Bluff called

The Diocese of Charlotte appears to have dealt a fatal blow to the city’s plan to build a controversial downtown parking deck next to the Battery Park Apartments in downtown Asheville. In an Oct. 25 letter, attorney Richard Lucey informed city officials that the diocese is backing away from its agreement to sell a key piece of property adjacent to the Basilica of St. Lawrence.

The announcement marked the latest move in a complex four-year poker game between the city and the diocese. Although Lucey’s letter blames the deal’s unraveling on the city’s failure to stick to the schedule laid out in the agreement, the attorney told Xpress that the city had used the threat of eminent domain to strong-arm the church into negotiating back in 2001. Yet several City Council members have said they’d instructed staff not to use eminent domain (the right of a government to force the sale of private land) to acquire the parcel. At the same time, however, several key players told Xpress that putting the threat on the table is more or less business as usual in such negotiatons. Nonetheless, the dramatic turn of events raises several key questions. Did city staff exceed their authority, or did the city’s attempt to play hardball backfire? And what role did the high-profile protest campaign by Battery Park residents play in the church’s decision?

City Attorney Bob Oast noted, “It was acknowledged that we could acquire the land through eminent domain; it’s a factor in a lot of negotations we do. … It would be unusual for it not to come up.” Oast later noted that, in some situations (such as when federal funds are involved), the city is required to inform landowners about eminent domain.

And Mayor Charles Worley said, “I doubt we would have ever used eminent domain; it’s a matter of degree.” He added: “I’d expect the diocese to be made aware of it, but it clearly was Council’s desire not to use eminent domain.”

In his letter to Oast, Lucey wrote: “It is obvious that there are many contingencies in the Memorandum of Understanding that was signed by our respective clients [the city and the Basilica of St. Lawrence] on May 9, 2003 [that] have not come to pass. Accordingly … I am writing you to advise you that my client will not be proceeding under the terms of that document and if it is the city’s wish to pursue a similar type of arrangement then negotiations will have to begin anew.”

Three days later, City Engineer Cathy Ball (the project manager for the deck) issued a press release stating: “The Diocese controls property critical to the construction of the parking garage. … The project cannot proceed without the affected property.”

To date, the city has spent roughly $4 million on the plan — $2.8 million to acquire other parcels and $1.2 million on design and other expenses.

Bitten by a gray panther

Tenants of the Battery Park Apartments, many of whom had banded together to oppose the project, welcomed the church’s announcement.

“The residents are relieved and excited about the recent decision by the Diocese of Charlotte to pull out of the agreement with the city,” said Roger Smith, who helped organize and lead the fight after learning that the city planned to build the 650-space, six-story garage a mere 15 feet from the back and side of the Battery Park Apartments.

“I hope this will be instructive to the new City Council — they need to be open and honest with the citizens. I also hope this will be instructive to the citizens of Asheville — they must be willing to play an important part in what happens to their city, and it’s vital to remain vigilant about what happens at City Hall.”

Project opponents have argued that the deck would leave 46 apartments without direct sunlight. In addition, they say, it would pollute the air with exhaust fumes, create noise and obstruct the views of adjacent historic structures, such as the Basilica of St. Lawrence (which is listed on the National Register of Historic Places) and the Battery Park Apartments (a former luxury hotel built in the 1920s).

Rents in the 120-unit residence are partly subsidized by the U.S. Department of Housing and Urban Development, and many of the occupants are elderly and low-income. Many residents say they were never fully informed about the plan (first announced in 2001) until after it was well under way. The city had originally promised to build a deck near the Grove Arcade back in the 1990s.

And in a recent interview, Lucey acknowledged that the negative publicity surrounding the project had also influenced the diocese’s decision. “We realized that there wasn’t the public backing we thought may have existed in 2003” when the church agreed to sell the property, he said.

An offer you can’t refuse

The city’s Oct. 28 press release makes no mention of the firestorm of publicity generated by the Battery Park protesters, many of whom took to the streets with petitions and placards. Nor does it mention the city’s threat to condemn the church’s land.

But three years ago, Xpress quoted Ball, the city engineer, as saying that Asheville “has put its best foot forward. We’ve gone back and forth on this. We’ve made a final offer, and if we don’t hear by next Friday, we’re going to move forward in trying to acquire the property, possibly through condemnation. … We can’t pay an outrageous amount of money; it doesn’t serve the taxpayers very well to do so.” (See “Stacked Deck,” Aug. 21, 2002 Xpress.)

Despite those concerns, however, staff subsequently recommended drastically increasing the scope of the project by adding street redesign and a mixed-use building. As a result of this and other factors, the cost estimate jumped from $11 million to $21 million. Council approved additional funding for the project in the 2003-04 budget.

Protests aside, Lucey maintains that the city’s threat to use eminent domain played a “huge role” in bringing the diocese to the bargaining table. “We were not trying to sell [the land] — we were using it,” he told Xpress. “They came to us; we could have said, ‘No — sue us.’ But we decided that the most reasonable thing to do is find an agreement we both could live with. But if it wasn’t for eminent domain, we wouldn’t have been there.” Asked about the possibility of future negotiations, Lucey responded emphatically: “That property is not for sale. To reopen negotiations would not be our choosing.”

In a Nov. 3 e-mail to Xpress, Ball wrote: “City staff did acknowledge the fact that condemnation was a legal possibility for acquiring the Diocese’s land. However, during the process, City Council gave staff the direction that it wanted to acquire the land voluntarily and did not want to consider eminent domain.”

The city had first tried to acquire a nearby parking lot owned by BellSouth, which refused to sell. Asked why city staff had been willing to recommend eminent domain against the church but not against BellSouth, Vice Mayor Carl Mumpower said: “I recall the specific conversations about this issue. Eminent domain is one of the tools for bringing large-scale public projects to a point of closure; it was reviewed as an option but never seriously entertained. The negotiations for most of the properties were tough, and any reference to eminent domain was likely part of an effort to make sure the city was not abused, either in terms of the price paid for property or our need to press forward on a timely basis” (because BellSouth is a utilityy).

Responding to the same question, Ball said, “Under state law, it is doubtful that the city could have obtained BellSouth’s property through eminent domain.”

Back to the drawing board

“There are some hard lessons for the City Council to learn from the demise of this project,” noted Council member Holly Jones. “There needs to be answers — to the taxpayers and the residents of the Battery Park Apartments, as well as the merchants of the Grove Arcade who have been waiting for this deck.”

Council member Brownie Newman, meanwhile, called the use of eminent domain as a bargaining tool “hypocrisy.” He added: “This is exactly what this Council recently declared it wouldn’t do.” At the July 26 formal session, City Council unanimously passed a resolution declaring that the city won’t exercise its right of eminent domain for projects that involve private development.

“This deck plan,” continued Newman, “also included a mixed-use private building, a significant portion of which would have been high-end condos. Yet many of the proponents of the Council’s eminent-domain resolution were, at the time of these negotiations, aware of the staff’s use of the threat of condemnation. Threat or actual use, eminent domain was a major part of this. What changed from 2003 to when we declared it off-limits?” Newman and Jones are the only two Council members who voted against allocating the additional funding for the deck plan.

At press time, it remained unclear what the next move might be. The Oct. 28 press release said that staff will develop a list of options and alternatives for City Council to consider. The release quoted City Manager Gary Jackson, who said, “This information will be essential for Council to provide staff with the policy direction we need regarding this new development.”