"The Planning and Development Department staff respects the Unified Development Ordinance and makes reasonable interpretations within the authority entrusted in them."
- Planning & Development Director Scott Shuford
A review of three controversial cases by the School of Government at UNC-Chapel Hill has identified multiple city staff errors and failures to enforce Asheville's Unified Development Ordinance. The School of Government report, dated June 23, supports what critics such as the Coalition of Asheville Neighborhoods have been saying for years: that the city has failed to prevent or remedy UDO violations in developments such as Wal-Mart, Staples, Walgreen's, Prudential Realty and Greenlife Grocery.
Nonenforcement of a law can lead to its nonenforceability. Asked about the legal implications for a city of failing to enforce its own laws, City Attorney Bob Oast cited a 1993 state Supreme Court case, Abernathy v. Town of Boone Board of Adjustment. In that case, the court ruled that due to the town's failure to enforce a sign ordinance for a substantial period of time "it would be unjust to allow the Town of Boone to now enforce its sign ordinance." That legal precedent, based on the concept of "laches," has since been cited in numerous subsequent cases.
In Asheville, city staff have maintained that they're following the law. And for the most part, City Council has opted to believe them. But in March, in the wake of CAN's sustained efforts, Mayor Terry Bellamy asked City Manager Gary Jackson to refer the Staples, Prudential and Greenlife cases to the School of Government for review. The school advises public officials on all governmental issues within the state, tracks pending legislation and sponsors classes, seminars and conferences.
Commercial development can have profound impacts on neighborhoods, causing feelings to run strong in cases such as Greenlife, whose rear entrance changed a once-quiet residential street into a commercial thoroughfare with beeping garbage trucks in the early morning hours and noisy tractor-trailers that park overnight and occasionally block passage.
Change -- even dramatic change -- doesn't necessarily signify wrongdoing. But a yearlong Xpress investigation uncovered multiple instances in which the city has not enforced the UDO, has bent the rules or interpreted them in questionable ways, or has made outright errors -- with significant impacts on residents and businesses alike.
Failures to enforce
"The City Council is permitting staff to create UDO law."
- CAN board member and certified city planner Joe Minicozzi
Although the 18-page review by professor David Owens of the School of Government concludes that city staff have made a good-faith effort to enforce the UDO and notes a few cases where their judgment was correct, it also documents numerous instances where they were in error or overreached their legal authority, including:
• staff error in permitting an oversized sign on the Prudential project;
• staff error in interpreting the UDO's "sight triangle" provisions, which help ensure safe movement of motor vehicles between public roads and private property;
• several failures by city staff to enforce UDO provisions in connection with the Greenlife Grocery development; and
• staff mistakenly allowed a reduced setback on the side of the Staples building - the UDO setback-reduction rules apply only to the front.
In the course of Xpress' investigation, city Planning & Development Department staffers have acknowledged both regulatory and enforcement failures.
Planning & Development Director Scott Shuford said his staff had "goofed" in permitting an oversized sign on the Prudential Realty building on College Place, just as he had goofed concerning the preservation of a buffer area in the Campus Crest development in Montford in 2004. Development Review Specialist Christine Logan admitted responsibility for the Prudential error in an undated letter to former Director of Development Services Joe Heard.
In the Campus Crest project, the developer promised to preserve a wooded buffer, but staff didn't include this as a formal condition in the permit. "I don't think I did a very good job of communicating that; I'm going to have to do a better job in the future," Shuford observed (see "A Tree of Another Color," Jan. 26, 2005 Xpress).
Concerning the 3-year-old Target store on South Tunnel Road, which has yet to install a turn lane at the Swannanoa River Road intersection as required by its conditional-use permit, Director of Transportation and Engineering Cathy Ball told City Council in a June 19 e-mail, "The certificate of occupancy [allowing them to open for business] was issued in error."
The principal administrator in charge of code enforcement, Building Safety Director Robert Griffin, has gone so far as to admit that before March 2006, the city had no way to enforce a key provision of the UDO.
That provision -- determining a development's remodeling costs -- can have far-reaching consequences, because the level of regulatory scrutiny imposed by the law is partly determined by comparing those costs to the building's tax value. If a developer reports low-enough remodeling costs, then the resulting ratio will be too low to trigger full regulatory scrutiny.
"No process was in place for remodels to verify costs for construction," Griffin told Xpress. That meant the city couldn't tell whether developers were being honest -- and thus what level of regulatory scrutiny was legally required.
In the beginning ...
