Asheville City Council

Almost every minute of the five-hour-long, May 11 Asheville City Council session was spent wrangling over zoning cases. An Asheland Avenue case, alone, took two hours for Council to deal with — and it took three attempts before Council members could come up with a motion a majority could agree to.

It was the kind of night when a protest petition was thrown out, Council members appeared to shift the blame for initiating the request to city staff, the owners of the contested lots swamped Council members with photographs and architectural drawings, and a residents’ spokesperson walked out (declaring, “Y’all do what you want to do — I’m never coming to one of these again.”)

At issue was whether eight Asheland Avenue and South Grove Street lots should be rezoned from Office Business to Office II, a classification that cuts the maximum building size in half (from 30,000 to 16,000 square feet).

The owners of those lots tried to file a protest petition against the rezoning, which was initiated by the city. But City Attorney Bob Oast claimed the petition was filed too late to be valid. If accepted by Council, it would require a 6-1 super-majority vote for rezoning to occur.

But Craig Justus, the attorney for the property owners, countered that the passage in the Unified Development Ordinance which relates to the timely filing of protest petitions is ambiguous. “The City Council decides … not Bob Oast,” he asserted.

Council members, however, stood by Oast’s interpretation; he called the decision “a matter of law.”

Next came a history lesson: Before the UDO was adopted in 1997, the properties had been zoned Commercial Services — a high-density designation that allowed a wide variety of large-scale business uses, including some industrial ones. During the lengthy process of preparing the UDO, city staff had identified the area as fitting within the new Office Business classification, City Planner Mike Matteson recounted. Now, city staff have recommended rezoning the area Office II — a new classification created to fill the gap between Office (with its 8,000-square-foot maximum building size) and Office Business (30,000 square feet).

“This is a staff-generated pick. If the property owners and residents don’t want it, then why are we doing it?” queried Council member Barbara Field, citing the “wall of opposition” to the rezoning.

“Because City Council directed staff to create an O-II district, as part of its annual review [of the UDO],” replied Senior City Planner Gerald Green. Both the Planning and Zoning Commission and Council members approved the new classification, and city staff — at Council’s direction — proceeded to identify areas where Office II seemed appropriate. Three O-II rezonings have occurred in the few months since then, noted Green.

In the Asheland case, he continued, “We didn’t run into a ‘wall of opposition,’ but a wave that got bigger and bigger … and is now a tidal wave.”

In fact, however, neighborhood residents actually support the rezoning — particularly if it includes the creation of a one-foot-wide strip down South Grove Street that would be rezoned residential, in order to prevent future commercial access to that street, should the property owners ever expand their medical-office facilities. “We’re not trying to fight City Hall or play the race card,” said South French Broad resident Joe Craig. “We’re asking for City Council’s help. … Renew our faith in city government: We like our neighborhood just the way it is,” he pleaded. P&Z members had suggested the one-foot strip, reported Craig, adding, “We’re encouraged to know they care about Grove Street.”

Residents have complained about existing problems with cut-through traffic between Asheland and South French Broad (not all of which, they noted, is attributable to the medical offices), and have expressed concerns that the OB classification would allow property owners to greatly enlarge existing complexes, or build new ones up to 30,000 square feet in size.

But Justus — representing the Asheville Women’s Medical Center, which owns much of the property involved — countered that, although property owners had accepted the UDO rezoning from CS to OB, “Further downzoning does restrict [their] future plans.” Said Justus, “I don’t know of another situation where you’ve had so many property owners standing up against a rezoning.” Even the city’s 2010 Plan, he noted — an official long-range planning document — shows the area as being part of the urban center. “OB was a fit, [and] we were satisfied. …We oppose the O-II designation, because it singles us out again for downzoning.”

And the one-foot strip, continued Justus, not only fails to deal with the problem of cut-through traffic, it also limits future access to the eight properties.

He passed out photographs showing the topography of the block, arguing that creating access to these properties via Asheland Avenue only would be prohibitively expensive. And an architect for the medical center displayed potential expansion plans to demonstrate that O-II zoning would actually have a more severe impact on the surrounding neighborhood than OB zoning would. To meet O-II requirements, the architect and landscape architect claimed, the medical center would have to build an 8-foot-high retaining wall and place a new building closer to neighbors’ property.

“Let them put up a wall! We don’t want more traffic,” declared South Grove Street resident Mary Warren. The doctors, she charged, are more concerned about money, whereas she and her neighbors are concerned about their children’s safety and the character of the neighborhood. “We want to keep our neighborhood looking nice,” Warren remarked. She said she supports the foot-wide strip proposed for residential zoning. “But I ain’t going to hell over a foot of land,” she declared, urging Council to “wrap this up and be concerned.”

But wrapping things up proved difficult.

Residents’ representative Mel Thomason, who owns property in the neighborhood, said they would rather have an 8-foot-high wall than increased traffic and large-scale offices. Medical-center employees urged Council to respect their needs and vote against the rezoning (one physician urged Council to “keep its corporate word”).

Mayor Leni Sitnick tried to frame a compromise, suggesting that Council uphold the current OB zoning and create the one-foot-wide residential strip. “That would seem to be fair,” she said.

But her proposal drew little support.

