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Changing the rules: Jackson re-writing development standards amid new economic realities

coverBy Becky Johnson & Andrew Kasper • Staff Writers

For two years now, Jackson County’s planning board has systematically combed over and rewritten some of its development rules once hailed as the most protective — yet restrictive — in the state.

Aimed at reining in the previously unbridled and laissez-fare construction industry, the regulations put on the books six years ago ushered in a new era of oversight and standards.


They targeted shoddy and unsafe mountainside building practices that at times put dollar signs above the safety of out-of-state buyers flooding what was at that time Jackson County’s booming real estate market.

But the regulations went further than that, aiming to protect the long-term sanctity of the environment and aesthic views — and even made a philosophical statement about how many was too many when it came to gated second-home developments pocking the mountainsides.

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But that was then, and this is now. The bottom fell out of that real estate market. Lot sales evaporated; the demand for second-homes dried up, and the construction industry sputtered to a standstill.

From the start, critics had condemned Jackson County’s regulations as too restrictive, too burdensome and too anti-development. When the real estate crash came, they claimed the regulations had fueled the fire, making Jackson’s recession worse than it would have been otherwise.

Along came the election of 2010. Three newly elected Jackson County commissioners took over the majority on the county board, bringing with them a more tempered vision of what development regulations should look like.

The county planning board has since been revisiting all the regulations on the books, making them less arduous and more flexible.

Some changes have already been made. Some have been suggested but not yet passed by county commissioners, and others are still in process of being rewritten.

This week, The Smoky Mountain News dissects what changes have been proposed so far, and what is being considered.



Mountain hillside development

What: Construction on steep slopes must follow a slew of regulations, including density limits, viewshed protections, tree screening, caps on excavation and land disturbance, and cut-and-fill controls. They also prohibit building on ridge tops and mandate thorough engineering, soil and hydrological analysis.

Why: Ensure safe construction standards, mitigate the possibility of landslides, and protect mountain scenery, viewsheds and the environment.

Status: A page-by-page review of the ordinance by the planning board began in the fall, with proposed changes that lift some of the burdens on steep slope construction. A draft of those changes is expected to be passed along to commissioners to consider for final approval as early as July.

Ridge top construction

What it says now: The roof of a house or building can’t come within 20 feet of the ridgeline on a “protected ridge.” A protected ridgeline is defined as any ridge over 2,500 feet and 400 feet above the adjacent valley floor.

Possible change: Could be eliminated, allowing houses to be built directly on top of ridges.

Justification: It can actually be inherently safer to build on the relatively flat terrain of the ridge itself rather than a steep side slopes below the ridge. It can also be less environmentally damaging, requiring less cut-and-fill excavation than on a side slope. Also, the primary purpose of the ridge law — essentially protecting views of the mountains from below — could still be achieved by other means, such as house color and tree screening, according to Jackson Planning Director Gerald Green.

The rest of the story: Ridge top development can mar views by interrupting the natural silhouette of the ridgeline. Earth-toned house colors are currently recommended, but not required.

Housing density

What it says now: The steeper the slope, the larger lots have to be. There is a sliding scale for how big lots have to be:

• At least 2 acres on slopes of 30 percent.

• At least 2.5 acres on slopes of 35 percent.

• At least 5 acres on slopes of 40 percent.

• At least 10 acres on slopes of 45 percent.

Possible change: Could be eliminated or reduced, allowing denser development on steep slopes.

Justification: The density limits are too stringent and arduous for developers. Requiring such large lots on steep slopes makes it hard for developers to get a return on their investment and increases the cost of lots. Jackson County has among the most stringent slope density limits in the state.

The impetus for density limits on slopes — such as safety concerns or groundwater recharge — are adequately addressed with other regulations, such as engineering requirements or a separate groundwater recharge ordinance.

Rest of the story: Far from being settled, this is bound to be the subject of much discussion on the planning board in coming months. Planning Director Gerald Green said he personally recommends keeping some sort of density standards on steep slopes in place. But what should those look like?

“What is the reason for those density standards? Are they fair or reasonable? What are the goals we are seeking to achieve?” Green asked.

Minimum lot sizes increase the likelihood that a lot will have a suitable house pad on it, create landslide buffers in case construction on a neighboring lot compromises the slope around it, and potentially safeguard groundwater supplies.

The enormous lot sizes required on the steepest of slopes discourage building on them altogether, and make it more likely they will remain in a natural state as part of the open space that’s required in subdivisions anyway.

Slope threshold

What is says now: The ordinance applies on slopes greater than 30 percent.

Possible change: Increase the threshold at which the ordinance kicks in to 35 percent, or possibly as high as 40 percent.

Justification: The current threshold is so low that it applies to most of the land in the county (see map). It’s too much, according to some on the planning board, who say steep slope building issues or safety concerns don’t really come in to play until the slope hits 35 percent or more.

Rest of the story: The threshold for when a steep slope ordinance should kick in has been a point of contention in every county that’s passed steep slope regulations.

Increasing the threshold would make it easier to build on some mountainside properties that would no longer come under the purview of the law.

