Asheville City Council

It was one of the most contentious issues to confront the Asheville City Council in recent memory. It took two days to get through it, and all the city’s public viewing facilities were jammed with concerned citizens who couldn’t get into the overflowing Council chamber. There were sign-up sheets to handle the crowd of people waiting to weigh in during public comment. Demonstrators lined the steps of City Hall, and the media dutifully hovered.

After seemingly endless deliberation and debate, City Council approved the new Wal-Mart superstore and adjoining “urban village” with only one dissenting vote (by then Council member Brian Peterson) — but not before attaching a few conditions.

“We were stuck on the traffic thing — that was the sticking point,” Council member Holly Jones recalls. “We made a promise to the people.”

But that was three years ago. And now, it seems, Wal-Mart is back — bigger than ever.

Changing the rules?

At the Aug. 9 formal session, Horne Properties (one of two developers of the old Sayles-Biltmore Bleacheries site) requested further changes in their conditional-use permit. It was the second time since the project was first approved that a developer had asked for permit modifications, and once again City Council gave them what they wanted. In fact, with the latest changes, the developers now have almost everything they were originally seeking.

This time, the issue on the table was permission to build on an adjacent 1.16 acre out-parcel that Horne Properties had previously agreed not to develop in order to reduce traffic congestion on Swannanoa River Road. Given the choice of widening the road or scaling back their operation, they chose the latter, ditching a proposed restaurant on the out-parcel and halving the size of the urban village component (a mixed-use retail and residential project to be built by Riverbend Development LLC, which is working in partnership with Horne).

Looming large in the ensuing discussion (as it had three years ago) was whether traffic volume could exceed 90 percent of Swannanoa River Road’s carrying capacity. According to the minutes of the June 23, 2002, Council meeting: “The applicant indicated that the option they would prefer to pursue at the current time is to reduce the scale of the project in order to meet the 10 percent capacity-retention standard proposed at the City Council meeting. In other words, they propose to delete some land uses from this request and to change others to such an extent that the total projected traffic on Swannanoa River Road falls below 12,600 vehicles per day.”

But last year, Riverbend Development won Council’s blessing to nearly double the size of the project’s residential component (see “When Big Gets Bigger,” Nov. 7, 2004, Xpress). At the time, a staff report from Planning and Development Director Scott Shuford noted that the change would “result in a small increase in traffic on Swannanoa River Road.” Nonetheless, that measure passed on a 4-2 vote, with Jones and Council member Brownie Newman opposed (Council member Terry Bellamy was absent).

And this time around, city staff (including Traffic Engineer Anthony Butzek) brought new numbers to the table that showed what he said is a tolerable volume of traffic.

The discrepancy appears to be due to different traffic-measuring techniques. According to staff reports and Butzek’s discussion with Council, the current traffic-impact analysis, which focuses on traffic flow through intersections, indicates that Swannanoa River Road can handle the increased volume. The 90 percent cap, on the other hand, is a “theoretical capacity, not the actual capacity,” Butzek told Xpress. Council, he said, was trying to cap development, and 90 percent was an easy way to limit traffic. “I wouldn’t say it changed,” said Butzek. “It’s just two different ways of looking at traffic.” Both were used in the original 2002 hearing, he emphasized. Applying the 90 percent standard, however, the road would be running at 106 percent capacity, said Butzek.

He also emphasized that two intersections are responsible for the bulk of the traffic problems in the area: One of them (Tunnel and South Tunnel roads) is not related to the Wal-Mart Supercenter, and improving the second one (South Tunnel and Swannanoa River roads) is actually another developer’s responsibility.

Revamping the latter intersection is a condition of the permit granted to the developers of the nearby Target store in 2002, but Butzek said the work is long overdue. “Target has actually had several deadlines which have passed, but we are working with them to get the improvements done,” he explained.

Some Council members weren’t satisfied by Butzek’s predictions, however, maintaining that the city had made a commitment to the 90 percent figure. But as with other permit disputes, this one seemed to hinge on the difference between the spirit and letter of the law. The original permit states, “No changes shall be made in the level of development intensity that will or may increase traffic on Swannanoa River Road unless further traffic mitigation measures are implemented.” And at the Aug. 9 meeting, Butzek explained, “This is a request to be relieved from that [permit] condition now that we have seen the impact of traffic.”

The permit language was drawn up by City Attorney Bob Oast based on what are called “determinations” (notes kept by city staff during Council discussions). But it’s only in those notes and in the minutes of the 2002 meeting — which, unlike the actual permit conditions, aren’t legally binding — that the maximum-percentage issue comes up.

“Traffic generated by the project will not cause the traffic volume on Swannanoa River Road to exceed 90 percent of its current … capacity,” the notes state.

Three years later, however, Shuford offered Council members a different take on the situation. “The provision there is that the traffic has to be mitigated before any expanded development,” he said, adding, “It is our opinion that the traffic has been mitigated.”

Asked about the mitigation measures later, Butzek cited two things: the retooling that Target has yet to do, and a new traffic-signal system installed by the state Department of Transportation. Asked about the impact of the traffic signals, Butzek said, “I have no quantitative answer,” because it wasn’t a city project. But such measures typically ease traffic congestion. And if Target does not complete the required retooling of the intersection, he noted, “Council may be willing to pursue revocation of the permit and the [certificate of occupancy]” for that project.

Why not wait?

And binding or not, the 90 percent figure constitutes an agreement, Jones maintained. “We’re not stepping away from the law,” she conceded. “But in the spirit, after that long night, I am way out of my comfort zone.”

Newman, meanwhile, worried about the ongoing development in the Tunnel Road area. “I believe that this one building won’t mess up this part of town,” he said. “But it is a drop in the bucket, and eventually the bucket is going to overflow.”

Butzek, however, explained that because Council hasn’t designated the area as an official corridor, each project in this area is considered separately.

“This meets the criteria,” said Butzek. But backing off from the 90 percent figure, he added, “was a determination that Council made. … It was a policy decision. In fact, the urban-village expansion increased [traffic volume], and the outparcel this week increased it.”

Rick Presley, representing the developer, insisted that there was no binding agreement concerning the 90 percent threshold. And Vice Mayor Carl Mumpower agreed, saying, “I thought we determined we did not make that promise.”

Presley also maintained that the piece of property in question had never been taken off the table. “At no time did we intend to say, nor in my memory did we say, that we would not develop that out-parcel,” he said. “[It] has always been part of the intended use of the development.”

Amid the confusion among decision-makers — and in stark contrast to the massive public outcry in 2002 — only one member of the public addressed the issue at the Aug. 9 session.

Asheville resident Will Metz, showing photos he had taken of a bumper-to-bumper traffic jam on Tunnel Road, implored City Council to use restraint when considering still more development there.

“The urban village is not even open yet. Why not wait and see what happens when it opens?” said Metz, adding, “Why not see what happens at Christmastime?”

But Metz’s question went unanswered, and the change in the conditional-use permit squeaked by on a 4-3 vote, with Mayor Charles Worley, Mumpower and Council members Jan Davis and Joe Dunn in favor and Bellamy, Jones and Newman opposed. The change allows Horne Properties to develop the out-parcel, though the specific project to be built there will still have to be approved.