Asheville's Unified Development Ordinance was passed in 1997 to protect city property owners of all types and to help guide development. The nearly 500-page document includes specific rules for adjacent properties with different zoning, such as commercial and residential, requiring a buffer between them to mitigate the impacts.
Two city departments enforce the UDO: Planning & Development (headed by Shuford) and Building Safety (headed, since last September, by Griffin).
Fines are one of the "sticks" staffers can use to encourage UDO compliance. Asked for statistics covering the past five years, Shuford told Xpress, "Presenting data on how many fines have been collected as a result of UDO violations would require some research, but the number is considerable." The Texas Roadhouse, for example, had been fined $15,000 for an illegal parking lot, he noted.
In the course of our investigation, Xpress contacted the city Planning & Development, Building Safety and Finance departments, the Collections Division, the Buncombe County Finance Department and the Asheville City Schools administration and received no answer concerning who collects and accounts for fines. (Under state law, all fines collected by municipalities are supposed to be distributed to schools.)
At times, Shuford has argued against imposing fines, maintaining that the city's goal is compliance, not punishment.
The city collected "$2,800 for un-permitted tree removal at the Sayles Wal-Mart site," Shuford reported in a June 28 letter to Xpress. (In this instance, Shuford had suggested in December 2003 that Horne Properties Inc. be charged $5,600 to replace trees removed from a wide swath of river frontage -- in violation of both the UDO and the provisions of Horne's conditional-use permit. See "Calling a Spade a Spade," Jan. 7, 2004 Xpress).
However, in another incident at the same site, no fine was imposed when Horne Properties violated its grading permit. Shuford interpreted Horne's clear-cutting of a hillside without a permit or proper erosion-control measures to be an agricultural project and therefore not subject to development rules. However, the UDO specifically regulates "land-disturbing activity ... including cutting and removal of trees" in conjunction with development projects.
Taking on City Hall
In the past few years, members of the Coalition of Asheville Neighborhoods and other community groups have called attention to what they see as a systemic failure of the city's regulatory function. But despite exploring all available channels -- meeting with city officials, speaking at City Council meetings and filing protests with the Board of Adjustment -- they've come away dissatisfied.
"City staff ignore the UDO, provide highly creative interpretations, exceed their authority, do not share information fully -- and then, if someone asks a question, courteously stonewall until the person gives up," CAN member James Judd told Xpress (see "Overseeing the Overseers," Feb. 15 Xpress, and "Board of Adjustment Rejects CAN Appeals," April 5 Xpress).
In response, Shuford told Xpress: "Knowing Mr. Judd, I find it difficult to believe he would so unjustly criticize city staff for their performance. The Planning and Development Department staff respects the Unified Development Ordinance and makes reasonable interpretations within the authority entrusted in them. This subjects them to criticism from those who see the interpretation as either 'too neighborhood' or 'too developer' friendly."
But CAN member Joe Minicozzi, a certified city planner who's been the group's point person on such matters, told Xpress two months ago: "I'm not getting the sense that the city is interested in taking corrective action. I could be wrong on that, and I hope I am. It seems that the language everyone is using is that these were mistakes, and let's just roll on."
A neighborhood transformed
No recent development has generated more concerns about the city's UDO enforcement than the highly successful Greenlife Grocery, whose arrival on the local retail scene two years ago had a significant impact on its neighbors.
In the decades leading up to the summer of 2004, Asheville's Maxwell Street was pretty quiet. Then, as now, most of the properties were single-family homes on small lots; it was much like other city neighborhoods adjacent to downtown. True, one side of the block-long street included the rear driveway of a former A&P grocery, but it had been turned into an office building years before. So in recent memory, there had been only office workers, and most of them came and went via the Merrimon Avenue entrance. Maxwell Street, connected at one end to Broadway and at the other at Chestnut Street, saw mostly local residential traffic.
Beginning in 1999, Reid Thompson bought five houses on Maxwell. He moved into one and rented the others, becoming a small-scale landlord.
A few years later, another local businessman also began taking an interest in Maxwell Street. John Swann, the former owner of Bean Mountain Tofu and former manager of Earth Fare grocery, teamed up with a Chattanooga-based partner, Chuck Pruett, to launch Greenlife Grocery; the store's back entrance and loading dock would be accessed via Maxwell Street. They leased a vacant office building that had once been an A&P store and remodeled it, turning it back into a grocery. Greenlife opened for business in July 2004, and they soon found themselves sitting on a gold mine.
