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Wednesday, 05 February 2014 00:00

Steep slopes on the rocks: Relaxed building rules try to strike a balance

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coverDavid Brooks grew up dirt poor. His dad farmed corn, apples and tobacco, always with a plow and mule, never with a tractor. Brooks’ mom and five siblings were often left to tend to the 100-acre hillside farm in Jackson County when his dad journeyed in search of cash-paying jobs — taking him as far as Washington state during summers to work as a logger. 

“I guess it was poverty, but we didn’t know it at the time,” Brooks said. 

SEE ALSO: Public could tip scales in steep slope rewrite

 

Brooks, now 61, carved out a much better life for himself as a homebuilder and contractor. One of his proudest jobs: a $1.3 million house on his boyhood homeplace. Brooks and his siblings sold off their parents’ farm, but it was tough.

“I didn’t want to sell it. I didn’t want to see it developed,” Brooks said. But he found the right buyer, two out-of-state couples shopping for a private mountain estate to vacation on. They even let Brooks visit the property anytime he wants.

Brooks’ hallowed view of that family land makes him an unlikely champion for unfettered, freewheeling development of Jackson County’s mountainsides.

But indeed he is.

“I don’t like people saying, ‘You can’t do this with your land, you can’t do that with your land,’” Brooks said. “If a guy is paying taxes on his land, he should be able to do what he wants to do with his land.”

Brooks has driven that point home time and again with fellow members of the Jackson County planning board over the past year as they hashed out how far the county should or should not go in reining in steep slope development.

And that put him squarely at odds with Tom Rogers.

“I was always concerned about the way we treat the mountains. Many of the things we do aren’t recoverable. A road is a road forever. A house is a house forever,” Rogers said.

But Rogers has a confession to make: he is an outsider, and not just any outsider, but a retiree from Florida no less. He came to the mountains seeking his own slice of heaven and found 20 acres on Caney Fork that fit the bill nicely. 

“We came up here for solitude and beauty,” said Rogers, an avid hiker and trail volunteer. 

And he wants to see it stay that way.

Brooks and Rogers have found themselves at the same table, albeit on opposite sides, during a monumental moment, with the fate of mountainside development — and in turn, the county’s economy, environment, sense of place and very identity — hanging in the balance.

Now and then, Rogers has borne the brunt of a wry comment by fellow planning board members, accusing him of moving here and then wanting to lock the gate behind him. The hypocrite card would be tossed out in the heat of steep slope discussions, aiming to neutralize and even devalue Rogers’ point of view in a fell swoop.

The planning board has spent the past 14 months rewriting steep slopes regulations first put in place seven years ago. They were more restrictive than anywhere else in the mountains at the time. The watered-down version that has emerged from the rewrite is still head-and-shoulders above most counties in North Carolina. Only a couple have regulations that even come close.

Zac Koenig, a homebuilder in Cashiers, is one of the only planning board members left today who was on the board when the original ordinance was written seven years ago. For the record, he was against it back then.

“I thought it was way too restrictive,” said Koenig.

The new version is much more realistic, he said. 

“I think it is a good balance between making sure the safety concerns are all met but still allowing people to build on their property,” Koenig said. “I think it is a pretty fair ordinance.”

Nonetheless, not all planning board members agree with loosening the rules. Two have made the case repeatedly for upholding most of the steep slope restrictions on the books.

Building on steep slopes should require a higher standard, said Sarah Graham, a planning board member who works for the Southwestern Development Commission.

“We don’t have a hospitable environment for unlimited growth,” Graham said. “With that comes some inherent limitation on what should be allowed to happen. That philosophical issue is at the crux of this.”

Seven years ago, the groundbreaking development rules in Jackson County were a pushback against the unprecedented land rush of the previous decade, a frenzied buying spree that gobbled up huge chunks of the mountains to make way for ritzy, gated communities for vacationers and retirees. 

 

The gold standard

Ask Dickie Woodard what he thinks of the ordinance, and it’s like talking to an oracle.

“I can’t answer that in a general way. There are three different fields of thought if you want to look at the whole thing,” said Woodard, a Realtor on the planning board. “There’s the safety of building, then the aesthetics and then there is the environmental. It depends on which one of those three perspectives you want to talk about.”

