After months of hard work, Macon County’s steep slope committee shared its recommendations with the county’s planning board last week.

Now the question is whether the committee’s work will survive with its core principles intact if or when it is adopted by the county commissioners.

“There is going to come a time that the commissioners are going to have to step up to the plate,” said County Chairman Ronnie Beale. “This is the first opening of the book.”

A committee with a cross-section of building and environmental interests met 10 times over a period of eight months, but the initial meetings defined the mission.

“During the first two meetings we determined we would try to approach this from a public safety standpoint and from the standpoint of minimizing property damage,” said Al Slagle, the steep slope committee chairman.

That decision meant the committee would not consider regulating slope development for environmental or aesthetic reasons, said committee member Susan Ervin, a member of the planning board.

The recommendations include two sets of standards: one for slopes between 30 and 40 percent and one for slopes over 40 percent. Developers will have to hire an engineer when building on the steeper slopes, but in the middle window, county staff will perform in-house inspections.

The two-tiered approach was an attempt to minimize the cost burden on developers and the county, but Slagle said the committee also determined the county would need a more robust oversight apparatus.

“One of the things we decided was if we’re going to try to level the playing field, it’s going to take some additional county personnel to enforce things,” Slagle said. “Right now a lot of enforcement is based on complaints, and we felt we needed a way to track grading and land disturbance projects.”

A group of grading contractors, developers and builders attended the meeting to learn about the committee’s recommendations. Many of their questions centered on how the regulations would be enforced and how they would shift the cost burden for building on mountainsides.

One local builder asked the committee to consider the financial impact of their recommendations, citing a recent single family home project that required close to $20,000 in additional costs due to engineering fees. Others said the building industry couldn’t support more regulations in the poor economy.

Paul Shuler, a grading contractor who sat on the committee, explained the predicament of having no regulation over steep slope projects.

“I go out here and give a man a price according to the regulations and then this other yahoo comes in and puts a road in for a third of the cost,” Shuler said. “And it washes away three months later and they ask me to come fix it. We’re trying to get in on the same playing field so the roads don’t wash away.”

Stacey Guffey, former planning director and a member of the slope committee, put the discussion in perspective.

“You have to ask ‘What does it cost the builder? What does it cost the developer?’ But you also have to ask ‘What will it cost the taxpayers if we don’t do this?’” Guffey said.

Lewis Penland, chairman of the planning board, was pleased by the lively discussion inspired by the committee’s findings. He applauded the concerned developers and builders who voiced their opinions. He said the regulations are really aimed at contractors who exploit the system.

“I think the unfortunate thing about tonight is the people who should be here aren’t here,” Penland said. “I’m as mountain as anybody, and I don’t like regulation, but I can’t see any other way to fix the problem.”

The county planning board will debate the committee’s findings during next month’s meeting. The planning board can endorse all or some of the recommendations and decide whether to send them on for the commissioners’ consideration.

Commissioner Bobby Kuppers, the county board’s liaison on the planning board, applauded the committee’s work.

“It’s easy to do things that are easy. It’s easy to pick the low hanging fruit,” Kuppers said. “What this committee did was climb up the tree a little bit.”

Kuppers also foreshadowed the difficulties facing the commissioners as they balance the slope committee’s recommendations and the concerns of developers.

“You can’t keep dodging a decision just because it’s hard,” Kuppers said.

Chairman Ronnie Beale said steep slopes need to be dealt with, but he didn’t commit to a timetable.

“I think that steep slopes are one of those things we’ll have to address,” Beale said. “Is this the right time? I don’t know. But I don’t know that there will ever be a good time.”

Macon County’s proposed steep slope rules

For any development on slopes over 30 percent grade:

• Cut slopes over 8 feet in vertical height cannot be steeper than 1.5:1 ratio.

• Fill slopes over 5 feet in vertical height cannot be steeper than 2:1.

• No cut-and-fill slope can exceed 30 vertical feet.

• Fill must be compacted and cannot contain stumps and logs.

• For development on slopes between 30 and 40 percent grade, an engineer is not required but a site plan, showing the areas to be graded, cut/fill heights, drainage plan, is required.

