The proposed regulations are still stricter than any on the books in Western North Carolina, but now with a major loophole for existing lots. The planning board decided to exempt all existing lots from all the provisions in the steep slope ordinance. The change was made in response to public comments from lot owners fearing they wouldn’t be able to build on lots they already owned. While some provisions of the steep slope ordinance — if applied to existing lots — would have made them unbuildable, the ordinance already made exceptions for those. Now, however, existing lots won’t have to meet any of the requirements in the steep slope ordinance.
For example, owners of existing lots can cut down all the trees on their lot, ignoring the steep slope provision that requires 50 percent of a house to be screened by trees. Owners of existing lots can make cuts in the side of the mountain as big and as steep as they like with no engineering oversight, as the threshold for acceptable cut-and-fill slopes no longer applies to existing lots. Owners of existing lots can also pave as much of their lot as they want, since the provision on how much of a lot must be left undisturbed no longer applies to them.
Those aren’t the provisions that prompted planning board members to make the carte blanche exemption, however. They were more concerned about the provisions that would have prevented an existing lot owner from building a house on their lot, period.
For example, the steep slope ordinance requires a minimum lot size based on the slope. The sliding scale requires a five-acre lot size on slopes of 40 percent or more. But what if someone has an existing lot on a 40 percent slope that is only three acres?
Another instance: the steep slope ordinance says the roof of a home can’t come within 20 feet of a ridgeline. But what if someone already owns a lot along a ridge and can’t possibly site their house under the guidelines without building underground?
But in those “hardship” cases, the ordinance already had exemptions that would allow the lot owner to build anyway, explained Mike Egan, a consultant and attorney hired by the county to work with the planning board.
“Any lot of record, you can build on,” Egan said. “They would have a right to build on it or you would get into a takings issue.”
Other provisions of the steep slope ordinance — such as screening a portion of the house with trees — can be applied, since they don’t inhibit someone’s ability to build but instead only regulate how they can build, Egan said.
The planning board wasn’t moved, however, and decided to exempt all existing lots from all the steep slope regulations. Richard Wilson, chairman of the planning board, said an exemption for existing lots was a recurring theme in the dozens of written public comments submitted to the board. The decision was unanimous. The county commissioners will have the final say on the issue, however.
The steep slope ordinance applies to land with a slope of 30 percent or more, as well as land that lies above a slope of 30 percent or more regardless of its slope. This means a ridge top, although it may be flat, still falls under the steep slope ordinance since it lies above land with a 30 percent slope.