Cable now has the arduous job of reviewing every project and deciding which ones are far enough along that they aren’t a “new” subdivision. The moratorium only applies to new subdivisions, not existing ones.
Existing developments will be granted “vested rights” — the county’s term for whether a subdivision falls under the moratorium or not. There is no cookie-cutter formula that makes or breaks whether a developer has vested rights. Cable will weigh a host of factors in making the determination on a case-by-case basis. Developers with a “substantial financial investment” already plowed into their project are entitled to vested rights, according to the moratorium.
The task of dispelling rumors about the moratorium has also landed on Cable’s office. Opponents of the moratorium propagated the idea that the entire construction industry must come to a screeching halt. The day after the moratorium passed, Cable got a call from a carpenter wondering whether he could finish building the house he was working on. Of course, Cable replied.
“Then he asked ‘When I finish this one, someone else with a lot wants me to build on it. Can I go ahead and build on that?’” Cable said. The answer once again was “yes.” The moratorium doesn’t apply to individual lots, and it doesn’t apply to existing subdivisions.
Weighing vested rights
Granting or denying vested rights will be a somewhat subjective process. The litmus test for vested rights is a “substantial financial investment,” but what’s substantial? For starters, simply having bought a tract of land doesn’t win a developer vested rights.
Factors that do count toward vested rights: have lots been recorded, has a sediment and erosion control permit been applied for and granted, have septic tank permits been applied for, have roads been constructed, have surveyors and engineers already drawn the plans, have big bucks been spent on marketing to sell lots, have potential buyers signed contracts?
“It is a combination of several things,” Cable said.
A developer doesn’t have to meet all of these things — most likely only one or two will suffice.
To help with the process, the county commissioners appointed a three person vested-rights advisory board: Joel Johnson, a land surveyor; Ralph Triplett, a retired professor of land planning and geology at Western Carolina University; and Jay Coward, a real estate attorney.
Developers denied vested rights can appeal to the county planning board for a hearing.
There is one caveat for existing subdivisions: brand new phases. Subdivisions are often built in phases, with the developer building a road, marking off lots and selling home sites on one phase at a time. After recouping enough money from one phase, they push on to the next, repeating the process. Any new phases where lots haven’t yet been recorded are subject to the moratorium.
Along with the moratorium, the county has implemented a new way to track the volume and type of construction going on in the county. Until now, it has been difficult to get a clear picture of development in the county.
“Just last month we discovered a brand new subdivision that was pretty large that no one knew anything about,” said County Manager Ken Westmoreland. “They hadn’t gotten a single permit.”
The developer of a 233-acre subdivision called Cullowhee Bluff had graded nearly 2.5 miles of new road without getting a sediment and erosion control permit.
“They had been working a pretty good little while,” said Robbie Shelton, the erosion control officer. The developer claims he was merely touching up an existing old logging road and didn’t think he needed a permit, Shelton said.
“He did more than fix it up. He widened it considerably,” Shelton said. Shelton said so much new grading was done, you would never know there was once an old logging road there. The developer had put up a few silt fences, but did not install nearly the level of erosion control checks that were necessary. The developer has been issued violations for working without permits and erosion control failures, according to a copy of the report. Work has been halted until the issue is resolved. Fines are still being determined.
The incident underscores the need for better oversight by the county of what’s going on out there. There are four potential points of interaction with the county in the building process: when the lot is recorded, when the building permit is applied for, when the septic tank permit is applied for and when a sediment and erosion control permit is applied for.
All four are done by different offices, however.
“We don’t have one consolidated point in the county so all the departments know what’s been done and what hasn’t been done,” Cable said.
Starting this month, data will be corralled in one place. Anyone applying for a septic permit, erosion permit or building permit must now fill out an extra form that describes what they are doing, where and how. It will be stored in the planning office.
“It’s an informational piece of paper that will allow us to create a data base on development,” Cable said.