"We're doing three times the business we hoped for in our business plan," Swann told Xpress last August.
But the thriving store quickly became a source of friction with Thompson and other Maxwell Street neighbors. Tractor-trailer trucks used Maxwell for deliveries, blocking traffic at various times throughout the day. Trash bins were emptied frequently, and residents became familiar with the pre-dawn racket of hydraulics and safety beepers. To accommodate the commercial vehicles, the city eliminated on-street parking spaces, and to accommodate Greenlife's design, a UDO-required buffer was drastically downsized.
Neighbors complained, and a warning letter from City Attorney Oast last October stated, "Failure to control the delivery situation by limiting access onto Maxwell Sreet ... will be considered a violation of the UDO."
In response, Swann issued instructions that all delivery trucks should enter and exit his premises via Merrimon Avenue and has more or less successfully prevailed upon independent truckers to make deliveries only during daylight hours. Swann has also installed trash compactors instead of dumpsters (to limit the traffic by trash haulers) and has installed fencing not requested by city staff.
Due to the location of the dock and dumpsters, however, trucks must still make some limited use of Maxwell -- and the city has OK'd the practice. Yet the UDO states that businesses with access to commercial streets must use those streets rather than residential ones, and Greenlife fronts on two such streets: Merrimon and Marcellus.
What's going on here?
The UDO offers homeowners the promise that their peace and quiet -- not to mention property values -- won't be diminished by a glaring interface with commercial operations and traffic.
Similarly, a business owner who makes a big investment has equal reason to expect straightforward enforcement of the rules, and Swann feels confident that he has rigorously followed the rules and procedures. "We have done everything the city has asked us to do and more," he says.
But Xpress' investigation -- supported by the School of Government report -- suggests that the city is not enforcing UDO standards in Greenlife's case. The city allowed:
• driveways much wider than what the UDO language permits,
• a loading dock grandfathered on shaky evidence (see below),
• a later expansion of the dock, even though the UDO prohibits alterations to grandfathered uses without a variance, and
• elimination of a vegetated buffer and construction of a fence without mandatory greenery to screen it.
The dock, the dumpsters, the driveway and the buffer
No aspect of the Greenlife project has been more contentious than the location of the store's loading dock. Even though there was no dock in active use at the Maxwell end of the building, the city opted to grandfather its use.
Yet the UDO explicitly states, "A nonconforming use of a structure that is ceased for a continuous period of more than 180 days may not be re-established and all subsequent uses of the structure must be in conformance with the particular district regulations."
Besides having no dock in operation, there was no apparent proof that the old A&P had ever operated a loading dock in this location. In any case, the store closed in 1978, and all subsequent tenants were office operations, not retail stores.
Because the existing building dated back to the 1960s and the city keeps plans for only seven years, no records were available. And because it had been more than two decades since the building had been used for retail sales, there was no agreement about where A&P had had its loading facility. There was some evidence of loading docks on both ends of the building when Swann and Pruett signed their lease, although even that evidence is in dispute.
In support of the city's decision to OK Greenlife's plans for a Maxwell Street dock, Shuford told Xpress: "We have heard anecdotal comments that there was a loading dock in this area at some time. Given the topography of the site, I assume the loading would have come through the front door (north side) if this had been the case. Aerial photos indicate that loading from the Maxwell Street (west) side of the site has certainly occurred in the past."
When city staff decided to grandfather the use of the Maxwell loading area, Shuford told Judd, via e-mail, "The Greenlife case involves a large grocery store building that has traditionally had its rear, loading access from Maxwell."
But historical records at Pack Memorial Library clearly show that from the time the A&P opened for business in 1968, Quick as a Wink Cleaners occupied the Maxwell Street side of the building (now used for Greenlife's indoor cafe). The laundry did have a small loading dock, but when Xpress contacted former owner John Davis, he explained: "We had a small loading dock in back for our supplies. A&P certainly didn't bring any trucks through on the Maxwell Street end of the building. We wouldn't have permitted it."
The School of Government study wouldn't permit it either, stating, "The structure [entire building] was converted to office use over twenty years ago, so any nonconforming status (particularly regarding contentious issues such as loading dock location and use) relative to the prior grocery store use are irrelevant for UDO compliance purposes."
But even if grandfathering had been appropriate, expanding a grandfathered facility -- which Greenlife's plan called for -- always requires a variance, which can only be given by the Board of Adjustment or City Council. Yet no variance was ever issued for the dock. Where were city officials?