• On slopes greater than 40 percent, developer must hire an engineer or design professional to create a certified plan. Engineer also required on slopes greater than 30 percent if they lie in high or moderate landslide hazard areas.

• The ordinance applies only to the portion of a tract that exceeds the slope threshold, not the entire tract.

Macon County was the first to be targeted under a statewide initiative launched in 2006 to map areas prone to landslide in the mountains.

Over a one-and-a-half-year period, a team of state geologists led by geologist Rick Wooten surveyed 770 locations in Macon County and found 165 landslides evident from photo records between 1951 and the present.

The bulk of the slides have occurred on public land, on the highest reaches of the mountains. Landslide risk increases critically at 22 degrees of slope or right around a 40 percent grade, according to the data collected during the mapping project.

Macon County was the first to be systematically mapped because of the Peeks Creek slide, which killed five people when it ripped down the mountain for 2.5 miles. Watauga County came next because it has the most landslides recorded, followed by Buncombe because it has the most people. Jackson County is slated to be surveyed this year, with Haywood County next in the queue.

The landslide hazard mapping program creates a comprehensive database of historic slides and potential slide pathways that can be integrated with a county’s GIS maps. They can help emergency management officials plan evacuation procedures, but they can also help shape policy.

While Wooten said he is not in the business of making policy recommendations, he did have a definite idea of what his research has taught him.

“One thing that comes through in all the work we’ve done is there has to be a wholesale approach to where and how people build on steep landscapes,” said Wooten.

There’s no way to prevent landslides in the mountains, but there is a way to make their impact on humans more predictable.

That’s the message that N.C. Geologist Rick Wooten and the staff of the North Carolina Geological Survey have impressed on the counties in which they have compiled landslide hazard maps. But while the landslide maps offer a vast amount of useful information for county planning offices and elected leaders, they don’t come with any regulatory directives.

That’s why two nonprofits, the Little Tennessee Watershed Association and South Wings, organized a fly-over of Macon County’s most significant landslides last week.

“You forget there are people who live below who can be killed,” said Jenny Sanders, executive director of LTWA. “It’s easy to get caught up in the language of the law rather than what’s really at stake — which is public safety.”

Close on the heels of a headline-grabbing landslide in Maggie Valley, the timing for the trip couldn’t have been better.

Macon County is currently at a crucial point in the process of developing a steep slope ordinance that would set firm guidelines for where and how developers can build on mountainsides.

Macon Planning Board Chairman Lewis Penland –– a grating contractor and a developer by trade –– is worried that the fallout from landslides will result in a blanket state-level solution if counties don’t find their own answers.

“Everybody talks about property rights but when your mountain falls on me, that’s a problem,” Penland said. “If we don’t handle this issue then the state will, and I’d prefer we do it ourselves.”

Penland said he was disappointed that none of the county commissioners participated in the fly-over and he worries they won’t support a strong enough ordinance.

“I just hope that Macon County has wise enough commissioners to realize that they represent 35,000 people and not make the mistake Haywood County made,” Penland said. “The staff needs a little support. They’ve been great. It’s time to take the leash off and let the dogs hunt.”

A steep slope committee has spent the past year drafting proposed regulations and will submit its recommendations to the planning board on Thursday, Feb. 18. The ordinance requires developers and graders to hire a certified engineer when building on slopes that exceed a certain threshold. Determining that threshold has been a matter of debate for the committee, however.

Under the final recommendation, the full weight of the ordinance will apply on slopes exceeding a 40 percent grade, according to the committee’s chair, Al Slagle. But the ordinance also creates a middle ground on slopes between 30 and 40 percent. In those cases, the county would have discretion to make a developer comply with various aspects of the ordinance. The landslide hazard maps will weigh heavily in the decision by county planners on how to treat developers falling in that middle range.

Jackson and Haywood counties already have steep slope guidelines. Jackson County’s steep slope ordinance applies on any slope above 30 percent grade and Haywood’s on slopes above 35 percent. Swain County has no steep slope ordinance.

