City could face equal protection suit after short-term rental vote

Reid Thompson before Council
MAKE A STAND: Reid Thompson comes before Asheville City Council to discuss his request to rezone two properties for short-term rental use. Photo by Daniel Walton

Reid Thompson has lost the most recent battle in his 13-plus-year fight with the city of Asheville. On Oct. 9, Council voted to deny his application to rezone two of his properties, 28 and 32 Maxwell St., for short-term vacation rental, a move Thompson said was necessary only because city staff hadn’t stopped a nearby Whole Foods (formerly Greenlife Grocery) from illegal truck loading and other activities that drove away long-term renters.

But the war, suggested Thompson’s representative and urban planner Joe Minicozzi, is far from over. “He’s got to file a civil suit to get his civil rights upheld,” he told Xpress immediately after Council’s decision. “It’s the 14th Amendment of the fucking Constitution: equal protection under the law. You can’t enforce the law on one side of the street and not enforce it on the other.”

In the public hearing on the issue, Minicozzi said the city had issued no notices of violation against the grocery despite regular complaints from Maxwell Street residents, which he has documented since 2005. Meanwhile, Thompson has been fined $1,500 for each day he operates his Airbnbs in violation of city ordinances, with an estimated accrued total of more than $1 million. Thompson has also been issued a violation for allowing a shrub to grow eight inches over the edge of a city sidewalk.

Several previous long-term tenants of Thompson’s properties testified at the hearing in his support. Meg Jamison, who first moved to Maxwell in mid-2007, said she left in spring 2008 because of disturbances from the grocery loading dock. “I was 25 — I liked to stay up all night, but not day in and day out,” she explained.   

City staff, however, maintained that Thompson’s request for rezoning should be considered in isolation from the problems with Whole Foods. “The city has taken direct, specific action in this year… to prohibit short-term vacation rental use in almost every zoning district,” said city urban planner Jessica Bernstein. She expressed concern that approving the request would set a dangerous precedent and erode that enforcement effort.

Council member Brian Haynes, the sole dissenting vote in the 4-1 decision — Mayor Esther Manheimer asked to be recused because The Van Winkle Law Firm, her employer, had previously represented Thompson in this case, while Vijay Kapoor had a scheduled absence — disagreed with the rezoning’s potential for setting a precedent. “I think this is a special case. I can’t think of any other person in the city who this would apply to,” he said.

Speaking for the majority, Council member Julie Mayfield agreed with staff’s logic on the issue. “Allowing these houses to be used as short-term rentals, in complete violation of every direction that this Council has gone in terms of that policy, doesn’t fix the problem,” she said. Instead, focusing on Whole Foods’ behavior would make Thompson’s properties usable for their currently zoned purpose.

Reid Thompson hiding face
FILE PHOTO: Reid Thompson covers his face with a manila folder after the Asheville City Council voted 4-1 to deny his rezoning request. Photo by Daniel Walton

Mayfield, who was elected to Council in 2015, responded by email to an Xpress request for comment on how she would succeed at bringing the grocery into compliance when previous Councils have not done so. She said she’d been advocating for a solution for “well over a year” and has met extensively with Minicozzi to discuss the details.

“This is not just a staff-level issue — Whole Foods needs to understand that the city leadership considers this a significant problem that needs to be fixed,” Mayfield wrote. “I don’t know why the previous efforts failed, but I do know that I don’t plan to let go of trying to get Whole Foods to make changes.”

Regarding whether staff would be held accountable for failing to enforce violations on the store, leading to conditions for Thompson she had called “inexcusable” during the meeting, Mayfield responded that it was time for the city to move forward. “Most of us weren’t here and can’t understand what dynamics were at play or why things happened the way they did,” she wrote.

Meanwhile, Maxwell Street resident Brandee Boggs suggested that Council’s lack of previous action was tied to state Rep. Brian TurnerD-Buncombe, whose family owns the land on which the grocery sits. Speaking after the meeting, she said the initial decision to place truck access adjacent to the residential area was due to the Turners’ influence.

“In the beginning, when they opened it, [we were told] that they didn’t have time to move the loading dock to the other side because they needed to make money for the property owners,” Boggs said. “It was financially driven.”

Mayfield said she spoke with Turner after the Oct. 9 meeting about “who exactly owns the property (five family shareholders) and if his family would be willing to be part of finding a solution.” She added that he directed her to the family’s property manager, Asheville-based Leslie & Associates, to avoid creating “any question about him or his family exerting improper influence on Council.”

In a phone interview with Xpress on Oct. 10, Turner confirmed that Leslie & Associates manages regular operations of the property. “It’s the tenant’s responsibility to be in compliance with all the ordinances, and we rely on our property manager to work with our tenants to make sure that they are,” he said. “I’m not involved in the day-to-day operation of the management of that property.”

