Full of Holes

Friends of the Falls responds to Jim Anthony's latest proposal

On Monday, August 28, Jim Anthony presented a set of "compromise" proposals to the Transylvania County Commissioners. These proposals are presumably his response to State demands for full public access to High Falls, Triple Falls, and Bridal Veil Falls. Friends of the Falls has been calling for complete acquisition of the 2200 acre tract as the only workable long-term solution.

On this page, we examine some of the apparent problems with Anthony's proposal, and give our response.

Where are the details?

First, Anthony has apparently not made any concrete proposals to anyone. Certainly, the Friends of the Falls have not seen any details of anything. And we have indications that even the State negotiators in Raleigh don't have many concrete details. We don't believe that these proposals meet the Governor's demands for the property, and judging by the initial public reaction - it doesn't fly with local residents either.

The State cannot trust Anthony

The public and the State have absolutely no reason to trust Anthony, or to believe that he will be a reliable partner in any agreement. Even if we set aside complaints of broken promises from his existing Cliffs developments, we have ample evidence during the past year to see a credibility gap. The shameful story began when Sterling Diagnostic Imaging deceived the public about there not being any residential development allowed on the property. The deed restrictions filed at the Transylvania Court House appear to prohibit any residential housing on the property. Even lawyers representing the State were misled by this. Anthony played along, saying he had no plans for any development. Later, he changed his plans to some "cabins", then "time-share" cabins, and now finally just 100+ residential homes.

 

Even if a "legally binding agreement" could be forged from this vague proposal, the fundamental issue remains: with a powerful, well-connected, and untrustworthy partner - any legal agreement will be difficult if not impossible to enforce.

Observation Decks are not real public access

Public access means that all visitors to the property have the same basic rights. At every public waterfall in the State, visitors have the right to view the falls from whatever vantage point they choose. They can wade in the water, picnic on the rocks, and smell the wonderful spray from the falls . . . in short, they can experience it any way they choose.

What Anthony has proposed is a fixed access trail, terminated by a specified observation deck - for each of the three falls. The public won't be experiencing the falls up close, touching the rocks or the water. And the worst part is that the members of the exclusive Cliffs Communities will be right there at the same falls doing all the things that the public would want to do.

Why can't Anthony just give the public the same rights as his members? He says he can't. And in a real sense he is right. The value of an exclusive, gated community comes from, well, exclusivity. The property is being marketed as a "private playground". So the only way to give the public equal access to the waterfalls is to acquire it outright.

Third Party Trust

238 acres around all 3 falls is supposed to be transferred to the ownership of a third party trust. This trust would be a subsidiary of some unspecified land trust, but have its own board of directors, which would include representatives of the Cliffs Communities, county governments, and local community colleges. But there are many problems with this vague concept.

First, the make-up of the board is unspecified, and could easily fall under the outright control of Anthony himself. How many seats would the Cliffs get? And given that local politicians appeared quite satisfied with Anthony's original no-access plans for the development, couldn't they appoint a property rights representative to the board who would give Anthony anything he wanted? Could Anthony block access to groups he doesn't agree with (as he does now?). Anthony could deduct 100% of this "gift" to a non-profit organization, all the while maintaining considerable influence over the management of the land.

Second, it would likely take six months to a year to set up this complex arrangement to a land trust, IF you could find a land trust willing to get involved with such a powerful developer. This would extend critical decisions about public access to this land past the General Elections, when a frustrated public would not be able to hold State officials accountable. Such a delay would be a major victory for Anthony.

Finally, by drawing trails and observation decks on the map inside this 238 acre parcel to be deeded to this "entity", Anthony indicated that he has already laid the first ground rule for the new board of directors. While there may be supervised access for approved groups on this property, general public access to these 238 acres will not be allowed.

What about liability? Several people each year are injured around waterfalls in WNC each year. If a member of the public trespassed beyond the observation deck and was injured, would the non-profit land trust be held liable? What if a Cliffs member were injured? Why would a land trust want to assume this liability? Public lands are protected from liability when someone is injured. That is another reason why outright State acquisition of this property is the only real solution.

