The recurring issue of open space has been discussed on and off at numerous meetings. Unable to reach a consensus, the topic was repeatedly put off for another day. But last week, there was no putting it off any longer.
The Jackson County commissioners insisted the planning board wrap up its work and hand over the ordinances to the commissioners by this week. The commissioners face a July 8 deadline to approve the ordinances before a moratorium on new subdivisions is lifted.
The planning board rehashed old arguments over how much open space should be required with new vigor during its final meeting last Thursday, giving impassioned pleas on both sides of the issue. When it came to a vote, those favoring more open space won out 6 to 4.
The ordinance mandates that 25 percent of every new subdivision be reserved as open space. The open space can include natural areas, buffers along creeks, hiking trails or even amenities like golf courses and picnic pavilions. The open space cannot be owned individually, but instead must be owned communally by the homeowners’ association or placed in a conservation easement with a land trust. Developers who don’t want to set aside open space can pay the county whatever the acreage would cost. The county would use the money to buy land and set it aside as open space somewhere in the vicinity.
The provision still has to pass muster with commissioners — along with the rest of the subdivision ordinance — before becoming law.
‘Taking’ worries some
Planning board members who were against the mandatory open space provision feared it amounted to an illegal taking of someone’s land.
“I’ve been told by developers you’re not going to take my useable land from me,” said Richard Frady, a planning board member from Cashiers. “A regulation has gone too far when all viable economic use of the property is taken.”
Planning board member Bob Carpenter researched the legality of the provision and decided it amounts to a “taking.” A taking is a government restriction that “deprives an owner of the economic use of his property,” Carpenter said.
“If we get sued over this, which we probably will, the county may have to pay that landowner for the 25 percent portion of their land. That concerns me,” Carpenter said. “I am for open space, but I am concerned about the economic impacts on this county from the lawsuits that will follow. I am concerned we might be putting this county in real jeopardy.”
Michael Egan, a consultant and attorney hired by the county to assist the planning board with writing the ordinances, disagreed that the open space provision amounts to a taking.
“I can’t say what a judge may say or do,” Egan said. But “it is my opinion the ordinance as drafted complies with the law. I think we are on pretty solid ground here.”
Egan said open space does not amount to an economic loss. In fact, open space adds value to the remaining lots, making up the difference.
“Open space has a greater value and the property around it appreciates over time more than conventional subdivisions,” Egan said. That would make it difficult for a developer to prove he actually suffered an economic impact, a litmus test of a takings lawsuit.
“Second of all, the property owner has to be deprived of all reasonable use,” Egan said. “You are not talking about taking all the property. They would have 75 percent of their property left to develop.”
Planning board member Glenna Buchanan backed Egan’s assessment.
“(Egan) was hired by the county to direct us in the right direction, to bring this ordinance to place,” Buchanan said. “I don’t think he would have led us down the primrose path of something that couldn’t be enforced or something we couldn’t do.”
What value open space?
Planning board member Joe Ward, a supporter of the open space provision, talked to planners in Pasquotank County, home to Elizabeth City, where a mandatory open space provision is in place. Pasquotank also has the opt-out provision, giving developers the option of a fee in lieu of open space.
“The builders and developers are just writing them checks to keep from fooling with it and developing their whole subdivision anyway,” Ward said.
Zac Koenig, a planning board member and president of the Jackson County Homebuilder’s Association, is against the provision, along with many aspects of the ordinance he feels are too burdensome on developers. But if open space is a go, Koenig suggested a standard price per acre countywide for the opt-out clause. Other planning board members disagreed and said it should be based on the market value for that particular location. Otherwise, the payment wouldn’t be enough to purchase the requisite amount of open space in the same vicinity.
Not one to give up, Koenig next suggested letting developers buy the requisite acreage themselves and giving it to the county — like an open space trade — but was struck down again.
If left up to developers, they would buy marginal lands to serve as the open space, and the land would be too far flung from the development it is supposed to serve, Ward said.
“A developer could say ‘over yonder five miles from this subdivision is your open space. You have to walk five miles down a gravel road to get to your open space,’” Ward said.
The discussion ultimately returned to the core philosophical debate over development regulations in general — the greater good versus the free market.
“I would not like it if somebody told me ‘there is 25 acres of your 100 that you can’t do anything with,’” Frady said.
“You aren’t telling them you can’t do anything with it,” countered planning board member Dan Pittillo. “It is called water recharge and it’s doing that for that community.”
A top argument for open space area has been groundwater recharge — allowing rainwater to soak back into the ground and replenish the groundwater table needed to sustain homeowners’ wells.
“We don’t want all our water removed from the natural system for wells and so forth. Open space is a way of getting to that. That’s what it’s all about. We are trying to retain the quality of natural water systems,” Pittillo said.
Planning board member Christa Brooks said she wouldn’t want to live in a development with open space. She would rather have a bigger lot than have communal open space. She said homebuyers should have a choice whether they want a subdivision like that or not.
Open debate on open space
The open space provision has a sordid history. It started out at 30 percent, was lowered to 5 percent one week, raised to 25 percent the next, briefly saw a return to 30 percent, and was lowered back to 25, where it has remained.
“We put it in, took it out, put it in, took it out. We are getting awful late in the game,” Ward said.
Buchanan bit the bullet and made a motion to approve the subdivision ordinance with the 25 percent open space provision intact.
“I know a lot of us have woken up in the wee hours of the morning and walked the floor and wondered whether we were the right people to be making these decisions that are going to impact the county and also set a precedent for the entire region,” Buchanan said.
But it’s too late to make a major change to the open space provision, she said.
“Let the commissioners review it. Let them have the public hearing. If they want to make changes to it, that’s their choice,” Buchanan said.
Koenig said time restraints are not an excuse for writing an ordinance with problems.
“We’ve heard a lot about ‘We don’t have time to do this,’” Koenig said. “We don’t have to approve something we’re not comfortable with. The commissioners can take it, but it doesn’t have to come with a the recommendation of the board.”
The subdivision ordinance — including 25 percent open space — was approved 6 to 4 and will be sent to commissioners with the recommendation of the majority of planning board members. The four “no” votes were from those who didn’t support the open space requirements, although some who voted “no” may have had other issues as well.