Board of Adjustment votes down variance for Wal-Mart Supercenter at Sayles site

An hour before a Board of Adjustment hearing on the Wal-Mart Supercenter proposed for the old Sayles-Biltmore Bleacheries site, activists rallied in front of the Public Works Building and along South Charlotte Street, shouldering anti-Wal-Mart placards and displaying a serpentine string of petition forms containing hundreds of signatures of citizens opposed to the project.

Inside the Public Works Building, nearly 150 people crowded into the conference room provided by city officials, who had expected a large turnout. Every seat was filled, and others stood three-deep in the back of the room.

By the close of the dramatic four-hour hearing, held on Sept. 5, Board of Adjustment members made these opponents’ day: They denied JDN Development’s request for a variance to the city’s Unified Development Ordinance (specifically, to the ordinance’s “River Resource Yard” requirement). The variance, had it been granted, would have allowed JDN to move forward with its plans to develop a large shopping complex (anchored by a Wal-Mart Supercenter) at the Sayles site, located on the Swannanoa River in east Asheville.

Expecting a big turnout, the city held the hearing in a large conference room in the Public Works Building. The crowd surpassed even that expectation (nearly 150 people attended), filling every seat and standing three-deep in the back of the crowded room.

The hearing began on a surreal note, just after the chairman of the five-member Board of Adjustment, Darryl Hart, instructed everyone who wished to testify to step to the front of the room to be sworn in. JDN officials, city officials, lawyers, anti-Wal-Mart activists and concerned citizens came forward and were directed by Hart to “place your left hand on the Bible, and if you can’t touch the Bible, touch somebody who is touching the Bible.” A conga line of sorts formed, and, in rare unison, everyone swore to tell the whole truth and nothing but the truth.

At the onset, Hart asked for a show of hands from those in the audience who were in favor of the variance and JDN’s proposal. Seven hands were raised. They belonged to JDN officials, their local lawyer and their fellow petitioners — the current owners of the Sayles-Biltmore Bleacheries site. When Hart asked for a show of hands from those opposed to the proposal, he looked out on a sea of palms.

Throughout the hearing, Chairman Hart reminded his fellow board members, the petitioners and opponents that the purpose of the hearing was to discuss only issues concerning the River Resource Yard variance, the floodplain and the river. The scope of the debate was to be limited to technical points of the proposal, and was not stray into other aspects that have surrounded this controversy. This was not to be a venue for pro- or anti-Wal-Mart commentary, or digressions about the fundamental rights of property owners. Such discussion, he pointed out, would be more appropriate before the City Council, which would have entertained these points in their own hearing — if the Board of Adjustment had granted the variance.

But more often than not, Hart’s admonitions fell on deaf ears. The Board, the petitioners and the public — clearly in uncharted waters, and with little precedent to guide them — steered a course that zigzagged between pragmatism and passion.

The first attempt at digression was made by Larry McDevitt — an attorney with the Van Winkle Law Firm in Asheville — who represented JDN Development at the hearing.

In his opening statement, McDevitt inquired about procedure: “While I know there’s lots of folks here today in opposition to this, I also thought it might be of some interest to them to hear from the developer on what the scope of the project is, and if I could do that, we would proceed that way.”

Amid rumblings from the audience, Hart answered, “[You can do that] if we could keep relevant to the issue at hand … and not stray too far from the point.” McDevitt agreed to this suggestion and turned the floor over to Harley Dunn, one of the owners of the bleacheries site.

Dunn, in turn, attempted to dispel the belief that the site is what he dubbed a “pristine meadowland,” and went on to describe the many attempts he and his partners had made at developing the site. He, too, was interrupted by Chairman Hart, who asked him to “kindly get to the point.”

Next up for JDN was its Vice President of Design and Construction Services, Ralph Knauss. “If there was a way we could have figured out how to do [the development] without being here to ask for the variance, we would have done that,” he said. “We’ve spent in excess of 700 engineering hours in creating flood studies and looking at ways to minimize this to the absolute minimum. We’ll let our expert tell you about that, but it’s been a great deal of time and expense, so it’s not something we’ve taken lightly.”

