Calling a spade a spade

“T-M has made a big boo-boo by grading in the river-resource yard, and I’m not sure they aren’t also taking down some trees along the river that are part of our park.”

— City Planning and Development Director Scott Shuford

Just before the Asheville City Council voted to approve a Super Wal-Mart for the Sayles-Biltmore Bleacheries site in July 2002, Mayor Charles Worley vowed, “Not a spade of dirt will be turned” until all necessary permits were in place. Worley was assuring project opponents that city staff would make sure the developer followed both the city’s usual development guidelines and the special requirements spelled out in the conditional-use permit Council granted that summer evening.

Now, however, a number of those opponents are peppering city officials with e-mails maintaining that the Sayles developers and their contractors were, in fact, turning spades of dirt without having the required permits in hand and questioning whether they’d violated the terms of the conditional-use permit, the city’s Unified Development Ordinance and state sedimentation-control laws.

On Nov. 28, Asheville resident Ned Guttman sent an e-mail to city Planning and Development Director Scott Shuford and City Engineer Cathy Ball saying he’d noticed that “a number of trees were cut down” at the Sayles site. “This is a land-disturbing activity as defined by [the UDO],” wrote Guttman, who went on to quote from the city ordinance: “Land-disturbing activity means any use of the land by any person in residential, industrial, educational, institutional, or commercial development, highway and road construction and maintenance that results in a change in the natural cover (including cutting and removal of trees) or existing stable topography and that may cause or contribute to sedimentation.”

Guttman’s e-mail concluded as follows: “Land-disturbing on the site prior to the issuance of the building permits is a violation of the [conditional-use permit]. Please investigate and tell me what you are doing and plan to do about this problem.”

Ball, in turn, e-mailed Natalie Berry, the city inspector who monitors sedimentation, asking if the tree-cutting meets the city’s definition of a land-disturbing activity. “That is what our UDO states,” responded Berry, adding, “The state’s definition does not include the part about cutting and removing trees.”

In other words, the city ordinance is more restrictive than the state’s on the subject of land-disturbing activity.

Shuford, meanwhile, e-mailed the following explanation to Guttman on Dec. 1: “Logging property is an agricultural activity not regulated by the city. Tree cutting/clearing is not an activity that requires permits from the city. Consequently, there’s no violation of the CUP. If there is any grading going on, that would be a definite violation. Grading would include tree-stump removal.”

That same day, however, Asheville resident William Lentz, who’s also been monitoring activity at the Sayles site, sent an e-mail to Shuford and Ball containing digital pictures he’d taken at the site. The photos, said Lentz, “clearly show grading in progress.” He added, “It appears that this is a violation of the CUP.”

A big boo-boo.

On Dec. 15, Guttman e-mailed Shuford again — but this time with a different complaint. The developer, noted Guttman, had cleared the vegetation along the bank of the Swannanoa River adjacent to the Sayles site in an area known as the River Resource Yard. “The cleared area,” he wrote, “is a lot more than ‘selective pruning and removal of dead trees and shrubs’ [which is permitted by the CUP] and appears to be a violation of the city ordinances.”

Guttman reports that Shuford never responded to the Dec. 15 e-mail. But copies of internal e-mails obtained by Xpress show that Guttman’s message nonetheless struck a chord with city officials.

It turns out that there had indeed been grading along the river. Construction Inspector Mark Tiller, who’d visited the site at Cathy Ball’s request the very day Guttman sent his e-mail, advised Ball that he’d photographed “the disturbance along the riverbank at the Wal-Mart project site.” He added: “The general contractor on this project is Nearen Construction Company, Inc. The project manager is Mr. Keith Brown. The subcontractor that did the clearing along the riverbank is Taylor & Murphy Construction Company. The superintendent for them is Mr. Ken Shepherd. I informed both of them that I was to report back to you and I would let them know what actions we would be taking in this matter.”

In light of Tiller’s findings, Shuford contacted several members of the city’s engineering and planning staffs, telling them that a Taylor & Murphy representative “will be calling you re: getting clarification on the areas to be cleared along the river. T-M has made a big boo-boo by grading in the river-resource yard, and I’m not sure they aren’t also taking down some trees along the river that are part of our park.” (A parcel adjacent to the Sayles site has been tentatively slated for development as a city park.)

On Dec. 17, Shuford sent a letter to the developer, Horne Properties Inc., citing “an incident of tree/vegetation removal in grading in the river resource yard that constitutes a violation of our Unified Development Ordinance … as well as the provisions of the conditional-use permit for this project.” The letter instructed the developer to take steps to “minimize potential water-quality problems resulting from the removal of vegetation.” Shuford also suggested that the developer pay the city $5,600 to cover the cost of replacing the trees and vegetation that were removed.

In the meantime, French Broad Riverkeeper Phillip Gibson, who works for the regional nonprofit RiverLink, had e-mailed Ball and Berry on Dec. 15 to express his concern about “the Sayles Bleachery site not being in compliance with sediment and erosion-control measures. I have personally driven 240 westbound — from Home Depot — and stopped to review the road construction and land clearing happening on the slopes. I did not see any erosion-control/sediment-control measures. I am assuming that there is an erosion- and sediment-control plan. Could you advise me as to whether or not they are in compliance?”

Gibson’s question was answered by one of Ball’s assistants, who said the subcontractor had stopped all work except what was needed to rectify the grading along the river bank. Gibson later told Xpress that clearing the area around the riverbank without first taking measures to prevent erosion and sedimentation would definitely violate any sedimentation plan.

The problem, said Gibson, is that “sedimentation and erosion are not a high priority for elected officials — at both the state and local level. Ball’s staff needs the resources to monitor these projects and enforce the regulations. She needs additional regulatory officials in order to take a proactive role in these issues — particularly given the rate of land clearing occurring in Asheville and in Buncombe County as a whole. Theirs is a thankless job, and the city officials need to support these people so that they can ensure that the developments comply with the regulations. And these aren’t new regulations; they’ve been on the books since 1973. They should be able to comply.”

The lack of compliance at the Sayles site, however, didn’t prove to be a deal-killer: On Dec. 19, the city did grant the developer a grading permit. A number of additional permits will still be required, however.

As for Guttman, the whole experience appears to have left a bad taste in his mouth. Asked about the UDO violation at the site, he reflected: “We can’t trust city government to do their job and protect the public from violations of the UDO. Something they could do is revoke [the developer’s] conditional-use permit, but it doesn’t appear that they’re going to do that.”

Mayor Worley, however, sees things differently. The “spade” metaphor, he explained, had been used to emphasize that the necessary permits would be in place before construction began. One of project opponents’ concerns, he said, had been that midway through construction, the developer might be denied a needed permit, “leaving us with a mess” in the form of an abandoned, half-built structure.

But instead, maintained Worley, events have shown that the system is working. “There was a violation, we called them on it, and fined them an appropriate sum.”