Council member Earl Cobb said he has a problem with downzoning against property owners’ will. “It’s already been downzoned one time; they didn’t initiate [this],” he observed.

But if the current property owners sell their land, replied Sitnick, future development could be larger than what’s there now, and any new facilities could use South French Grove for access. With her compromise, she continued, “No matter what goes in … the neighborhood is protected.”

Field, however, raised a “philosophical” opposition to one-foot-wide buffer strips, which she said are difficult to administer and monitor — and can be forgotten, in the future.

At that point, Council member Tommy Sellers moved that Council deny the rezoning change — leaving the properties OB and not creating a buffer. Field seconded his motion.

But O.T. Tomes said he couldn’t vote for it. Some weeks earlier, he pointed out, Council had remanded the issue to staff and the Planning and Zoning Commission to come up with a solution. “They’ve done this,” Tomes commented.

Vice Mayor Ed Hay said he, too, couldn’t support Sellers’ motion. But he agreed with Field that a one-foot strip is not the way to solve a traffic problem. On the other hand, he said, O-II zoning does fit the eight properties, none of whose structures exceeds the 16,000-square-foot limit. Changing the zoning to O-II offers some protection against commercial intrusion for the neighborhood, he added.

Cobb said he agreed with Field about the buffer strip.

Justus then proposed a compromise: Continue the hearing, and let property owners meet with neighborhood residents to address the traffic-and-access issue.

But residents expressed impatience with the whole affair. Craig’s wife Brenda proclaimed, “Y’all do what you want to do,” and prepared to leave. Her husband said he was never coming to such a meeting again.

Then Council voted: Sellers’ motion failed, 2-5.

Next, Hay gave it a try, moving that Council rezone the lots to O-II, but omit the one-foot buffer. Council member Chuck Cloninger seconded the motion, which also failed, 2-5.

Then Sitnick asked, “Can I make a motion?” After Oast said she could, Sitnick offered her compromise again: Keep the OB, but create a one-foot buffer zoned residential. Cobb seconded her motion, which passed 4-3 (Sellers, Field and Cloninger voted against it). Cloninger — at home recuperating from back surgery — made his vote by telephone.

The narrow vote means Council will have to give the motion a second reading on May 25, Oast mentioned.

“Oh, goody,” said Sitnick, with just a hint of cynicism.

And a confused Justus, seeking to clarify what had happened, asked: “So it was actually a 4-3? Which way?” Oast replied that Cloninger’s somewhat-muffled vote had been in support of Sitnick’s motion, giving her the majority.

Tossing in the last word, Sitnick clarified that the OB zoning classification remained intact, except for the one-foot strip. “And that’s not OB for ‘obstetrics.'”

Conditions set for Trinity expansion

City Council members repeated their hotly contested 4-3 vote, approving the Trinity Baptist Church expansion.

“I’m going to lose friends over this,” said Council member Earl Cobb, casting his vote for Trinity, as he had on April 13. The church, he said, had met all the technical standards required by the Unified Development Ordinance. Whether it’s a business, church or resident — “All have rights,” Cobb observed.

The narrow April 13 vote, noted City Attorney Bob Oast, required Council members had to take a second vote on the issue.

Residents who live near the church have adamantly opposed the expansion, citing a variety of concerns about increased traffic and the scale of the 107,000-square-foot project, compared to the surrounding neighborhood of single-family homes. But only three Council members — Ed Hay, Chuck Cloninger and Mayor Leni Sitnick — sided with the residents, voting against the expansion. Sitnick emphasized that if the project failed to meet even one of the seven standards laid out in the UDO, Council must deny its permit request. She repeated her conclusion that the project would not be in harmony with the bulk, scale and character of the surrounding neighborhood, as required.

But Council member Barbara Field argued that the city could require that the design of the proposed 2,400-seat sanctuary be reviewed by a city-staff committee, to reduce the structure’s impact on the neighborhood. In such a design review, staff and Council — which would have final approval — could set a height restriction on the steeple, require a less imposing facade and mandate a more substantial landscaping buffer, for example. “[We’re] asking the architect to consider the neighborhood,” Field explained, adding: “We rarely get the chance in any zoning [case] to have a say in the way [the project] looks: This is that opportunity.”

But Hay was concerned that other mandates already part of the conditional-use permit might be difficult to enforce: One condition requires that, when the new sanctuary is in use, no other building be occupied (the expansion would include a school, seminary, ballfield and daycare facilities). “How are we going to enforce that?” he asked.

City staff replied that enforcement would largely depend on the honor system, although staff would also respond to complaints about violations, as they have in the past.

The permit conditions also require Trinity to: pay all outstanding fines for previous violations; lower the parking-lot lights to a maximum height of 12 feet; correct existing storm-drainage and erosion-control problems; plant extensive landscape buffers; avoid scheduling activities (other than worship services) between the hours of 11 p.m. and 7 a.m.; and either turn off the parking-lot lights late or night or dim them, to lessen the impact on surrounding residences.

Cloninger, who participated in the meeting via telephone, agreed with Sitnick that the project doesn’t fit the neighborhood.

But Council member Tommy Sellers moved that Council approve Trinity’s permit for the project. Seconded by Field, his motion passed. Cobb and O.T. Tomes joined Sellers and Field in the majority vote, as they had on April 13.