The Gospel According to Jerry

A few weeks ago, this greedy carnivore developer found himself breaking vegetarian pizza with members of the Coalition of Asheville Neighborhoods. This unusual gathering resulted from CAN’s request to meet with some members of the Council of Independent Business Owners.

Due to all the problems generated by the community activism and the UDO, it costs at least 20 percent more to build in the city than in the county.

They said that their purpose was to explain that their recent action in trying to overturn the building and certificate-of-occupancy permits for the Walgreens drugstore on Merrimon Avenue, the sign on the Prudential Lifestyle building, and the much-maligned Staples on Merrimon Avenue through an appeal to the Asheville Board of Adjustment was not a NIMBY knee jerk but a protest against the city Planning Department’s interpretation and enforcement of the Unified Development Ordinance.

The meeting took place in the beautiful conference room of the world-famous “Rambo” house on the Highland Park campus. The CAN members were very cordial, courteous and well prepared, making their case with a PowerPoint presentation. At the end, one of our members — a prominent attorney who has handled many cases having to do with permitting and the UDO — brilliantly explained the problems that confront builders and developers as well as the Planning Department in complying with and enforcing this totally unworkable document.

One of the reasons the UDO and the present sign ordinance are so badly written and so difficult to interpret, he said, is that the business-and-development community was almost completely shut out during the writing process by the antibusiness City Council under Mayor Leni Sitnick.

For the most part, the ordinance was written by then Planning Director Julia Cogburn, whom I affectionately call Madam No. I used to quip that when you called up her department, they would answer the phone: “Good morning, Planning and No-ing Department. You can’t build that in Asheville.”

She was assisted by Gerald Green, more recently known as the Paul Bunyan of Merrimon Avenue, who has now switched sides and has a full-fledged retirement plan going by helping developers understand and comply with the UDO. As a matter of fact, when the ordinance was passed, I wished both of them a very long life, as they were the only two people in the world who had a clue as to what it really said.

When it was my turn to speak to the CAN members, I tried to keep in mind that this is a very dedicated group of people determined to protect their homes and the character of their neighborhoods, and that most of them see commercial and multi-unit residential development as a threat. In their view, the best development in the community would be no development.

I reminded them of Gospel Jerry’s law of unintended consequences. I explained that their vigorous and well-organized activities over the past few years had won many victories, but that the fallout of unintended consequences may have tempered much of their success.

The UDO has provided an interminable number of public hearings, which are supposed to be a forum for public input. But the outpouring of vitriol and the personal attacks on developers and city staff by many CAN members (all singing the same antidevelopment song called “Trees, Traffic and Property Values”) has produced a totally adversarial relationship involving the builders, the public and the city administration. I want to believe that this is an unintended consequence.

Faced with unreasonable expectations, many developers have decided to clear-cut their land under the agricultural harvest law before applying for their permit. This eliminates any argument about cutting trees but unfortunately results in many more trees being cut than would have been necessary. Investors and developers buy land for the purpose of development. Many local developers have become very wary of trying to develop in the city and have sold off much of their land to outsiders and gone on to more user-friendly communities to invest their money.

But outside developers come here with no sense of community and the minefields they will face. Quite often the unintended consequence of this is that if they get their project built, it is out of keeping with the character of the community.

Builders will tell you that due to all the problems generated by the community activism and the UDO, it costs at least 20 percent more to build in the city than in the county. This results in sprawl and makes housing costs even more prohibitive. Certainly an unintended consequence.

As our discussions with the CAN people continued, I realized that this whole thing was not about the new Walgreens, as that issue had been settled. Nor was it really about the allegedly oversized sign on the Prudential Lifestyle Realty building; it was all about Staples.

There seem to be about 500 residents of Asheville who have a visceral hatred for the Staples building. Most of these people don’t live anywhere near it, and the rest of the community seems to accept it or just doesn’t give a damn. One lady, who is an artist, said at the hearing that she was so upset about the building that she could no longer be creative. I can empathize with her, as I feel the same way about the recently removed “Energy Loop” that disgraced City/County Plaza.

There was so much controversy over the Staples building that the company’s home office sent several representatives to Asheville, at considerable expense, to meet with concerned neighbors to try to find some enhancements that would make the building more palatable. However when the CAN people filed an appeal with the Board of Adjustment seeking to overturn the certificate of occupancy — which would have resulted in Staples having to tear down the building or, at a minimum, spend several hundred thousand dollars to move walls, etc. — the Staples folks justifiably broke off negotiations and probably won’t be back. Just another unintended consequence.

When one builds a building in our area, especially a large one, there are always unanticipated changes that must be made to the original plans, often due to our rugged topography or to problems with outdated utilities that could not have been foreseen. It is the responsibility of the Planning and Development Department and the Building Safety Department to approve these changes. But an unintended consequence of these recent filings, which were actually aimed at the Planning Department, may be to make the staff paranoid about making field decisions. Why should they go out on a limb, only to be second-guessed by anyone who chooses to interpret this ridiculous document differently?

Will this result in every change having to go before the Technical Review Committee, Planning & Zoning and even an additional public hearing before City Council? That should certainly give all those greedy developers pause before applying for anymore building permits.

While Staples may have built their building for cash, most businesses — particularly small ones — have to borrow money to build a building. Normally the owner gets a construction loan to finance the costs during construction. Once the building is completed and a certificate of occupancy is issued, the permanent lender makes a loan to pay off the construction loan, based on the fact that the owner now has a valuable structure.

But if the certificate of occupancy were canceled on appeal, the business would have to close and the building might have to be demolished, or at best remodeled. The unintended consequence of this would be that no bank in its right mind would make loans for new construction or remodeling in Asheville, because if the client were unable to do business or had excessive expense for compliance, the client couldn’t pay his mortgage — and the bank would be stuck with a useless piece of property.

It seems to me that a better plan would be for CAN to go to City Council, which has demonstrated a strong antibusiness and antidevelopment bias, and ask for a moratorium on building permits in the city. This would have the intended consequence of preserving most of the existing trees and stopping additional traffic, and certainly would have a very positive effect on the value of existing property.

I suppose this means that greedy developers will no longer be offered vegetarian pizza.

Let them eat cake.

[Jerry Sternberg has been active on the local scene for many years. He can be reached at]


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