“I think that the Maxwell Street use and the Staples signs are wrong. What support I will get on Council to make considerable changes to these issues is yet to be seen.”
— Council member Robin Cape
The uproar over Asheville’s alleged failure to enforce its Unified Development Ordinance will take center stage at City Council’s Aug. 22 meeting. Professor David Owens of the School of Government at UNC-Chapel Hill — who wrote an analysis of the Prudential Lifestyle Realty, Staples and Greenlife Grocery projects at the city’s request — will present his findings and field questions from Council members and the public (see “The (Non)enforcers,” July 12 Xpress).
Although Owens’ report outlines multiple enforcement failures on the part of city staff, in his discussion of violations at Staples and Greenlife, the author repeatedly suggests that Council change the law to make the buildings legal. But that approach appears to contradict the law’s explicit intent.
UDO Sec. 7-18-3 states: “The notice of violation may … require removal of illegal buildings, structures, or uses or removal of illegal additions, alterations or structural changes; discontinue the illegal work being done; or require any other action to insure compliance with or prevent violation of this chapter.”
Asked about the situation, Council member Brownie Newman said: “Obviously, with both Greenlife and Staples, the ideal would be to work with the business owners in making positive changes. In both of these situations, I believe the city bears some responsibility for what has happened and should be willing to actively help to make the situation better.
“However, if a majority of Council asks for changes and the business owners are not cooperative, I want Council to look at our regulatory authority to require changes.”
Newman said he wants to eliminate all commercial-truck traffic from Maxwell Street (the residential street immediately behind Greenlife) and improve the green buffer around the business. “I agree with [the Coalition of Asheville Neighborhoods] and with David Owens that it’s difficult to read the UDO and reach the conclusion that the current facilities and operations at Greenlife comply with the intent or technical standards of our laws,” said Newman.
Council member Robin Cape told Xpress: “I think that the Maxwell Street use and the Staples signs are wrong. What support I will get on Council to make considerable changes to these issues is yet to be seen.”
Council member Carl Mumpower, on the other hand, said: “It’s my sense the issues of development disasters and city-staff error have been artificially inflated by community activists and some media outlets. In a city with development occurring seemingly on every corner, the few real errors identified by anybody have involved aesthetics, temporary intrusions on Mother Nature, and inconvenience versus dangers to the public safety that should more realistically trigger the [cavalry].”
Mumpower added: “I believe in accountability and would join any reasonable effort to right wrongs and fight harmful forces. I am less enthusiastic, however, in joining with those who would have us all pole-vaulting over mouse poo-poo.”
Whose fault is that?
According to a March 16 e-mail that City Manager Gary Jackson sent to Coalition of Asheville Neighborhoods members, Mayor Terry Bellamy had asked the School of Government to advise her on how to deal with alleged UDO enforcement violations.
Owens’ report, however, doesn’t have a lot to say about enforcement. Asked why he hadn’t assigned blame for the violations, Owens replied: “I did not undertake to adjudicate appeals of these cases as a substitute for Board of Adjustment or judicial review. An adjudication would require submission of direct and rebuttal evidence from all of the affected parties, cross-examination, opportunities to present detailed oral arguments and rebuttals, presentation of proposed findings by the parties, submission of legal briefs, opportunities to respond to submissions, and so forth. That detailed and legalistic process is necessary for a fair and impartial adjudication and was beyond the scope of my undertaking.”
Furthermore, he said, “As the case law makes abundantly clear, the key in interpretation is giving effect to the intent of the full ordinance, which is what I tried to do and is why I stressed the importance of making the Council’s intent as clear as possible.”
One of the most contentious issues raised by area residents concerns the size and height of the Staples signs. Owens’ report says the signs’ legal status depends on whether the red background is counted as part of the sign. But the UDO is quite specific on this point, stating, “The area of a sign shall be considered to … encompass all lettering, wording design or symbols, together with any background on which the sign is located and any illuminated part of the sign.” The UDO limits the height of such “parapet signs” in CBII zoning districts to 25 feet; the Staples signs are more than 30 feet tall.
Asked about this, Owens replied: “Throughout my analysis, I made an effort to consider the entirety of the ordinance, to reconcile its various provisions, and I did not intentionally ignore any provision of the ordinance. Given its length and complexity, it is entirely possible that I may have overlooked or failed to consider a particular provision. If that was done, it was an error on my part, but it was inadvertent.”
CAN board members Joe Minicozzi and Heather Rayburn have said they intend to question Owens during the public-comment portion of the Aug. 22 City Council meeting.