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About Daniel Walton
Daniel Walton is the Green Scene editor and city government beat reporter for Mountain Xpress. His work has previously appeared in Capital at Play, Edible Asheville, and the Citizen-Times, among other area publications. Follow me @DanielWWalton

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23 thoughts on “City could face equal protection suit after short-term rental vote

  1. Austin Hill

    I hate those signs, but maybe we really should drain the swamp. Council continues their crusade against the citizens of Asheville. We got rid of Smith, Mayfield should be next. She seems inept as solving anything.

    • Lulz

      Article in the Citizen Times about city residents subsidizing the hotels even though they themselves are unable to benefit. What many have been saying for years while the whackos continue to call for higher property taxes. Again, more misuse and abuse of the residents while allowing hotels to make millions and take the money and run.

      As more and more people decide to ignore the STR rules, the city will literally have no recourse but to give up on prosecuting them. You can’t punish people on one end and also expect them to pay, while allowing others to reap the rewards and pay very little on the other. Either lower the property taxes on residences and raise them on mainly downtown properties the are making millions or come to some sort of sane compromise on STR’s. That’s the only choices they have. But to continue the farce of high taxes which make housing unaffordable to many while claiming STR’s are bad is another lie that corporate crony politicians need to be called out on.

      • luther blissett

        “Either lower the property taxes on residences and raise them on mainly downtown properties the are making millions”

        How does that work, then?

        “A city shall have power to impose taxes only as specifically authorized by act of the General Assembly.” (NC General Statutes 160A-206)

        The attempt to create a downtown Business Improvement District collapsed in 2013, and it would have had the same problems as the TDA: an unelected board of bigwigs deciding where the money went. Business privilege licenses calculated on revenue were converted to a flat $100 by the Republicans in Raleigh and then abolished entirely.

        That’s one reason why the county ordered a property reassessment: to acknowledge the booming value of downtown properties. You opposed reassessment.

        And yet again: property taxes don’t make housing unaffordable. Property values and stagnant wages make housing unaffordable.

        • Lulz

          Yes they do especially when you’re double taxed on rising values and your wages are stagnant. Again, your lies about being wealthy because the values went up doesn’t mean that one can afford their new rates.

          City has to collect the fines from Thompson now or face STRs cropping up all over LOL.

      • NFB

        “Either lower the property taxes on residences and raise them on mainly downtown properties the are making millions”

        Interesting. Whenever Democrats advocate for raising taxes on millionaires and giving the working class and middle class it’s called “class warfare.”

        • luther blissett

          “Redistribution of wealth from millionaires to economically secure but cranky old white people” isn’t a catchy slogan, but it is clearly an ethos.

          Anyway, on-topic: the Greenlife situation has been a mess from the outset. So — hold the front page! — I agree fully with Lulz that the city’s desire to promote fairly dense mixed-use neighborhoods on the edges of downtown, especially around Merrimon, can mean the externalities of businesses end up dumped on residents with limited recourse unless the city itself intervenes.

          Externalities, externalities. The externalities of downtown hotels, the externalities of a grocery store in a dense residential area, the externalities of a bunch of AirBnBs in the same area. I’m unconvinced that the right way to resolve this is to say “it’s a de facto commercial corridor so STRs aren’t going to make things markedly worse” because that creates a rotten precedent and a race to the bottom. I do think that the city is punching down (again) instead of punching up. I do want to see what’s legally possible to pass those externalities back to the main generators and not to the city at large, but I also appreciate that much of it depends upon change in Raleigh and that in turn depends upon voters outside of Buncombe.

          It feels as if the city has been told off the record by Amazon-WholeFoods that any attempt to enforce violations will lead to Greenlife being closed and business consolidated out by the mall. I’d be prepared to call that bluff.

          • Lulz

            Solution is to introduce a buffer zone between main commercial arteries and neighborhood streets with STR’s allowed a certain distance away. There is no affordable housing to be gained from banning them. If that’s the case, the once former homes that line Merrimon are taking away housing stock aren’t they? The Coleman’s (former owners of the mall) old house is one.

            Housing is being bought up by entities that have the money. The house and lot that is at Weaver and Merrimon is now owned by UNCA as are the majority on the road. Why is UNCA not banned from buying up all the residences on Weaver? A couple have been turned into offices for the college as well. So they’re not even being used to house anyone. Isn’t this what the city is trying to avoid?

        • Lulz

          LOL you omit the fact that left leaning morons have ran the show here. So tell me again why residents are subsidizing the multi million dollar tourist industry?

          • luther blissett

            There’s the chance to have a civil conversation here about the powers and revenue sources legally available to municipalities in North Carolina, and the powers and revenue sources stripped from them by the NCGA since 2010. And that doesn’t absolve the city of blame: the capitulation over the Aloft set a terrible precedent for the hotel fever that followed, and showed the limitations of city soft power against the developer establishment. The Embassy Suites lawsuit showed the limitations of city hard power. The city is very bad at testing its powers, but at the same time has seen those powers eroded by Hendersonville’s state legislators.

