State Sen. Tim Moffitt has fast-tracked a Helene-based rebuilding plan that would waive for two years the state building code’s “50 percent rule,” which requires any building with flood damage costing more than half its value to be rebuilt to newer, stricter building codes.

“There’s not a lot of rebuilding taking place because people are unsure as to what they can and cannot do,” said Moffitt, a Republican who represents Henderson, Polk and Rutherford counties and has a business in Buncombe. “You have a lot of conflicting rules out there that really prohibit people from rebuilding their lives, restarting their businesses, and that’s what this bill is seeking to address.”

Senate Bill 266, titled in part, “An act to establish exemptions from certain floodplain requirements for the replacement or reconstruction for structures damaged by historic flood events,” is on the Senate calendar for today. Moffitt acknowledges the bill is a “heavy lift,” because it would not only amend the state building code but require federal approval through the National Flood Insurance Program.

But he’s optimistic it will pass.

“So, things that are Helene-related are very time-sensitive to the body here, and once we refine this on the Senate floor (May 7) and send it to the House, then they just need to push it through,” Moffitt said.

The second part of the bill includes a provision regarding farmers and lost topsoil, coupled with all of the vegetative material from storm damage that’s being ground into mulch. The bill calls for exempting this waste mulch from regulations for two years.

“That way that mulch can actually compost on itself and become replacement dirt that can be pushed back out into our agriculture communities,” Moffitt said.

Moffitt said he’s “comfortable” that the total bill will be enacted by the end of May.

“And once that happens, then I start working the federal angle to get them to come into alignment with us when they go through the reauthorization process,” Moffitt said, noting the bill would create a “historic flood exemption.”

That’s key language, he said, because Helene was a 1,000-year flooding event that is unlikely to repeat itself. Weather experts have told Asheville Watchdog it was a 1,000-year rainfall event.

Those experts have told The Watchdog that the mountains may see more frequent heavy rainfall events, as the air temperature continues to warm, and warmer air can hold more moisture. Additionally, the Gulf of Mexico continues to warm, and that fuels more intense storms, including Helene, which traveled from the Gulf northward, before making a direct hit on the Asheville region.

Additionally, such designations as “100–year flood” or “1,000-year flood” are simply statistical designations, meaning in the first case that in each year there is a 1 percent chance of flooding, or in the second a .1 percent chance of flooding.

Ten days before the storm, The Watchdog published a story about the increased risk of flooding in the area, noting that more than 1,800 homes and 554 commercial buildings in Buncombe are at risk of experiencing a 100-year flood, resulting in potentially almost $75 million in damages, according to the Buncombe County Hazard Mitigation Plan. The county is also adding more residents and buildings, meaning more rooftops and other impervious surfaces, which create more runoff and contribute to flooding.

As Moffitt notes, the only other storm comparable to Helene in damage and scope was the great flood of 1916.

The “historic flood exemption” language in his bill means “that any flood that is deemed to be greater than a 200-year flood event, then the substantial damage or substantial improvement requirements do not apply, nor do the base flood elevations come into effect,” Moffitt said.

In non-legal language, “It allows you to reset your life to where it was before the storm event, ” Moffitt said. “Because there’s really no building code scheme out there that could manage to handle a 200-year event, much less a 1,000-year event like we had.”

More than 9,200 Buncombe residential units damaged

The move could greatly help property owners and developers in Buncombe whose buildings along the Swannanoa and French Broad rivers were destroyed or sustained more than 50 percent damage.

In January, Buncombe County government noted that Helene damaged more than 9,200 Buncombe residential units, with 331 being destroyed and 609 suffering major damage. The county also stated that since October, single-family new construction permits had dropped about 60 percent compared with the previous year. 

The City of Asheville, on its Helene Building Safety Assessments page, states the city has done 1,616 assessments of damaged property, inspected 964, and found that 434 were deemed “restricted” (has damaged areas that should be avoided, but building is occupiable within safe parts) and 218 were designated “Total Unsafe.”

Commercial real estate developer Rusty Pulliam, whose company Pulliam Properties owns dozens of buildings throughout the region, said, “Everybody is wrangling with the 50 percent rule — the state building code rule.” It has stymied rebuilding in many cases, he said.