One of the issues that has arisen with respect to the Maggie Valley and Wildflower slides is the financial burden placed on counties when slides originate on private property with a bankrupt owner.

Because homeowner’s insurance doesn’t cover landslides, there is a real financial threat to downhill property owners. Only strong policy guidelines can offer protection in those instances, by imposing security bonds or penalties. That’s a part of the discussion Sanders wanted the stakeholders to understand by actually seeing the proximity of homes to the path of recent slides.

“People think we’re trying to over-regulate or step into people’s lives, but it’s really about protection,” Sanders said. “Those people will likely end up in financial ruin and there needs to be something in place to protect them.”

Macon County Chairman Ronnie Beale knew the county had a problem when two young working mothers contacted him directly following the closure of a daycare and unable to find openings elsewhere.

“They were saying ‘We don’t have anywhere to send our children, so what are we supposed to do?’” Beale said.

Beale chartered a committee in February of 2009 to explore the causes of Macon County’s suspected childcare shortage and last week the group released its findings.

The verdict? Macon County doesn’t have enough affordable, quality childcare, particularly for those under 2 years old.

Chuck Sutton –– executive director of Macon Program for Progress, a federally funded nonprofit that provides childcare for 315 children –– chaired the committee. Sutton said he and the other people with experience in childcare had a strong feeling about what they would find when they began the study.

“I think there were several of us that had the feeling there was an existing problem but we couldn’t put numbers to it,” Sutton said.

In rural areas, the low population density makes it difficult for daycare providers to turn a profit because the costs of hiring licensed personnel and paying for insurance are too high. Meanwhile, for working parents paying $125 a week per child for daycare, throw in a mortgage and car payment and they can barely afford groceries.

“You can’t really drive the price down because that’s what it costs to care for a child properly,” Sutton said. “So the providers and the parents are working against each other.”

The study, using 2008 population statistics, showed there were 1,147 children under 2 years old in Macon County. Working from the assumption that half were cared for by a stay-at-home parent or other family member, the study pegged demand in the county at 574 slots for infants and toddlers.

But the current capacity is well short — only 210 spaces, the majority of which are reserved only for low-income families. That means over 300 families are stuck on waiting lists or are sending their children to unlicensed providers.

The county enlisted the resources of a long list of state and regional agencies in the study –– including Department of Health and Human Services and the Southwestern Child Development Commission –– and amassed a thick volume of findings that pointed to the reality that good childcare is an important part of early development.

Macon Program for Progress, Sutton’s organization, supplies the bulk of the slots for children under the age of 2, but the federally funded programs are only available to families that meet federal poverty guidelines.

The result is that the families in the middle suffer.

“Our programs are income-based and what we find is the families who are just above those income guidelines are the ones who are most at a disadvantage in this system,” Sutton said.

Now Sutton and the other members of the committee are hoping the county can find a creative solution to fix what is essentially a broken childcare economy.

Sutton hopes they can follow the lead of Jackson County, where Harris Regional Medical Center has worked in conjunction with private businesses to provide a daycare facility.

“We want to see some business or industry-based employers take up the call and say they’re going to invest,” Sutton said.

Public-private partnerships are another model, like a childcare facility at Haywood Community College that serves as a teaching institution for students in early childhood development. Also in Haywood, the school system partnered with a childcare center where teachers are given first priority.

Beale said the county would be willing to work on providing a space for a private daycare provider and would continue to work with the state to see if there was any money available to drive a solution to the problem.

“We’ve done the report. We have the need. Now what?” Beale said.

Macon

The Macon County board has four commissioners and one chairman. This year, the seats of two commissioners and the chairman are up for re-election. A party primary in May will narrow the field to one Democrat and one Republican for each of the three seats. Each commissioner represents a geographic district in the county, but the county chairman is elected at large.

With three seats on the Macon County board up for grabs this year, all three of the incumbents have said they will run again. Macon County Chairman Ronnie Beale, Franklin-based Commissioner Bob Simpson, and Highlands-based Brian McClellan will seek re-election.

Beale said he wants to finish work the current board has started.

