The Asheville City Council put an end to the battle over balconies on a downtown renovation project, ordering staff to draw up a stricter process for approving future sales of the city’s air rights. But local activist Elaine Lite, a City Council candidate who brought the issue into the spotlight by bidding for air rights against a developer, says the city is playing into developers’ hands.
In a 6-1 vote at its Aug. 14 meeting, Council nullified Lite’s long-running bidding war with Urban Capital LLC by requiring purchasers of city-owned air rights to proceed with building any structures already approved for their project. The move effectively shuts out bidders such as Lite, who wanted to leave the space over the sidewalks at 82 Patton Ave. empty. And in any case, Lite wouldn’t have been able to add balconies to a building she didn’t own.
The controversy has been brewing since May, when Urban Capital partners Chuck Tessier and John Rogers approached the city about extending balconies over the Patton Avenue sidewalk as part of their renovation of the First Union Bank building.
The air above public rights of way belongs to the city, which had been using an upset-bid process to transfer such space to developers who wanted to build balconies extending beyond their property line. City staff had been assessing the value of air space at 20 percent of the value of the ground below. In this case, that worked out to $3,350.
But Lite, representing the grass-roots group People Advocating Real Conservancy, thought that price was too low, so when Urban Capital matched the city’s appraisal, the group submitted a higher bid. Since then, the two have one-upped each other; PARC’s latest offer, made about a week before the Council meeting, was $5,405.
Echoing Council members’ praise of Urban Capital for renovating an abandoned building in a prominent downtown spot, Lite says her beef is with city policy. Asheville, she maintains, is being paid “a token sum” for rights worth “tens, even hundreds of thousands of dollars.” Lite also emphasizes the impact of balconies on public spaces, such as the loss of sunlight and the resulting stress on street trees.
The Council vote came after City Attorney Bob Oast had explained that he’s changed his opinion on how state law applies to the transfer of air rights. When the controversy first came before Council back in May, Oast maintained that the city could not attach conditions when selling property rights to a private party. Now, however, he believes that conditions—including a requirement that any balconies already approved for the project in question must be built—can be added. On the other hand, noted Oast, a victory by Lite in the bidding war could have left the city open to a lawsuit by the developers, since the project—including the balconies—had been approved.
“It seems to me we started with a flawed process,” Council member Bryan Freeborn observed.
Council members now want city-appointed bodies, such as the Tree Commission and Downtown Commission, to sign off on air-rights proposals before they come before Council; to this end, staff was asked to recommend an appropriate process.
The vote to cancel the current bidding war and start over passed 6-1, with Mayor Terry Bellamy opposed. She said she does not support the sale of such space.
Meanwhile, Council instructed Urban Capital to submit its planned balconies to the Tree Commission for review before making another bid for the space. But since Urban Capital says no trees will be affected, approval seems a mere formality.
“I would like not to hold this up,” noted Council member Robin Cape.
Making a date
The referendum to determine whether Asheville will switch to partisan elections will be held Tuesday, Nov. 6—the date of Asheville’s next general election. The 6-1 vote, with only Vice Mayor Holly Jones opposed, came after the Council members who voted for partisan elections back in June had complained at length about the tone of the ensuing public uproar.
“There’s been some horrible things happening during this process,” said Jones, one of four Council members who’d originally approved the move on a sharply divided vote. Noting that she’d received threats as well as obscene voice mail and e-mail, the vice mayor proclaimed, “I’m over being threatened; I’m over being called names for something I thought was right.”
During the public-comment period, speakers were divided over the appropriate date for the referendum. Some, such as Heather Rayburn, wanted it on the primary-election ballot so that it wouldn’t distract attention from other important issues during the run-up to the general election. Others supported waiting until the general election. “The turnout is much better, and it would give people more time to discuss this issue,” said Jack Saye of the League of Women Voters.
