A delicate balance

Toss 100 coins in the air and, half the time, they’ll land heads up; the other half, they’ll come up tails. Until recently, however, that law of averages didn’t seem to apply to the Asheville Board of Adjustment. Charged with granting or withholding permission to deviate from city ordinances regulating signs and development, the board granted 90 percent of the variances requested in 1996. In the mid-’90s, the BOA approved 144 out of 159 requested variances, prompting critics to call for the board to be disbanded.

More recently, things seem to have evened out, however; in 1998, the board reduced its approval rate to just under 50 percent.

“We’ve turned the corner on strong enforcement,” proclaims Asheville City Council member Chuck Cloninger, who advocates strict enforcement of the city’s 1990 sign ordinance — which sharply curtailed the size and height of business signs in Asheville (replacing much looser 1970 regulations).

Last year, the board approved 24 requests for variances to the sign ordinance, denying 20. For other requests — such as whether a homeowner can place his house a few feet closer to the property line than the city’s Unified Development Ordinance allows — the board denied six, upheld city staff’s interpretations in two cases, and granted 20.

To Cloninger, the new, nearly 50-50 approval rate for sign variances represents clear progress. “That’s not to say previous board members haven’t been fair-minded, but the amount of variances granted seems to be coming down,” he observes.

When the 144-to-159 ratio was reported in 1996, some Board of Adjustment critics — such as former Council member Jim Skalski — complained that the high approval rate amounted to “rubber-stamping” and called for doing away with the board altogether.

But Council members resisted the idea. “That wasn’t in the best interest of the city, long-term. And I was afraid [it] would set a precedent: Every new City Council that came in would just clean house and appoint new people,” Cloninger reflects.

Instead, Council opted for a softer approach: gradually changing the board’s makeup, over a four-year period. Although Council generally reappoints board or commission members who have served a single term, Council members instead chose to replace Board of Adjustment members whose terms expired — making it clear that they wanted stricter enforcement, particularly for signs.

New faces

That’s how Council came to appoint Dennis Hodges in February 1996. “He represents a segment of the community who are concerned with the proliferation of large signs,” observes Cloninger.

A native of Australia and an Asheville resident for the past decade, Hodges was often the lone vote against requests for bigger, taller signs. Says the outspoken Hodges, “When I first came on board, there were some people [serving] who didn’t understand their role and were very sympathetic to the applicants — although, by [city ordinance], applicants have to demonstrate hardship in order to be granted a variance.”

Council members have questioned subsequent board candidates closely about what, in their view, would constitute a hardship — and, therefore, would justify granting a variance.

Hodges sums up his understanding of the concept this way: “If following the ordinance prevents a [business owner’s] sign from being seen, we’ll consider a variance. But you shouldn’t get a bigger sign just because your neighbor has one.”

Council members apparently agreed; the hardship question became a major litmus test for candidates, as Council continued its gradual makeover of the board. When pro-business board members Lewis Clay and Ann Cross came up for reappointment in 1996, Council instead appointed business owners Daryl Hart and David Young, both of whom advocated a more balanced approach to weighing such cases. “We should not try to load up a board with one philosophy; we should try to balance [it],” Cloninger asserts.

Meanwhile, the Buncombe County Commissioners made their lone appointment to the current board — local car dealer Paul Smith, in November 1996 — to represent the interests of non-city residents and business owners who fall under Asheville’s extraterritorial jurisdiction.

Most recently, Council members declined to reappoint realtor Bud Taylor, instead choosing Lauren Malinoff, who once worked for the city of New Orleans, enforcing that city’s sign ordinance in the historic French Quarter. She now works in North Carolina’s Main Street program, which helps small towns like Waynesville and Hendersonville restore their central business districts. “I don’t know what other [Board of Adjustment] members’ philosophies are, but I believe you just have to have rules, and base [your decision] on findings of fact,” comments Malinoff.

In the past year-and-a-half, the city’s legal office has started pushing that point, conducting a training course for Board of Adjustment members and laying out the point-by-point “findings of fact” that describe each case, provide background information, list any known hardships and summarize staff’s recommendation for denial or approval. “It’s not that [board members] weren’t doing things right; I just brought in some things we were doing in other communities,” explains City Attorney Bob Oast, who worked with such boards as an attorney for the city of Wilmington. In Asheville, Oast and his staff led a training course for Board of Adjustment members, spelling out “what their responsibilities are,” he relates.

A question of judgment

“The board is essentially a judge: The more information they have, the better decisions they can make,” Oast maintains, adding, “[Board members] have to make a reasoned decision.” Accordingly, he directed city staff to supply board members with a written list of findings for each case for which a variance had been requested.

Board member Young says that those findings help, though they don’t always sway board members. For his own part, he concedes that, “As far as the signs, I’m probably more pro-business, because I’m a businessman, and there’s no changing that.” Nevertheless, Young says he generally argues for strict enforcement of the sign ordinance — as long as it doesn’t cost the business owner too much money to buy a new sign (a hardship, to his way of thinking). “As a business owner, you’ve got to be seen, but you don’t need to have a sign that’s 90 feet high in the air, and three boxcars wide, to be noticed,” says Young, adding, “Board members have to use common sense.”

Smith agrees, commenting, “We’re trying to be fair to the [ordinances] and to the public, and that’s not always easy.” On a lighter note, he adds: “When I was first [appointed] to the board, we were highly criticized. I’m not hearing that now, so maybe we’re OK.” Smith describes the board members as “ordinary people” who try to judge each case on its own merits, regardless of each member’s personal philosophy.