“I’ve been a part of implementing a lot of things from the mental health task force to the completion of the new school, and there’s still some things I want to see through,” Beale said.

Beale said the economic development commission is working well in Macon County and taxes have remained among the lowest in the state. He is concerned about the impact of declining retail sales tax revenue on the county. Beale said has taken pride in the capital projects completed during his last term –– including the new early college building at Southwestern Community College, a series of school upgrades and the modification of the old library into a center for the elderly.

Commissioner Bob Simpson has also said he will seek re-election to a third term on the board.

“In this economy we’re going to have to have experience on the board to keep taxes low,” Simpson said.

Commissioner Brian McClellan was reached briefly just prior to press deadline and confirmed he intends to run again.

Comprehensive planning is supposed to be, well, comprehensive. But as Macon County leaders are finding out, it’s not that easy to get the public’s opinion on how its government should work for the next 20 years.

After a three-month effort aimed at obtaining input on the county’s comprehensive plan, Derek Roland, Macon’s planning director, has only received 303 completed surveys in a county of some 35,000 permanent residents and thousands more second-home owners.

Meanwhile, the subcommittees charged with identifying the issues and action plans that would give shape to the final planning document have been plagued by poor attendance and a lack of a clarity concerning their mission.

“We were notified at our last meeting that there was some disconnect as to what the final outcomes should be,” Roland told a gathering of the subcommittees last week. “I’m hoping we can clear that up before you all leave here tonight.”

The slow start is a testament to the difficulty of the task at hand. The goal of the comprehensive plan is to create a guide for policy decisions concerning the county’s growth. It is addressing 10 different categories ranging from recreation, to land use, to education, to healthcare.

The project was commissioned in January 2009, but hand-picked subcommittees didn’t meet for the first time until October, when they began the process of coming up with recommendations in their specific areas. Since then, the sub-committees have struggled to wrap their heads around the project.

Last week, the planning board convened with the subcommittee chairs to regroup and signal a new beginning to the comprehensive planning process.

Chris Hanners, chair of the public services and economic development committee, was frustrated by the poor attendance of his committee members.

“It’s hard to make progress from month to month when you spend half the meeting getting people up to speed on what happened the last time,” Hanners said.

Hanners also said he wasn’t sure what the committee’s final product should look like.

Roland has taken the comprehensive planning process seriously. He has traveled to meetings in Sealy, Cowee, Upper Cartoogechaye, Pine Grove, Otto and Nantahala to explain why this process matters, why it will be different from the county’s two previous failed attempts.

The focus on public input has been his most compelling argument. But after all the meetings, less than 1 percent of the county’s residents have responded to the survey, which is available on-line and at various county and municipal offices.

Roland has already begun crunching the numbers the surveys have yielded and they are interesting, but, ultimately, of little use.

For instance, 72 percent of county residents believe protecting rural character is very important and only 51 percent think the same of recreation facilities.

As planning board member Carl Gillespie, a fifth generation native of Macon County, suggested, the numbers aren’t a clear representation of the public will.

“We need to bear in mind we’re sampling an extremely small percentage of people and we don’t even know what kind of cross-section we’re getting,” Gillespie said.

County Commissioner Bobby Kuppers urged the subcommittee members not to get discouraged.

“The dialogue, the discussion, the identification of problems is worthwhile on its own sake,” Kuppers said. “To this county, this effort means something.”

Planning Board Chair Lewis Penland also took the long view.

“It will always be a work in progress. To be a success it will have to be,” Penland said.

Penland urged the subcommittee members not to get discouraged before their work began in earnest.

“This is new to all of us, and I don’t want people to get discouraged,” Penland said. “The hardest part with a committee like this is to get engaged.”

Penland hailed the planning board’s success in creating a subdivision ordinance for the county as a sign that the comprehensive plan will work.

“The neatest part of all this is that growing up it seemed like there were a few people making decisions in this county and now the tide has changed and the people have the input,” Penland said.

Penland said the surveys were only one layer of the public input process.

“All we can do is deal with what we get,” Penland said. “I don’t know any other way. You can lead a horse to water but you can’t make ‘em drink.”

