Another Obstacle for the Hillside Plan?

After 11 months, County Commission throws in another wrinkle

As of this Thursday, it has been 344 days since the Metropolitan Planning Commission approved a plan to protect local hillsides and ridgetops. In that time, governments have toppled across North Africa, Osama bin Laden was killed in Pakistan, Wall Street has been occupied, and the Dow Jones Industrial Average has risen 1,000 points, fallen 2,000, and risen 1,000 again. Kim Kardashian got engaged, married, and filed for divorce. Since MPC passed the plan on Dec. 9, 2010, the city of Knoxville has had three different mayors, and elected a fourth.

What hasn't happened over the past 11 months is the adoption of a Hillside and Ridgetop Protection Plan by either Knox County Commission or Knoxville City Council. Commission shot down the original MPC plan on a 6-5 vote in April, but Council—which all along has seemed more favorably inclined—held off on a vote. Instead, the two local legislatures held a series of mediated meetings to talk about the plan, adding months to an effort that had already taken about three years of task force meetings and public hearings. The net result is a somewhat modified plan that both Commission and Council are expected to vote on this month.

At a Commission work session on Monday, a few more wrinkles were added to the already rumpled endeavor. The week before, the Knoxville Chamber had made one more attempt to win some changes in the plan, which it has all year contended is too restrictive on hillside clearing and development. After trying and failing to introduce its own substitute plan in September, the Chamber settled for simply submitting suggested edits and amendments. Those were ignored during the final Council-Commission meeting on Nov. 10, but they resurfaced Monday courtesy of Commissioner Richard Briggs.

Briggs, who could be seen consulting with Chamber CEO Mike Edwards during a break in the afternoon's proceedings, announced that when Commission meets next Monday, Nov. 21, to vote on the plan, he wants to offer an amendment. Reading a mouthful of a paragraph taken directly from the Chamber's proposed revisions, he said:

"This plan and the principles, objectives, policies, and guidelines included herein are advisory in nature and constitute non-binding recommendations for consideration in connection with development of steeply sloped areas. The plan is not binding on future land-use decisions by City Council, County Commission, MPC, the city or county Boards of Zoning Appeals or any other governmental body. Any provisions of the Knoxville-Knox County General Plan 2033 or any Sector Plan which are inconsistent with or in excess of the recommendations set forth in this plan shall be deemed modified and/or repealed consistent herewith."

So what exactly does that mean?

Garrett Wagley, the Chamber's vice president of policy and public relations, says it's just intended to clarify that until Commission and Council actually pass new ordinances on hillside development, the plan is just an advisory document. MPC Executive Director Mark Donaldson already added a line to the plan last month saying exactly that. (At the time, Donaldson said it was kind of a redundant statement, since MPC plans all are advisory. They are used to make recommendations to MPC, Council, and Commission, but those recommendations are not always followed.) But Wagley says the Chamber's lawyers suggested it should be said even more strongly, to make it clear that Commission and Council can still approve more or less any development they want to, regardless of the Hillside Plan.

"Legally, the statement Briggs is offering makes it more clear," Wagley says.

Of course, to the casual reader—to the extent a casual reader could parse the paragraph's legalese—it might sound like the intention is to say that the plan effectively means nothing. "I don't think that's our intent at all," Wagley says.

Reaction from other commissioners was largely muted. Commissioner Tony Norman, who co-chaired the task force that drew up the original plan, seemed to view the amendment as another attempted end-run by opponents. "There's an old saying," he told his colleagues. "The enemy will save his most vicious charge for the end of the day. These guys are going to bring it." But he declined to get into discussing the specifics of the Chamber verbiage, indicating that the real battle will come at next Monday's meeting.

The one commissioner who endorsed Briggs' suggestion was Jeff Ownby, the most ideologically conservative member of the body, who has been skeptical of the hillside plan from the beginning. Reading from a prepared if somewhat rambling statement, he invoked the founding fathers, the 5th and 14th amendments, numerous court cases, and the risk of trees falling on houses. "If we pass this, that will be the start of the end of the Constitution," he warned.

(Ownby also said, "It's not the government's job to tell someone what they can or cannot do with their property," before adding that, "I believe in codes and enforcing them. There needs to be restrictions." In a subsequent phone call, he explains the seeming contradiction: He doesn't want to repeal existing land-use regulations, but he doesn't think the county needs new ones. "We're making more regulations on top of what we already have, that we can't even enforce now.")

Donaldson, for his part, says he's not sure the added paragraph would really have much effect, beyond repeating what the plan already says about its advisory nature. But, he says, "That second sentence is a little dicey." Saying an MPC plan is "not binding on future land-use decisions" could be at odds with state law, which governs such plans.

Few of the commissioners indicated how they plan to vote next Monday, though supporters have in recent days been hopefully counting as many as eight positive votes on the 11-member body. For what it's worth, Monday will be the 348th day since MPC approved the plan.