News

IN 4-1 VOTE BOARD KILLS PROPOSED MORATORIUM

By Bill Moss, Published: November 7, 2017

The Henderson County Board of Commissioners on Monday night turned back one commissioner's proposal to reconcile a gap between growth pressure and the county's overcapacity roads and limited sewer coverage, killing a building moratorium in a decisive 4-1 vote.

Commissioner Grady Hawkins' proposed 90-day moratorium drew support from three-quarters of the 30 residents who spoke. The speakers got two minutes each to express their thoughts on the proposed moratorium, which Hawkins had pitched three weeks ago as a way to review the county comprehensive plan in a climate that is bringing intense opposition to big developments and nearly every proposed road improvement.

Speakers in favor of the moratorium triggered strong applause; speakers opposed drew lighter support. Among those opposing a moratorium were the president of the Henderson County Home Builders Association and the WNC Manufactured Housing Association, a landscape contractor and the county's economic development agency.

After the public comments and board discussion spanning 2½ hours, commissioners rejected Hawkins' motion to enact a 90-day moratorium on subdivisions of 100 units or more.

Commissioners Tommy Thompson, Charlie Messer and Bill Lapsley all questioned whether the moratorium would achieve what residents hoped and Chairman Michael Edney directed a series of questions to County Attorney Russ Burrell about the many development regulations in state law that are beyond the control of counties.

Supporters of the moratorium told commissioners that the timeout was needed to get a handle on roads and other infrastructure, to decide what kind of development is acceptable and consider the impact of high-density developments. About 22 of the 30 speakers spoke in favor of the development pause. Most were from Hunters Crossing and Hawthorn Hills, where residents are fighting a large development across the road from their subdivisions, and from Etowah, where neighbors rallied to defeat a 300-unit development last month.

"Laurel Park was able to annex this 90-acre parcel even though it is in reality located 1½ miles outside Laurel Park town limits, only because it touches 350 feet of Davis Mountain Road," said Peggy Smith, president of the Hunters Crossing Homeowners Association. "Laurel Park is going to benefit from the increased tax base but bear none of the brnut of the negative impact of the high increased traffic of this high-density project... In reality it is county residents who will forever be living with a rental development that does not fit into our rural, single-family homeowner neighborhoods that we all moved here for and have already invested in."

Another leader of the Hunters Crossing opposition, Doug Judkins, raised questions about Laurel Park's actions to annex the 900-acre site for the Arcadia Views project and its change of the zoning in 2006, when a previous development was in the works.

"It would be good if the affected neighborhoods were told of these actions before the areas were annexed," he said.

Burrell made it clear that state law sets strict limits on counties' ability to enact a building moratorium. "This board will need to make findings about issues that are so problematic that there needs to be a moratorium," he said. The ordinance must have a termination date, and that can't be extended except under extraordinary circumstances.

The commissioners must draft "a clear statement of the problems and conditions necessitating a moratorium" and what courses of action may be thought about to remedy them, Burrell said. A moratorium can't block later phases of a development the county has already OK'd. State law also spells out how a property owner harmed by a moratorium can sue, placing the burden of proof on the county to show that it followed all the steps required for enacting a moratriium. If the moratorium goes on too long, he said, "it becomes a taking" barred by the Fifth Amendment.

Commissioners pointed out that two major public needs — water and sewer systems and roads — are beyond the reach of counties.

"We know that we can do very little if any about the roads," Messer said. "I guess I have a problem with the affordable housing industry and the construction workers. I don't know that a moratorium is going to fix the problems we've got. ... After listening to all you people, I can say I agree with you ... I think we've got to go back to the table and come up with something better that would work. It's a band-aid to fix something when I don't see that it fixes anything."

Another problem, Thompson added, is that commissioners could enact a moratorium only in unincorporated Henderson County, leaving the cities to OK development that also puts pressure on roads and utilities. "That encompasses a lot of land that would not fall under this moratorium," he said.

When it comes to road improvements and regulations on water and sewer, "those are state rules," Burrell said in answer to the line of questioning from Edney.

For instance, state public health regulations, not a county ordinance, dictate how close a septic tank can be to a residential well.

"Even in ideal soil conditions, a one-acre lot probably at the most could handle two units if you're lucky," said Lapsley, a civil engineer.

The county also has no authority to tell the Asheville-based Municipal Sewer District or the city of Hendersonville where they should expand  water and sewer lines, Burrell said.

Arguing for the moratorium, Hawkins said a 90-day timeout would give the Planning Board time to evaluate permitting of high-density residential developments.

"We've pretty well recognized two major problems in the county, that being roads and water and sewer," Hawkins said. "We're looking for a solution to address those and yet we have no authority over either of them. ... However, we as a board have taken actions to address some of those. I think it would benefit the county to take a short timeout here and deal with water-sewer and roads. They have a common denominator and it's density because it's density that drives the need for water and sewer and it's density that drives the need for roads and byways .. and that basically is how to deal with these large subdivisions."

His motion called for a moratorium on subdivisions of 100 units or more on 100 acres.

"I don't think that will be an adverse impact on the construction industry, grants and affordable housing and so forth," he said.

Lapsley pointed out that the development moratorium advocates cited repeatedly Monday night — Arcadia Views — is beyond the commissioners' jurisdiction; the Laurel Park Town Council will decide that. The other project residents brought up was the 299-unit development on McKinney Road in Etowah, which the Planning Board killed when it denied approval of a master plan.

"My reaction to that is the process worked," Lapsley said. "The applicant went througn the process, presented a plan and the Planning Board reviewed it and said no. The point I'm making is I don't hear a lot of other issues from around the county. Everything seems to relate to these two projects."

Edney agreed.

"The Planning Board did the right thing in Etowah and our ordinance worked," he said.

Besides roads, water and sewer is most often cited by residents opposed to high-density development.

"Large developments are going to require community water and sewer," Lapsley said. "This board has a great deal of influence" with water and sewer providers. "I may be wrong to use the term veto power but I believe this board has that kind of authority to stop a project" by working with public utilities.

Messer pointed out that the Laurel Park development, traffic hazards on U.S. 64 and an unpopular road improvement project on 64 in Laurel Park are not in Henderson County's power to stop or change.

"A moratorium is not going to help fix anything there," Messer said.