The safety of steep slope development was an easy one for the planning board to agree on. Simply put, houses and roads shouldn’t fall down the mountain.

But regulations dealing with aesthetics were blacklisted early on. The visual impact of mountainside development was seen as a non-starter in the discussions.

“I would love to live in a place that looked like Cades Cove,” Woodard said. “There are pictures we all have in our mind that we think look like the mountains. But what appeals to me may not mean a thing to you.”

Sections of the old ordinance aimed solely at preserving viewsheds were struck unless there was a safety or environmental argument for keeping it.

The ban on ridgetop building was lifted, and rules about blending houses with the natural topography were also cut.

“As much as I don’t want to see an ugly house, I support a person’s right to have an ugly house,” said Clark Lipkin, a land surveyor on the planning board. “The government should not be regulating for aesthetics.”

Instead, slope stability was the gold standard, the ultimate litmus test, when weighing whether to keep or cut a particular regulation.

“Yes or no, is it safe or not safe,” Lipkin said.

“Keep your house pad stable, that is what’s more important than anything. When you put a house place in, don’t half-ass it. Put it in right,” Brooks said. “I am more for letting people do what they want to do as long as they do it in a safe, responsible way.”

But that’s assuming all developers will indeed do the safe and sensible thing of their own accord, without being forced to. 

Those in favor of fewer restrictions say the mountains will naturally dictate what developers do.

“The steepness of the ground is going to dictate what you should do, what you can and cannot,” Woodard said.

 

Hung jury

When the original ordinance was put in place, construction workers rallied in protest, claiming it would take a bite out of the economy by slowing development.

In hindsight, it’s hard to say whether that prophecy came true.

“I have no idea,” said Lipkin. “There’s people that claim to know, but I don’t see how you could know.”

But that comes with caveats. It didn’t hurt the development industry because it was going to tank anyway due to the recession and housing bust, some say.

“Given the building business dropping off as it did, I don’t think the ordinance had an impact,” Koenig said.

But, if the more stringent regulations were to stay in place, they could slow a comeback in the homebuilding industry, he said.

The rules and regulations piled onto steep slope development under the old ordinance would jack up the cost of homes and lots. Developers would do the math and conclude the profit margin of putting in a subdivision wasn’t worth it, and go somewhere else instead.

For individuals wanting to build on steep lots, the criteria would add to the cost of a house.

But Graham said that just goes with the territory.

“We say ‘If you chose to build on this 40 percent slope then here are some of the things we expect.’ I don’t think that is asking too much,” Graham said.

Graham said those building large houses on steep slopes are rarely struggling to get by and can afford extra steps to lessen their impact on shared natural resources.

“We are not burdening our low-income people,” Graham said.

Brooks disagreed.

“Most people can’t afford this stuff,” Brooks said. 

To Koenig, the hoops and hurdles and costs tacked on to steep slope construction in the old ordinance would clearly limit development — and the jury is still out on whether that was a hidden motive all along.

“The intention of the old ordinance wasn’t to keep people from building, yet it said if you don’t meet these things you can’t build,” Koenig said.

While the old regulations didn’t stop people from building on steep slopes outright, they certainly discouraged it. Since the rules were put in place seven years ago, only two new residential developments have been proposed in Jackson County. 

In both instances, the developers crafted plans that avoided building on steeper portions of the tract. By conserving steep areas as open space, they could stay under the steepness threshold that would have made the steep slope rules kick in. 

Indeed, that was part of the intent: to encourage developers to stay off steep slopes by making steep slope development less attractive in the first place. 

The steep slope rules worked in tandem with the subdivision ordinance, conservation incentives and open space criteria to change the way developers think about lot and road design when mapping out a new development.

The revisions take a more piecemeal approach in the interest of streamlining the regulations and making them easier to understand.

“It is making it more clear,” Lipkin said. “It is a complicated ordinance. I have been looking at it for years, and there’s a lot I still don’t know about it, and I’m not a not smart person.”

But deconstructing and rebuilding the ordinance in compartmentalized blocks make it less effective, Rogers said.

“You have to take a more holistic view,” Rogers said. “There are several parts that tell the story.”

