new commissioners systematically named replacements with a more conservative view of what development regulations should look like.

One of those is Kent Moore, whose son helped oppose the ordinance when it was first crafted. Moore’s son was working for the John Locke Foundation at the time, a conservative think-tank based in Raleigh. The John Locke Foundation, including Moore’s son himself, came to Jackson County and advised the local building industry in its their fight strategy, even helping them craft a civil lawsuit filed against the county to try to stop the regulations from taking effect.

More than meets the eye

One of the biggest sticking points in the rewrite will likely be housing density for steep slopes. The original ordinance limits the number of houses based on a sliding scale — with no more than one house per 10 acres on the steepest of slopes. Planning board members have discussed doing away with density limits altogether, or at the very least loosening them.

“We feel they should be modified greatly or done away with,” Lipkin said.

Lipkin said the safety of a foundation and slope are covered by engineering requirements.

“If an engineer says a house is safe and not going to slide down the mountain, then that is good enough for us, and we aren’t going to ask for a density requirement,” Lipkin said.

Dan Pittillo, a retired WCU biologist and former planning board member who helped draft the original ordinance, thinks that would be a mistake.

“The more people you put on a spot that’s not stable, if there’s a failure on that slope, the worse it’s going to be,” Pittillo said. “And the more you have stacked in the uglier it could get.”

Pittillo said the county officials shouldn’t water down the rules to cater to developers capitalizing on stunning views at the expense of everyone else’s view and the environment.

Pittillo reflects the view many had when the ordinances were first passed: they were tired of out-of-town developers despoiling the mountains for their own personal gain. But putting the breaks on rampant development from outside investors, some of them with unsavory motives, also hurt local, blue-collar builders.

“The problem is when it got out of hand, we had a lot of carpet baggers,” Jamison said. But, “There are a lot of people out there making a living building houses.”

The regulations carried such lofty ideals — the idea of 10-acre lots on the steepest slopes and huge swaths of conserved open space — they have created a climate where only high-end developments could succeed. Only the most well-heeled developers and affluent buyers could be in the game.

“You’ll never build any moderately priced developments. Is that the type of environment we want?” Jamison asked.

Many of the changes being considered, however, don’t conjure up such big picture, philosophical questions. They are indeed tweaks, like slightly lowering how much open space developers must set in new subdivisions. It was 25 percent — proposed changes call for only 10 to 20 percent, depending on the size of the subdivision.

Even some minor language changes can have tangible effects, however. One such tweak to the open space standards would change how the percentage is calculated.

The old version based open space on a percentage of the entire subdivision. The new version calls for a percentage of the total “lot area.” Roads, utility easements and anything else that’s not an actual home lot is subtracted out of the land base before calculating how much open space is required.

Falling squarely in the realm of tweaks — with no apparent net impact other than clarity — is corralling all the “suggestions” in the ordinance and putting them in a “recommended building practices” pamphlet.

Several pages of the ordinance merely recommend rather than require practices that developers and builders should follow, such as earth-toned housing colors.

“Should suggestions really be part of an ordinance? Or should we just do an information package to buyers and builders that say ‘This is what we recommend you do,’” Koenig said.

Verdict still out

Whether the regulations are overly burdensome for developers would be easier to measure if there was more development actually going on. But development has grinded to a halt in Jackson County.

“I don’t believe there has been an opportunity because of the economic conditions to see how the ordinances work to this point,” Brown said.

In five years since the regulations have been in effect, only two subdivisions have been proposed under the ordinances, according to County Planner Gerald Green.

Some point to the development regulations as the culprit for no new development activity. Others point to over-saturation. There are so many lots for sale in existing developments and buyers so few and far between, developers simply aren’t bringing new subdivisions on line.

There were more than 2,500 unsold lots in existing subdivisions at the time the ordinance was passed.

“That was the amount of surplus out there that exceeded demand,” Massie said.

Those lots are mostly still sitting there. It’s hard to blame the regulations for all those lots languishing on the market today — especially since the ordinances didn’t apply to existing subdivisions, only new ones.

While Massie isn’t fond of some of the changes being proposed, he’s thankful for what the county does have.

“We have better protections in place, even if they make changes, than when we took office in 2006,” Massie said.

While pro-regulation commissioners lost their seats in 2010, they fared well in the most recent election. An adamantly pro-development candidate lost, while two pro-regulation candidates won. So it’s hard to say which, if either election was truly an accurate measuring stick of public sentiments on that one issue.

“If the planning board and commissioners and public feel the circumstances have changed to merit the kind of changes they are proposing now, that’s the way the democratic process works,” said Massie.

On that note, the regulations can always be tweaked back the other way, he said.