The tide seemed to turn against JDN when their contracted engineer, and Knauss’ aforementioned expert, Tom Kelly, stepped up to the podium to field technical questions from the board. McDevitt, in his opening statement, described Kelly as “the engineer and hydrologist that did over 150 models and studies of the hydrological effects and requirements on this project, and [he] is here to address the engineering questions in detail.”

But Kelly struggled with several of the board members’ questions. When asked by board member Dennis Hodgson (a retired engineer) about specific water-flow calculations, Kelly replied, “I don’t have the specifics on the numbers of the flows.” Not satisfied with the answer, Hodgson shot back, “We’re being asked to pass judgment on some questions here, and we need better answers than that.”

Knauss soon left his seat and joined Kelly at the podium, frequently stepping in to answer questions posed to Kelly.

When it came time for opponents of the project to testify, the audience became more vocal. Hart, in response, brought in two Asheville police officers who were instructed by Hart to remove anyone who disrupted the proceedings. The officers stood vigil at the front of the room, and the vocal disturbances subsided.

One after another, members of the public — speaking on behalf of organizations such as RiverLink, Smart Growth Partners of Western North Carolina, the Beverly Hills Area Homeowners Association, Community Supported Development, Save Our Swannanoa, and others — attacked the proposal from different angles. Smart Growth’s Jim Bannon pointed out that the variance was needed because of the developer’s plan for multiple large buildings. He indicated that, in his opinion, the board needed to distinguish the “need” for multiple buildings versus the developer’s “desire” for multiple buildings. No consideration, he pointed out, had been given to multi-storied buildings, as opposed to large single-floor buildings — which have a greater footprint on the landscape.

Attorney Jim Siemens, representing the homeowners group, pointed to legal precedents and argued that JDN and the owners of the property had no claim to a variance. He based this on the fact that the current owners, Riverbend Business Park LLC, generate an income from the bleacheries property (one of the stipulations in granting a variance is proving a financial hardship as a result of the UDO restrictions). “What the LLC hasn’t told you, what Mr. Knauss hasn’t told you, is that Riverbend Business Park is reasonably used today and does generate a reasonable return. There is absolutely no hardship, folks — the tail is wagging the dog. JDN is arguing to you that because we can generate a more significant economic return by building a Super Wal-Mart — or call it Greenpeace World Headquarters, it doesn’t matter what’s going in there — but because we can generate a greater return, we deserve a variance. And that is not the law.”

As did some supporters of the development, opponents to the project also strayed from the focus of the debate at times. One theme repeated over and over was that the board’s decision would be precedent-setting and would affect generations to come. From the looks on the faces of the board members, they appeared to sense the burden of their decision.

After closing statements, the board debated among themselves, sometimes voicing personal opinions about the project. Member David Young reminded his colleagues that, while some points had strayed from the topic at hand and that both sides of the issue had merit, the board was there to “make a call on the River Resource Yard.” Ironically, he then described how he thought that JDN’s proposal was worth supporting because JDN was offering to clean up a contaminated site (referring to contaminated well-water samples previously found there). Young noted that such clean-up requires “deep pockets.”

In the end, board members David Young, Darryl Hart and Paul Smith voted to grant JDN the variance (with some conditions). Board members Dennis Hodgson and Lauren Malinoff voted against the variance. The 3-2 vote in favor, however, was not sufficient for the variance to pass. (Board guidelines stipulate that a variance can only be granted with a vote of 5-0 or 4-1.)

Immediately after the vote, Knauss respectfully declined to answer questions, stating, “We have a lot of decisions to make.” On Sept. 7, in a letter to Asheville Planning and Development Director Scott Shuford, Knauss requested that the conditional-use-permit public hearing currently scheduled by Asheville City Council for Sept. 19 be “postponed indefinitely.” In a memorandum also dated Sept. 7, Shuford related that the city has “followed up on [Knauss’] letter by telephone and the developer has confirmed that, at this time, he would like to keep his options open for pursuing City approval for developing the site. Those options include appealing the Board of Adjustment decision or making further modifications to the site design to reduce the extent of the impact on the river resource yard and reapplying for another variance.”

Meanwhile, across town, the Wal-Mart Supercenter planned for the old Gerber plant in south Asheville awaits its hearing before Asheville City Council.