In the last city elections, in 2005, only 9,815 voters came to the polls for the primary, compared with 21,560 for the general election. Yet appropriately enough, given the furor over the issue, even the choice of dates for the referendum carried possible partisan political implications: In 2005, 66 percent of voters in the primary were registered Democrats; in the general election, 58 percent were Democrats.
The Merrimon conundrum
The prospect of dropping a new zoning designation on a few large Merrimon Avenue properties against their owners’ wishes prompted Council to delay taking action on this issue until its Sept. 18 meeting.
The proposed designation has generally found favor among Council members as well as with the Merrimon Corridor Study Group, which has been working with city staff for 22 months to develop the rules. The new designation would require buildings to be at least two stories and to be sited close to the road, with parking in the rear. To a large degree, the plan was shaped by the results of a survey of Merrimon Avenue property owners, interim Planning Director Shannon Tuch explained. Survey respondents viewed the two-story, brick-faced Atlanta Bread Company as one of their favorite buildings along the road and the controversial Staples building as their least favorite.
The study group has asked that Asheville adopt the new zoning designation without exemptions, whereas Tuch recommended excluding several Merrimon sites from the requirements, including Ingles and the Walgreens/Blockbuster site.
The owners of those properties objected that under the new designation, any major renovation would probably trigger a compliance requirement that would be nearly impossible for them to meet.
“Ingles has been in that location for 40 years,” noted store representative Randy Jamison, adding, “We are not just a grocery store—we are part of the community.” And moving the store to the front of the property would require shutting down for more than a year. “We are not in the business of going out of business,” he declared.
Though the study group had pushed for an entirely new overlay district, Council member Brownie Newman pointed out that Merrimon Avenue is both a major commercial thoroughfare and an access point for residential areas. Coming up with a perfect fit for everyone, he maintained, may not be possible. “The challenging thing about Merrimon,” said Newman, “Is that it has a lot of things going on.”
Council member Jan Davis urged taking a step back, worrying that Council was trying to oversimplify complex and varied circumstances. That sentiment prevailed as Council opted to postpone a vote on the issue for four weeks while staff takes a closer look at the plan.
Drop by drop
The city’s long-running water fight hasn’t dried up yet. Asheville remains in contention with Buncombe County and the North Carolina General Assembly over how much control the city has over its water resources and the revenues they generate.
But Newman said the most recent proposal—which called for turning over major city assets, including the Civic Center, to the county —almost succeeded in resolving the dispute. “We came extraordinarily close to a meeting of the minds,” he noted.
Although some Council members had reservations about surrendering city assets, that wasn’t what eventually derailed the closed-door negotiations, according to several people involved in the discussions. Instead, the sticking point turned out to be the question of how close to the city line new developments would have to be before Asheville could require them to accept annexation in exchange for city water. Buncombe County wanted the cutoff point to be a half-mile out; the city wanted a mile. Based on an analysis of recently installed water meters, most new development is occurring between a half-mile and a mile of the city line, noted Tuch.
Mumpower, however, called the potential deal “a surrender document.” Like other cities in North Carolina, he argued, Asheville ought to have complete control over what it charges water customers inside and outside the city limits and should be able to use the resulting revenues as it sees fit. He suggested confining the negotiations to the phasing in of rate differentials.
Mumpower also renewed his call for public negotiations. Council’s recent proposals were drafted and discussed in private session, claiming attorney/client privilege.
With no agreement reached before the General Assembly adjourned on Aug. 2, Asheville is still pursuing its lawsuit challenging Sullivan Acts II and III. What new tack, if any, the city will take in future negotiations remains to be seen.
In other news
The Asheville Design Center’s campaign to win approval of an alternate design for the I-26 connector got a boost when the city issued a request for proposals, seeking an engineer who would work with the state Department of Transportation to help address the agency’s concerns about the plan’s viability. The city, said Transportation & Engineering Director Cathy Ball, will split the cost of hiring the engineer with Buncombe County, which has also expressed an interest in pushing the Design Center’s recommendation.