Despite a threat of legal action by the developer of the largest single residential project in Buncombe County history, the Board of Commissioners once again approved sharp restrictions on multifamily construction at higher elevations during a special session held March 8 to allow a second reading of the ordinance. It was originally passed Feb. 27 on a 4-1 vote, with only Chairman Nathan Ramsey opposed.
Under state law, new municipal ordinances that aren’t unanimously approved require a second consideration. This time, the vote was 3-2, with Commissioner Bill Stanley changing his vote in response to the prospective legal challenge.
Attorney Albert Sneed, representing The Cliffs at High Carolina, expressed concern about the impact of the rules on his client during the public-comment session before the formal meeting. “We are claiming that we have a [pre-existing] vested interest” that would exempt the developer from the new rules. We have not waived that vested interest by filing a subdivision plat. We don’t know how to determine if we are vested absent a lawsuit, and we don’t want to do that.” The barely veiled threat was enough to trigger an unusual midmeeting closed session so the commissioners could discuss possible legal ramifications of the proposed law.
The new rules restrict multifamily construction based on elevation. Starting at 2,500 feet, development is limited to one housing unit per two acres, with a maximum building height of 35 feet. Starting at 3,000 feet, density is limited to one unit per four acres, with a maximum height of 25 feet. A legal loophole has exempted condominium construction from subdivision rules.
Those restrictions will apparently curtail proposed construction of golf-course condominiums or town homes at The Cliffs. Although the plans for the first phase of the development were submitted just before new steep-slope-subdivision rules kicked in July 1, phase II was added more recently, after the developer acquired more land in Fairview. The county Planning Board has conceded the developer’s vested interest in phase I, but the Fairview development has yet to be considered or approved.
In discussion before the vote, Commissioner David Gantt said, “Anyone who has suggested that this law discourages construction of condominiums is wrong.” The law, he noted, has no effect on multifamily development at lower elevations.
Ramsey, however, raised repeated objections to the ordinance, returning again and again to the density issue. He said: “I agree with our steep-slope ordinance. What I don’t like about this rule—and the reason I voted against it last time and will vote against it this time—is that if you have flat land above 2,500 feet, you still need to have two acres per unit.” Ramsey argued strenuously that the regulation ought to be based on slope, not elevation.
But Gantt was unrelenting. “What it does do is protect the high elevations. Whether you are a resident or a developer, you want to protect those views at the higher elevations so you don’t look up and see an eyesore,” he said. He then asked staff to display a series of photos of recent developments around the county that have transformed formerly wooded slopes into urbanized vistas. “This law will prevent that kind of development,” said Gantt, referring to a worst-case photo.
“That’s a single-family development,” Ramsey observed.
“It will prevent multifamily projects that look like that!” Gantt shot back.
Most of the roughly two dozen speakers during the public-comment periods before and during the meeting voiced support for the ordinance. But Leicester resident Alan Ditmore argued that restricting high-elevation development will drive up prices at lower elevations, reducing the availability of affordable housing. Multifamily structures, he noted, are also the most energy-efficient and have the smallest per capita footprint.
The most pointed comments came from Julie Brandt of People Allied for Real Conservancy and Heather Rayburn of the Mountain Voices Alliance, both of whom questioned the propriety of Ramsey’s participation in the discussion and vote. Ramsey plans to sell more than 180 acres to The Cliffs, he said during the meeting.
In response, Ramsey called on County Attorney Joe Connolly to address the legal issue. Connolly said that to his knowledge, “No contract has been signed.”
When that statement was met with catcalls, Ramsey said: “That’s true. No contract has been signed.”
Connolly then continued to explain that absent a contract he sees no conflict of interest. He further observed that all five commissioners are property owners, asserting, “If this board is going to function, then you’re not going to be able to back away from every vote on development.”
During a break in the meeting, Ramsey spoke to Rayburn and this reporter, saying that he and his brother operate a 400-acre dairy farm in Fairview and that if they don’t sell the property in question to The Cliffs, they will be forced to shut down.
But Mountain Voices Alliance member Elaine Lite told commissioners, “Sometimes it’s the appearance of impropriety that is more important than the legal technicality.”
In an e-mail to Ramsey following the meeting, Gantt voiced a still stronger objection. He said, in part, “I believe that you have a clear conflict of interest by voting against an ordinance that directly impacts the High Carolina Cliffs development in Fairview. You have indicated a definite interest to make a multi million dollar sale of property owned by you and your brother to that development group. I feel that the fact you haven’t finished all the paperwork and/or replacement property has not been found does not prevent the conflict since you have expressed an interest in completing the sale.”
The commissioners also made the following board appointments: Gary Ross-Reynolds (Nursing Home Community Advisory Committee) and Robert Jones, Kevin Pressley and Tom Warwick (Criminal Justice Partnership Program Board).