It was over before it began.
“A few moments ago, the city was served with a restraining order,” intoned Mayor Charles Worley at the start of the Asheville City Council’s Dec. 16 formal session.
And the aptly named order did indeed restrain City Council, which was forced to drop from its agenda discussion of a budget amendment that would have given the green light to a $6.6 million redevelopment proposal for The Block (the city’s traditionally African-American commercial district).
The legal maneuver was initiated by former Council member Gene Ellison and his business partner, Howard McGlohon, who are listed as the plaintiffs in a complaint filed with the Buncombe County Superior Court earlier that day. The complaint lists the city of Asheville and the Eagle/Market Streets Development Corporation as the defendants. The other major player in the project, the Mt. Zion Community Development Corporation, isn’t named in the complaint. After reviewing it, Judge Zoro Guice signed a temporary restraining order at 4:05 p.m. — less than an hour before the Council meeting began.
And when Worley informed the packed chamber that Council would have to strike a scheduled discussion of the redevelopment plan, the bulk of the audience headed for the doors.
At issue is a four-story infill building to be built on a vacant lot on South Market Street. The proposed building would house 14 apartments, 8,700 square feet of office and retail space, and a parking garage. The new structure would be adjacent to the three-story Ritz Building, which Ellison and McGlohon bought in 2000. The renovated building now houses The Ritz Restaurant and a private club. By allowing the proposal to move forward, say the plaintiffs, the city would be violating its own plan for the area.
In 1993, City Council approved the South Pack Square Redevelopment Plan — a comprehensive strategy for revitalizing the area. The Eagle/Market Streets Development Corporation was formed shortly thereafter to implement the plan. According to the complaint, however, the original redevelopment plan did not include the infill construction adjacent to The Ritz — and state law stipulates that redevelopers such as McGlohon and Ellison must approve any changes to such plans.
The judge concurred, noting that “The [South Pack Square] Redevelopment Plan … provides that revisions to the Redevelopment Plan shall be made only with the prior review and approval by certain named parties, including the South Pack Square Association, whose membership includes all South Pack Square property owners. … In addition, N.C. General Statute 160A-513(k) requires that revisions to an approved redevelopment plan shall require the prior approval of any developer who purchased property in the redevelopment area after the approval of the redevelopment plan. … Without notice or approval by plaintiffs, EMSDC planned and drafted a redevelopment proposal that calls for revisions to the redevelopment plan.”
City Attorney Bob Oast told Xpress that the city was preparing a response. Complicating the matter, however, is the fact that Howard McGlohon is married to Martha McGlohon, an assistant city attorney on Oast’s staff. The city, said Oast, is considering hiring a private attorney to handle the case if it moves forward.
Also present at the meeting was David Rogers of Historical Acquisitions LLC, a private firm that’s involved in the redevelopment plan; he declined to comment on the matter.
In an interview with Xpress after the meeting, Mayor Worley said: “I’m always disappointed when a lawsuit is filed in these circumstances. I always hope these things can be resolved outside of a lawsuit situation.”
But Charlotte-based attorney Java Warren, who’s representing Ellison and McGlohon, told Xpress after the meeting, “The city has forced our hand,” calling the lawsuit “a necessary step.”
The next step is a preliminary hearing in Buncombe County Superior Court, scheduled for Dec. 30.
“Call it what you want, but it’s a tax.”
— Council member Joe Dunn on public-access-channel funding
Having kicked off the proceedings on a litigious note, Council found itself discussing its legal liability in connection with another agenda item later that same evening. This time, the question was how involved City Council would be in administering a new public-access-television channel.
For the past five years, a Council-appointed commission has been laying the groundwork for launching the channel. At the Dec. 9 work session, however, Public Access Channel Commission Chair Beth Lazer called on Council members to dissolve the commission and replace it with a nonprofit organization that would oversee the station’s operations. But this would require a formal Council vote.
Dominating the discussion before the vote was the vexing question of how to structure the proposed nonprofit’s board of directors. The commission had recommended an 11-member board comprising the five current commission members, two appointees (selected by City Council and the Buncombe County Board of Commissioners, respectively), and four more members chosen by those seven.
That structure, Lazer explained, was designed to limit both governments’ legal liability in the event a disgruntled viewer filed suit against the station — a distinct possibility, she said, based on other communities’ experiences. Because the programming is citizen-directed, the content on such channels can be as varied and diverse as the communities they serve.
During previous discussions, the city attorney has endorsed the idea of limiting the number of city appointees. But it quickly became apparent that some Council members nonetheless wanted more representation on the board.
Council member Joe Dunn argued for letting the city and county each choose two board members, noting that the bulk of the station’s operating funds will come from fees paid by area residents to Charter Communications, the cable-television company that will host the station. For the past five years, Charter customers have been paying 20 cents a month to support the public-access channel; those accumulated funds, held in escrow by the city, will be transferred to the nonprofit once the new board has been established.
“Call it what you want, but it’s a tax,” asserted Dunn, maintaining that elected officials are responsible for supervising how tax dollars are spent. Vice Mayor Carl Mumpower also called for doubling the number of city and county appointees on the board in order to provide “a point of balance.”
Council member Brownie Newman disagreed. Four appointees, he noted, would constitute 36 percent of an 11-member board. “If over one-third of the board is concerned about watchdogging, rather than fund raising or raising awareness, then it won’t help get the program off the ground,” asserted Newman.
Mumpower, however, stuck to his guns, making a motion to dissolve the commission and establish a new board including the five commission members plus two city and two county appointees, with those nine choosing two more members. Newman countered with an amendment to Mumpower’s motion giving each local government only one appointment. The vote on Newman’s amendment failed when the six-member Council split 3-3 (Council member Holly Jones was absent). Mayor Worley and Council member Jan Davis sided with Newman, while Council member Terry Bellamy joined ranks with Dunn and Mumpower.
Council then unanimously approved Mumpower’s original motion.