He expects the Moffitt bill, if passed and fully enacted, to provide a huge boost to rebuilding. As it stands, property owners face uncertainty in determining whether their property is more than 50 percent damaged and difficulty in securing financing on damaged properties.

Banks may be reluctant to lend money for rebuilding on projects that are close to the 50 percent line, because building costs may escalate if the level rises above that threshold and the new building standards kick in, significantly raising costs.

“Because once these banks learn about this state building code being 50 percent, they’re going to quit loaning money on buildings in the floodplain,” Pulliam said. “Or their loan-to-value (ratio) is going to be so low, there’s not going to be but so many people that can afford to build in the floodplain area.”

Pulliam owns two buildings in Biltmore Village, the Cava restaurant and the nearby FedEx office, both of which should reopen in the coming weeks. While he’s been able to move ahead, Pulliam said many property owners have not, because of the uncertainty and financial constraints.

That’s particularly true in Biltmore Village and the River Arts District, but also applies to other hard-hit areas such as Swannanoa. Moffitt’s bill could “open the door for most people to be able to come back,” Pulliam said.

“It’s going to relieve the pressure of all the property owners having to play with only being able to build back 50 percent of the value of the building structure before the storm,” Pulliam said. “It will keep people from going bankrupt, because most people have an existing loan on their real estate and if their loan balance is close to 50 percent of the value of the building, the bank’s not gonna loan them any more money to reconstruct.”

Bill may jeopardize city, county standing in insurance program

Asheville City Attorney Brad Branham said the city “recently updated its local floodplain development ordinances to closely mirror these requirements from the State Building Code. 

“The added benefit of this action was to ensure our continued good standing to participate in the NFIP, which requires local governments to enact and enforce these types of ordinances,” Branham said via email.

Branham said as he sees the bill, it would primarily “provide property owners with the option to rebuild structures which have been substantially damaged by Hurricane Helene without the need to comply with certain flood-proofing measures such as elevating the structure.

“These requirements are mandated by the North Carolina State Building Code for such properties, and are intended to prevent them from suffering such severe damage in the event of a similar future flooding event,” Branham said. “This bill, if passed into law, would provide a time and geographical exception to these rules.”

Branham said he’s spoken with people at the state and federal level about the potential impact on the continued participation in the NFIP by the city and the state.

“The feedback I have received is that such a change would jeopardize our standing in the program,” Branham said. “To what degree, I cannot yet say. However, I suspect that it would likely have serious ramifications for all North Carolinians’ access to future federal flood insurances and post-event benefits.”

Moffitt said he plans to work on these issues once the bill passes through the state House.

“Once this bill is enacted, the first part is only triggered by a federal change in the National Flood Insurance Program — recognizing that what we’ve done is acceptable to that — and the framework’s in place,” Moffitt said. “And the reason I’m doing it that way is the reauthorization for the National Flood Insurance Program is not till this fall, and that’s my window to get them to consider easing up and adding this exemption as an acceptable way for local governments to manage these types of storms.”

The bill’s primary sponsors are Moffitt and fellow Republican State Senators Danny Earl Britt, Jr., who represents Hoke, Robeson and Scotland counties; and Warren Daniel, who represents Buncombe, Burke and McDowell. The bill has seven co-sponsors, including state Sen. Ralph Hise, who serves nine western North Carolina counties and is the Senate Deputy President Pro Tempore.

State Sen. Julie Mayfield, a Democrat representing Buncombe County, said the bill will “definitely” pass in the Senate.

“But I can’t speak to its chances in the House,” Mayfield said. “As you know, getting changes to anything at the federal level is a challenge, so I’m not sure I have a good guess on that.”

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Asheville Watchdog is a nonprofit news team producing stories that matter to Asheville and Buncombe County. John Boyle has been covering Asheville and surrounding communities since the 20th century. You can reach him at (828) 337-0941, or via email at jboyle@avlwatchdog.org. The Watchdog’s local reporting during this crisis is made possible by donations from the community. To show your support for this vital public service go to avlwatchdog.org/support-our-publication/.

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