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News Landslide Hazard Maps may be removed from county subdivison ordinance

 

A public hearing regarding recommended changes to the county’s planning board is scheduled on Tuesday, Feb. 14. Macon County Commissioners will decide on enacting retroactive term limits to the planning board, among other proposed amendments to the board, after the public hearing session. Commissioner Ron Haven proposed enacting term limits of two consecutive three-year terms, retroactively, to the planning board at last month’s continuation meeting on Jan. 14.

According to county attorney Chester Jones, the public hearing session will also encompass the county’s landslide hazard maps. The maps were drawn up by the state following the 2004 Peeks Creek tragedy, where five Maconians were killed and 15 homes destroyed following a debris flow that was sparked when the remnants of Hurricane Ivan struck the area. The controversial maps are referenced in the county’s subdivision ordinance. Therefore, to have them removed from the ordinance a public hearing must take place before board members can take any action.

The subdivision ordinance mandates for preliminary plats to contain and depict information pertaining to “slope hazard designation as indicated on the Macon County Slope Hazard Maps.”

Simply put, the county’s subdivision ordinance legally recognizes the slope hazard maps.

Questions about the accuracy and scaling of the maps have been the catalyst for their criticism, and is largely why a public hearing about the maps is on the county itinerary next week.

Origin of the Maps

In 2005, state geologists with the Department of Environment and Natural Resources (DENR) were assigned by the General Assembly with the task of drawing up landslide hazard maps for every mountain county. At the time, Macon County officials lobbied hard to be the first county to have their maps configured. Rick Wooten, a senior state geologist with DENR, stated, “We had already done considerable field work at the Peeks Creek debris flow and the surrounding area in support of the Peeks Creek task force convened by the County Emergency Management.” As a result, the N.C. Geological Survey (NCGS) selected Macon County as the first county to be mapped, said Wooten.

DENR field crews visited Macon County 59 times and collected data in 615 distinct locations to process the maps. The crews identified 155 landslide process points and 222 debris deposit points prior to completing the maps. Also, Wooten’s team used 14 samples of soil during the study, conducted 12 laboratory soil gradation tests and four soil hydraulic conductivity tests.

NCGS’ third source in producing the maps was the most controversial, because it deals with the maps’ scale and accuracy. DENR used different years of aerial and satellite photography to identify landslide locations “through time not readily visible in recent imagery,” said Wooten. Wooten added that the LiDar (Light Detecting And Ranging) digital elevation data was used to promulgate the floodplain maps of North Carolina counties “as part of the National Flood Insurance Program.”

Above is an aerial photo taken after the 2004 Peeks Creek tragedy, an event that killed five people and destroyed 15 homes. The large debris flow was the impetus for Macon County receiving the landslide hazard maps from DENR.Black and white aerial photography from 1953 was used by NCGS crews for the aforementioned process. Orthophotography (technology of geometrically correcting aerial photographs so that displayed distances are uniform and can be measured like a map) from 1993 was used, along with color infrared orthophotography from 1998. NCGS provided $36,149 to Macon County in a cost share agreement to obtain the 2005 color-infrared satellite orthoimagery following the 2004 storms.

Another 2011 NCGS study identified and mapped 16 modern landslides in Macon County, and reported that 40 percent of the landslides occurred on natural or unmodified slopes and 56 percent of the landslides occurred on modified slopes, according to the report. The study stated that an active, 6.5 acre slow-moving landslide above a large excavation at the toe of the hill slope “was a contributing factor in the condemnation of a home near Franklin in March 2010.”

“The accuracy of the landslide hazard maps depends on the purpose for which it is intended, and the scale at which it is intended to be used,” said Wooten. “One can use the state highway map to estimate the distance between cities to the nearest mile, but not to the nearest foot. The landslide hazard maps are a useful tool for general planning and screening purposes at a scale of 1:6000 (1 inch=500 ft.) or larger when used in a GIS as intended,” he said. DENR field crews were in the field on 59 separate days gathering data for the maps, and “the field data are essential to the validity and accuracy of the maps,” said Wooten. “Even so, the maps do not substitute for an on-site assessment by a qualified geologists or engineer,” he said.

Macon County Manager Jack Horton believes the maps were placed in the subdivision ordinance without complete knowledge of what the final product would look like. “I don’t think the maps are to the detail we would like. They are not as specific as the county was hoping for, and I think because some people at the time thought they were going to be very similar to the state’s flood hazard maps, they thought it would be smart to place them in the subdivision ordinance,” said Horton. He also said that the maps were never adopted by the county’s GIS system, and also emphasized that the maps are not precise enough to locate slope hazards on particular parcels, which could unfairly devalue otherwise safe pieces of property in an already anemic local real estate market.