            The structure of taxation in the state is redistributionist: from cities to unincorporated counties, from suburbs to rural areas. In some cases, that’s necessary and good. But it falls down when the externalities of growth are dumped on those cities. At the same time, the TDA has a larger budget than most municipalities in WNC. It is legally required to spend 75% of it on advertising, and clearly has more money than it knows what to do with. It makes sense to cap the advertising budget. But that change has to be made in Raleigh.

            In short: what’s your alternative? The city isn’t like the Green Lantern. It can’t grant itself superpowers.

          • Lulz

            Luther being civil is one thing. Being in denial is another. The people running the show identify as progressive Democrats do they not? In their scatterbrained logic though they’ve managed to allow corporations to thrive while residents pay.

            Again, if they don’t collect the fines then they open up the entire city to STRs. Or they can be reasonable and compromise. And collect extra taxes too. Their choice but to continue down the path of tourist industry subsidies and higher property taxes can’t go on. They’ll simply be voted out of office for those that will change things. STRs are coming.

          • luther blissett

            “Again, if they don’t collect the fines then they open up the entire city to STRs. Or they can be reasonable and compromise. And collect extra taxes too.”

            Except that the occupancy tax from STRs goes… to the BCTDA. Which means 75% goes to advertising, 10% to admin and bonuses, and the crumbs go to tourist-centric projects. Which gets us back where we started.

            I’m fine with your buffer zone idea. I agree that if the city is going to define the Merrimon corridor as mixed-use then mixed-use ought to extend to STRs.

            So it’s a two-part question: what are the real externalities of both hotels and STRs on local infrastructure — more than mild NIMBY irritation — and what powers are available to limit both hotels and STRs from privatizing their profits while socializing the costs? The most obvious solution is to amend the TDA statute to cap the ad budget and redirect additional revenues into the infrastructure fund, but that requires buy-in from Raleigh. I wish municipalities had more tools in their box, but the state only gives them a lump hammer and a couple of wrenches.

            (In terms of City Council, remember that Jeremy Goldstein and Adrian Vassallo were happy with the current arrangement and didn’t get past the primary.)

    • Ashvhell

      “We got rid of Smith, Mayfield should be next. She seems inept as solving anything.”

      I’ve been telling people that for years, but nobody believed me.

  2. Jon King

    Despite Mr. Minicozzi’s bluster, this is not actually a 14th Amendment issue. Whole Foods, as an entity, is not running a prohibited short term rental. Equal Protection is the same law applying equally to all entities.

    Whole Foods may be in violation of other city ordinances, and should be brought into compliance. But the breaking of one law does not in any way sanction the breaking of others.

    • Buncy

      I wouldn’t be so sure about that since the city is violating its own ordinances wholesale by engaging in malicious selective enforcement against Thompson (after more than a decade of persecuting him for fighting to keep Maxwell St. unobstructed). Illegal short-term rentals abound all over Asheville and receive the obvious blessing of rotten city officials and corrupt enforcement officers. You might read some caselaw such as _Yick Wo vs. Thompson_ and _Village of Willowbrook vs. Olech._
      The interest I have in this controversy, other than being in sympathy with Mr. Thompson, is that the city issues homestay permits to creepy outsiders who have bought into my Kenilworth neighborhood who then operate illegal short-term rentals. These are motel rentals with separate entrances and stoves and refrigerators let by the night, not miniature b&b’s. And Council know about it and continue blighting my neighborhood with their squishy ordinances and squishy enforcement, so they are guilty too.

      I’m beginning to wonder if anyone in the city building has any integrity at all. Don’t you?

      • Jon King

        My contention is with Mr. Minicozzi’s quote: “You can’t enforce the law on one side of the street and not enforce it on the other.” He is referencing Whole Foods, who is not running an STR.

        Both of the cases that you referenced would put the burden of proof on Mr. Thompson to demonstrate that he was being discriminated against. The Yick Wo case found that San Francisco had been applying a law in a discriminatory manner. Willowbrook only allows that allegations of discrimination are sufficient to allow an Equal Protection case to proceed. It does not provide remedy.

        While you seem convinced that Mr. Thompson is being discriminated against, he is already looking at $1M in fines. That’s not money out of his pocket, yet. Paying lawyers to proceed with a 14th Amendment lawsuit would be. It doesn’t at all look open and shut to me.

        • JMG

          It’s a little bit more complicated than that – Daniel was trying to condense a lot of speechifying by Minicozzi into this article.

