Safe artificial slopes legislation is sidetracked, but North Carolina budgets more money for accurate mapping of the western mountains and talks about greater protection for them
By Tom Bennett
Special to Hiwassee River Watershed Coalition
Murphy, N.C., July 31, 2007 – About once in every 100 home-starts, the construction of a new domicile high up in the mountains here in Cherokee County starts in fill dirt – loose, porous and deadly dangerous. As soon as the building inspector spots this shabby work, he makes the contractor tear out the footings and rebuild them farther up the mountain on solid ground. Then the building codes kick in, and they get tougher and more stringent the higher you go in the mountains. That’s what Silas Allen, Director of Inspections for Cherokee County Building Inspectors, told me in his office today.
So although it was aimed at regulating bad homebuilding here in the mountainous west, and this is as far west as you can get in North Carolina, House Bill 1756, the “Safe Artificial Slope Construction Act,” wasn’t even needed here in Cherokee County.
However, before this bill’s death in a committee of the state House of Representatives, it caused considerable alarm. So much that the state representative from here employed strong language and the Mountain Lakes Board of Realtors went as far away as Massachusetts to get help, all to be sure they stopped HB 1756. And they did.
Roger West, a contractor and a Republican, is in his fifth term in the House and represents District 120, which includes Cherokee, Clay, Graham and Macon counties, according to his page on the statehouse website.
“This is the ‘Vacate Western North Carolina’ bill,” West said, according to the June 22, 2007 edition of the Asheville Citizen-Times.
Joan L. Posey, owner of ERA Carolina Mountain Homes here, is the president of the Mountain Lakes Board of Realtors, which has 300 members. Her office is on U.S. 64 west of Murphy and next to the Grizzley Bear Restaurant, whose incorporator was apparently unaware that this is no habitat of that particular species of bear. I went to see Ms. Posey to tell her face to face that I wanted the Realtors’ side of this issue so my article would be fair. I said I possessed an email message that had been sent statewide by Rick A. Zechini, who is the director of governmental affairs for the North Carolina Association of Realtors. “Do you have the April 20 one?” Ms. Posey asked. I answered, “Yes.”
“Legislation that would dramatically affect construction in the mountain regions of the state has been introduced in the State House,” Zechini wrote to Realtors across the Tarheel State.
“HB 1756 Safe Artificial Slope Construction Act would amend the Residential Property Disclosure Statement to include landslide hazard areas… We are in the process of researching it further… We have requested an analysis of the legislation by the Boston law firm of Robinson and Cole.”
The bill would “add significant, costly and unnecessary delays,” the New England law firm and Zechini wrote. “It’s complicated and technical… Local governments don’t have enough inspectors… They lack standards and criteria… It’s not clear how property owners would discover whether their property is in such an area, because the western part of the state hasn’t even been fully mapped yet.”
The bill is buried now, like all of a family’s former belongings inside a onetime mountain home that went careening down a slope during a landslide caused by remnants of a hurricane. Yet this issue is far from over. A legislative study committee could decide to re-introduce a bill like this in 2008. This first try faltered, yet debate of it helped lead the legislature to include in the 2008 and 2009 budgets $185,000 a year to continue North Carolina Geological Survey work.
This is a state project you could say is long overdue. It is to update 1957 North Carolina mountain topographical maps that cite 1929 geodetic vertical datum. Newspaper coverage about this mapping will keep alive the idea of writing for the governor’s signature a law prohibiting the building of homes that could slide down. Yes, this year’s bill is smoking rubble, but it has rekindled fears that new, tougher regulation of mountain homebuilding may be coming out of the state capitol in Raleigh sometime in the next few years.
If it did and public opinion were swayed here enough for the Cherokee County commissioners to adopt the ordinance called for in the law, then it would improve the prospects for the future of the Hiwassee River. Everything stirred up on the slopes moves downhill into the water and turns it a different color – and it’s not pretty.
The lead sponsor of House Bill 1756 was Rep. Ray Rapp of Mars Hill. A Democrat, he represents the 118th District comprised of Haywood, Madison and Yancey counties. He is also the mayor of Mars Hill and dean of Adult Access at Mars Hill College. Rep. Phillip Haire, a Sylva attorney, and three other Democrats joined Rapp as sponsors. According to Bill Eaker, senior environmental planner for the Land-of-Sky Regional Council in Asheville, the technical guidance for this bill came from Rick Wooten of the NC Geological Survey and Marc Pruett who is Haywood County erosion control program manager. [I left computer and phone messages for Rapp at all his locations and stated my topic. He didn’t answer me and considering the pummeling he took on his bill, that’s not surprising.]
