News

County moves to ease restrictions on storage sheds, floodplain construction

Commissioners David Hill and Bill Lapsley are pictured at a recent meeting. [LIGHTNING FILE PHOTO]

By Bill Moss, Published: August 5, 2022

What started as an effort to regulate personal storage buildings came out radically different on the other end of sausage grinder last month after Henderson County commissioners voted to permit an unlimited number of sheds or garages on residential lots and allow them to be close to the lot line and road.

Brushing aside two Planning Board different recommendations, commissioners last month declined to cap the number of storage buildings on residential lots or to limit how much of the land storage buildings can cover. They also increased the time property owners could have temporary storage containers from 30 days to 90 days, twice per year. The Planning Board had recommended limiting the time to 30 days four times a year.
The commissioners’ action on the change to the county zoning code was the first of two items that would make building rules much less restrictive. The second one — allowing more building in floodplains in industrial zones — revived a proposed fill ordinance amendment and bypassed the Planning Board, which had rejected the idea in an 8-0 vote on Feb. 17.

Hill ‘not a fan’ of zoning

The loosening of storage building rules was advocated by Commissioner David Hill, a land surveyor who acknowledges that he is generally opposed to countywide zoning.
During a discussion of zoning changes early in his term, Hill remarked that he had a hard time embracing restrictions because he did not agree that the county should zone land at all. Asked in an interview last week if he still feels that way, Hill said, “Well, I don't believe in it. I'm not a fan of it, for sure. If you want to have a major say in your neighbors’ use of their land, that's why we have subdivisions and things of that nature. Right now when we zone an entire county, you take away people's ability to use their property as it benefits them.”
Commissioners sent the storage building issue to the Planning Board a second time on June 6 after Hill and Planning Board Chair Steve Dozier got into a back-and-forth about the rules. The Planning Board made minor changes to its original recommendation at its June 16 meeting but still voted unanimously to recommend just one storage building per lot, to require longer setbacks and to limit the structure’s footprint to 24 percent of the total parcel size.
Opposing all those restrictions, Hill won the day in his effort to mostly deregulate storage buildings on residential land. In a series of votes, commissioners voted either 5-0, 4-1 or 3-2 in favor of Hill’s motions to relax the rules. Casting aside the Planning Board’s recommendations, the board voted to:
• Allow any number of personal storage structures per lot instead of one. Each can have a bathroom and kitchen but may not be used to operate a business.
• Strike the 24 percent limit on lot coverage.
• Strike a proposed rule saying only the property owner could use the storage building.
• Strike a proposed rule limiting the size to 750 square feet.
• Strike setbacks that would have kept the buildings farther away from roads and neighboring property.

At the July 20 meeting, Dozier told Hill that the Planning Board respected a landowner’s right to put up a storage building but also wanted to protect the rights of neighboring property owners.
"I'm trying to look out for other property owners,” he said. “That's what the Planning Board was trying to do. There is a concern that someone might have two, three, four, a hundred” storage buildings. “We're concerned about the property rights of the adjoining properties."
"You don't need to be micromanaging people's property," Hill responded. "You can have two bathrooms. Some people might want to put two baths in. I don't know what the big deal is. Again, we don't need to be micromanaging." Commissioners did not vote to allow more than one bathroom.
In an interview, Dozier, a real estate broker, acknowledged commissioners’ prerogative to ignore the Planning Board draft amendment, which is advisory only.
“I disagree with some of the changes like more than one unit per acre,” he said. “I understand having a kitchen and a bathroom because a lot of people do canning in their personal storage buildings. We've not had a regulation before this came about so anything is better than nothing. But I just think right now it's a little wide open.”
Dozier said the commissioners’ decision on setbacks — now just 5 feet from the side and rear property lines and 10 feet from the front lot line — could pose a traffic hazard. Failing to limit the number of units per acre, he said, was also something the Planning Board opposed.
“You could end up putting 10 per acre and I think that's gonna hurt the adjacent property owners’ position and value in their house,” he said. “It's not a life and death thing but I'm just looking to protect that owner’s property value as well as the adjacent property owner’s value.”

More building in floodplain

In another case of commissioners potentially ignoring the recommendation of the board they appoint to review changes to the land-use code, the elected leaders are poised to permit more development in the floodplain. That idea ran aground — for now — when commissioners noted that the proposal, from Commissioner Michael Edney, had not been vetted by either the Planning Board or the county’s stormwater administrator, Natalie Berry. Commissioners delayed acting on the idea on July 20 when the board’s chair and vice chair said Berry needed to take a look at it.
At its Feb. 17 meeting, the Planning Board discussed a similar proposal to increase the allowed floodplain fill above the current 20 percent threshold. The board “had a number of concerns (about) allowing by right any fill in the floodplain above the allowed 20 percent threshold,” according to minutes of the meeting. “The board was also concerned about the impact of flooding on adjacent and downstream property and related emergency service safety issues.”
Rick Livingston, a Planning Board member and Mills River Fire & Rescue chief who is a vocal opponent of floodplain construction, made the motion to recommend denial of the idea. It passed unanimously.
The county’s planning director, Autumn Radcliff, said last week that Edney’s proposal is now being handled by County Attorney Russ Burrell, not the planning staff or Planning Board.
“The Planning Board did discuss it” on Feb. 17, she said. “This is a revised version of what they denied. Natalie was going to be reviewing the language.”
Edney did not return the Lightning’s call seeking comment on the floodplain proposal.
When Commissioner Bill Lapsley suggested sending the measure back to the Planning Board, Edney said that wasn’t necessary. Commissioner Rebecca McCall endorsed a review by the stormwater administrator.
“I’m more interested in what Natalie has to say because I get concerned when we start saying fill,” she said last week.
Although Lapsley, too, wanted to make sure the stormwater administrator weighs in, he does not sound like he would oppose the change. In fact, he suggested he would broaden it.
“My feeling is, I don't see a problem with filling beyond the 20 percent,” he said. “But my feeling is if you're going to do it one area, you need to be allowed to do it in others. To restrict it to industrial zoned areas I don't think is right.”
But he also said he wasn’t sure why Edney singled out industrial zones, unless Edney knew of examples where a factory wanted to build in or expand into floodplain.
“I asked Commissioner Edney at the last meeting, did he have an example of an existing industry that had floodplain that needed to go beyond the 20 percent? And as I recall, he said no,” Lapsley said. “So my response was, ‘Well then why do it?’”
A civil engineer for 40 years, Lapsley said studies show that construction in the floodplain, which is higher ground and farther away from creeks and rivers than the floodway, is not harmful.
“The federal studies that were done 40 years ago showed that you could fill in the flood plain from the very outer fringe to the edge of the floodway,” the area closest to a river or creek where the main flow of floodwater travels. Filling floodplain, he said, “is not going to have a significant impact on the elevation of the water when it floods in that 100-year flood elevation,” he said. “That's what the engineering study shows. That's why you have some communities that will allow you to do that, to fill in the flood fringe.”
Despite the Planning Board’s unanimous no vote, commissioners may end up opening residential, commercial and industrial zoned land to unrestricted floodplain development.
“He wants to restrict that additional ability just to industrial zoned land,” Lapsley said. “I don't think that's right. If you're gonna do it, let anybody do it.”