Haywood County’s steep slope ordinance doesn’t kick in until 35 percent. Buncombe County lowered its threshold, with portions of its steep slope ordinance now kicking in on slopes as low as 25 percent. Macon County’s proposed slope ordinance would kick in at 30 percent, although it has been indefinitely tabled.

Aesthetic components

What is says now: Homes on steep slopes can’t be “readily visible” from public roads below, accomplished by how a home is sited on a lot or with tree screening. Only 50 percent of the trees in front of a house can be cut to provide for long-range views, and 50 percent of the front of the house must be screened by vegetation.

There are several aesthetic “recommendations” that apply to slope construction, such as earth-toned house colors, muted outdoor lighting, natural landscaping design, and matching architecture to the contour of a hillside.

Possible change: Omit the many recommended guidelines and instead put them in a manual of suggested best-practices for mountainside construction. Meanwhile, the planning board stills need to determine the fate of the aesthetic screening requirements, which are mandatory currently.

Justification: The primary focus of steep slope rules should be safety, not aesthetics, and should include only laws that can be enforced.

Rest of the story: The original ordinance was aimed at preserving mountainside aesthetics, not just regulating hillside-building safety. Removing the recommended changes from ordinance and printing them in a widely circulated manual may actually increase adherence to the practices. But the potential still exists that parts of the ordinance now mandatory might be watered down.



Open space

What: Developers building subdivisions with 8 or more homes are required to set aside a portion of the tract as open space. Open space can be left natural or used for recreation, including even golf courses and tennis courts. It can’t be part of individual lots, but must be communally owned by a homeowners association or put into a formal conservation easement.

Why: Open space provides recreational opportunities, environmental and scenic benefits, groundwater recharge and habitat for wildlife.

Status: A new open space ordinance reduces how much land developers must set aside in a subdivision. The proposed changes have not yet been addressed by county commissioners, but they are expected to review them in February.

How much open space

What the old regulations said: Developers must set aside 25 percent of new subdivisions as open space.

Proposed change: Less open space would be required, with a sliding scale based on the number of lots in a subdivision. Between eight and 20 lots would require 10 percent as open space; between 21 and 50 lots would require 15 percent and more than 50 lots require 20 percent.

Justification: Requiring developers to set aside too much open space meant they couldn’t sell as many lots and effectively rendered a portion of their land worthless by designating it as open space. Giving up lots for open space either cut into their profit margin or forced them to raise prices on remaining lots to make up the difference. This drove up lot prices and made housing less affordable.

Large sbudivisions must have a greater percentage of open space, a recognition of “the impact that a 200-lot subdivision may have on the community,” Jackson Planning Director Gerald Green said.

Rest of the story: Supporters of open space claimed that developers weren’t being hurt, since the “open space” areas within a subdivision add perceived value in the eyes of buyers.

Making a trade

What the old regulations said: Open space was non-negotiable.

Proposed change: Instead of setting aside open space, developers could make a $30,000 donation to the Jackson County parks and recreation department. The county could use that money for whatever recreational purpose it wanted, be it summer youth sports programs or building a section of greenway.

Likewise, developers could offer up a tract of land somewhere else in the county as open space rather than within the subdivision they are developing.

Justification: Allowing developers to pay a “fee in lieu” of open space is a common practice in other places with open space criteria. A few acres of open space within a private subdivision may offer little actual value to county residents as a whole than the alternatives. The county would have to sign off on any substitute parcels for an open space swap. In large subdivisions with more than 50 lots, at least half the required open space must be within the subdivision itself.

Rest of the story: If the point of open space is primarily recreation, trading open space within a subdivision for recreation funding or a substitute tract might make sense. But the original school of thought — to include a smattering of open space within every subdivision — had more varied reasons. Open space improves aesthetics with natural areas, creates a patchwork of wildlife corridors and helps protect environmentally sensitive areas, which got first consideration when deciding what part of the subdivision to set aside.

But Planning Director Gerald Green said the planning board took a more limited view of open space for the purpose of recreation. If you want to create wildlife corridors, protect stream buffers, discourage steep slope building — that’s well and good but should be done with their own ordinances, not through open space criteria.

“We aren’t using a scatter gun approach to these anymore. We are crafting a specific ordinance to meet a need,” Green said.



Groundwater recharge

What: Regulations aimed at protecting groundwater aquifers that feed residential wells that are relied on as the sole source of drinking water by thousands of mountain homeowners in Jackson County.

Why: Rainwater needs to soak into the ground to replenish precious aquifers, but it can’t soak in if too much of a lot is paved over and built on. The standards were also born out of concern that too many homes in too close proximity would stress groundwater supplies and lead to wells drying up or not producing adequate flows.

Status: Groundwater recharge was mentioned in passing in the development regulations passed six years ago. The new planning board decided to create a stand-alone groundwater recharge ordinance.

County commissioners have not yet adopted the changes but are expected to consider them in February.

It was largely crafted from whole cloth by the planning department and planning board.

“Not many places have an ordinance that says the purpose of this ordinance is to get the water hitting and running off your house back into the ground,” Planning Director Gerald Green said.