 

Water underground

One of the more heated issues for the planning board was groundwater — which thousands of residents in Jackson County rely on for their drinking water.

What happens above ground impacts the groundwater below. When land is graded, built on and paved over, rain doesn’t find its way back into the groundwater table as easily.

“Water is something we all have a right to. We need to ensure our neighbor’s well won’t run dry because of our actions,” Graham said. “That is allowing irresponsible development. What is the role of government other than to protect the greater good?” 

The planning board debated how many houses you can put on a tract before it would max out the groundwater table. 

They also debated how much area you can build over without compromising “groundwater recharge,” which happens every time it rains.

“That water has got to go somewhere. It used to go into the soil base. Now it is going to go somewhere else, and the steeper the slope is, the faster it is going to go,” Rogers said.

Rogers’ thinking is this: steeper slopes need a larger natural area to allow for adequate groundwater recharge.

“It needs to be a function of slope,” Rogers said.

Rogers and Graham lost on that one, however.

The portion of a lot that can be paved or built on was increased substantially during the rewrite and is no longer based on a sliding scale relative to the slope.

Groundwater isn’t Graham’s only concern. She’s also worried about creeks and rivers. After all, they are the landing place for everything that runs downhill.

Gravity has a way of getting its way with steep slopes. 

Thin soils are stitched loosely to the mountainside with tree roots. And they tumble down easily when disturbed. Especially when you add rainfall to the equation.

 “With any development, there’s a small amount of time when runoff is worse until the landscape reestablishes itself,” Graham said. “But the long-term impacts are only going to multiply with the number of disturbances you put on this problematic slope soil.”

 

A long process

When the planning board cracked open the steep slope rules 14 months ago, there was clear consensus: the current rules were too strict. The only question was how much to loosen them.

But partway through the rewrites, momentum stalled when two new planning board members came on the scene. The two new board members wanted to save much of the current ordinance and were vocal in their views.

One of those was Tom Rogers, who admits his past life as a weapons engineer for the Air Force led him to ask a lot of questions and challenge unquantified assumptions.

“I jumped in in the ‘quote unquote’ middle of this. As a result I asked an awful lot of questions. Why were things being done the way they were? Why do they need to be changed? What is the rationale for them being changed?” Rogers said. “My drip was usually what’s driving such and such issue and what’s the data behind it.”

Koenig said his biggest challenge as chairman was how long to let the debate go.

“I wanted everyone to have an opportunity to say their piece. The hard thing for me was at what point do we decide everyone had said their piece?” Koenig said. “At a certain point, it was like, ‘OK we got to move on.’”

Initially, the planning board went page by page, discussing the merits of each section and leaving it up to County Planner Gerald Green to draft new language that reflected the consensus.

But as time went on, it became more difficult to divine exactly what the consensus was from the often-freewheeling discussion. And what seemed like the consensus one month would change by the next meeting as planning board members mulled the issues on their own during intervening weeks.

“One of the difficult parts was to balance the different opinions and desires of the planning board members,” Green said. “We were having to rehash things so much to get a clearer direction.”

Ultimately, the board started taking mini straw polls when they were unable to work through a particular sticking point with unanimity.

That was partly due to the diversity of views brought to the board by the two newcomers, but it was also partly because the lower hanging fruit had been tackled first and the more controversial parts set aside for later.

Discussion often came down to a numbers game.

How steep should a slope be before the rules kick in? At what point does the risk of landslides increase? 

How tall can a cut-and-fill slope be and still be safe? How steep can a slope be before an engineer must be called in? What portion of a lot should remain undisturbed? Should there be a sliding scale for runoff controls the steeper the slope is? How big can a house pad be and still allow for groundwater absorption?

When discussions took a technical turn, and they often did, the side that prevailed in the end often came down to the side still standing when the dust settled. A handful of planning board members did the majority of talking when it came to the numbers game.

But Rogers, the engineer out of the bunch, claimed they weren’t playing with a full deck.

No one really knows how many houses on a steep slope the groundwater table can handle. And no one really knows which slopes are the most landslide prone.