THE INSPECTOR ARRIVES AFTER THE CUT AND THE FILL
W. David Sumpter III, an attorney, is a soft-spoken member of the Cherokee County Commission. Nevertheless, it is he who usually gives the most cogent summary of some dispute before the group. Everyone stops whispering and kibitzing, and strains to hear. During a July 23 public hearing about property taxes, there was a lot of grousing about taxes in general. Then came one of those moments when everyone strained to hear a typical Sumpter summation.
“The issue here tonight is, ‘What is the proper tax levy upon citizens to provide basic services,’” he said.
In the mountain counties, it’s politic to keep alive as long as possible a minimum amount of government. This profoundly affects environmental regulation. Here in Cherokee County, there’s no general land plan and no local erosion and sedimentation ordinance. An activist who occasionally writes in the Andrews Journal newspaper calling for reforms in Cherokee County government is always careful to type “z—–” in her stories with hyphens for the last five letters rather than spell fully that abhorred word “zoning.” All of Cherokee’s mountains are impressive yet fall below the 3,000-foot minimum elevation for enforcement of the 1993 Mountain Protection Act, according to David Hilton, owner of David Hilton Realty and a Town of Murphy councilman. (To add a last-minute exemption effectively disabling the very spirit and intent of a bill – this, too, could occur if a safe artificial slopes bill ever makes it to conference committee.)
CHEROKEE COUNTY’S offices spill out of the blue marble courthouse down city streets and into old storefronts. In two of them on Valley River Avenue that used to be the locations for Richard Howell’s meat market and the Murphy U.S. Post Office, Silas Allen and his building inspectors hold forth. I asked him about HB 1756. He said he had not heard of it, and asked for my copy to make one of his own.
“It’ll be a long rocky road to get anything adopted,” Allen said. “It will have to come down from the state.”
“From what I see, it’s rare to find a home site on these artificial slopes… The cut-and-fill method is used, but the cut is where the house goes, and the fill is where the road goes…. The footings for the structure have to be established so they are not on fill dirt. If they are, then the house has to go farther back up the hill… I would say that one in one hundred uses fill on a portion of the house foundation.”
I once was talking to Logger Dennis Curtis about this and he said: “The houses around here are usually up on top, on solid ground. It’s the roads that cause the trouble.” Silas Allen echoed that point of view.
“When we get to the site, we start adopting the (building) code to it,” Allen told me. “But we don’t get there before the cut-and-fill operations. Most of that’s already been done. Only rarely do people buy property and begin the planning stage soon enough.”
HOW TO AVOID DISASTER AS BUILDER OF A MOUNTAIN HOME
There are plenty of resources for would-be homebuilders to consult to be sure their dream-home site up here on these slopes is suitable. The Hiwassee River Watershed Coalition’s “Recommendations for developers, builders, and grading-clearing contractors” would be the first I’d insist my builder check before driving a nail. It’s on page 46 of the new Lake Chatuge Watershed Action Plan released in May; the coalition’s phone number is 828-837-5414.
Western North Carolina Tomorrow produced the very useful “Mountain home guide: 11 factors to consider before you buy or build,” and it is available from Silas Allen’s office. Before cranking up, every bulldozer driver ought to be made to read the USDA Natural Resources Conservation Service booklet: “The Layman’s Guide to Private Access Road Construction In The Southern Appalachian Mountains or the USDA Forest Service, National Forests in North Carolina booklet: “Road runoff control: Simple measures to control runoff from gravel mountain roads.”
Finally, the North Carolina Geological Survey has chilling photos of the destruction of Buncombe, Macon, and Watauga county homes in landslides associated with Frances and Ivan. Those were 2004 hurricanes that reached these mountains with plenty of deadly force remaining in them.
Tom Bennett of the Martins Creek community near Murphy, N.C., was a retired newsman, Hiwassee River Watershed Coalition member/volunteer/donor and recipient of the 2015 Holman Water Quality Stewardship Award. Tom died on December 28, 2020.