Make it more inclusive

What the regulations say now: Rules aimed at groundwater recharge only apply to residential development on steep slopes as part of the broader mountain hillside ordinance.

Proposed change: A new groundwater recharge ordinance would apply to all new development in the county, including building on flat land and commercial development.

Justification: Creating a countywide groundwater recharge ordinance would result in better protections. Groundwater recharge should be a goal for all development, not just in residential steep slope construction.

Rest of the story: By addressing groundwater in a separate ordinance, it takes the wind out of the sails of the mountainside building rules currently being rewritten. Protecting groundwater was a pretext for some of the tougher slope development rules, such as limiting housing density and tree clearing. Critics claimed groundwater was a ruse for some of the tougher measures, whose real purpose was simply to limit building.

By tackling groundwater in its own ordinance, it may no longer be able to play a starring role in justifying slope regulations.

Impervious surface quota

What the regulations say now: Impervious surfaces — the portion of a lot that is paved over or built on — is limited to 6,000 square feet on lots with a 30 percent slope or greater. The driveway isn’t counted in the 6,000-square-foot cap.

Proposed change: The new ordinance has a sliding scale, starting at 7,000 square feet of impervious surface for lots less than one acre. Lots between one and two acres get 10,000 square feet of impervious surface, maxing out at 15,000 square feet for a lot greater than 10 acres. In the new ordinance, the impervious surface quota includes the driveway.

Justification: Driveways should be included in the impervious surface quota, rather than getting a free pass. Large lots are allowed more impervious surface, recognizing that there may be more driveway involved.

Rest of the story: It’s hard to say which is tougher — the new impervious surface quotas or the ones originally contained in the mountain hillside ordinance. It all depends on driveway length. Even though the new ordinance allows more impervious surface, driveways are now counted as part of that total.

The mountain hillside ordinance is still undergoing revisions, and whether the additional impervious surface criteria in that ordinance will remain intact — or be removed entirely since it is now been addressed separately in its own ordinance — remains to be seen.

Exemption clause

What the ordinance says now: The 6,000-square-foot limit on impervious surfaces for steep slope construction is non-negotiable.

Proposed change: Developers could get an exemption on impervious surface limits if they take steps to channel run-off back into the ground. Rain that hits a driveway or roof could be directed into a rain garden, for example, where it is absorbed back into the ground, rather than running off, thus allowing developers to up their impervious surface quota. A professional, such as a landscape engineer, would have to certify its functionality.

Justification: If the downside of impervious surfaces — namely that water runs off instead of soaking in — can be effectively offset with proper techniques, the goal is still accomplished.

“The purpose is to get water in the ground. There are many ways to do that. It is not just having a large lot size or limiting impervious surface,” according to Jackson County Planner Gerald Green.

Rest of the story: When it comes to commercial development with lots of asphalt, this aspect could encourage best-practices for channeling runoff from parking lots into rain gardens, bioswails, and other rainwater retention devices.

Carrying capacity

What the regulations say now: The density of homes on steep slopes is limited, justified in part by groundwater “carrying capacity.” How many homes with wells can be supported in a given subdivision?

Proposed change: The groundwater ordinance doesn’t limit density or otherwise address carrying capacity.

Justification: Exactly what the carrying capacity is for the unique “fractured rock aquifers” in the mountains is unclear. In the absence of hard science, the groundwater ordinance avoids density limits on the pretext of carrying capacity guesswork.

Rest of the story: Unlike flat lands, where there is a single, interconnected groundwater aquifer, the mountains have “fractured rock aquifers” — irregular veins or pockets of water in the bedrock, each acting as its own little aquifer that may or may not be connected to a neighboring one.

“Two wells could be 50 feet apart and drawing from different aquifers, or two wells could be 5,000 feet apart and drawing from the same aquifer,” Jackson Planning Director Gerald Green said. “We don’t have the science to do that.”

Whether density limits will remain intact in the mountain hillside ordinance remains to be seen.

Vegetation removal

What the regulations say now: How many trees can be cleared from steep slopes depends on lot size. Only 30 percent of existing vegetation can be cleared from one-acre lots on steep slopes, and only 5 percent can be cleared from 10-acre lots.

In addition, no more than 10,000 square feet of soil can be disturbed in the building and grading process for homes on steep slopes, aimed at limiting excavation to the house foot print and immediately surrounding area only.

Proposed change: The new groundwater ordinance has no limits on lot clearing or soil disturbance.

Justification: The science is inconclusive on whether tree cover helps or hurts groundwater recharge. Lawns might be just as effective at allowing rain to soak into the ground as forested areas, according to one school of thought.

Rest of the story: The new groundwater ordinance discourages the “wholesale removal of existing trees and shrubs,” since rain is far more apt to run off loose soil. But it is only a recommendation, not a requirement. Limits on how much of a lot can be graded and limits on tree clearing could remain intact in the mountain hillside ordinance — or not — depending on how the rewrite goes.

While one school of thought claims the deep roots of big trees suck up and deplete groundwater, another says the thick, compacted root mat of grass prevents rain from soaking in past the first few inches of soil.

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