Asheville City Council

The jousting and jockeying by developers hoping to build a retirement village atop Beaucatcher Mountain — and the return volleys by neighborhood opponents — have been reported twice before in these pages (see Aug. 31 and Oct. 5 Xpress). But the Asheville City Council’s Nov. 9 formal session was marked by the most intense legal wrangling on the issue to date. Nonetheless, Council still declined to vote on the proposed 172-unit development — or even to hear public comment. After listening to arguments from attorneys representing the developer, the neighborhood and the city itself, Council members decided to send the latest incarnation of the project back to the Technical Review Committee.

For the third time in less than three months, a crowd of people turned out to speak at a public hearing on the matter; for the third time, they could only sit and listen as a vote on the controversial development was once again put on hold.

During a 20-minute break in which City Attorney Bob Oast left the Council chamber to research some points brought up in the discussion, Norris Orbach, who lives near the site of the proposed project, told Xpress that he would like a chance to speak at the meeting but felt it was unlikely in light of the latest changes proposed by the developer. “A vote on this tonight is improbable; I think Planning and Zoning is going to have to look at this again,” he predicted.

Only rarely does a Council meeting unfold in such a legalistic atmosphere. Like the others in the packed Council chamber, Orbach would spend two hours listening to lawyers for both sides jockey for position and Council members’ favor. Brownlyn Associates, a Charlotte-based development firm specializing in retirement communities, trotted out a pair of attorneys to present its case. And attorney Patsy Brison, representing the Kenilworth Residents Association, pulled out all the stops, throwing everything she had at the case to see what stuck.

The issue first arrived before Council in August, when attorneys for the developer challenged the validity of a protest petition submitted by neighbors of the project. (To be valid under state law, a protest petition must be signed by the owners of 20 percent of the area within 100 feet of one side of the property in question. Once a petition is accepted, a supermajority — in this case, a 6-1 vote — is required to approve the project.) But when Council pronounced the petition valid, the developers backed off, asking that the vote be delayed because Council member Holly Jones was absent. But attorney Craig Justus admitted later that they would probably have asked for more time in any case, in order to plan their next move.

When the developers next came before Council, in September, they had pulled back the boundaries of the area they were seeking to have rezoned by 100 feet in another attempt to nullify the protest petition. The move might have been successful except that an access road into the project crossed the 100-foot buffer zone, prompting the city attorney to conclude that the petition was still valid. Again, the developers backed off, this time agreeing to a charrette organized by city staff to weigh potential changes to the project. The developers’ latest plan calls for jettisoning the access road altogether — which creates a whole new set of complications.

Protected or not?

Brison was the first to speak, and she came armed with a catalog of arguments aimed at quashing the development once and for all. Recapping two letters she’d sent to Council members over the previous two weeks, Brison cited a litany of procedural issues — some of which, she said, should be sufficient to kill the project before Council even went to the trouble of holding a public hearing.

Her opening salvo was to reconfirm the protest petition’s validity. Pointing out that the developers had once again changed the boundaries of the master plan to exclude the access road, Brison called the move a “violation of good faith.” That was only part of Brison’s strategy, but the access road and its effect on the protest petition would become the core of the Council discussion that eventually sent the plan back to the Technical Review Committee. (The TRC weighs in on the technical details of development projects; the Planning and Zoning Commission handles rezoning requests and conditional-use permits.)

Brison also cited the state’s Mountain Ridge Protection Act, which prohibits buildings more than 40 feet tall on ridges rising 500 feet or more above the valley floor. (The law allows municipalities to opt out, but Asheville decided not to do so in the early 1980s.) “The project … is prohibited at the outset,” argued Brison, urging Council members to rule against the development on that basis, thereby “sav[ing] a lot of time in public hearing.”

But while city staff conceded that part of the proposed development would sit on a ridge that fits the law’s definition, both Oast and planning staffers pointed out that the law refers to ridges defined by maps already in the city records. Although the ridge may be technically eligible, it’s not listed as one of the ridges defined by such maps, Urban Planner Shannon Tuch explained. And Council member Jan Davis said that during his tenure on the Planning and Zoning Commission in 2001, he’d asked staff about Beaucatcher Mountain’s relationship to the protection act and was told that it wasn’t covered.

But Council member Holly Jones recommended revisiting the issue. “We all agree it’s not on the map. The question is, should it be there?” she said. “I really think this is important.”

