On Nov. 27, acting Planning Director Shannon Tuch presented City Council with preliminary plans (received mere hours before) for an extensive redesign of the Greenlife site aimed at resolving key points of contention once and for all. Tuch described three phases of construction that would ultimately add a two-story parking deck and expand the store. The first phase, though, would focus more narrowly on building a new loading dock for tractor-trailers and reconfiguring the parking-lot entrances and traffic flow. The plans call for a 20-foot buffer between the dock and Maxwell, and for eliminating tractor-trailer traffic on the little residential street. (Smaller delivery trucks would continue to use their current unloading area near the corner of Maxwell and Marcellus streets, but they would travel on only a limited stretch of Maxwell.)
Council members seemed encouraged by the news. "This is the best effort we've had yet to fix the problems there," Carl Mumpower declared. And Brownie Newman expressed a hope "for more forward motion."
Since then, however, there'd been little sign of that. For starters, the plan would require moving a house immediately north of the Greenlife parking lot, which the grocery now leases from Merrimon Avenue Investments, a company owned by Asheville residents James and Pam Turner. The Turners, of course, would have to sign off on any redesign before plans could be officially submitted to the city for review. At first, they were out of the country, Greenlife co-owner John Swann explains. And a meeting planned for the week before Christmas had to be canceled due to a family funeral. Swann says he's hoping to set up a meeting sometime in January.
Meanwhile, on Dec. 21, Judge Ronald K. Payne dismissed the lone remaining element of Thompson's lawsuit against the city on the grounds that Thompson had failed to "exhaust his administrative remedies" because he hadn't filed an appeal with the Board of Adjustment in a timely manner. At press time Thompson had not yet decided whether he would appeal. But Joe Minicozzi, a certified planner who's been a paid consultant to Thompson since February 2005, called the judge's ruling "bewildering," since Thompson's last petition was aimed narrowly at forcing the city to hold a UDO-required hearing, which should have occurred before Thompson filed his Board of Adjustment appeal. (Visit www.mountainx.com/xpressfiles to view documents from the case.)
CAN of worms
Thompson, who lives on Maxwell Street and owns five rental properties there, wants Greenlife's loading docks moved to the opposite side of the building, where he says they should have been all along. He's found support from the Coalition of Asheville Neighborhoods, which holds that the grocery violates the city's United Development Ordinance in several ways. Permitting Greenlife, says CAN, is a flagrant example of how planning staff has repeatedly overstepped its authority by illegally granting administrative variances. (See "The (Non)enforcers," July 12, 2006 Xpress.) The neighborhood group had taken those positions long before Minicozzi became its president early last year.
Indeed, it was largely under pressure from CAN that City Council hired David Owens of the School of Government at UNC-Chapel Hill to examine the permitting process for Greenlife and two other controversial projects: Staples and Prudential Realty. In the report he submitted to Council in the summer of 2006, Owens noted that many North Carolina cities are struggling with similar development issues and that Asheville had done a better job than most. He also wrote: "In recent years the trend of many retailers has been to move to warehouse-sized stores in outlying areas, leaving older neighborhoods (particularly those with low and moderate income levels) without convenient access to grocery stores. Fitting economically viable grocery stores into existing neighborhoods ... is challenging for the city, retailers and neighbors."
But in his interpretation of the UDO, Owens largely agreed with CAN, finding that the Planning Department had erred on several points, particularly with regard to Greenlife's loading dock for large trucks, which he described as a valiant effort "to put 15 pounds in a five-pound bag."
After City Council had accepted Owens' report without challenge, many expected that staff would soon begin issuing notices of violation, as spelled out in the UDO's enforcement provisions. "Whenever any City official charged with the duty of enforcing regulations in this chapter has reasonable cause to believe that a person is violating any of the provisions of this chapter or any permit, plan, order, or condition issued pursuant to this chapter, that official shall notify that person of the violation," the law states.
Yet the notices didn't come -- not even after a majority of Council members had signaled that they'd lost confidence in Planning Director Scott Shuford, due largely to his handling of this issue. Shuford subsequently resigned, but Tuch and City Attorney Bob Oast have continued to maintain that Greenlife is not in violation of the UDO. (See box, "Denial.") Newman, meanwhile, says there are limits to what state law allows City Council to do. According to his understanding, Council can't instruct staff to issue a notice of violation. Instead, he says, Council members' focus has been on working toward a negotiated solution.
See you in court
Frustrated, Thompson eventually resorted to the courts. On May 18, 2007, he filed a lawsuit against Asheville and Greenlife in N.C. Superior Court. Among other things, the suit asked the court to overrule the city and the Board of Adjustment and to declare Greenlife in violation of the UDO. It also sought to compel the city and Greenlife to comply with the UDO, and charged that the city had violated Thompson's civil rights through "entrapment, false arrest and imprisonment." (The city, meanwhile, has barred Thompson from entering city buildings without prior notice and an escort -- see sidebar, "Inappropriate Behavior?") In addition, the lawsuit asked for recovery of Thompson's attorney fees and damages "in excess of $10,000."
