Asheville City Council

On the heels of last month’s postponement, the Asheville City Council once again voted to hold off on a rezoning decision that could allow construction of a large retirement village atop Beaucatcher Mountain.

At the Sept. 27 formal session, attorney Craig Justus, representing Brownlyn Associates (which now owns and is seeking to develop the property), asked Council for another continuance so the developers could sit down with neighborhood residents and city staff to try to find a compromise on the controversial project.

But an attorney representing the Kenilworth Residents’ Association said she would rather see the project start over from scratch. “It seems like the fairest way to proceed is that the developer should withdraw the application and start anew,” Patsy Brison told Council.

The 71-acre development has already sparked significant community opposition — the proposal’s Aug. 23 appearance before Council drew enough people to fill both the Council chamber and an overflow viewing room — while failing to win city staff’s endorsement. At that time, the property was under contract; the deal has since been closed.

To date, however, the developers have focused on trying to nullify the impact of a protest petition signed by neighboring property owners. Once such a petition is declared valid, a supermajority — in this case, six out of seven Council members — is required to approve the project in question. Under state law, if the owners of 20 percent of the area within 100 feet of one side of the property in question sign a petition, it is valid.

Back in August, the developers challenged the petition but were overruled when Council voted to accept it. Attorney Albert Sneed, representing the developers, then asked for a continuance, citing the absence of Council member Holly Jones and his client’s desire to have the full Council present for the vote. But on Sept. 27, Justus admitted that the request had been an attempt to buy time to consider strategies. “There is a good chance we would have asked for a continuance” even if Jones had been present, Justus told Council.

A public hearing scheduled for both the August and September meetings has yet to be held. On both occasions, concerned residents filled the Council chamber, but the postponements have forestalled public comment so far.

Meanwhile, in the past month, the developers took a different tack in seeking to avoid triggering the supermajority requirement. By scaling back the area it was asking to have rezoned to 100 feet within their own property boundary, Brownlyn was in effect creating a 100-foot buffer that it already owned around the development — thus rendering the state requirement moot. But a planned access road that would cross the buffer caused City Attorney Bob Oast to deem the protest petition still valid.

That opinion, handed down mere hours before the meeting, seemed to catch Justus off guard. “We thought that last week this was all resolved,” he said. (Justus was filling in for Sneed, his colleague, who was out of town.)

Justus called the decision a “tremendous curve ball.” The developers, he added, may have to consider eliminating the road, one of several access points to the property.

City staff’s main problem with the development is that the plans call for building on slopes with a gradient of 20 percent or more, Urban Planner Shannon Tuch explained. “It would simplify the application if they could keep their buildings off [those] slopes,” she said.

Planning and Development Director Scott Shuford told Council that the site includes some of the steepest slopes along the whole ridge, which would make the development’s biggest buildings highly visible from Asheville.

Justus, however, argued that without the views the site would provide, the developers couldn’t charge the kind of prices needed to make the project viable.

The density, he noted, has already been decreased, but too much restriction — or a thumbs down by Council — could force the developers to build a subdivision that would spread single-family homes along the ridge, with greater visual and environmental impact.

That didn’t sit well with Council member Jan Davis, however. “I don’t like that being used as a threat,” he said, drawing applause from the crowd. But Davis also voiced support for an attempt at diplomacy, saying, “I think it is worth sitting down with the community; I hope they would do their part.”

Council member Terry Bellamy, meanwhile, wanted to reserve the right to send the issue back to the Planning and Zoning Commission if major changes are made. If the project started over, said Tuch, it would be about three months before the new plans arrived before Council. But Oast emphasized that Council members wouldn’t necessarily get another look at the plans, because City Council doesn’t weigh in on such projects unless the developers appeal a P&Z decision. In approving the current plans, P&Z added a number of conditions, some of which the developers have appealed in the proposal that’s now on the table.

City staff, said Shuford, could set up a design charrette involving representatives from the stakeholders — including staff and Council — to try to reach a workable compromise.

Davis made a motion (seconded by Dunn) to continue the issue until November. The motion passed on a 6-1 vote, with Newman opposed.

No more lobbyist

After two years, Council has decided to end its relationship with the lobbying firm Ball Janik. Since 2003, the city has retained the firm to give Asheville a presence in Washington and to lobby for funding.

According to a staff report, the city has secured $9.99 million in federal appropriations since Ball Janik came on board. “Staff believes it certainly has been helpful,” said Economic Development Director Sam Powers.

But support for hiring a lobbyist has never been unanimous, and various Council members have questioned the decision.

“I don’t see anything in particular that we need right now,” said Council member Brownie Newman, who made a motion not to renew the contract. Newman noted, though, that he’d supported having a lobbyist in past.

Vice Mayor Carl Mumpower, who has never supported the policy, seconded, saying, “It is another way of chipping away at our budget; they are also a layer between us and our legislators.”

Jones, meanwhile, had kind words for the firm’s work but nonetheless argued against renewal. “I couldn’t be more pleased with their performance, but the national landscape has changed,” she said.

That left Mayor Charles Worley as the lone voice for keeping the lobbyist. “You can look back at the numbers and see it has been extraordinarily effective,” he said, echoing Powers’ argument that a lobbyist’s knowledge of the system can be invaluable. “Even with the help of your representatives, you can fall flat on your face,” noted Worley.

But the mayor’s words went unheeded, and Council voted 6-1 not to renew the contract.

Asheville has been paying Ball Janik $60,000 a year. That money is included in the 2005-06 budget, and Powers told Xpress he doesn’t know how it might be reallocated.

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