But it was Roland who addressed the practical side of the planning process.

Using the Henderson County plan –– which has won awards in Raleigh –– as a model, Roland methodically and concisely but energetically outlined the process, including a timeline and a set of concrete outcomes for the subcommittees.

For example, one of Henderson County’s recommendations is to “reduce farmland loss,” and the action strategy was “to consider the costs and practicality of establishing a farmland protection fund for Henderson County.”

The subcommittee chairs left with a clear understanding of what they were being asked to produce and the planning board announced they would extend the public input deadline until March 1 in the hopes of making a last hard push to get the survey numbers up.

“The presentation Derek gave left us with a clear direction, and as of now, I really feel good about the process,” Hanners said.

The subcommittees have the responsibility of settling on a final timeline for their recommendations by the planning board’s May 18 meeting.

The Upper Cullasaja Watershed Association and the Cullasaja Club are pursuing state funding to restore the headwaters of the Cullasaja River. The partners have applied to the North Carolina Clean Water Management Trust Fund for money that would allow them to clean up 4,300 lineal feet of impaired stream located on the Cullasaja Club’s golf course in Highlands.

The project would restore native habitat and streambed structures as well as mitigate the impact on water temperature and runoff effluents caused by the golf course.

Highlands Mayor David Wilkes said the project could be the start of a broader movement aimed at restoring the Upper Cullasaja headwaters between Lake Ravenell and Lake Sequoia.

“One of the problems with the river that’s run through these communities that have golf courses is we’ve altered the stream habitats,” Wilkes said.

Wilkes said the project would work to re-route the stream in a way that would insulate it from the temperature fluctuations caused by water released directly from ponds on the golf course.

“Their intent is just to clean up that section of the river but you would hope that as the work is finished there that the next property owner down the line would recognize the value of the effort,” Wilkes said.

The entire project would cost an estimated $755,710 and would require the permission of the U.S. Army Corps of Engineers.

On Monday night the Macon County Board of Commissioners adopted a resolution in support of the effort and the Highlands town board is expected to adopt a similar resolution at its meeting later this month.

A year ago, state officials promised a group of Macon County residents that they would get a cost estimate for what it would take to rehabilitate the McCoy Bridge, a single lane truss bridge that dates from the 1930s.

That cost assessment hasn’t happened yet and now the North Carolina Department of Transportation says the project has dropped in priority because of the state’s budget crisis.

Residents want to save the McCoy Bridge because of its unique character and aesthetic value. The NCDOT, meanwhile, has argued that the bridge is not historic and needs to be replaced with a two-lane bridge with greater weight-bearing capacity. The bridge is seen by some as a symbol of the community’s rural character, something that could be comprised if a bigger bridge replaced it.

In response to opposition from residents to the NCDOT’s plan to replace the bridge, the agency promised it would provide a cost assessment for the bridge’s rehabilitation within the year, and a year is now up. Steve Abbot, communications director for the NCDOT, said that assessment hasn’t been completed and could not provide a concrete timetable for its completion.

The bottom line from the NCDOT’s perspective is that the state’s budget crisis and the I-40 rockslide have made the bridge a low priority.

“The project has been delayed due to the State’s financial crisis and other projects that are funded have been given higher priority for our resources,” Abbot said. “Until we work through the current issues, we will not be setting the project schedule.”

According to the DOT, the most current cost estimate for replacing the 290-foot bridge and its roadway approaches is $2.424 million, a figure that does not include any right-of-way acquisition or utility relocation cost.

Doug Woodward, a resident who has championed the McCoy Bridge cause, argues the bridge should be saved and that there is no good reason to put in new two-lane bridge on an access route that only carries about 300 vehicles per day.

School buses and emergency vehicles don’t use the bridge because the NCDOT has downgraded its weight-bearing capacity to three tons, roughly the weight of an SUV.

Pam Williams, the NCDOT’s engineer for the project, said the disagreement between her department and the residents boils down to a policy issue.

“DOT has a policy of not putting in one-lane bridges and they wanted us to look at the possibility of doing that,” Williams said.

