News

Applicant for floodplain relief was cited for filling floodway

Henderson County’s land-use regulators posted a stop work order in January 2022 on property bordering Mud Creek that the floodplain administrator determined was in violation of the county’s Flood Damage Prevention Ordinance.

By Bill Moss, Published: November 17, 2023

When a divided Board of Commissioners voted to amend the county’s land development code on Oct. 18 to allow development close to waterways, the discussion revolved around the merits of the idea in general.

Commissioner Bill Lapsley and Chair Rebecca McCall argued against the proposal, only to be outvoted by commissioners Michael Edney, Daniel Andreotta and David Hill. Neither the commissioners nor anyone on the county staff uttered the name of the applicant — either that morning or during a previous Planning Board discussion.

The applicant, Chris Cormier, owns three parcels of land bordering Mud Creek and that have been in violation of the county’s flood damage prevention ordinance since January 2022, according to records the Hendersonville Lightning received via a public records request.

And while commissioners, Henderson County Manager John Mitchell and the county’s floodplain administrator all insisted in interviews that the text amendment was not intended to cure Cormier’s violation — in fact, they said it does not — the path of the amendment from concept to adoption is filled with curious issues:

• While the text amendment was advocated by Susan Frady, who works for the Partnership for Economic Progress, and Andrew Bick, a hydrologic engineer, neither of them mentioned Cormier or the floodplain violation. Nor did Planning Director Autumn Radcliff or any other county staffer.
• The Planning Board has voted twice in the past two years to recommend denial of requests to ease restrictions on building in either the floodway, which is the land nearest waterways, or the flood fringe, which currently permits 20 percent fill. In February 2022, the advisory board voted 8-0 against a proposal to ease the 20 percent flood-fringe threshold; on Sept. 21 of this year, it voted 5-3 to recommend that commissioners reject the text amendment to allow fill in the floodway.
• A memo describing the text amendment application for the Oct. 18 meeting of the Board of Commissioners reported that the Planning Board voted 5-3 to recommend denial “following a lengthy discussion.” It described reasons offered by “those in favor of the amendment” but omits comments by those opposed, which related to public safety, flood hazards and loss of farmland.

Cormier did not respond to calls or a visit to his Carolina Specialties office on Seventh Avenue East seeking comment. It was unclear what plans the construction company owner may have had for the industry-zoned property if any. County officials and commissioners said they were unaware of any plans for the land.

In interviews, three commissioners who acknowledged they knew of Cormier’s violation said that did not influence their decision.

“Everyone was aware of it,” said Lapsley, a civil engineer who strongly argued against the text amendment. “In its own right, it won’t cure it but it would require the applicant to hire an engineer” to make a no-rise certification. “Would it then allow it to correct a past situation? It could, but not without this study to prove it and not without the commissioners agreeing to it.

“My position has been and continues to be that I don't think we should even open up that door. The land-use code, as was written, just says it's not allowed. I don't care whether it's an engineering permit (with a no-rise certification). It's not allowed.”

“I'm not going to comment,” Lapsley responded when asked whether the whole process looked fishy to him.

‘Opens the door another inch’

Lapsley and McCall both said they assumed Frady was the applicant.

“I just knew that Susan Friday was representing him,” McCall said. “I did not know who the applicant was and I didn't vote for it.”

“There was conversation about how people will still have to submit an application, still have to go through the process,” she said. “That may be the case but it just opens the door another inch and that's my concern.”

She said even had she known the applicant was a landowner currently in violation of the code, she would have evaluated the proposal from a countywide perspective.

“I would never do something just for the benefit of one person — for or against,” she said. “That shouldn't be what it's about, because we represent all the people, so when I look at something like this, I'll look at it as a whole-county situation, not just for one person.”

Commissioner Michael Edney, who had sought land-use code changes easing floodplain construction as far back as August 2022, acknowledged that he knew Cormier was the applicant but said that wasn’t relevant to his view of the change.

“It has nothing to do with Chris Cormier,” he said. “It has to do with property in the floodplain in the county that cannot he used. I just want more industrial opportunities and in my mind the way the county’s growing and residential pieces are going, we're losing opportunities for industrial sites.”

Commissioner David Hill, a land surveyor, also said he was aware of the Mountain Home Industrial Park land but didn’t believe the text amendment would help Cormier resolve the floodplain violation.

“Even with the text amendment, it’s still 20 percent,” he said. “It’s not an aggregate 20 percent — 20 percent of floodway and 20 percent of floodplain. It's just 20 percent total. To get to the floodway, he would have to fill floodplain to get there, and I don't know that 20 percent would get him all the way to the floodway.”

‘There’s gonna be loss of life’

Eight days after the Board of Commissioners voted 3-2 for the floodplain amendment, Mills River Fire Chief Rick Livingston was crusading for strong floodplain fill restrictions again — this time at a meeting of the Mills River Town Board. The town is considering adding floodplain regulations.

“In a nutshell, Bill and Rebecca voted to leave their restrictions in place that had been there for a number of years but that didn't happen,” he told the Mills River board. “It's sad in my opinion that we don't have more county commissioners who care enough about our county to do the right thing. I was really disappointed. I expected some of what I saw but I did not expect all of what I saw. But the bottom line is I feel like some folks are making decisions based on what's best for their pocketbook and their career and their occupation as opposed to what's best for Henderson County.”

As storms become more severe and more frequent, Livingston warned the Mills River leaders, a flood like the one in 2021 that killed six people along the east and west forks of the Pigeon River is likely to happen here.

“We all saw what happened in Haywood County in the Cruso community,” he said. “The same thing’s gonna happen at some point in Mills River, and when it does, there's gonna be loss of life and there's gonna be a lot of destruction of property,” he said. “Anything that we can do to mitigate those issues or minimize the chance of it happening, to me, that's just smart business.”

‘Our job is to remedy violations’

As for whether the text amendment relieves Cormier from fixing the floodplain violation, Mitchell, the county manager, was adamant that it does not.

“In fact, I have information that specifically says that it doesn't cure it,” he said. “When we see a violation, we will deal with that violation and be sure that people live up to the law — everybody. All citizens in this county will be treated equally before the law — that's just how it is. … My direction to our folks was and it remains that any violation that we find will be remedied through the due process of law and it's my understanding and my belief that that's what's occurred — without special treatment or special leeway. Our job in code enforcement is to remedy violations.”

Toby Linville, the county’s floodplain administrator, confirmed that both Henderson County and FEMA, the federal regulators, are still pursuing their enforcement actions.

“It’s still in violation, because the fill hasn’t been removed and it hasn’t been permitted,” he said of the land along Mud Creek. “The code allows 20 percent fill in the flood plain and under the old rules no fill in the floodway. He has 100 percent fill in the floodplain and has filled in the floodway.”