Just after making a motion to approve plans for a 78-acre Wal-Mart shopping complex at the old Sayles-Biltmore Bleachery site in east Asheville, Council member Carl Mumpower — in one of the evening’s more surreal moments — noted (with a straight face), “This is an administrative decision rather than a political one.” An unusual opinion, coming from a politician who’d just sat through a three-part hearing in which hundreds of citizens had voiced political opinions on the matter.
But in a way, he’s right. Many project opponents maintain that the political decisions surrounding the Wal-Mart vote at Council’s July 23 formal session were really made last fall, when the pro-business political-action committee Citizens for New Leadership gave $8,000 apiece to the campaigns of candidates who pledged to make the city more development-friendly. A key player in CNL is Bob Jolly, one of the owner/developers of the bleachery site. And Mayor Charles Worley and Council members Joe Dunn, Jim Ellis and Mumpower all benefited from the special-interest group’s largess. So their Wal-Mart votes were certainly predictable, if not exactly perfunctory administrative procedure: They were simply following up on campaign promises to cut red tape for developers and increase the city’s commercial tax base. In essence, their votes were a return on an investment and an honest reflection of their political philosophies.
On a seven-member Council, four votes are generally enough to carry any measure. But many in attendance that night were shocked to see Vice Mayor Terry Bellamy and Council member Holly Jones follow suit, upsetting project opponents who felt that the 6-1 decision didn’t reflect the community’s deep division over the controversial proposal. After the final vote, opposition leader Sharon Martin said pointedly: “The same people who elected Joe Dunn didn’t elect Holly Jones. She needs to remember who put her there.”
The lone opposition vote was cast by Council member Brian Peterson, a staunch advocate for neighborhood rights.
At times, the quasi-judicial hearing bordered on the absurd. Mayor Worley did his best to keep a poker face; time and time again, however, he tipped his pro-development hand. Under state law, conditional-use-permit hearings must be conducted in a more formal manner: Rules of evidence apply, procedural minutiae are adhered to, and the entire process is administered by the mayor, who acts as a “quasi-judge.” Needless to say, in such a setting, impartiality looms large.
And indeed, the mayor proved a stern taskmaster, continually reminding both sides to limit their testimony to the strict confines of the city’s seven standards for approving a conditional-use permit. Any mention of Wal-Mart’s well-documented history of violating storm-water runoff regulations in other parts of the country, for example, was inadmissible, even though many citizens had raised concerns about the enormous concrete footprint that the project would bring to the bleachery site, which is adjacent to the Swannanoa River.
But some maintained that Worley was anything but impartial. For example, he frequently interrupted project opponents who tried to discuss a possible violation of the city’s engineering standards. At issue was an access road proposed by the developers to handle traffic problems created by the massive development. The proposed road would exit the complex from the rear and link with Stevens Street, passing under Interstate 240. According to Asheville resident Mike Moody (an engineer by profession), the road would violate the city’s minimum-width design standard for new streets. Opponents argue that the road would, in its smallest configuration, be at least 37 feet wide (including all facets of road design, such as shoulders and utility strips). To fit under the I-240 overpass, whose concrete pilings are only 34 feet apart, the new road would have to be much narrower.
Worley, however, would not allow Moody to make his argument, explaining that the width problem hadn’t been submitted as evidence during the first Wal-Mart hearing on the proposal back in June, when both sides had made their cases. And state law prohibits introducing new evidence at that point in the process. (The mayor could have chosen to reopen the public hearing, however, to hear new evidence.) Worley also called the width concern a “moot point,” explaining that if the proposed street didn’t meet city standards, city staff would not grant the required permits.
His decision didn’t sit well with opposition attorney Betty Lawrence, who saw the move as an attempt by the city’s elected leaders to delegate a crucial decision to staff; a practice that she had stated (during the first hearing) is not supported by North Carolina case law.
After the final vote, Moody told Xpress: “The mayor reopened the public hearing to discuss traffic impact . Yet we have this new evidence about the span width [under the I-240 overpass] that could block the road that is a major component of the developer’s traffic-mitigation plan, and the mayor wouldn’t allow it. This is crucial evidence. During the TRC [Technical Review Committee] review, they voted to approve the project, and one of the conditions of that approval is that the developer build bike lanes for any new roads constructed. Now I wonder if those bike lanes will be omitted from the road in order to accommodate it.”
Even City Engineer Kathy Ball was cut off at the pass by Worley when she tried to address the width concerns — an unusual move, given the deference Council typically pays to city staffers.
Corinne Kurzman, who lives near the bleachery and opposes the project, commented on the mayor’s move during a break in the action: “I think it’s horrendous that Worley just dissed one of his staffers for trying to clarify a very important part of this project. He let us know whose side he is on.”
At times, the mayor went further, volunteering information that clearly benefited the developers’ position.
During a discussion of the developer’s plans for controlling storm-water runoff, for example, Worley asked city Planning Director Scott Shuford, “Do I remember from the last hearing that the storm-water plan will cover not only a 10-year storm event but a 100-year storm as well?”
The developers had indeed made that point during the last Wal-Mart hearing. But that was in June, and it came amid a flood of points and counterpoints that saturated the Council and the public during 14 hours of testimony. At the July 23 meeting, the developers failed to bring it up again. But Worley did it for them.
And during a discussion of a toxic plume of polluted ground water at the site (a remnant from the bleachery days), Worley once again played a partisan role.
Monitoring wells at the site have shown contamination to the tune of 25 parts per billion. North Carolina law stipulates that ground-water contamination must be less than 7 parts per billion.
During the June hearing, however, the development team had stressed that the contaminant levels do satisfy less-stringent federal guidelines. And just in case anyone had lost sight of that information, Worley pointedly asked the development team’s attorney, David Matney, “Did you mention drinking-water standards?” Right on cue, Matney responded by noting that the ground water does meet federal drinking-water standards.
The evening’s proceedings took an even stranger turn when Council approved rezoning a portion of the site to accommodate an “urban village.” Hailed by “smart growth” advocates, these mixed-use developments are supposed to feature an architecturally pleasing blend of residences, offices and small retail stores. The idea is to enable people to work and shop where they live, making them less automobile-dependent. But the developers — ironically, in response to Council’s request that they retool their proposal to reduce the amount of traffic generated — opted to scale back the project, removing one of the proposed restaurants and all of the retail stores. That leaves the “villagers” with only one on-site place to shop: Wal-Mart. This bastardized version of an urban village was also adopted 6-1, with Peterson again registering the only “no” vote.
Where do we go from here?
The developers will still have to satisfy a host of conditions that the TRC, Planning and Zoning Commission and City Council attached to the project. Permits must also be obtained from other governmental entities, such as the Federal Emergency Management Agency and the Army Corps of Engineers. At one point Shuford, the planning director, displayed an overhead slide detailing the 14 separate permits that would be required before a building permit would be granted.
That information, however, only underscored an argument that project opponents have been making all along. As Lawrence put it: “My clients are very confused over the specifics of this plan. Many changes have been made to the site plans and the grading plans. What you are approving isn’t crystal clear.” And Sharon Martin added, “To approve a plan with so many unanswered questions is irresponsible.”
Lawrence said later that her clients would have to decide whether to appeal the decision. During her presentation before Council, however, she sounded an ominous warning that the “record shows that there has been procedural errors … and tens and tens of U.D.O. violations.”
The big question now: Will the opposition be able to scrape together the funds to pay for a legal team to take on Wal-Mart?