Another problem associated with the maps relates to the real estate business. There has been some ambiguity about whether or not local realtors have to disclose the maps when selling a lot or house. The N.C. Real Estate Commission has never required brokers to disclose the maps to clients, according to a 2011 letter written by Thomas Miller, Legal Counsel to The Commission. “The Real Estate Commission has not issued any ruling concerning slide hazards or slide hazard maps in Macon or any other county,” wrote Miller in a letter last July. “Over the years, the Commission has received few complaints against brokers for failing to disclose the subsidence or landslide hazards. A broker’s duty to disclose is set out in N.C.G.S. 93A-6(a)(1),” he continued.

“The regular occurrence of slides or subsidence or the very risk of such events on a small residential building lot would certainly be material to a buyer under any objective test. However, the same events or risk of such events may be of little consequence or concern to a purchaser if the hazard is confined to a small portion of a much larger tract containing other areas free from hazard. With so few complaints concerning slide hazards (as opposed to flooding, erosion, structural defects, and other problems which are frequently the subject of consumer complaints against real estate brokers) and no other evidence to indicate that the risk of property damage or personal injury is high or widespread, we decline at the present time to declare that as a minimum standard of practice, a broker must investigate slide hazards or warn his clients of the potential of such hazards in the absence of the broker’s actual knowledge of such hazards or the existence of information, conditions, or other “red flags” which a reasonable inspection of the property by a person trained as a broker would discover,” wrote Miller.

Miller referenced the 1994 case of Clouse v. Gordon, where the North Carolina Court of Appeals refused to hold a broker accountable for not disclosing the county’s flood hazard maps. The buyer had purchased a home in Monroe, North Carolina, and the survey of the house and lot showed no indication that the property was vulnerable to floods. After the transaction was completed, the lot flooded and the buyer sued his former agent alleging misrepresentation. The buyer claimed that the public flood hazard map showed that a large portion of his property was located in a flood zone and argued that it was the broker’s duty to consult the map and advise them about the flood risk.

The court eventually ruled in favor of the agent and rejected the buyer’s argument. Since the creek that flooded the property was not shown on the survey, and since the buyer could not prove the broker knew or should have known about the flood hazard, the courts decided against the consumer. The N.C. Real Estate Commission applied the Clouse case to landslide hazard complaints to devise their position that the maps are not a material fact requiring disclosure.

One can see why some local real estate brokers may be wary of the maps in reading the contents of the letter. Needless to say, the letter and other issues pertaining to the landslide hazard maps have stirred up anxiety from citizens on both sides of the issue, and because they are mentioned in the subdivision ordinance county commissioners have decided to let the public speak out about them.

“The landslide hazard maps basically show where landslides have happened or are happening, where landslides like debris flows are likely to start, and if debris flows start, where they may go,” said Rick Wooten. “The maps were developed and intended for use in a geographic information system,” and designed to be used “as a planning and screening tool at a scale of 1:6000 (1 inch=500 ft.) or zoomed out further,” he said.

Critics often cite the scale of the maps in making their case that they could be inaccurate. The scale of the maps unjustifiably stigmatizes property, critics say. “The maps do not substitute for an on-site assessment or slope stability by a qualified engineer or geologist, but indicate potentially hazardous areas where such an assessment is warranted prior to land disturbing activity,” reiterated Wooten when asked about the accuracy of the maps.

Pictured above is the Peeks Creek community following the clean-up of the site after the 2004 debris flow that tragically struck the community.Austin DJ Gerken, senior legal counsel for the Southern Environmental Law Center, disagrees with Miller and other critics and believes that disclosure of landslide hazards is a critical strategy for mitigating landslide risks. “I understand the county has been presented with assertions that (1) realtors who disclose the existence of the landslide hazard maps or the hazard ranking of an individual parcel may be exposed to liability for doing so and (2) the county may be liable to landowners if it posts the state's landslide hazard maps on a county website and links the information to the county's tax parcel GIS system,” wrote Gerken in a 2010 letter to the Macon County Board of Commissioners. “We believe the law is clear that both propositions are clearly wrong, Realtors have an affirmative legal duty to disclose information related to Macon County's landslide hazard maps and such disclosure is the surest path to avoiding potential liability. Furthermore, the county is not liable for making maps produced by the state available to its citizens.”