Designating the ridge as protected would require a new city ordinance, noted Oast — a move Davis was reluctant to make in the midst of these proceedings. “This is the law we are working with, and now we may change that in midstream?” he said, adding, “I have concerns about that,” he said.

Unfazed, Brison proceeded with her next move: arguing that only the Board of Adjustment can grant the height variances required by the project. The attorney also noted a discrepancy between the names on the project application and those on the deed to the property. (The developers conceded this last point, saying that so much time has transpired that the land has changed hands since their last visit to Council. That prompted Jones to point out that it was the developers who’d requested those delays.)

After Brison’s conclusion, Mayor Charles Worley began to overrule the attorney’s procedural arguments wholesale. But Jones objected, wanting to explore the question of the protest petition again.

The Catch-22

According to Brison, the developer’s latest changes to the master plan included trimming off just enough of the area it wanted rezoned to try and dodge the protest petition. The move appears to have caught the city by surprise; Tuch told Council members that the developer had submitted the new master plan mere days before the Nov. 9 formal session. And the reduction was so precise that the signature of a single landowner came into play.

Neighboring property owner Irby Alexander had signed the protest petition, but his wife, Irene, had not, Oast told Xpress. Under North Carolina law, if a parcel has multiple owners, all of them would have to sign for it to count on the petition, he explained. Therefore, said Oast, the protest petition would indeed be invalid if City Council opted to consider the project without the access road, as the developers had requested.

But few on Council seemed ready to accept the change. Council member Terry Bellamy said the change was a major one and moved that the issue be returned to the Planning and Zoning Commission, which would give the neighbors a chance to redo their protest petition.

Vice Mayor Carl Mumpower warned against manipulating the process from the Council chamber, pointing out that while neighbors have the right to submit a protest petition, developers have the right to do whatever is legal to get around one. But Bellamy argued that since the master plan had been significantly changed, the neighbors should be given a chance to put together a new petition. Her motion, seconded by Jones, failed to find any other supporters. But the conversation was far from over.

Speaking for the developers, Justus said that even though the access road had been cut from the development and that section of property was no longer part of the master plan, the property owners might go back and build the road later. Developing it as a separate project, he noted, would not require rezoning. Justus also encouraged Council to simply approve the project without further delay, saying, “We would like to move forward with the merits of this case.”

But without the access road, the project would never have gotten this far to begin with, Tuch told Council members.

As staff and Council explored the issue further, the developers’ dilemma grew ever clearer: With the access road included in the master plan, a supermajority would be required for approval, because the road’s presence would trigger the protest petition. Without the access road, the protest petition would not apply — but the project would have a slim chance of gaining Council approval, due to technical concerns.

Justus, however, maintained that the road isn’t part of the project, and Albert Sneed, the developer’s other attorney, added that Council could make the road a condition as an off-site improvement, something he said they’ve done in the past.

But Council member Brownie Newman was not about to let the access road, which was part of the project’s original master plan, disappear so easily. “You are going to make the case that this project doesn’t need this access road,” he said.

Justus replied, “We are going to make the case that this access road is being developed as a separate project.”

And although Newman admitted that he’d opposed delaying a vote back in September, he nonetheless called the new revision a substantive change that needed technical review. “I think we send it back … and see if it works,” he said, adding, “I think we’re going to find it doesn’t work.”

Sneed objected to the direction of Council’s discussion, but he clearly didn’t want to see the project defeated. “My client has been trying to get a decision for some time,” he said with obvious frustration. “They have been making change after change after change that staff requests. We have been met with an overtechnical interpretation by your city attorney.”

But Mumpower reminded Sneed that it was Brownlyn that had repeatedly requested delaying a Council vote. “Your developer has postponed this not just out of consideration for the neighborhood, but also because he wants a reasonable chance that this project be approved,” noted the vice mayor. Brison, meanwhile, maintained that the changes were specifically intended to circumvent the petition, and some Council members shared that view.

Mumpower then made a motion to remand the proposal to the TRC. Bellamy seconded, and it passed on a 5-2 vote, with Davis and Council member Joe Dunn opposed. The move will also allow residents to rebuild their protest petition, because a new public hearing will be required — thereby opening the door for another petition.

In a later interview, Davis told Xpress that his vote had stemmed from a desire to see Council finally vote on the project, yea or nay. Either party, he said, could have come out of the meeting satisfied, rather than confronting yet another delay that gave no one what they wanted. To his Council colleagues, Davis said, “I really don’t see where this process ends.”

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