It’s been a year since professor David Owens of the School of Government at UNC-Chapel Hill formally presented the Asheville City Council with the results of his detailed review of three controversial development projects (see “Asheville City Council,” Aug. 30, 2006 Xpress). Council members had asked Owens to assess the situation after the Coalition of Asheville Neighborhoods brought those problems to their attention a year earlier. Owens found that all three cases violated the city’s Unified Development Ordinance.
But despite strong talk by several Council members, two of those projects—Greenlife Grocery and Staples office supply—remain in violation, and there is no clear sign that the city intends to take action. In the interim, City Attorney Bob Oast has advised that City Council lacks the authority to enforce the law, leaving both Council members and city residents stymied.
“A year after the Owens Report, we have failed to make good on his recommendations,” Council member Bryan Freeborn told Xpress. “We have beaten around the bush concerning Greenlife way too long.”
After Owens had presented his conclusions last August, Mayor Terry Bellamy declared: “It’s time to take the next step. I think we have a good idea what the community wants. … We are elected officials who represent the community.”
Illegal signage at Prudential Lifestyle Realty (31 College Place) was quickly modified to bring it into compliance. But a year later, Greenlife’s delivery trucks still use the residential Maxwell Street, and the Staples building and signs still violate setback requirements and other applicable law.
Last November, Greenlife co-owner John Swann presented Council with suggestions for addressing the concerns about his business. But bringing the store into full compliance would require extensive remodeling and expansion, which he said his company couldn’t begin for more than a year. Asked about the matter recently, Swann said Greenlife is considering the project but hasn’t made a definite decision.
Staples, meanwhile, has declined to even sit down and talk with the city, according to several Council members. And community activists have fed Council members a steady diet of complaints about the city’s failure to enforce the law.
In November, Council member Robin Cape told Xpress, “We need to enforce the ordinances and get the trucks off the street, not micromanage how they do it.”
Around the same time, Council member Browie Newman said: “I am committed to getting the sign changed on the Staples building and to get truck traffic off of Maxwell Street. I think that both of those things are necessary to achieve compliance with the city’s ordinances and to do what is right for the community. I have heard a majority of City Council have endorsed those goals and gave direction to our city manager and city attorney to identify ways we can get those goals accomplished.”
Newman added: “If Staples responds and states that they will not change their sign, I do support taking action to require the sign to be changed. If a majority of Council also supports [this] … it would be my hope that our staff will be as supportive as possible in pursuing effective enforcement actions.”
But earlier last fall, City Attorney Bob Oast had advised Council that only planning staff, not elected officials, are legally empowered to enforce the law in such cases.
Frustration all around
Swann, too, is frustrated. “We were ready to move a house and take our delivery traffic off Maxwell Street,” he told Xpress, “but Reid Thompson has filed a lawsuit against us and the city. Our attorney has advised us to hold off pending resolution of that case.” Thompson, a Maxwell Street property owner, has been a key player in shining the spotlight on Greenlife’s UDO violations.
Asked about the situation, Freeborn said: “We requested staff to bring us a revised sign ordinance, and we have seen nothing of the sort. … Council needs to take a definite stand.”
And in a recent e-mail exchange, Council member Brownie Newman told members of the Coalition of Asheville Neighborhoods: “If someone can show me the place in the UDO where it states that City Council has the authority to issue a notice of violation over violations of city ordinances, I will start doing it. Until then, I hope people will recognize that we are as frustrated by some of these situations as anyone else. I would ask people to consider whether or not it is fair to continue to beat us up over situations where we do not have the authority to act.”
In response to Newman, CAN President Joe Minicozzi wrote, in part: “What is fairness? If you look it up in a dictionary, it means “consistent with rules, logic, or ethics; in a proper or legal manner.” So to be short, the answer to your question above would be: YES! It is fair for us to beat you up over this. Why? Because we are outraged that our government hasn’t been fair, or should I say LEGAL? … We have been continually pointing out that [former Development Director Scott] Shuford may have made a decision, but in the majority of those decisions he has no legal jurisdiction. He cannot grant variances for signage, visibility triangles, setback of Staples on Orange Street, eliminate buffers, etc. So it doesn’t matter what he signs his name to, he doesn’t have the LEGAL authority. Dr. Owens (another attorney) even pointed that out. … Our outrage stems from the fact that our government ignores our rules and regulations. That qualifies as ‘unfair.’”
Enforcement aside, Council does have the authority to instruct the city manager to take action. Asked if he’d received such instructions, City Manager Gary Jackson didn’t answer directly, merely indicating that staff updates on the situation would be on the agenda for Council’s Aug. 28 meeting.
Responding to the same question, Cape told Xpress: “No, four of us have not specifically requested Gary Jackson to enforce all the requirements of the UDO. The stalemate of the former planning director and the support of the city attorney for that stalemate took the wind from my sails.
“Frankly, I feel out of my league in understanding how to influence the positive outcome in this situation. I too would like some concrete answers; I was hopeful we could encourage positive results with Greenlife through the new-loading-dock conversations, but they have obviously petered out, and nothing has happened to mitigate the problems. I am supportive of moving forward with mitigation and whatever the city can do to get the trucks moving as they were directed to move.”
And looking at the big picture, Freeborn observed, “I respect staff’s professional credentials, but a culture developed under past management that isn’t meeting our goals as a city. And Owens stated that our UDO permits too great a level of interpretation by staff, permitting them to make decisions that rightfully belong to the Board of Adjustment or Council.”
After hearing Owens’ conclusions last August, Mayor Bellamy proclaimed, “We’re taking ownership of this process.” She did not respond to phone and e-mail queries concerning the current status of the situation.
Newman, however, told Xpress: “City Council can change the UDO language to make it 100 percent clear that coloration that is part of the corporate logo must be counted in the square footage of the signage. This would make their sign a nonconforming use. They would not have to replace it immediately, but they would have to replace it after a period of time. I support taking that step. I don’t think Council has other short-term options.”
Concerning Greenlife, he said: “There have been ongoing conversations with the owners of the store and neighbors around redesign of the loading docks so that large trucks will be removed from Maxwell Street and the vegetative buffer can be expanded. Greenlife owners conceptually agreed to make these changes, which require a rezoning of a neighboring lot. Several months have gone by now, and Greenlife has not submitted their plans for redesign of their loading docks and associated rezoning to the Planning and Zoning Commission. I have repeatedly called John Swann to urge him to submit his plans. In July, Councilman Freeborn and I asked the mayor to place this issue back on our agenda. We notified Mr. Swann that unless he moves forward with the plans for redesign, we will be compelled to implement traffic-calming and pedestrian-safety measures on Maxwell Street to protect public safety, which will limit access by large trucks.”
In a related matter, the city spent about $900 last October repairing a sidewalk on Maxwell Street that had been reduced to rubble by tractor-trailer traffic serving Greenlife (see “Keep on Truckin’,” Nov. 29, 2006 Xpress). And although Swann has indicated full willingness to pay for the repairs, Jackson recently said the grocery won’t be billed for the damage to public infrastructure. In an e-mail to Heather Rayburn of the Mountain Voices Alliance, the city manager explained, “The damage assessment could not pinpoint the date, times, drivers and specific causes in order to justify the specific billing to a responsible person.”