Odious ordinance vests too much power in water czar

by Leslee Kulba


While some members of council wanted to enact Asheville, NC’s stormwater
ordinance, others wanted to remand it to Planning and Zoning. A majority
of the protesting public, however, wanted to put it where it belonged –
in some far-off country where the people don’t profess independence from
overbearing government controls as the cornerstone of their national
heritage.

The Obvious –
Most citizens who voiced their opinion about the ordinance were upset
about losing property rights without compensation. City staff was
requesting a 50-foot buffer on any river, creek, stream, or intermittent
stream anywhere in the city or the Extraterritorial Jurisdiction (ETJ).
Under the ordinance, property owners would give up their right to
disturb the land through any building activity in this 50-foot strip.
The only permissible construction activities would be for impervious
greenways or transit routes for non-motorized vehicles.
Not allowing citizens to use their land as they wanted was one mistake.
Claiming government had no responsibility to compensate owners for their
losses, in use and in diminished property value, was a second. And
requiring property owners to pay the same taxes on their now unusable
land was a third. Residents of the ETJ were doubly mad that their
property rights were being taken away by a governing body which they had
no power to appoint or unseat.

I Thought It Said Limited Government –
Though this almost went silently under the radar, perhaps the scariest
aspect of the ordinance was the authority vested in the Stormwater
Administrator. This position was to be assumed by the director of the
city’s Transportation and Engineering Department. The head of two
recently merged departments would now be taking on the role of
monitoring day-to-day stormwater management programs; being responsible
for the interpretation and enforcement of state and federal stormwater
mandates; establishing terms and conditions for process application;
development of a stormwater manual, setting standards for design,
construction, and maintenance of stormwater facilities; and then some.
In effect, this person would be Asheville’s water czar.
Throughout the document, the Stormwater Administrator was granted broad
authority, with little mention of oversight, to do some remarkable
things. Though it is unlikely Cathy Ball would abuse her powers, laws
need to be written so as to keep government in check. Little tyrants
have ways of working themselves into the system, and good laws make it
difficult for them to try to garner power for selfish purposes. As
written, though, the stormwater ordinance grants the Stormwater
Administrator rights to emergency access, plus inspections at any time.
Although some parts of the document say advanced notice is required,
another part of the document is unclear as to whether signing a
mandatory agreement with the city constitutes granting of blanket
permission to enter.

In any case, if it’s “mandatory”, why do you have to sign?
The document presented to council contained this Orwellian language:
“The City shall have the power to conduct an investigation as it may
reasonably deem necessary to carry out its duties as prescribed in this
section 7-12-2 and, for this purpose, to enter at reasonable times upon
any property, public or private, for the purpose of investigating and
inspecting the sites of any activity regulated in this section. No
person shall refuse entry or access to any authorized representative or
agent of the city, who requests such entry for purposes of inspection,
and who presents appropriate credentials, nor shall any person obstruct,
hamper, or interfere with any such representative while in the process
of carrying out his/her official duties. No person shall willfully
resist, delay or obstruct an authorized representative of the city while
the representative is inspecting or attempting to inspect an activity
under this section 7-12-2.”

Sloppy Language –
That was just one part of the document that left readers wondering what
the legal interpretation actually was. The meaning of the proposed
ordinance in most places was decipherable, but somebody wanting to take
advantage of their powers as Stormwater Administrator would have a heyday.
Attorney Esther Manheimer, hired by CIBO to address the stormwater
ordinance, urged council to remand the carelessly-construed document.
People were confused by the combination of the stormwater ordinance and
the erosion control ordinance. Manheimer, a lawyer, said it took her
half an hour to sort out that section (f) pertained to erosion control
and section (g) pertained to stormwater mitigation, and then try to find
out what parts of the exemptions applied to which section. In her plea
on behalf of CIBO, Manheimer described the document as, “terribly,
terribly confusing.”
To add to the “convoluted” nature of the language, Manheimer noted that
the city was not using the same definitions as the state uses in
addressing stormwater issues. In some cases, Asheville made up its own
definitions for words the state defined differently. In other cases, the
city used different words to describe what could be described with state
terminology. Manheimer questioned how the city was going to define “top
of the bank,” and hoped they wouldn’t try.
Manheimer only had time to address the drafting flaws in the document,
but indicated she would like the opportunity to expose legal challenges
waiting to happen with the content.

In the Business of Government –
People who complain about the inanity of government certification are
bound to make themselves as the boy who couldn’t see the Emperor’s
resplendent regalia. On page after page of the ordinance, requirements
for certifications and inspections by government-certified professionals
are listed. Paul Szurek, representing the Chamber of Commerce, said
inspection fees alone by a certified professional can cost $500 to $1000
each. The ordinance would also require certain developments to present
something as expensively useless as a stamped as-is drawing prior to
grading. Another expense for developers would be providing borrow and
waste calculations and proof of their legitimacy.
In the end, all this paper shuffling was getting so thick, Mayor Terry
Bellamy requested that rather than four people, the city should hire six
to handle the workload.

More Problems –
Claims were made by many that the numbers the city was using were pulled
out of a hat. Szurek said there was no scientific precedent indicating
that there was any environmental advantage to grading large tracts five
acres at a time, but contractors said it would drive the cost of
building up 40-50%. The 50’ buffer width was decided upon because it was
determined to be the point of diminishing returns for runoff, and not
because it placed sediments and contaminants below some defined level of
toxicity.
Many members of the public who spoke against the ordinance faulted it
for prescribing a one-size-fits-all punishment for good stewards and
reckless developers alike. Several pled with council to remand the
ordinance. Ball stated that a study by staff indicated that the bulk of
stormwater runoff problems resulted from:
* poor mitigation design
* inappropriate or missing mitigation measures
* negligence in maintaining measures
* insufficient inspections.
Dr. Carl Mumpower, like many members of the public, correctly saw from
this that the best approach to stormwater mitigation would be to attack
the source directly, with stronger enforcement of existing rules.
Citizen Deborah Squier likened the ordinance to making everybody wear
gas masks rather than trying to improve air quality.
As the discussion wound up, Robin Cape asked what she’s been asking
about all the city’s attempts at drafting ordinances lately, “Where is
the system breaking down?” She sees a pattern of council being
dissatisfied with the proposals staff is returning to address the
changes members of council are trying to innovate in local government.

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Leslee Kulba covers The Asheville City Council for the Tribune Papers