jackson county planning board ordinance

Planning board approves ordinances

By Justin Goble

After some five months of discussion, members of the Jackson County Planning Board finalized drafts of countywide subdivision and steep-slope ordinances last Thursday (May 17).

After commissioners asked for proposed ordinances in time for their meeting Tuesday night (May 22) the planning board refined the drafts over the past two weeks.

Members passed the steep-slope ordinance by a vote of 9-2. Chairman Richard Wilson, along with Wayne Cobb, Dan Pittillo, Christa Brooks, Sue Bumgarner, Glenna Buchanan, Kim Cowan, Joe Ward and Richard Frady voted in favor of the ordinance, while Zac Koenig and Bob Carpenter voted “no.”

The subdivision ordinance was also passed, but with a 7-4 vote. Wilson, Cobb, Pitillo, Bumgarner, Buchanan, Cowan and Ward voted for the measure, while Koenig, Carpenter, Brooks and Frady were against it.

The votes came after 90 minutes of discussion, in which board members aired their concerns about both ordinances.

Talks begin with the steep-slope ordinance, during which Koenig, a Cashiers builder, asked that plots with vested rights and those recorded be exempt from all regulations.

In Koenig’s opinion, plots ready for development shouldn’t fall under the stiffer regulations for new houses built on slopes greater than 30 percent that commissioners may enact.

“My concern isn’t that they can’t build,” Koenig said. “It’s just that it will be a lot more expensive to build. It can open up the county to a lot of problems.”

In prior drafts, the document stated that developers with vested rights or plats of record could build, but would still have to abide by rules such as screening and house colors as stated in the ordinance.

According to Hendersonville attorney Michael Egan, who has been helping draft the ordinances, developers with vested rights could build on their plots, but the county could regulate the buildings themselves.

“A government entity can’t interfere with what is vested,” Egan said. “Here, what’s vested is the right to build on the land. The statutes say you can administer the ordinance after the fact unless it interferes with that vested right. Since a lot of these regulations aren’t interfering with that right, they can be applied.”

Though other members agreed that plats with vested rights should still have to follow guidelines set out in the ordinance, Chairman Wilson said he had read many comments from people requesting exemptions for plots of record.

Egan said he would add language exempting those plots before sending the draft ordinances to commissioners.

Minimum lot sizes remained the same as in previous drafts, from 2 acres on slopes 30 to 34 percent to 10 acres on slopes 45 percent or more. However, Egan said he added a provision allowing planning director Linda Cable to allow exceptions in “circumstances where strict compliance would result in practical difficulty or unnecessary hardship.”

Also new in the latest draft is an increase in the fire buffer zone from 20 to 30 feet. Also, Egan explained that the buffer zone did not mean clearing out all trees and vegetation.

Frady, who serves as chief of the Cullowhee Volunteer Fire Department, explained that landscaping could be done in those areas to improve fire safety.

“Things can be maintained in a very fire-safe way,” he said. “We don’t want them to pull out all the vegetation. That would make it a desert.”

Before bringing the steep-slope ordinance to a vote, Koenig and Bob Carpenter urged board members to consider their actions.

“I just ask that all of you think of where your home is,” Koenig said. “Would you be able to build your home where it is if this ordinance were in place?”

“Would this ordinance cause problems for any young couples who are looking to buy a house in the area?,” Carpenter asked. “These seem pretty excessive.”

“They wouldn’t buy the land if they couldn’t build on it,” Bumgarner replied. “No real estate agent would sell it to them if they couldn’t build on it.”

As for the subdivision ordinance, members were still concerned about the amount of open space required in the document.

Carpenter said he was afraid that requiring developers to set aside 25 percent of their land for open space may be violating the fifth amendment of the Constitution, which prevents governments from taking private land without just compensation.

Carpenter read from a document discussing violations of the amendment. He said when governments have taken away all viable economic use of the land, judges have ruled against them in court cases.

“I’m just concerned that we could be putting the county in jeopardy of lawsuits,” Carpenter said.

As an alternative, Carpenter suggested reducing the number to 5 percent, which had been done in a previous draft of the ordinance.

“I think that would keep the county from facing a lot of lawsuits,” he said.

However, Egan said the current draft allowed developers and homeowners to use most of their land as they saw fit.

“My opinion is that the ordinance as drafted fits with those regulations,” Egan said. “But I don’t know what a judge will say or do.”

Pittillo agreed, saying there were other considerations to take into account as well

“Part of this has to deal with health and safety regulations,” he said. “We want to have enough land to let the water recharge.”

As a compromise, Frady again suggested limiting the amount of impervious surfaces (roofs, pavement) on a lot.

“If we limit (impervious surfaces) to one-third of the plot, we’ll free up even more space to recharge the water,” Frady said. “I think, with that change in there, this would be a great ordinance.”

However, Egan pointed out that while going by those limitations would create more than 25 percent open space on some tracts, it would create far less on others.

Cobb and Buchanan said board members have worked too long on the ordinance to try and make such drastic changes at the last minute, suggesting it be approved as is.

“I say we recommend these as written,” Cobb said. “We’ve done our jobs. The commissioners can sit down with their lawyers and discuss it. If they have a question, they can send it back.”

“We’ve worked diligently on this,” Buchanan said. “All of us might see some things we want to change or take out. But it’s too late to start changing major things. I think we should approve the ordinance and send it on to the board (of commissioners).”

Koenig responded to these claims, saying the ordinance was too important not to spend more time going over it.

“We keep saying that there isn’t enough time to make these changes,” Koenig said. “But we don’t have to recommend something to the commissioners that we don’t feel comfortable with.”

Brooks agreed, saying the board should consider Frady’s suggestion.

“I think open space is a great thing,” Brooks said. “But I think landowners need options. If they have this (Frady’s) option, we’ll have space for water to recharge and people will have their land.”

Egan said the ordinance allows developers to pay a fee or dedicate land elsewhere in the county to commissioners in lieu of offering open space in their subdivisions. After Ward said he was concerned that people in many subdivisions would not have recreation space available to them, Egan pointed out that statutes require county leaders to use such funds to help build a park in the vicinity of the subdivision in question. Dedicated land must also be close by, he said.

When those opposed to the open space requirement could not muster enough votes to defeat the ordinance, Frady suggested offering his alternative for commissioners to consider. That motion passed unanimously.

“This may not be a great document, but it’s a good one,” Frady said. “It’s a good basis to grow from.”

After getting a first look at the ordinances Tuesday night, commissioners set a public hearing to discuss them onMonday, June 11, at 7 p.m. in Southwestern Community College’s Meyers Auditorium.

Copies of both ordinances are available online at www.jacksonnc.org or can be picked up at the Planning Department’s Justice Center office.