In his letter, Gerken went on to say, “The key to minimizing landslide hazards is the awareness of home builders, buyers and owners. Builders need help identifying potentially hazardous areas in which the services of a geotechnical engineer are required,” he wrote.

In discussing the possibility of the maps being removed from Macon County's subdivision ordinance, Gerken stated that he was “disheartened” and felt like the disclosure controversy was mainly a disagreement over a legal opinion. “It is absurd to think the maps will prohibit development in an area,” said Gerken. “No one is saying that property owners wouldn’t be allowed to build in an area that may be prone to slope hazards. All the maps are saying is that when you do build in a location that could be vulnerable, you need to be more careful.”

Landslide hazard maps were completed for Macon, Watauga, and Buncombe counties before state legislators eliminated the mapping program last year. Five state geologists responsible for working on the maps received pink slips, saving the state $355,000 per year. The movement to invoke a statewide steep slope ordinance has been floating around the General Assembly for years, but with the advent of GOP leadership in Raleigh, the movement was shunned.

Critics of the landslide hazard maps argue that attaching a steep slope ordinance that adheres to them would stymie development, and devalue property unfairly located in hazardous zones. Proponents of the maps argue differently, suggesting that land-use regulations formed after using the maps as a guideline will give consumers confidence to make an investment in Macon County. Last year, proponents of a county steep slope ordinance launched a website entitled www.MaconSense.org. The website has information about why a steep slope ordinance would be good for Macon County. Their organization believes steep slope regulations would increase consumer confidence and increase development in Macon County, and do so in a responsible way.

“Before you spend your hard earned money you want to be sure what you are buying is quality. Imagine you were buying a used car. While you are comparison shopping you find that two dealers in town have the same car at the same price. One has a detailed inspection that all cars must pass to be sold on his lot. The other doesn’t even bother to look under the hood. Who would you buy from?,” reads an excerpt analogy from the website. The advocacy group compared development in Jackson and Macon counties to further support their case, showing that Jackson County’s version of steep slope regulations has done anything but deter development.

Haywood County Commissioners actually want their landslide hazard maps completed, believing such documentation of landslide-prone areas will encourage safe development. Their maps were scheduled to be developed in 2011, but due to the elimination of the mapping program, Haywood County will not have them anytime soon.

Haywood’s board of commissioners unanimously agreed to proceed with an effort to continue with the project last summer, right after state legislators tabled the program. Since then, the county has given state geologists working with DENR free office space to work from. However, the county and the team of geologist have yet to attain any funding for the endeavor. Zero progress has been made for the project, according to Haywood County public information officer David Teague.

The development of the maps is the genesis of the county’s steep slope ordinance debate, which has become intensely heated in recent months. When the county planning board could not reach a consensus on recommending a steep slope ordinance for commissioners to vote on, they tabled the issue and decided to focus on developing basic construction standards instead. Excluding their reference in the county’s subdivision ordinance, the county has not endorsed the maps in any fashion.

The landslide hazard maps and the steep slope ordinance debate are inextricably linked. The debate is inherently philosophical, which is why honest people disagree on the issue. When the county’s steep slope committee was developing an ordinance for commissioners to consider in 2010, they posted a fact sheet that still exists on the county’s website. The workgroup admitted that a steep slope ordinance would increase construction costs by an estimated $8,000 for a typical home built on a 40 percent slope. Like the Maconsense advocacy group, they also argued that Haywood and Jackson counties have steep slope regulations, and such ordinances are not deterring development in their respective counties.

The workgroup’s FAQ sheet also cites the landslide hazard maps. “We are fortunate that the North Carolina Geological Survey made Macon County the first in the state to get maps that identify slopes and soils that are prone to failure and deserve sensitive treatment.” They added that regulations would not prevent development on steep slopes in Macon County, but to the contrary, they believed a steep slope ordinance would simply promote responsible development.

“Costs for preventing the collapse of buildings and the erosion of scenic mountainsides are small in comparison with the costs of cleaning up after slides or just attempting to maintain improperly constructed slopes. And, of course, it's impossible to put a price on lives and livelihoods lost through poor planning,” reads the workgroups information sheet posted on www.maconnc.org.

The fate of Macon County’s landslide hazard maps will be open to public discussion during the board’s regular scheduled meeting on Tuesday, Feb. 14, at 6 p.m. The maps can be accessed at the state’s geological website.





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