Williams said the bridge has been up for historical designation three times and not been included on the register. Without a historic designation the bridge is not likely to be maintained in the state road system. As of 2009 there were only 36 truss bridges left on NCDOT-maintained roads.

“They do consider it an historic and iconic bridge and I understand that, but it is a truss bridge and truss bridges are considered fracture critical. In North Carolina we don’t build truss bridges anymore,” Williams said.

Abbot said that in the case of bridges with strong sentimental value, the NCDOT often uses its bridge relocation and reuse program to move the bridge to a place where it can be maintained and utilized by private or public entities for non-highway uses.

McCoy Bridge came into the NCDOT system in 1960 but it is believed to have been built in the late 1920s or early 1930s, according to Woodward. It is an example of a Pratt Through Truss Bridge, a common technology for early steel span bridges.

Woodward understands that the NCDOT doesn’t want a single span truss bridge in its system, but he pointed out that many states have found ways to preserve and utilize truss bridges. Iowa has over 1,400 truss bridges in operation, Woodward said.

To Woodward, the issue comes down to logic. The bridge is beautiful and it serves a small community with little potential for traffic increases. Why get rid of a nice bridge with historic value when a new bridge isn’t needed?

“If it can’t be rehabilitated adequately there are other ways to bring it up to a load-bearing standard that is not limiting school buses or emergency vehicles,” Woodward said. “The DOT would put a $4.6 million bridge in that location with 80 percent federal funding which would essentially be a concrete slab.”

In 2005, two investment partners from Atlanta broke ground on a massive project on the slopes of Cowee Mountain in north Macon County with hopes of creating a new paradigm for mountainside development in Western North Carolina.

However, four years later, the road system is plagued by landslides, many of the lots are in foreclosure and only two homes have actually been built on the 2,500-acre development.

When a mid-November rain storm dumped three inches in Macon County, Thompson Road, a key road through the development, gave way, triggering a landslide, burying a home site below under a half-acre of debris. More significantly, the slide raises questions about the stability of the remaining 30 miles of roads in the development. After the slide, Macon County Emergency Services Director Warren Cabe contacted the North Carolina Geological Survey to ascertain if the road collapse posed a threat to property owners down slope from the Wildflower development.

“After we noticed there was a slide there, we notified property owners in the valley just so they could know what was going on above them,” Cabe said. “We wanted them to hear it from us instead of reading it in the newspaper.”

The study conducted by North Carolina Department of Environment and Natural Resources Senior Geologist Rick Wooten concluded that the area affected by the slide was still unstable.

“The lowermost portion of the deposit spilled over a steep road cut for a driveway above Thompson Road. Large trees, many with root balls still attached, were pushed over, snapped off, and partially buried by debris flow material in the toe area,” the report read. “Unstable embankment material remains below the eastward and westward extensions of the main scarp. This unstable material will probably continue to move.”

 

Geologist vs. developer

The report and a subsequent mapping effort undertaken by state geologists and Macon County’s GIS mapping team also showed that the road system in Wildflower was compromised to some degree in more than 20 separate locations.

Wooten’s team recommended that landowners below Wildflower be notified of the risk of future slides and suggested that other roads in Wildflower would likely continue to move.

“The other failure areas along the Wildflower development road network have the potential for continued movement, especially associated with heavy rainfall events,” the report said.

After four years in business, the 250-lot development boasts only two finished homes and with a number of its home sites already in foreclosure, the last thing it needs is a major issue with its road system.

Brian Garner, general manager of Wildflower, said the failure of Thompson Road was an isolated incident that resulted from the emergence of a wet spring.

Garner said Wildflower would hire a geo-technical engineer to evaluate the situation as well as take additional measures to prevent erosion in the future. He said the road failure occurred on a portion of the property that had yet to be developed, so it didn’t pose a risk to the investments of property owners in Wildflower.

When asked whether he thought the roads in the rest of the development were sound, Garner pointed to the fact that the county’s erosion control department had signed off on them.

“I asked the county that and the county said they were originally put in according to the guidelines,” Garner said.