“The question we need to ask is could you even put ‘x’ number of houses in that area in the first place and ensure the mountain isn’t going to fall off, and where are you going to get the water?” Rogers said. “We need to know what challenges we are going to face. How do you do that without the macrolevel parameters of development defined, and around here that’s landslides and water? And neither of those have been studied.”

That didn’t stop the planning board from trying, however. There were hours and hours of discussion about landslide risk, groundwater recharge, impervious surface, disturbance variables and slope factors.

 

End of the road

Ultimately, the planning board had to chose which side to err on: the side of caution or leeway?

“The general consensus is not wanting to go a tiny step too far in the direction of regulating development, and I just disagree with that,” Graham said.

Graham said there was probably room to ease the language in some places. But not as much as it was.

Brooks, however, countered with the common sense card.

“What it comes down to is common sense. There is no magical answer for anything in this county. We have some of the worst terrain anywhere in the state,” Brooks said. “We need some kind of regulation on the steep land. There is no doubt about that.”

But to Brooks, those regulations should stop short of trampling on what someone can build on their own land — be it the size or number of houses, how many trees they can cut or how big their driveway can be. 

In the end, the rewrite didn’t go as far as Brooks wanted, nor did it keep all the regulations Graham would have liked.

The rules still limit how much land can be disturbed on a lot, but not by as much. The rules still limit the size of a home’s footprint, but not by as much. The rules still require developers to set aside a portion of land in subdivisions as open space, but not as much. 

The rules still require engineering oversight for steep slope construction, as well as hydrology plans and geotechnical analysis, but developers no longer have to do environmental impact assessments. Mountainside homes still have to be partially screened by trees, but other viewshed protections were removed.

“We are just common people trying to figure out the problems around here,” Brooks said. “We don’t get paid for this. We get bashed a lot, but we are trying our best. We are doing the best of our ability.”

Despite their diverging views, Graham doesn’t doubt that. At the Southwestern Commission, Graham works closely with elected town and county leaders across the seven western counties. She’s witnessed a universal conundrum over natural resources over the years when it comes to land-use planning.

“Most of them love these mountains,” Graham said. “There is a fine line between folks not wanting to have restrictive land-use regulations but also really appreciating the natural resources in the place they live, and it makes for an interesting political arena when it comes to issues like the steep slope ordinance.”

 

 

Setting the table: a planning board primer

The steep slope rewrite is the handiwork of 11 planning board members — all of them appointed by county commissioners.

The majority of today’s planning board is tied to the building or real estate industry in some way. There are three homebuilders, one Realtors and one surveyor — five out of the 10 currently on the board. (One seat has been vacant for several months.)

Today’s planning board is far different from the one that wrote the original mountainside rules seven years ago.

The majority today feels the old rules are too strict and should be rolled back.

The changing of the guard on the planning board came about organically, yet predictably. 

A slate of three new county commissioners — who all believe the old steep slope rules were in varying degrees too strict — won an upset election in 2010.

Naturally, planning board members appointed by the new commissioners more closely reflected the philosophy of those commissioners.

That’s the case with any political appointments, whether it’s the president’s picks for cabinet members or the governor’s picks for agency heads. It’s perfectly normal for elected leaders to appoint worker bees who share their values.

So it wasn’t a question of “if,” but rather how much, the steep slope rules would be loosened by the new planning board appointed by the new commissioners.

Commissioner Doug Cody said the commissioners have been falsely represented as pulling the strings of the planning board.

“We have been accused of pressuring the planning board to gut these ordinances. Have you felt any pressure at all?” Cody asked County Planner Gerald Green at a recent county meeting.

“Not, not at all,” Green replied.

The planning board is an all-volunteer group, and that makes it prone to a good bit of flux. In the past year, there’s been turnover among four of the 11 planning board members — a couple had health problems, one decided it was too time consuming, another simply cycled off due to term limits.

Today, the planning board only has two members left from when the original ordinance was written seven years ago. 

County Planner Gerald Green said the planning board has been thoughtful and deliberate. They didn’t come in and start blindly slashing language from the ordinance

“The people appointed to the planning board represent a broad spectrum of the county population,” Green said.

That’s a good thing if industry insight is desired, but not so good if it comes with inherent biases.

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