Conservation Easement

Anthony has proposed that 678 acres will be protected by a conservation easement. First, the 238 acres deeded to the entity is included in this figure, so the amount of easements on the remaining tract is 440 acres. What is this land? First, there is the tract designated as "Heritage", which includes land formerly designated by the NC Natural Heritage Program as having unusual ecological value. This includes land near the Little River, as well as a tract of land on Joanna Mountain.

Also included in the easement are 100' on either side of streams on the property (200' for Little River). The wild half of the Lake Julia shoreline will be given a 100' buffer, but the side of the lake where the former Camp Summit structures are would not.

People familiar with conservation easements know that they can be written to accommodate virtually any type of development situation. For example, a common type of easement states that, for example, only 5 houses can be built on a given 100 acre tract. Since we have no details about Anthony's proposed easement, we can't be sure how much protection he is referring to. Would it prohibit further blasting of Joanna Mountain for the procurement of landscaping boulders? What if he decided to site another road through the Heritage area?

These easements, while potentially useful, are not really costing Anthony anything. Considering his "private playground" promotion of the property, much of these protections would be advisable anyway. For example, one shore of Lake Julia has been given a shoreline easement of 100', but not the side of the lake with the existing cabins on it. But placing houses on the opposite shore would ruin the wild appearance of the lake that he has included in his marketing.

Conservation easements can be time consuming to negotiate, and difficult to enforce. It would be very difficult to negotiate and finalize a conservation easement on these acres in the coming months. Finally, which organization would hold title to and thereby enforce the conservation easement? Land trusts like to receive easements from willing property owners, but powerful, well-connected developers can create a major legal enforcement liability for a non-profit. Would the NC Attorney General's office be available in three years to assist in the enforcement of a dispute? What if there were major political changes in Raleigh in the intervening time?

80% of the property to remain undeveloped?

Anthony has made another claim in his proposal that he will keep 80% of the property undeveloped. But on this point, even fewer details are available than with the other points.

How will this 80% be figured? Based on total home site acreage plus all roads and other structures? Or only the rooflines and grassed areas? What about partially wooded lots near homes? And will the 440 acres of development be spread haphazardly across the entire tract, or kept clustered together away from the State Forest borders? The degree of interference with the functioning of the State Forest, and the ability of wildlife to make any use of his resort property depend greatly on how these questions are answered.

And most important, how would this be enforced? No mention was made as to even a conservation easement being used (easements are normally used in these situations). And which organization would be tasked with the difficult job of enforcing this provision? Given the deception suffered by the public by Sterling Diagnostic Imaging's "restrictions" against residential development on the property, and his own promises not to develop the property, Mr. Anthony will understand if the public is a little jaded about accepting an even weaker promise this time around.

$100,000 on Water Quality Improvements

Anthony has proposed to spend $100,000 to improve the water quality on his property over four years. Again, there are very few specifics. Does the $100,000 include the cost of complying with existing sedimentation regulations (such as silt fences)? We agree that there are some washed-out trails that need to be repaired to minimize sedimentation. But it is likely that the impact of building 100 - 200 large homes will do much more permanent damage to the water quality than whatever is done with the $100,000. And what would prevent Anthony from building a golf course on the property, with the obligatory frequent doses of nitrates and pesticides? The water quality in the Little River has a lot more to lose from Anthony's development than gain.

What is not in Anthony's proposal

• There are no restrictions on the number of homes that may be built on this property. What about 1000 or more?
• There is nothing to prevent the construction of a golf resort on the property, as his other major holdings have.
• There would be no trail access across the heart of the Forest. Dead end trails would continue. All visitors would have to use the specified parking lots and use the specified trails.
• There would be no mountain bike or horseback use of the property
• The public would not have the right to fish the Little River, as they would a State Forest
• Hunters would not have access to the Joanna Mountain area or other tracts
• There is no provision to keep houses away from border of State Forest, where conflicts with hunting would be most greatest
• Wildlife movement would be greatly disturbed by the sprawl development inside the State Forest

   

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