          When you look at Daniel’s twitter coverage of it, Minicozzi was talking about more than just the STR rules as the basis of the discrimination claim and in more detail than the article describes. The City issued Thompson with notices of violation for a variety of issues (not just STR’s, even things like insufficiently trimmed shrubbery adjacent to the sidewalk) and apparently issued very few to Greenlife for comparable or otherwise known issues (like the trucks blocking the street).

          The specific allegation is that the City is not enforcing their ordinances against Greenlife but are against Thompson on a variety of issues.

          • Yes, that’s the gist of what I understand from Minicozzi as well. Obviously, the same ordinances aren’t (allegedly) being violated by the grocery and Thompson. But according to his argument, the city has issued no notices of violation regarding any ordinance for the store, while they’ve taken a hard line against Thompson.

            For those interested in the play-by-play, my Twitter coverage is here: https://twitter.com/DanielWWalton/status/1049775310588260354 and onward.

          • Joseph Minicozzi

            Neither Greenlife, nor Merrimon Ave. Investments (owners of the parcel) have EVER been delivered a Notice of Violation for their numerous violations which stem all the way back to their original approvals which exceeded the City’s ability to approve the project, by law. The permits were delivered in error, and that doesn’t make them ‘legal’. For instance, Staff doesn’t have the authority to grant variances. For more on this, read the Dr. Owens Report in 2006. Additionally, there are violations of trucks on a residential street, almost daily. The police refuse to give tickets for the violation. There have been ZERO violation or notices delivered in writing to Greenlife, only verbal warnings. Yet Thompson receives Notice, for even overgrown shrubs. That is inconsistent application of the enforcement mechanism of our law, and a violation of equal protection. If the City is going to dole our a strict application of law on Thompson, we should expect a strict application on his neighbor. Otherwise, it is not “equal” protection. Why should the residents not enjoy the same protection that the commercial property owner enjoys? Worse still, our government staff abuse the process to cover their argument, and provide addition protection for Greenlife (by changing maps AFTER Thompson’s submission, to make Thompson’s case non-compliant with the Comp Plan, and then judge him by a map they changed?). It should be noted, that we have three attorneys on Council, and they don’t seem to be bothered by this. This should give a citizen some pause.
            https://www.law.cornell.edu/uscode/text/42/1983

          • Lulz

            Problem for the city is there are many residences in commercial corridors. Many homes directly off Merrimon do in fact reside right behind and across from businesses. Right now they’ll play hardball with Thomson because they know if he pays no fines, they’ll have many more homeowners get into the STR game.

  3. Mike

    Mr. Minicozzi, since you’re watching these- the second you’re quoted using profanity in a public, professional forum, your argument loses all legitimacy to many ears who otherwise might be sympathetic to your client’s concerns- this includes me. I’m no prude and can curse with the best of them, but c’mon- be a professional.

    Also, very disappointed that mountainx is not at least @#-ing out a few letters.

    • Joe Minicozzi

      Mike: I agree with you. I also agree that this was a matter of the author’s choosing. I was in the lobby, not in a public meeting when I was quoted. He could have used more decorum. My bad for being emotional. I was caught up in the passion of that mind-blowing experience. It’s worth the watch for yourself here, presentation starts around minute 32:00. Note that the staff gets 16 minutes, and the applicant only gets 11 minutes. :
      https://www.youtube.com/watch?v=1EBG415dKag
      The Staff did not present the Comp Plan as it existed at the time of the application. They presented a map that they altered while we were in process. Effectively changing the rules while the hearing was in action. Somehow, that wasn’t in the City’s record.
      Also, I find it pretty shoddy press to put that picture of Reid up with the folder up and call it “hiding his face” when he obviously stood up for himself publicly and faced a government that refuses to protect him. Note: picture at the top. I thought the Xpress was above this kind of thing.

      • Virginia Daffron

        In news stories where a profane word is relevant to the situation or tells the reader something about the emotion of the moment that would be otherwise difficult to convey, Xpress does sometimes allow the use of such words. This is one of those cases.

        I understand from Daniel Walton that his use of the second photo was also intended to convey strong emotion. As Mr. Minicozzi points out, Mr. Thompson is clearly depicted with his face uncovered in the first photo shown, while he was testifying. The caption points out that the second photo came following Council’s decision. Daniel will also share his thoughts about that image and why he felt that including it accurately illustrated the mood of the moment.

      • In my coverage of this meeting, I was looking for ways to share the sense of frustration that was clearly evident from those on Mr. Thompson’s side of the issue. For readers who could not be present, I wanted to provide a window into the high emotions running immediately after Council’s decision — which, as I pointed out at the start of the article, has been a story over 13 years in the making.

        After Council ruled to deny Thompson’s request, I turned to take his picture in an effort to capture his feelings on the decision. It was at that point that he covered his face; it’s possible that the timing was unrelated, but I interpreted the moment as succinctly illustrating his frustration. For that reason, I chose to include the photo in my online version of the story.

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