The incredible shrinking buffer
The decision to allow the Maxwell Street dock led to other city decisions that also seem to fly in the face of the UDO -- and angry CAN members.
At the heart of the debate are what the UDO calls "bufferyards." Typically, these are strips of undeveloped property with plantings (and sometimes fencing) that play a key role in shielding residential areas from the noise, lights and general activity associated with commercial operations.
In the Greenlife case, the city allowed the required buffer to be compromised based on various questionable interpretations of the UDO.
In a lengthy review of the buffer controversy, the School of Government analysis concluded that the UDO's "alternative compliance" provision -- which Greenlife's developer had opted for in seeking to avoid many of the standard buffer requirements -- is probably illegal and would not hold up in court. "Such a quasi-judicial zoning decision cannot be delegated to staff," Owens wrote.
At several points in his analysis of the Greenlife project, Owens identifies UDO provisions that either don't provide staff with enough guidance or give them more authority than North Carolina courts have historically allowed.
While the buffer was being shrunk to accommodate the needs of the dock and dumpsters, yet another problem emerged: The architect hadn't allowed for the tractor-trailer delivery trucks used by wholesale food distributors, which need more room to maneuver. In an attempt to keep the dock functional in an already-tight space, the city allowed the developer to expand the loading bay into the buffer. Shuford maintains that his decision was allowable under the UDO.
To mitigate the problems of the shrinking buffer, Greenlife installed a wooden fence to screen the dumpster and dock from the homes across the street. But at this point, there was no room for a strip of plants to mask the fence, as the law requires. (The ordinance allows the width of bufferyards to be reduced by up to 50 percent if a fence or wall is installed, but such structures must be accompanied by a minimum 5-foot-wide planting strip that will screen at least half the fence when the plants mature.) In this case, the Greenlife fence is just inches from the Maxwell Street sidewalk -- leaving no room for plants.
Shuford justified the loss of the buffer space by applying a UDO provision that allows breaks in a bufferyard for driveways, when essential.
But the law does not appear to allow the loading dock itself, or dumpsters, to be placed in the buffer -- which is what Greenlife's operation does, according to the School of Government report.
CAN members also point to a UDO clause that states that in the case of conflicting rules, the stricter one must apply. Thus, they argue, Shuford's reliance on a more lenient rule should not trump the UDO's stricter ban on operational activities within a buffer.
While the School of Government analysis stops short of declaring the buffer out of compliance, it does say, "It is difficult to reconcile the permanent occupation of the required buffer area by operational activities of the business." At another point, the analysis declares, "It is hard to see how regular parking within the buffer complies with the stated intent of a buffer requirement." Furthermore, the analysis finds that the pertinent parts of the UDO contain several conflicting provisions, inadequate language for resolving those conflicts, and language that gives staff powers not allowed under N.C. law.
Under normal circumstances, when someone wants to do something not allowed by the UDO, they must go to the Board of Adjustment and seek a variance -- thereby taking the decision out of staff's hands. But interestingly, as if anticipating that even the Board of Adjustment might shirk its duty to protect property owners, UDO Section 7-6-1(b)(8) states, "In no event shall the Board of Adjustment grant a variance from the landscape and buffering standards set forth in section 7-11-2 of this chapter."
He said, she said
Asked about the apparent Greenlife violations, Shuford offered his opinion to Xpress in an e-mail last August: "I want to again confirm there are no city code or standards violations as to site design (parking spaces, landscaping, buffering, loading zones, dumpsters, driveways, sight-distance requirements, etc.)." In part, Shuford defended his position by referring to the UDO Sec. 7-11-2(e) Screening of dumpsters, loading docks, outdoor storage areas, and utility structures, in which one sentence reads:. "Landscaping shall not interfere with the access and operation of any such structure or facility."
In a Feb. 2 e-mail to Shuford, however, CAN member James Judd asked: "Why does anyone bother with screening their dumpsters or loading docks based on your interpretation? Why does anyone feel compelled not to use the bufferyard for locating their loading docks and dumpsters based on your interpretation?"
Shuford has twice declined to answer Judd's question, referencing a Nov. 16, 2005 letter from the city attorney to CAN that states, "Our review indicates that the landscaping and screening installed by Greenlife meets or exceeds City standards given the space left over for the landscaping after the loading space is accounted for."
Building and remodeling costs
As noted above, the UDO requires different levels of scrutiny for different projects. If a remodeling project costs more than half the building's tax value, the landscaping and certain other features of the property must be brought up to code.