 

Development without regulation

When Atlanta-based developer Robert Ullmann unveiled his vision for Wildflower through his company Ultima Carolina LLC four years ago, he promised a full-service, upscale residential community.

“There’s a reason people are drawn to these mountains,” said Ullman in Wildflower’s press materials. “The wrong kind of development can destroy that; the right kind can help to preserve it. This is not just about higher elevations. It’s also about higher standards.”

Right from the start, though, the development faced opposition from local residents who felt it would strain the county’s resources and ruin Cowee Mountain. Ullman appeared alongside Stacy Guffey, the county’s planning director at the time, in a public meeting to make his case.

“You are not going to avoid development, and you are not going to completely prohibit development,” Ullman told the crowd. “If you think Macon County won’t change, I can assure you it will.”

Ullman said the best people could hope for was to pass some land-use regulations to prevent irresponsible developers from ruining the mountains.

“He did make the point at that meeting that the county was wide open,” Guffey said. “And that if we had had rules, he would have abided by them.”

While that conversation seems prescient now, the fact remains that when Wildflower went through its initial permitting process the county didn’t have subdivision or steep slope ordinances. Cowee Mountain is a steep area covered with colluvial soil that is essentially low-density rock and soil debris, and prone to instability.

In order to build a road system, Wildflower had to comply with the county’s erosion control ordinance, and the county signed off on a series of erosion control plans for various parts of the road system. The erosion ordinance was narrowly tailored to keep muddy runoff out of creeks but didn’t deal with underlying road construction methods.

Guffey claims stability problems with the road system were already evident at the time, but the county lacked regulations to do anything about it.

“The truth is that when I worked for the county, a lot of us knew there would be problems with those roads,” Guffey said. “It’s really one of the reasons we felt such urgency to create a subdivision ordinance.”

Macon County now has a subdivision ordinance that includes road standards and a surety bond to guarantee that developers meet those standards, allowing the county to bill a developer if it has to go in and repair shoddy work. A committee is also currently in the process of drafting a steep slope ordinance that would create standards for soil compaction, cut and fill slopes, and road grades.

Guffey, who works as a consultant now, addressed the slope development committee on the implications Wildflower’s road failure has on the county at a meeting last week. His message was clear.

“It’s a private property but when you see it overlaid on a potential landslide map... if the potential is there it’s there,” Guffey said. “There’s not just one slide, there’s a number of them. What will they do to the streams that run down through there onto other peoples’ properties?”

 

Damage control

Macon County’s environmental services supervisor Matt Mason has the responsibility of enforcing the county’s erosion control ordinance. Mason succeeded Josh Ward, who had the position when Wildflower first applied for building permits.

Mason said the county signed off on Wildflower’s land disturbance permits in phases, each of which required erosion control plans for roads and home sites in the development.

According to Mason the county still has access to close to $80,000 that Ultima set aside in a surety bond to guarantee Wildflower’s erosion control measures. The county has informed Ullman that he’s responsible for correcting the damage caused when a road collapse triggered a landslide.

“I’ve actually talked to the owner and we’re requiring him to hire an engineer to submit a report on how to stabilize the road and he’s willing to do that,” Mason said. “If not then it could be a problem.”

Mason said the county still has the authority to enforce the erosion control ordinance because the project is still open, but he said Wildflower is not currently in violation of the ordinance.

“They’re not in violation. We’ve not fined them. We sent out a letter informing them it needs to be corrected,” Mason said.

Mason said he has spent the last year trying to re-draft the county’s soil and erosion ordinance to include soil compacting standards, but the revised ordinance is still in the review process. For now, he said, the county’s position with Wildflower is limited to enforcing the ordinance that was in place when the development filed its paperwork.

“If we had had a subdivision ordinance or a steep slope ordinance in place, we could have done it differently,” Mason said. “We want to have safe and smart development, and the bottom line is that costs a bit of money.”

Perhaps the most disturbing part of Wildlower’s road issues is that some of the compromised roadways are actually driveways serving home sites that have already been sold. The owners are now responsible for the maintenance of those driveways, without which the home sites are worth next to nothing.

