Judge Rules: The Cliffs at High Carolina will not have to comply with steep slope regulations.

Location of the Cliffs at High Carolina on Buncombe County Landslide Map

This preliminary Buncombe County landslide hazard map shows mountainous terrain at serious risk of slope failures. Red (High Geologic Hazard) designates areas of high probability that disturbance of the slope will trigger landslides. Also displayed are significant numbers of landslides and landslide deposits. These locations are considered extreme risk building sites.

The Buncombe County Hazard Mitigation Plan (August 23, 2004) found that the steep slopes and fragile soils of Western North Carolina place Buncombe County at high risk for landslides. This report was issued just weeks before the 15 county slope failures of September 2004.

Even though city and county officials know that landslides are serious threats to lives and property they continue to permit the development and sale of identifiable hazardous mountain land.

Important risk information for prospective buyers of mountain slope property in the City of Asheville and Buncombe County.

"The landslide problem will probably be a problem for years to come. Once a slope has failed the strength of the underlying shale or clay that is in the failure zone will never go back to its original strength and even in dry years these slopes can continue to show movement (it may slow down to almost zero but it does not take the same force to sustain movement after failure)." Pre-Disaster Mitigation Plan for Colorado Springs ( Page 41)

"Any home in an active landslide will be destroyed at some point in the future-it could be 5 years or 5000 years-it's nearly impossible to say." Pre-Disaster Mitigation Plan for Colorado Springs (Page 44)

"When you clear-cut potentially unstable slopes, you increase the risk of landslides up to tenfold." Testimony by geologist and University of Washington Professor David Montgomery.
"Clear-cutting, nature blamed for landslides" by John Dodge, The Olympian, January 11, 2008. The Cliffs at High Carolina will be extensively cleared to accommodate the 2,500 acre resort.

Extensive studies by the North Carolina Geologic Survey show that much of the salable land in Western North Carolina is susceptible to landslides. These areas include: steep slopes, usually greater than 30 degrees, embankments or fills, cut or excavated slopes, hillside depressions or hollows near streams and springs, eroded or undercut streams or river banks, areas below steep mountain slopes, areas on hills or mountainsides where runoff accumulates, disturbed or modified slopes on mountainsides, areas where roads cross drainage or streams on mountainsides. The North Carolina Geological Survey issues landslide advisories whenever extensive rain is forecast for the region.

The financial risks for those who live on or near unstable slopes can be extreme. In North Carolina there is no insurance coverage available to protect homes and property from landslide damage regardless of the cause. Insurance companies know from experience that landslide events are predictable and costly and they will not insure this risk.

Prospective buyers should choose wisely. Tell the seller/builder/developer that you will not buy slope property unless it has been certified by a state licensed geologist.

It should be noted that in the following article there is no mention of the Buncombe County hazard map or the location of the Cliffs at High Carolina on that map.

"Cliffs can dodge building limits" By Mark Barrett

Asheville Citizen-Times January 12, 2008

Developers of the Cliffs at High Carolina can put condominiums or town houses on property in Fairview without regard to Buncombe County rules severely restricting multi-family units in some places, a judge has ruled.

Buncombe County Superior Court Judge Ronald Payne ruled last month The Cliffs Communities had moved so far ahead with plans to build on property north of Spring Mountain Road that the company has "vested rights" that trump an ordinance county commissioners adopted in March 2007.

The property is part of a huge luxury development to include around 2,500 acres or more in Fairview and Swannanoa and, most likely, more than 1,000 homes.

The county ordinance limits the density of condominium or apartment complexes on land from 2,500 to 2,999 feet in elevation to one unit per two acres in buildings no taller than 35 feet. Above 3,000 feet, the limits are one unit per four acres and 2 feet in height.

Mores homes?

It is unclear whether the decision will result in more homes than earlier planned on the property or if The Cliffs will simply build about the same number but make some of them multifamily units.

"The final decision has not been made" as to how many homes and what kind will be built on the land, Jim Anthony, CEO of South Carolina-based The Cliffs Communities, said in a statement. He did say The Cliffs will move ahead with a "wellness village" to include condominiums and town houses and health and exercise facilities.

Attorneys for the winners and losers said it is unlikely many, if any, other property owners would be affected by the ruling.

Word that The Cliffs was assembling land for an upscale development that will take property on the south side of Swannanoa and in Fairview's northeast corner got out in the summer of 2006, although The Cliffs says it has been working on the project since 2004.

Just before the multifamily ordinance was adopted, The Cliffs asked Buncombe County to allow it to move ahead with condominiums and town houses regardless. The county declined and The Cliffs later sued to preserve its rights.

Anthony said his company is "very pleased to have the opportunity to move forward with the wellness village we planned as a cornerstone for The Cliffs at High Carolina" and that the development "will become a tremendous asset for western Carolina. "

Commissioner David Gantt said he is disappointed by the decision and that "there will be more development in the project than there would have been under the existing rules."

"I just hope The Cliffs continues to be sensitive to the community makeup," Gantt said.

Commissioners have not decided whether to appeal Payne's ruling, Assistant County Michael Frue said.

County government approved a plan last year that showed 733 single-family home lots and a golf course on a portion of The Cliffs' Fairview property that is about the same area as the 966 acres affected by Payne's ruling.

But a rough plan that included condominiums and town houses that The Cliffs submitted as part of its effort to be exempted from the ordinance actually called for fewer homes in the same area. It shows the golf course, 197 single-family lots, 106 duplex units, 300 quadruplex units and 100 units in larger condominium buildings-a total of 703 dwelling units.

Work proceeding

Anthony said his company hopes to make an announcement related to the golf course, being designed by Tiger Woods, in the coming months. Later in the year it will announce details of the first offering for sale of lots in the development he said.

Plans submitted to Buncombe County last June say The Cliffs had acquired almost 2,500 acres for the project. It is likely to include a total of more than 1,000 homes.

The Cliffs said in its lawsuit that it had paid about $45.1 million for property in Fairview by the time the multifamily ordinance was adopted in March and had contracted to so spend another $9.4 million for more land. That doesn't include an oral agreement with Buncombe County Commissioners Chairman Nathan Ramsey and his brother Franklin for The Cliffs to buy 190 acres from the Ramseys for $3.7 million.

The Cliffs said it had also spent more than $3 million on legal, planning and related work on the project by that point.

Other impacts

David Owens, a professor at the UNC Chapel Hill School of Government who specializes in land-use law, said developers can acquire vested rights for a project if they have made substantial investment in a specific project and can show they are actively working on the project before new rules affected it are adopted.

"The fact that you wanted someday to build an apartment building on (property) doesn't mean anything... You've got to act on your intentions," he said.

Both Frue and Phillip Anderson, who represented The Cliffs in the case, said the company's situation appears to be "unique" and that they expect other property owners to be able to ignore the county multifamily ordinance.

The Cliffs filed plans for part of its development in 2006 ahead of the effectiveness of a county ordinance on steep slope development. In response to community concerns, it subsequently said it would build according to the ordinance.

The multifamily ordinance, however, would have had a "potentially devastating effect" on the Cliffs plans making the lawsuit necessary, Anthony said.

Earl Crawford, who lives downhill from the Fairview property, said he doesn't have a strong preference as to whether The Cliffs builds single-family homes or condominiums.

"I hate to see them tear the mountain up," he said, although, "It's not been bad so far."

Staff writer Clarke Morrison contributed to this story.