Planning board agrees to work on steep slope ordinance

Published 10:21pm Sunday, February 17, 2013

Planning board members were all in favor of having the building inspector make the engineer decisions through an ordinance, with their main reason being the ordinance can contain a slope trigger.

Planning board members said an ordinance can give the building inspector a trigger of when to go out to a site saving the county time and money and avoiding having to do a pre-site inspection on every building regardless of slope.

An ordinance would also give a local avenue for property owners to appeal a building inspector’s decision as well as to give exemptions such as for agriculture, forestry, altering or replacing a single-family dwelling and for minor construction.

Homeowners already have an appeal process for a building inspector decision through the state for a range of decisions made on construction.

Polk County Building Inspector Steve Jones told the planning board it was up to them, but he’d rather go the route of writing a pre-site inspection rather than an ordinance.

But planning board members said they’d feel more comfortable with an ordinance.

“I still think something should be on the books,” said planning board member Christel Walter.
“And it’s really for the protection of the homeowner and people that live around (the construction).”
Walter also said the ordinance drafted is “benign.”

“It’s benign because it’s only establishing that threshold,” Walter said. “It’s still up to (the building inspector’s) discretion. I hope the commissioners will be OK with this. I think we have to move in that

Another topic discussed last week amongst the planning board was the potential liability issue of not having an ordinance. A couple of the planning board members and a resident mentioned the county being cautioned last year by former county attorney Mike Egan that without an ordinance the county would not be protected under state law if a slope failed due to construction.

Egan told commissioners last year both the county and the building inspector could be liable if, for example, the building inspector said an engineer wasn’t needed and a slope failed causing damage. It is unclear how liable the county would remain with the current draft steep ordinance leaving the decision up to the building inspector whether or not to require the property owner to have an engineer design the building.

“And as you recall attorney Mike Egan cautioned against an employee making those type decisions,” said Tryon resident and former county commissioner Renée McDermott. “Under North Carolina law, Egan said when an employee is making discretionary decisions neither the county or the employee is covered under North Carolina law. The inspector and the county could both be held liable and I’m sure you wouldn’t want that.”

Planning board members Lee Bradley and Susan Welsh also mentioned Egan’s caution.

“At least in theory (an ordinance) relieves a lot of liability,” Bradley said.

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