Commissioners weigh in: More flexibility proposed as Jackson board scrutinizes development regulations

Jackson County commissioners are poised to make numerous changes to a slate of proposed development regulations billed as the most stringent in Western North Carolina and possibly the state.

Commissioners intend to pass the regulations by the end of July. While developers and those in the real estate industry have criticized the regulations as stifling, the public at large seems to welcome the regulations as a needed check on rampant mountainside development.

A rough draft of the regulations was written by the county planning board. Jackson County commissioners first discussed the proposed changes during a workshop last week. Another workshop was held Monday (July 2), and two more are planned. A final public hearing will be held at 7 p.m. on Thursday, July 19, in the justice center giving the public a chance to weigh in on the newest version before it’s passed.



The biggest change made by commissioners so far would tighten up the loophole for existing lots. As currently written, none of the regulations would apply to existing lots. The loophole is significant, since there are more than 7,000 lots in Jackson County on the books that don’t have houses on them yet.

While some of the regulations — if applied to existing lots — would make the lots impossible to build on, others could easily be followed.

For example, one provision requires 50 percent of a house on a slope to be screened by trees. Another requires soil to be compacted on house sites that are carved out of the side of the mountain. Owners of existing lots can follow these provisions without compromising their ability to build on the lot, said Michael Egan, an attorney hired by the county to help write the ordinances.

Existing lots have to be exempt from some provisions, however, such as minimum lot size. If an existing lot doesn’t meet the minimum lot size, there’s not much that can be done to make it bigger, so it that provision obviously wouldn’t apply, Egan said. The same goes for existing lots on ridge tops, which wouldn’t be allowed in the future, but nothing can be done about those that already exist.

That’s initially the way the planning board wrote the ordinance — some regulations would apply to existing lots while others wouldn’t. But at the last minute, the planning board exempted existing lots from everything, largely in response to complaints from the public. Commissioners have reversed this carte blanche exemption.


Providing more options

The majority of changes made by commissioners so far will give developers more options but don’t appear to water down the ordinance or sacrifice protection for the environment or mountainside views. The changes provide developers alternatives which offer flexibility but aren’t necessarily less restrictive.

• One of the changes would give builders a choice in the house color. The ordinance requires homes on mountainsides to be earth tones to blend in with the scenery. In a give-and-take proposal, however, a homeowner could use any color they liked if 80 percent of their house was screened by trees. The ordinance otherwise calls for 50 percent of every home to be screened by trees. The concession on color would still meet the purpose of the particular provision — namely protecting the viewsheds from obtrusive homes — but provide flexibility.

• Another change would reward developers for putting part of a subdivision in a permanent conservation easement in exchange for relaxed density limits. Currently, a subdivision is limited in the number of lots it can have based on the slope. The steeper it is, the fewer lots it can have. To figure out the average slope of a subdivision — and therefore how many lots it can have — you take the highest and lowest points of the subdivision and calculate the slope between them.

However, if a developer places steep sections of a subdivision in a permanent conservation easement, those sections will be removed from the slope calculation. The average slope won’t be as steep and the subdivision would qualify for more lots.

• Another tit-for-tat arrangement would allow lot lines to border a creek in exchange for fewer overall lots in the subdivision. Previously, the ordinance required lot lines to be 30 feet back from a creek. The 30-foot swath on either side of the creek would be communally held by the homeowners association as open space. In a trade-off proposed by commissioners, developers could opt out of the communally held buffer and allow private lot ownership up to the creek banks in exchange for putting fewer lots in the subdivision.

• In the ultimate trade-off scenario, developers could pitch a subdivision plan that falls outside the regulations as written, but if deemed acceptable could be approved under a “development agreement” with the county.

“It would allow the developer to accomplish their purpose and still assuage the county’s concerns,” said Commissioner Tom Massie.

“Would the development agreement in a sense act as a variance?” asked Commissioner Brian McMahan.

“In essence, it acts as a substitute ordinance,” explained County Manager Ken Westmoreland. “It recognizes that the developer may have alternative solutions that a rigid ordinance doesn’t allow for.”

The option would only be available to subdivisions of 25 acres of more. The development agreement would have to be approved by county commissioners and would require a public hearing.

“The development agreement is a powerful tool,” Egan said. “It can be very effective but it all depends on the governing body and their integrity and whether they keep in mind the goals and objectives the county has.”

Commissioner Joe Cowan was concerned it could be too subjective.

Massie said the development agreement is not an exemption from the ordinances. Developers would still have to the meet the spirit and intent of everything in the regulations, but could have another idea of how to achieve that.

“I don’t think that this ordinance is one size fits all. There is always a situation that deserves sitting down and talking about and seeing if we can’t assist whoever is involved to accomplish their goals, as long as it is not detrimental to the public as a whole,” Massie said. “I don’t think it is something that will become standard fare.”

But, it could be a stumbling block to those thinking of suing the county over the ordinances. They would have to go through the process of proposing their alternative “development agreement” before they could sue the county.

“They would have to try to exhaust that administrative remedy before they can sue us,” Massie said.


Can you see me now?

Commissioners also mulled over a provision that barred homes on ridges — as currently written, the ordinance says rooflines of homes have to be 20 feet below the ridgeline. The problem is the definition of a ridge. Does it include a knoll or hill as well? Egan said the purpose was to keep houses from sticking out like a sore thumb, but the language was “overly inclusive.”

“There are probably some knolls and hilltops even that are not readily visible and would make good building sites,” Egan said. “There other ways to protect the viewsheds than saying you can’t build on a ridge.”

Egan suggested new language that said lots should be positioned so building sites “shall not be readily visible from public right-of-ways.”

Commissioner Brian McMahan asked how it would be determined if a particular site was “readily visible.”

“That would have to be a judgment call on the part of the planning board and planning director,” Egan said.

McMahan said this part of ordinance, among others, was too strict for his liking.

“I think the ordinance should be drafted to meet safety concerns,” McMahan said. “When we get off on these aspects of ‘we aren’t going to let you build here because someone else can see your house,’ that’s beyond the scope of what I think it should be.”

Other commissioners disagreed. The public has repeatedly asked for regulations that keep the view of the mountains from being marred up, Massie replied.

“I think this will be one of the toughest things we got to wrestle with but I do think it is in the scope of the ordinance,” Massie said. “We’re going to have to play Solomon.”

“It’s all going to be based on who defines readily visible,” McMahan replied. From Waterrock Knob — a Blue Ridge Parkway overlook — one could look down and see nearly every house site below, McMahan said. Does that mean they are readily visible?

“It’s a stretch to use Waterrock Knob as the benchmark. I think we could pare it down considerably,” Commissioner William Shelton said.

McMahan was the only commissioner to vote against a moratorium on new subdivisions while the county adopted development regulations.

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