At a county meeting in November, county commissioners asked planning director Jack Morgan whether Wildflower had filed for bankruptcy, raising concerns about the project’s financial viability going forward.

Brian Garner, the project’s general manager, said he could not elaborate on Wildflower’s financial situation.

“As far as I know we’re still doing what we need to do,” Garner said. “We’re still on the ground running.”

Robert Ullman, the developer, did not respond to requests for comment.

Guffey said the county has cause to worry if Wildflower goes under.

“One of the fears is if it’s in foreclosure, who pays for that damage?” Guffey said.

Although Macon County passed its first subdivision ordinance more than a year ago, Commissioner Chairman Ronnie Beale wonders whether enough was done to protect developers with projects already underway.

Developments that pre-dated the new rules may be hamstrung when attempting to sell lots today, if those lots are subject to the ordinance, Beale said.

“If they have a buyer for a piece of property in this day and age, we don’t want the subdivision ordinance to be overly cumbersome,” said Beale, who shared his concerns a commissioners meeting last month.

Beale inquired about what type of “grandfathering” could be put in place for existing subdivisions with lots that weren’t officially recorded but perhaps existed on the developer’s personal master plan.

The county’s zoning administrator, Jack Morgan, said the county gave ample warning to developers when the ordinance was adopted. Developers were given 90 days to decide whether to register their properties on the county’s plat books.

“That 90-day period was to give people who had subdivisions the opportunity to record their properties that hadn’t been platted yet,” said Morgan.

At that time, developers had to decide whether or not to plat their properties, with the consequence that they would then have to pay taxes on individual parcels. By leaving them un-platted, they knew they would have to eventually comply with the new ordinance.

Beale’s concern is that the county will continue to run into developers who don’t realize their properties are subject to the ordinance if they haven’t been platted, even if they fall within existing subdivisions.

Beale said he’s not interested in undermining the intent of the ordinance but he believes the county needs to make a concerted effort to educate the public.

“The discussion is –– with the older subdivisions how does the ordinance play a role and what does it say you have to do?” said Beale. “A lot of it is misunderstanding and it’s not easy to read. An ordinance is a law and we want to make sure it’s understandable.”

Macon’s subdivision ordinance was developed under the direction of the Planning Board as a way to protect lot buyers and create standards for subdivision development.

The ordinance has a few main components, but primarily governs how steep and narrow roads can be. It also requires developers to create a homeowners’ association and enter a bond agreement with the county should they abandon the project with unfinished or unstable roads.

“It’s not a heavy-handed ordinance at all. There are some out there that would break your back,” said Morgan. “Macon County’s intent –– we didn’t have any regulation at all and that’s when we had the great Macon County land grab. We needed some structure in place.”

The ordinance was approved in June 2008 but didn’t take effect until September to allow for a 90-day waiting period.

In a county with over 600 subdivisions, some of which are over 30-years-old, getting the word out to all of the interested parties has not been simple.

Because Macon’s ordinance wasn’t designed to be restrictive, Susan Ervin, a planning board member, doesn’t think the county should look for ways around enforcing it.

“I feel like the ordinance should apply in every case that it possibly can,” said Ervin. “These were not designed to be onerous requirements. They were a way of structuring good development. It’s not something we should be looking for ways to get around.”

Realtor John Becker of Exit Smoky Mountain Realty essentially agreed with Ervin’s assessment.

“My opinion is if guys have stuff in the ground then it should be exempt but if the stuff isn’t platted yet then it has to come up to snuff,” Becker said. “Most of the stuff they’re trying to put together is safety-oriented and making sure the consumers are protected.”

Ervin said the ordinance has a provision for a developer to be exempt if they can show they spent a substantial amount of money and resources on a subdivision project before the new rules took effect.

Beale has directed Zoning Administrator Jack Morgan to come up with a public education program for the ordinance to be presented at a public hearing in January on some minor housekeeping revisions to the ordinance.

“We realized that the realtors and the surveyors and such — the people who use it everyday –– we’ve not yet determined the best way to get out there and explain to people exactly what the subdivision ordinance says,” Beale said.