In the Greenlife project, the city failed to calculate the correct ratio and therefore didn't realize that the remodel cost was more than half the building's value. This happened because of two errors.
Calculating the ratio of project cost to building value might seem simple. But because two figures are needed, there are two ways the process can go wrong -- as it did in Greenlife's case.
The first figure, the value of the building, is set by the Buncombe County tax assessor's office. In the Greenlife case, a city staffer wrote down the wrong amount on the application. Senior Facilitator Paulette Dolen of the Building Safety Department greatly overstated the structure's assessed value. Dolen told Xpress she'd obtained the figure, $1.36 million, from Buncombe County tax records, but was later informed by Thompson of her mistake. The tax record she'd used was for a property that included several buildings; the grocery building alone was valued at $432,400.
When Maxwell Street property owner Reid Thompson, a leader in the dispute over the city's handling of the Greenlife project, discovered Dolen's mistake in August 2004, he was incredulous. In a June 2005 e-mail, he told City Council members, "Had the process not been circumnavigated in the beginning ... I don't believe all these problems would exist today."
The developer is supposed to provide an estimate of the second figure -- the cost of refurbishment -- at the beginning of a project. In Greenlife's case, no early number was supplied, yet the city proceeded without it - an action that was criticized by the School of Government report.
But there's a second opportunity to calculate the required ratio: At the end of a project, but before the city grants a certificate of occupancy, the developer must supply the city with the actual -- not estimated -- remodeling costs. If the 50 percent rule is triggered at this point, then even though it's late in the game, the entire project is supposed to be re-evaluated and brought into full compliance with all applicable rules.
In Greenlife's case, the developer did supply the cost figure at the conclusion of the project. The bill for the 20,000 square foot project came to $244,620. That's 57 percent of the building's actual assessed value -- more than enough to trigger the 50-percent rule's more severe scrutiny. But the city's failure to record the correct tax assessment on the application obscured this key point.
Shuford, however, told Xpress, "The Planning and Development Department staff reviewed the site plan to ensure that there was compliance with the four standards and requirements ... before signing off on the permit."
Closing the barn door
In the course of researching the Greenlife case, Thompson and other CAN members uncovered a fundamental flaw in the city's whole approach to regulating development projects: Determining the cost of a remodel was pretty much done on the honor system. The developer turned in a number, and the city didn't require any documentation. But with no way to check the developer's numbers, the city's enforcement hands were pretty much tied. An unscrupulous developer could provide a low number without fear of being challenged - and thereby dodge the 50-percent rule.
In February, however, the city changed its policy. Without making reference to the accuracy of Greenlife's figures, the city acknowledged that its routine failure to check such costs has been an invitation for abuse. Griffin's staff now compares the figures provided by developers with a reality check in the form of standard building-industry estimates, the scope of the work in question, experience on other projects, and other resources. If the stated remodeling costs don't seem appropriate, contractors have the option of supplying notarized copies of contracts.
In conclusion, Griffin explained: "I realize that over the years many projects have estimated their costs under what it really may have been. My goal is to prevent gross underestimation from occurring in the future."
So what's next?
More than 20 months have elapsed since Reid Thompson first alerted city staffers to problems with the Greenlife permitting process, and he's been disappointed by their response to date. In a June 29, 2005 e-mail to City Council members, Thompson wrote, "I believe the city of Asheville has an enforcement issue that runs through all departments, certainly the Planning, Building and Police department[s]." He's still hoping the city will prove him wrong.
The recent School of Government analysis -- and the implicit threat to the city's current zoning laws -- gives Council members a strong impetus to take action, starting with the 14 or more specific areas identified by the report.
There are also signs that the city manager may be raising the level of enforcement on commercial developments. In March and again in May, the city issued stop-work orders when Walgreen's and Greg Edney (developer of the former Burger King site on Merrimon Avenue) violated their respective conditional-use permits.
But CAN members worry that the lax enforcement in the past could come back to haunt the city if a developer decides to try his luck in the courts.
"The most important issue at stake here is that the City Council is permitting staff to create UDO law," Minicozzi argues. "An improper enforcement decision made by staff can create a legal precedent if it's allowed by Council to stand." In the case of the noncomplying Prudential Realty sign, for example, staff wrote the company a letter announcing that the city will not enforce the sign ordinance.
Clearly, the ball is now in City Council's court.
Meanwhile, wonders Minicozzi, who is making the rules? Elected officials accountable to voters, or staffers who can apparently decide on their own if or when to enforce the law?