Fair play

Private citizens should not have to call up the CEO of a company and plead with him or her to please soften their building’s design because city staff failed to enforce the law.

During the past few months, I’ve had an amazing crash course in urban planning, public policy and the unparalleled benefit of bulk Rolaids. For years, I’ve felt this constant, gnawing ache of dread observing short-term greed and mediocre development take their hard toll on Asheville.

Nothing, though, has stunned me more than Staples. I really wanted to understand how such a poorly designed big-box store — with billboards on four corners — could be built within our downtown viewshed without any public process. This led me to the Coalition of Asheville Neighborhoods, where I met folks who have spoken out for years about inconsistencies in the way the Unified Development Ordinance is applied and enforced.

Community advocates have high hopes and expectations that the new City Council and city manager will put an end to these problems by ensuring that planning staff adhere to the UDO. And we desperately need reform, because when residents complain about unlawful development, they fall into a bureaucratic black hole — even when their concerns are backed by solid documentation. Meanwhile, neighborhoods are suffering.

In Montford, for example, the developer of Campus Crest cut an 80-foot buffer of trees that they’d promised City Council to preserve: no fine. In West Asheville, a construction company created an illegal dump and ignored the city’s stop-work orders: no fine. For three years, Target has failed to install a turn lane near their store as required: no fine. Walgreens misrepresented their construction project on Merrimon: no fine. Staples’ signs and lack of setback and visibility triangle don’t satisfy the UDO: no fine, no reparations. Same with Prudential Realty’s illegal sign. And the list goes on and on.

The widespread lack of fines and of enforcement leads some developers to adopt the mantra “better to ask forgiveness than permission.” But this penalizes those conscientious developers who do follow the rules, spending more time and money to build projects that satisfy both the law and community plans. Lax enforcement also costs Asheville residents money.

That’s because there are three ways to fund city operations: taxes, fines and permitting fees. When fines are not collected (or even issued), then more of the funding burden falls on the taxpayer. It’s the same when companies low-ball their figures on permit applications and, as a result, the city collects less in permit fees.

Poorly designed projects also generate less local tax revenue than well-designed buildings do. For example, the Downtown Commission asked Staples to put a retail space on the ground floor facing Merrimon Avenue. This would have made the building more attractive and functional, reduced sprawl by making better use of the space, and boosted the local economy by providing an additional workplace and increasing the tax base.

Fed up with the whole situation, the Coalition of Asheville Neighborhoods sponsored three appeals to the city’s Board of Adjustment concerning staff’s interpretations of the UDO. Unfortunately, legal technicalities prevented the board from hearing our cases. Consequently, we’ve asked City Council to consider them instead and to create a process or board specifically for hearing citizen appeals when approved projects don’t meet the letter of the law.

But when the public starts asking how a project like Staples could happen, company and city officials alike admit nothing and commit to nothing. No one takes responsibility to fix what’s broken, and the public is left to try to pick up the pieces. At least this has been the case until recently, when the city announced that the Institute of Government would conduct an independent investigation of the cases involving Staples, Greenlife Grocery and Prudential.

Asheville needs to apply the UDO fairly and consistently. In addition, CAN members want more transparency and accountability in the permitting system and clear adherence by developers to both the UDO and any existing community plans. Private citizens should not have to call up the CEO of a company and plead with him or her to please soften their building’s design because city staff failed to enforce the law.

Nearly everyone agrees that the UDO is a frustrating document. It’s bulky, lacks good graphics, and the legal jargon makes it inaccessible to the general public. As a result, both neighborhoods and developers have a hard time predicting whether or in what form a development will be approved. Nonetheless, it’s still the law.

There are many things that could drastically improve the situation. City Council and the city manager should issue a clear directive to staff that they must enforce the law. Here’s what else the city should do:

• publish the Planning Department’s administrative decisions on a weekly basis;

• regularly publish a list of fines collected;

• simplify the UDO by making it clear, accessible and easy to read, with lots of graphics;

• establish a city ombudsman to mediate complaints;

• establish a mechanism enabling planning staff to own up to mistakes and a system for correcting them in a timely manner;

• make it easier for the public to appeal administrative decisions;

• explore the neighborhood-planning-unit concept, in which neighborhoods and developers work together up front, rather than confronting one another as adversaries when it’s already too late.

We all need clear, predictable rules that are enforced fairly and equitably. And when poor design and noncompliance with our city’s laws result in a massive eyesore within our downtown viewshed, it’s time to make fundamental changes.

[Asheville native Heather Rayburn is a property investor and freelance writer.]