Swain’s subdivision ordinance tabled after stiff opposition
By Julia Merchant • Staff Writer
Nearly 200 people packed a Swain County public hearing on Dec. 10 to voice their opposition to the county’s first-ever development regulations — a subdivision ordinance dictating road widths and grades.
The hearing was the final public comment opportunity before a vote by county commissioners planned for the following night. The force of the opposition, however, stunned commissioners and members of the planning board. Almost 40 people spoke for more than an hour, and none were in favor of the ordinance.
“It was surprising considering we didn’t have any participation from the public during the project, and whose fault is that? The public’s, or they didn’t realize what we were doing? I don’t know,” pondered John Herrin, a planning board member.
The planning board held several public hearings in the months it spent crafting the ordinance, each one attracting only a fraction of the audience that showed up at the Dec. 10 meeting.
Commissioners, surprised by the turnout, tabled their vote on the ordinance when they met Dec. 11.
Getting to this point
Swain County’s first planning board was appointed in February 2007 and got to work drafting a set of guidelines that would address substandard roads in the county. The lack of regulations for building roads meant that some roads in the county were impassable. In March nine homes in the Grass Ridge community of Swain County were destroyed in a wildfire, the most destructive in memory in Western North Carolina. Bryson City Fire Chief Joey Hughes said at the time that the narrow, curvy roads in the development hampered efforts to get to homes.
“We’d meet each other on the roads and one would have to backup, and the switchbacks were terrible,” he said at the time.
Development in Swain County had been completely unregulated up until the planning board was appointed.
“In terms of Swain County telling you what you can and can’t do with your place, it was pretty much nonexistent and this was the first step in trying to regulate development in Swain County,” explained planning board chairman Jonathan Douthit.
Over time, the ordinance evolved into more than just road and slope regulations. Planning board members realized that to put some regulations in place, additional language had to be included explaining the regulations, said Douthit. This led to a more complex ordinance than was initially sought.
“Our planning board was given a narrow scope to address road widths and grades. All the other terminology and procedures and all that, I’m not exactly sure where all that came from. We did the best we know to do, but you’ve got this regulatory montage of junk there that is almost staggering,” said Herrin.
In the end, Herrin believes the regulations were too much for the people of Swain County.
“We were going from an unregulated area to a very strict regulated area, and we were talking about a death sentence for the economy of Swain County because they wouldn’t necessarily have known how to react, the shock of it would have maybe damaged our economy,” he said.
Herrin also thinks people didn’t understand that the ordinance is a living document, subject to change and amendments over time.
“The way it was being portrayed, it was a take it or leave it kind of thing, which was as far from the truth as I understood,” he said.
Kris Boyd, Haywood County’s planning director, had his own thoughts about the opposition Swain’s ordinance faced. Boyd led a group that worked for 15 months to craft Haywood’s subdivision ordinance, which is nearly identical to Swain’s.
“I think people are scared of the unknown,” he said.
An independent culture
The final ordinance that was presented to commissioners is similar to that in place in other mountain counties. In fact, much of the ordinance was based off of one in Watauga County, which has had its subdivision ordinance since 1973.
“I think it would be unreasonable to think Swain County wouldn’t go the way of other counties. One day we will eventually align with most of the other counties in North Carolina,” Douthit said.
Considering the amount of opposition Swain’s first ordinance received, that day may still be a ways off. But why does Swain County lag behind other mountain counties in enforcing development regulations?
The answer isn’t simple, and it starts by looking at Swain’s unique culture.
“People in Swain County have always been fiercely independent and have been reluctant to have people tell them anything,” Douthit explained.
This streak of independence and a firm belief in private property rights can be partly traced to the county’s history of having its land taken away by the federal government — first for the Great Smoky Mountain National Park and then for TVA’s Fontana dam and lake. And it’s still very much prevalent today.
“We have been robbed of our land so much already that I do not want to restrict our local people on our land any more than what’s been taken away from them,” said David Monteith, a county commissioner.
“I don’t want somebody who don’t know what they’re talking about putting ordinances on me that aren’t enforceable,” agreed Larry DeHart, a local real estate broker and surveyor. “You’ve seen in Jackson County where they can dictate the color of houses. That’s not acceptable. If I have bad taste, that’s none of your business,” he said.
Jackson County borders Swain, and recently passed some of the strictest development regulations in the state.
Tommy Brooks, a local contractor, echoed DeHart’s view of protecting private property rights.
“I can understand maybe making sure these subdivisions are done right, but I don’t think it should spill over to private property,” he said. “Infringing on the rights with private land ownership is not the way to go.”
Swain County also has a history of lacking economic development. For years, it’s ranked among the poorest counties in the state. This has presented the county with a paradox — let development come in at almost any cost, or try to regulate it and risk losing jobs and tax money in a struggling area?
“A major concern is if we get too stringent then we’re going to lose employment, tax base and other things,” said Brooks, who feels the subdivision ordinance “will definitely be a deterrent to development.”
“I see the values of our land going up, and folks like me have held on to this property for many generations and all of a sudden some of these folks have a chance to cash in and the county commissioners want to kick them in the teeth. We need development in Swain County. We need to bring as many people into the area as we can,” said DeHart.
Monteith said he would have voted against the regulations because they were “just too damaging to the county. As they were written they would render land useless.”
