Overseeing the overseers

A growing movement toward citizen oversight has emerged in Asheville that could foreshadow a significant change in enforcement of Asheville’s development regulations.

Increasingly, activist groups are tackling development along the Merrimon Avenue and Haywood Road corridors, where road traffic is being matched by burgeoning e-mail traffic within neighborhood organizations such as the Montford and Five Points Yahoo groups. Coupled with the results of last November’s City Council campaigns, in which many of these newly active community organizers took part, a new city manager is asserting control after taking the helm last summer.

The most dramatic impact of the new mood to date was the Feb. 2 uproar over the former Citizens ACE Hardware site at 841 Merrimon Ave. Walgreen Co. had obtained a permit to substantially remodel the retail space for use as a drugstore, and its contractor was proceeding with what was supposed to be a partial demolition.

Reached by phone that morning, however, Asheville City Council member Robin Cape told Xpress: “I drove by the Walgreens job site yesterday evening and saw that the walls were down, so I went home and read my copy of the [Unified Development Ordinance]. This morning I called [City Manager] Gary Jackson, who was in Raleigh, and he called [Planning Director] Scott Shuford.”

In short order, Shuford dispatched Planner Mike Wheeler to the job site to confirm the report, and at 9:35 a.m., Jackson e-mailed an “urgent priority” message to all Council members, the city attorney and other staffers saying, “A stop-work order has been issued for the Walgreens project.”

In a later e-mail, Shuford explained, “Their approved permit required the retention of two walls and the foundation, at minimum, in order to maintain compliance with the nonconformities section of the UDO.”

In other words, the former Citizens Hardware building didn’t comply with the 1997 Unified Development Ordinance. But if Walgreens had simply remodeled the structure, it would have been grandfathered. As Shuford further explained: “At this time, there appear to be only two options available to the developer,” noted Shuford: “Seek a variance or comply with the underlying zoning code.”

Although the now-demolished building dates back to an era when the city code permitted large parking areas between a commercial structure and the street, the new rules require more pedestrian-friendly design: siting buildings so they front on the road, and adding landscaping and other pedestrian amenities. If enforced, this and other stipulations in the UDO would significantly alter both the new Walgreens building and its relationship to adjacent retail stores.

In recent years, neighborhood activists have increasingly pressed for strict adherence to the UDO rule book on a number of projects along the north Asheville commercial corridor, such as the Wachovia Bank building recently approved for the former Burger King site at 674 Merrimon. And the CVS drugstore at 612 Merrimon Ave. has a flight of steps leading up from the street plus a landscaped strip where the parking area fronts the road. Other recent projects are also drawing fire.

Down against the wall

In cooperation with the Coalition of Asheville Neighborhoods, Asheville residents Kimberly Hodges and Heather Rayburn have each filed appeals of recent zoning interpretations by planning staff. The legal documents, filed Feb. 2, allege that construction permitted by staff at both the Prudential Lifestyle Realty building in the Asheville Office Park (31 College Place), and the Staples office-supply building on Merrimon Avenue explicitly violate city statutes.

Wall-mounted signs at both locations allegedly exceed the height and size restrictions mandated in section 7 of the UDO. Hodges and Rayburn say Shuford told them during a Jan. 1 meeting that staff “traditionally” enforces height limitations only on pole-mounted signs. And in an e-mail exchange with Hodges, Development Review Specialist Christine Logan repeated Shuford’s assertion, writing: “The height requirement applies to freestanding signs. I agree that the UDO is not the most clearly written, but we customarily only apply the height requirement to freestanding signs only because that was the intent of the authors.”

In response to Logan’s and Shuford’s assertions, Joe Minicozzi, a licensed city planner who’s helping the Coalition of Asheville Neighborhoods with the appeals, said: “If there is any section of the code that is over the top with detail, it is the sign code. The UDO is not multiple-choice! If what is built exceeds the allowable limit, it is a variance — and the only entity that can grant that is the Board of Adjustment. That’s the law.”

Director of Development Services Joe Heard told Xpress, “There are numerous references in the UDO citing greater allowances for sign heights for wall-mounted signs, which make it clear that the same height requirements are not intended to apply to wall-mounted signs.” But none of the sections of the law to which he referred this reporter makes any mention of exemptions to the height requirement for buildings less than seven stories tall.

The UDO also specifies, “Where conditions, standards, or requirements imposed by any provision of this chapter are either more restrictive or less restrictive than standards imposed by any other law, ordinance or regulation, the provisions which are more restrictive or which impose higher standards or requirements shall govern.”

Asked to explain his examples in light of this requirement, Heard repeated his assertion and passed the question on to Shuford, who told Xpress, “How about checking with [former Planning Director] Gerald Green to confirm and save us all some time?”

On another front, the large plastic Prudential sign appears to be at odds with the city’s design guidelines, which states, “Large plastic surfaces are inappropriate.” The guidelines, said Minicozzi, have been in effect since 1987, though they aren’t explicitly included in the UDO. “I’ve been telling them for three years that it would make sense to include the guidelines in the UDO,” he said.

Rayburn’s appeal also maintains that the Staples building violates numerous UDO requirements. For example, the building blocks the mandated “sight triangles” (i.e. areas supposed to be kept free of obstruction so that drivers can see oncoming traffic) at the intersection of Orange Street and Merrimon Avenue and at the parking-lot exit on Orange. The Merrimon facade lacks the prescribed pedestrian amenities and storefront. And the sidewalk at the store entrance allegedly fails to satisfy handicapped-accessibility requirements (which would also appear to violate the federal Americans with Disabilities Act).

The appeals were filed with the Board of Adjustment, which is required to schedule hearings on such matters. And at press time, Minicozzi said CAN was planning to file another appeal concerning alleged mistakes in the Walgreens permit process.

Council member Bryan Freeborn told Xpress: “This really shows that the new Council is listening to citizens, to the results of the election and the comments at community meetings. We’re saying we hear you and are not going to allow developers to operate without oversight.”

And Cape said: “We’re really committed to finding the right path for growth. It needs to be good for economic development and good for our quality of life. We’re on a very proactive and constructive course.”