A proposed retooling of the open-space requirements in Asheville's Unified Development Ordinance could lead to more parks, more greenways, maybe even more sidewalk cafes surrounding denser housing and commercial developments in the city. That's the hoped-for result of a proposal Planning and Development Director Scott Shuford presented to a wary audience of local developers at a Jan. 7 meeting of the Council of Independent Business Owners at the Corner Stone Restaurant.
City staff drew up the revised ordinance to help realize the goals spelled out in City Council's long-term Strategic Operating Plan, which include enhancing Asheville's recreational facilities and developing an expanded network of greenways. Essentially, the change would require a broader range of development projects to include open space, though it leaves intact the option of keeping that space closed to the general public. Unlike the current ordinance, however, the proposal would also allow developers to pay a fee in lieu of actually allocating open space. In addition, it would put a cap on the percentage of a site that must be left free of buildings, in order to encourage denser downtown development.
The fee in lieu of open space is similar to wetlands mitigation, in which a builder whose development destroys existing wetlands must create new ones or pay for nearby wetlands to be preserved. (The city's sidewalk fund embodies a similar approach.) The revised ordinance would require developers either to leave a specified percentage of the property open to the blue sky -- 10 percent for residential projects, and 5 percent for commercial or mixed-use developments -- or pay the city that percentage of the property's value. In turn, the city would have to use the money to buy open space near the development that paid for it.
"We can't take that money and use it for general purposes of running government," Shuford assured the developers. "It's got to go into the purpose for which it was dedicated, and it's got to be close to where it came from."
Under the proposal, the open space for several adjacent developments could be pooled into a single nearby park, rather than requiring each individual parcel to include a fragment of it, as the current ordinance dictates. The city's decisions on what open space to acquire with the developers' fees would be guided by its greenway and parks-and-recreation master plans. Builders who contributed more than the minimum open space required would be allowed to develop the rest of their property more densely than would otherwise be permitted -- a "density bonus." And the percentage cap on the open-space requirement would replace the current quota system, which requires developers to allocate so many square feet of space per residential unit or specified amount of floor area.
At the same time, projects currently exempted from open-space requirements (such as small subdivisions containing up to 20 lots), a broader range of commercial developments, and sites within the city's central business district would now be affected.
But the new ordinance also adds flexibility -- some might say too much flexibility -- to the definition of open space. Developers who chose to provide their own open space would have considerable leeway in deciding how to do so. A clubhouse and swimming pool would count, but so would a slope that was too steep to build on. A strip of trees shielding a subdivision from a busy road would also count, as would a streamside beach left as a common area -- even if it lay in a floodplain that couldn't be built on anyway. A parking lot, however, would not be considered open space -- and, in a change from the present ordinance, neither would a mandatory buffer between conflicting uses, such as a factory and a housing development.
A downtown development might meet the requirement by including a private courtyard or widening a public sidewalk enough to accommodate, say, a sidewalk cafe. The development could also contribute its open space to a nearby public park.
Private property: Keep out
Some developers in the CIBO audience objected to Shuford that the new ordinance looked like an unconstitutional taking of private land.
"It's going to take more land for the homeless, the winos, panhandlers," griped one audience member.
But Shuford responded that open-space requirements are permitted under state law.
"This does not mean that this is public open space," he continued. It can be fenced off from the general public, and "in fact, one of the key points behind this is to create amenities on people's properties that will be used by the people in the [development]. ... In almost all cases with this ordinance, it will be private property, unless the developer wants to give up the maintenance to the city's Parks Department."
"What you're saying is, then, that the winos downtown can't occupy this open space without my permission," another audience member replied. "Is that what you're saying?"
"That's right," Shuford shot back. "But in your case, you can always invite 'em."
The fees developers pay to the city in lieu of open space, on the other hand, will help the city buy more land for its planned network of public parks. One thing City Council especially wants the ordinance to do, says Shuford, is enable the city to implement the master plan developed by its Parks and Recreation Department for a network of riverside greenways. (The network will eventually allow residents to traverse Asheville on foot or by bicycle, as well as help protect the city's waterways and floodplains.)
In fact, "If the property's on one of our [planned] greenway systems," Shuford told Xpress, "the developer may actually have to give more than what the basic ordinance would require in order to help us implement the greenway, and that would be a requirement." In return, the developer would get a density bonus allowing him to build more on the remaining space.
Since the developer fees would benefit the city's parks program, Xpress asked Parks and Recreation Director Irby Brinson whether the proposed ordinance might be a way to shift the cost of acquiring parks to the private sector in the wake of a failed bond referendum some years back.
"The bond referendum was one of many options for funding," Brinson replied. "That's not to say that we tie our [hands behind our] backs and say to hell with it! There are other options and this is one, along with grants, donations, other avenues that we currently use -- it's just another tool in the toolbox."
He also pointed out that the fee-in-lieu-of proposal is not unique to Asheville -- "it's something that's done across North Carolina and other communities."
The city, noted Shuford, also plans to run the proposed ordinance by other community groups, including the Carolinas Real Estate Investors Association and the Coalition of Asheville Neighborhoods.
CAN Vice President Barber Melton told Xpress later that her group had received a copy of the proposed ordinance but hadn't had a chance to analyze it yet. Melton did express concern, however, about the more flexible definition of open space. "This is something we can't let slide. Because open space -- it's amazing how things get scrunched, and the next thing you know you're into PUDs [planned-unit developments] ... things that are crammed into the middle of a piece of property, and then everything else around it's bulldozed, and there you are -- that's open space." In such developments, the remaining space is used for other purposes.
Between those opposing poles of skepticism, landscape-design consultant Brian Morris struck a note of cautious optimism after the CIBO meeting.
"I think a neighborhood would benefit. ... If you have two or three multifamily areas that don't have space around them but can use the 'fee in lieu of' for a park, it would be nice, be a benefit, because you can drive or ride your bike or possibly walk to ... a better-quality park than you would have if it were just in that two [or three] spaces. So if it's done right, I think it could be an improvement. But if it's taken advantage of, and really nothing done about it, then you lose open space that would otherwise be nice to have right there in your back yard."
This part's open and public
A public hearing on the proposed changes in the open-space requirements will be held at the Wednesday, Feb. 2 meeting of the city's Planning and Zoning Commission, scheduled for 5 p.m. in Room A-109 of the Public Works Building (161 S. Charlotte St.). If it passes that hurdle, City Council will hold a second public hearing before voting on whether to make it law.