But Douthit defended the planning board’s actions. He said the regulations would ultimately protect the county against unchecked development with potentially disastrous consequences.
“Most of the developers didn’t choose to make Swain County their home. They came in here to make some money and move on, and people with that at heart rarely care about the mess they leave,” he said.
In truth, there is little evidence to support the argument that development regulations stymie growth. In some cases, a strict set of regulations about to be passed will lead to a rush of permit applications from developers seeking to get grandfathered in. This hasn’t happened in Swain County, where permitting supervisor Ervin Winchester said the number of permits he’s issued this year has been average compared to other years.
In nearby Haywood County, a subdivision ordinance has been in place since 2004 (the current one actually replaced an older, much more simplified version). Boyd said rather than the regulations slowing development, quite the opposite happened — the number of approvals for building permits increased in the 12 months following the adoption of Haywood’s ordinance. The county has issued more permits in the last two years than ever before.
“It absolutely did not stop it,” Boyd said.
Boyd said in the years since the ordinance was adopted there has only been one request for a variance or exception to the rule. The developer ended up figuring out a way to meet the requirements, and he dropped his request.
In Watauga County, the area that Swain based much of its ordinance off of, there has been only a single lawsuit since regulations were adopted there in 1973, Douthit said.
Boyd agreed with some critics about the one downside to Haywood’s subdivision ordinance.
“(It) has driven up the cost of property a little bit. We’ve seen a direct increase in the cost of raw land,” he said.
Still, Boyd believes the benefits of Haywood’s subdivision ordinance far outweigh the potential costs of not having one.
“You have access for emergency services, less steep roads, and more stable slopes. We feel like we get a better benefit than the minor cost associated with (the ordinance),” Boyd said.
Other arguments have come out against Swain’s subdivision ordinance. One is that it’s not flexible enough.
Herrin, a planning board member, admits that even he sees validity to that complaint.
“It should be dependent on what the terrain of the ground is,” he said.
For example, one might need a 100-foot right of way in a steep place where more land will have to be leveled to build a road, but less right of way if the land is flat, Herrin said. Swain’s ordinance calls for a 45 foot right of way.
“It’s hard to just lay out something in stone and comeback and you have some flat property with a big right-of-way. If you’re not careful with an ordinance, it’ll be chiseled in stone,” Brooks said.
Brooks, though, also cautioned against making an ordinance too flexible and easy to amend.
“Leaving something open and adding to it makes it harder to meet,” he said.
Additionally, some oppose the fact that the subdivision ordinance dictates what families can do with land passed down to heirs. In Swain, it’s a common practice for land to be passed down through generations, and many say it’s not fair that family-owned land should have to comply with the rules.
“I very much believe that I can manage my own property and do it well if I want to give it to my children and grandchildren,” DeHart said.
The issue is important because many subdivision ordinances require certain road widths and grades once land has been passed from one owner to another. Without exclusions for property passed down to heirs, the children of a landowner could be forced to spend thousands of dollars upgrading roads or re-constructing culverts once they have inherited land. Haywood County has gotten around this argument by providing exclusions for the family division of land. However, Douthit said he couldn’t come up with a reason to exclude families in Swain County.
“I looked and looked and looked for a legal justification for splitting up land between families, and I couldn’t find it,” he said.
“I know some families around here are large landholders and they’re looking forward to leaving it to their kids, but just because it’s their land, and their kid, it doesn’t mean you should be able to do things that cause safety issues for your neighbors downslope or downstream,” he added.
Another argument against the subdivision ordinance is that it’s not necessary — state and federal regulations currently in place are adequate to address issues of growth and development.
“There are regulations already in place that probably cover most of what goes on, it’s just that they’re not necessarily enforced,” Herrin said.
“I think there (are) ample ordinances and regulations by the state and federal government in place,” DeHart agreed.
DeHart said that the county hasn’t had ordinances in place for years, and they’re doing fine without them.
“In the 50s and 60s growing up here, we were not an environmentally sound community. There was a lot of erosion (and) the creeks ran red. It’s not like that now and we’ve accomplished that without an ordinance,” he said. “Let’s just say we’re doing very well without it, and we’re making great strides environmentally.”
Commissioners will meet with the planning board sometime in January to discuss reworking the subdivision ordinance. Some want the regulations scrapped altogether, but many others agree that some development guidelines are needed.
“A lot of people (at the public hearing) stood up and said we all love the mountains and we don’t want to see them disappear. There definitely needs to be guidelines for people to go by,” Brooks said.
“We need something in place that helps the county grow smartly,” Herrin agreed.
Herrin also pointed out that the original problem — getting access for emergency vehicles on county roads — technically still exists without the ordinance.
“The big thing for me is if we ever get one guy hurt because he’s got to go to someone’s house and put out a fire or pick up a patient, that blood is on everybody’s hands,” he said.
Douthit said reaching any kind of solution will take time and compromise — and the end result won’t please everybody.
“Nothing’s going to please all the developers and nothing is going to please all the conservationists,” he said.
“You start with something you can justify and you start with a reasonable approach to what you’re trying to regulate, and it gives people a taste, and they say this isn’t tremendously draconian and this isn’t too lax, and you get people used to being told that no you are not the master of all you survey,” he said.