Checks and balances

Zoned out: The parcels, on a sloping area in Kenilworth, that were the subject of some contention on City Council. In the end, an attempt at rezoning couldn’t get the necessary votes. Image from city of Asheville

Asheville City Council May10, 2011 meeting

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A Kenilworth rezoning proposed by city planning staff proved to be a microcosm of Asheville’s complex zoning issues. Frustration and contention were the order of the day when the proposed rezoning of the Kenilworth Inn and some adjacent property came before Asheville City Council members during their May 10 meeting.

The proposal called for giving the historic inn — a former luxury hotel and (later) mental institution now converted into upscale housing — a dense, multifamily designation; the surrounding, sloping area would receive a more restrictive residential zoning. The site comprises multiple parcels, all currently zoned institutional.

“We believe this goes well with the city's [plans], which discuss the protection of neighborhoods, especially in the area of steep slopes, as an important priority,” Planning and Development Director Judy Daniel noted. “However, this would allow development more appropriate with the surrounding single-family neighborhood.”

The existing zoning, she said, is a holdover from the site's previous use and doesn’t accurately reflect the property’s current residential nature.

But that was just the tip of the iceberg. The surrounding land was supposed to be the site of the proposed Caledonia Apartments, a 100-unit housing complex that Council unanimously rejected last October, citing concerns about the property’s slope and the impact of increased traffic on narrow, winding Caledonia Road.

In the wake of that decision, however, developer Frank Howington simply reconfigured the proposal as two separate, 50-unit projects just far enough apart to satisfy the technical definition of two new proposals — thus avoiding a return appearance before a skeptical Council. (See“Closing the Loop(hole),” Feb. 16 Xpress.)

Angered by the move, a divided City Council amended the Unified Development Ordinance in February to prevent rejected projects from coming back before Council in slightly modified form. Proponents said the changes were needed to ensure that developers abide by Council’s decisions; others on Council said they were too narrowly tied to a particular project.

Meanwhile, there was also assorted legal maneuvering: Kenilworth residents appealed the Planning and Zoning Commission approval of the separate 50-unit developments, and after Council members changed the UDO, Howington appealed that decision (which voided his permits for the new project), saying Council was unfairly targeting his project. He also filed a lawsuit.

On top of that, Council member Esther Manheimer, who’d opposed the original project and supported the UDO changes, could no longer vote on any matter related to the site, because Howington had since retained her employer, The Van Winkle Law Firm, in a move Council member Cecil Bothwell condemned as “machination.” Howington also filed a protest petition concerning the rezoning, ensuring that five of the six remaining Council members would need to support the changes for them to be approved. None of the appeals have yet been heard; the lawsuit is still pending.

Scared of the city?

All this made for a highly unusual situation.

“We strongly oppose both of the proposed rezonings,” said Tom Holman, an attorney representing the developer. “The proposed rezoning is inconsistent with the long history at the location. We believe it to be inappropriate, unlawful, unfair and will cause substantial monetary damages to the owners. This sends the wrong message to property owners and developers.”

Local business owner Paul Smith also found the rezoning troubling, maintaining that such moves help create an unpredictable development environment.

“You can start a project on one zoning, and when it gets uncomfortable, Council can change the zoning,” noted Smith, adding, “A lot of contractors are scared of the city of Asheville.”

But Kenilworth resident Valerie Ho countered: “If this site was to be zoned for the first time, and you'd just seen the steep slopes with the narrow, curving roads and double-blind curves, and you knew the rest of the neighborhood was zoned residential, what would be your common-sense decision? That is the question — not the property rights of any party. There is a clear vision of what is right for the site and neighborhood.”

Barber Melton, vice president of the Coalition of Asheville Neighborhoods, also voiced support for the rezonings, noting that she routinely encourages residents to look at zoning in their neighborhoods leftover from previous uses.

Kenilworth resident Terry Meek, an architect, showed slides indicating the surrounding residential zoning. Unlike more densely zoned development in the area, he pointed out, the Kenilworth Inn has no direct access to major roads, limiting how much traffic the site could handle. Meek also warned of potential landslides and erosion, based on the county's maps, if the slopes were too heavily developed.

A tough one

Some Council members were sympathetic.

“I believe the [new] zoning is very well justified, given the city's comprehensive plan and the zoning of the surrounding area,” said Vice Mayor Brownie Newman. “The areas of Kenilworth zoned differently are adjacent to major corridors or are far less severe compared to this property. We've made changes in zoning to allow denser development where appropriate, but based on street infrastructure and topography here, this is more appropriate.”

Council member Gordon Smith said: “It's unfortunate how this has come together, and I'm sympathetic to the property owner, but this is about how we're going to do zoning in the city. There are residual zoning issues in the city. I'm glad CAN is going to work with other neighborhoods to identify issues like this before people get crossed up about them.”

Several colleagues, however, disagreed.

“This is a major property-rights issue,” declared Council member Bill Russell. “I understand how the neighborhood feels, but this is someone else's property.”

Council member Jan Davis sounded a similar note. After observing that “This one is really tough,” Davis went on to say that the rezonings “obviously change the rules in the middle of the game. … There's something really wrong with this.”

In the end, the votes just weren't there. Newman made a motion to rezone the slope single-family residential, but both Russell and Davis opposed it. That would have been enough to stop it, but Mayor Terry Bellamy also had her concerns, saying she didn't want to rule out the possibility of denser development on the site. When asked what kind of development she had in mind, given the concerns about traffic and steep slopes, Bellamy said, “something creative.”

Newman's motion failed 3-3. And while Bellamy supported Newman’s subsequent motion to rezone the actual inn property, Russell and Davis again held out, and despite gaining majority support, it failed 4-2.

Night of the living wage

In other action, Council:
• Approved an amendment to the city's contracting policy requiring all businesses receiving city contracts worth between $30,000 and $90,000 to pay their workers a living wage. The change was approved 5-2, with Davis and Russell opposed.
• Increased the city’s recycling fee to pay for larger bins and a potential rewards program, if Council subsequently approves the contract. The increase, from $2.95 a month to $3.60 a month, was approved 6-1, with Bellamy opposed.
• Held a public hearing on the proposed budget for the 2011-12 fiscal year, which begins July 1. No member of the public spoke.

— David Forbes can be reached at 251-1333, ext. 137, or at


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One thought on “Checks and balances

  1. Barry Summers

    I watched the Kenilworth vote, and Terry Bellamy seemed unaware of the need for a supermajority. The first vote 3-3 obviously didn’t pass, but then on the second vote 4-2, she claimed “The motion passes”. Several people spoke up at once to let her know that it hadn’t, in fact, passed. She was genuinely surprised. I was not impressed. This town deserves a real Mayor…

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