In considering a variance request, Smith says he asks himself whether the city or the surrounding neighborhood would gain — or lose — anything as a result of the variance. “You can’t write a law for every case,” Smith remarks, adding, “I serve on this board because I live here, and I stand for what’s right.”

Board members, however, don’t always agree on what’s right.

Smith, for example, voted with Young on Feb. 22 to approve a sign-variance request that the other three members shot down: Business owner Jack Lowe had asked that the Nissan sign be allowed to remain at his Patton/Clingman Avenue car dealership, even though the sign ordinance limits businesses to one sign per site, and he had been ordered to remove that particular one some time before.

“[Lowe has] probably got $10 million invested in that property, and we’re going to tell him he can’t be seen?” asks Young. At the Feb. 22 meeting, Lowe mentioned that he might simply move the sign across the street, to his other car lot at the corner of Patton and Clingman avenues, and Young commented that the city would be better off just to let it stand as is.

Lowe’s dealership now has both the Nissan sign and a larger Ford sign on site, and Smith argued that letting Lowe keep the two signs together would be better than further cluttering up the road moving one sign to an adjacent lot.

But the newly appointed Malinoff pointed out that the board isn’t allowed to consider “hypotheticals” such as whether the sign would be moved, should the board deny Lowe’s request. She argued that Lowe hadn’t satisfied the “hardship” test.

And Hart — recently chosen by his fellow members to chair the board — had to agree, noting that Lowe had known since 1993 that the Nissan sign would have to come down. In an earlier interview, Hart explained his approach to judging cases: “We need to be fair and consistent, and I think the board has always tried to be that way. … We really take a hard look at the requests, and since I’ve been on [the board], we haven’t rubber-stamped anything. When you come into that room, you need to be open-minded and fair, whether you’re pro-business, pro-this or pro-that.”

Malinoff believes that it’s important to consider the purpose of the ordinance in question. “The whole intent of the sign ordinance was to minimize the visual impact on the community of signs and make more of a precise standard for [them],” she asserts, summarizing her own approach. To her, approving or denying a variance request — whether it involves signs or other development standards — “is a matter of whether [the applicant] can make his case and meet every one of the findings.”

Working with the law

At every Board of Adjustment meeting, Hart reads the legal requirements applicants must meet, in order to qualify for a variance: In short, it comes down to convincing the board that “there are practical difficulties or unnecessary hardship in the way of carrying out the strict letter of the ordinance.”

“First, we try to understand what the applicant is asking for,” says Hart. In the case of a property owner who wanted to build his home a few feet closer to the property lines than the UDO allows, Hart and his fellow board members studied the drawing the applicant had supplied, and heard his testimony. Without the variance, the applicant explained, he couldn’t build on the lot, since meeting all the required setbacks from the adjacent streets and neighboring lots would limit him to a house that couldn’t be more than 10 feet wide.

Sympathetic to the applicant’s plight, Hart told him to get an official survey that would precisely show the setbacks in question. “Before you build, be sure: [That’s] just friendly advice,” Hart suggested.

Hart also cites the case of a gas-station owner who wants permission to let his second Exxon sign remain standing, even though it’s taller and bigger than what the ordinance allows, and the ordinance limits businesses to one sign per site. “We have to take into account what his fellow [gas-station] business [owner] across the street has,” Hart remarks. To allow one to have a bigger sign — while the other must reduce or remove his — probably wouldn’t be fair, notes Hart.

Last year, in fact, the board denied the neighboring Amoco station’s request to keep its second sign (a big, tall one along Interstate 240) — but gave the owner enough time to get his business logo posted on a North Carolina Department of Transportation sign on the highway, Hart points out.

“Sometimes we try to be creative; sometimes, it’s hard,” Hart observes, speaking about both these and other cases. The Exxon case comes before the board in a few weeks.

Sign issues, says Young, are in the forefront of what the board does, though it also hears such cases as requests for variances in historic districts, or in floodplains. “We come under a lot of fire from the public, but sometimes, we’re their last bet. [City] staff go directly by the book, but we’re a bunch of ordinary people you can go to and talk to,” Young remarks, noting that the UDO is “far from perfect” and doesn’t include a rule to fit every case the board hears.

Hodges agrees. “The Board of Adjustment gives people [somewhere] to bring cases of relief from ordinances,” he says, giving the example of a property owner wanting to build a home on a 9,000-square-foot lot, in a district where the UDO requires lots to be at least 10,000 square feet. “We have two options: let [that] lot grow up with weeds and draw no taxes for the city, or let the owner bend the rules and build on it.” Denying a variance in such cases “is an injustice,” maintains Hodges.

He and other board members reiterate their careful weighing of cases — and the effort they make to go out and actually view each site for which a variance has been requested. Hodges, however, gets teased for going yet a step further: He scrutinizes the monthly meeting minutes for spelling errors. “We’re obligated to read them, and I do!” says the retired engineer, explaining that he hates to put his name to anything that isn’t just right.

And that, perhaps, best characterizes board members’ overall philosophy, however much their individual takes on specific city ordinances may differ.

“You make the call, when you sit there and listen. What our critics need to do is come up here and hear what we hear,” says Smith.

— Board of Adjustment member Lauren Malinoff

About Margaret Williams
Editor Margaret Williams first wrote for Xpress in 1994. An Alabama native, she has lived in Western North Carolina since 1987 and completed her Masters of Liberal Arts & Sciences from UNC-Asheville in 2016. Follow me @mvwilliams

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