On Sept. 11, Judge Payne ruled that the Board of Adjustment hadn't erred in refusing to hear Thompson's appeal, because he'd waited too long to file it. (According to the UDO, such appeals must be made "no later than 30 days after the date of the contested action.") At that point Thompson filed his more narrowly aimed petition against the city, which was dismissed on Dec. 21.
The contention that Thompson has been tardy in seeking redress lies at the heart of both the city's legal defense and its continued insistence that Greenlife isn't violating the UDO. "Once the city issues a zoning permit to a business, how long does a third party have to challenge the validity of the permit?" wonders Assistant City Attorney Curtis Euler. "By issuing a zoning permit, the city is stating that the business complies with the zoning laws at the time of issuance. If a zoning permit was issued three years ago, can someone try to declare the zoning permit invalid three years later?"
In its motions for dismissal, the city has pointed out that Thompson had been visiting City Hall to make copies of related documents for more than a year before filing an appeal on April 28, 2005. On Feb. 3, 2005, the city notes, Thompson made copies of the approved driveway modifications that were the subject of his subsequent Board of Adjustment appeal. Therefore, the argument goes, he waited far more than 30 days to take action. (Thompson, however, maintains that the clock shouldn't have started ticking until March 30, when Shuford explicitly told Thompson in an e-mail that staff had made a decision on the matter. Before that moment, he argues, he had no way of knowing that a decision had been made that he could appeal.)
"Confounding and contradictory"
For his part, John Swann says he's frustrated about the way his business has been portrayed. "It becomes a little burdensome from our point of view to be vilified when we have done nothing illegal, done nothing that the city has not given us their blessings on," he says. "Nothing about this has been timely from the other side. They want to create all this drama and point all these fingers, but where were they when we were designing and building this thing? We weren't hiding anything from anybody."
Calling the UDO "confounding and contradictory," Swann says that as far as he can tell, the only clear mistake the city made was in not holding a hearing on reconfiguration of the parking lot after the store had opened. But because the whole purpose was to enable big trucks to enter from Merrimon and thereby lessen the impact on Maxwell Street, Swann says he's confident the Board of Adjustment would have granted the variance anyway.
And the $40,000 Greenlife spent widening its driveways is only one of several significant outlays the store has made to lessen its impact on its Maxwell neighbors, Swann reports. They've also replaced big trash bins with compactors shielded with special custom panels. And they've installed sound insulation and extra fencing. All told, he says, the store has spent more than $100,000 on these efforts.
Meanwhile, Swann bristles at suggestions that Greenlife has been disingenuous with City Council and hasn't been serious enough about finding a long-term remedy. When Greenlife was named a co-defendant in Thompson's lawsuit, Swann and his partner, Chuck Pruett, wanted "clarity from a judge" before proceeding, says Swann. "It made no sense moving ahead with the redesign if a court order was going to come down in a month or two or six later saying we had to change it back to the way it was."
Another setback was Pruett's preoccupation with a new 30,000-square-foot store the company was preparing to open in Chattanooga, notes Swann. And when they hired an architect, they wanted to take the time to make sure they got it right: "It makes no sense to do it if it doesn't fit into our longer range plans, which are to expand the store and expand parking. ... We don't want to pay several hundred thousand dollars [for the new loading dock] and then come back a year later and say, golly, if we just hadn't put it there, we could have done this." More recently, the partners say they've been waiting to get approval from their landlord so they can submit the plans for review.
Swann feels the new design solves the main points of contention by taking the tractor-trailers off Maxwell and creating a 20-foot buffer between those docks and the street. And though the loading dock for small trucks would remain on the Maxwell side, they would use only the portion of the street that abuts Greenlife.
Still, the plan seems destined to get mixed reactions from neighboring property owners during the review process. The company that owns Greenlife's site also owns the four houses north of it on the eastern side of Maxwell (including the one that would have to be moved), so there aren't likely to be any complaints from that side.
And across the street, where Maxwell bends from a north/south to a northeast/southwest orientation, Sandra Sparrow owns an old house with a large side yard that's used as a parking lot. She runs her eponymous property-management firm out of building and also rents out part of it as office suites. But Sparrow takes issue with Thompson's claims that Greenlife has hurt property values on the street and made it harder to find tenants. "The store has really enhanced the neighborhood. I know that because of the business I'm in," she explains. "People always say, 'You've got the greatest place. You can just walk across the street to Greenlife.'"
Sparrow does think the store needs to get the tractor-trailers off the street. But given a brief description of Greenlife's plan, she said she was "fine" with it.
Moving toward Broadway, however, the picture shifts somewhat. The next three houses (at 24, 28 and 32 Maxwell) all belong to Thompson. And although Brandee Boggs, who owns the next house (at 20 Maxwell), says she shops at Greenlife every day and that the store is "better than 99 out of 100 things that could go there," she's unhappy about the traffic it generates. The cars Boggs and her housemates park out front are frequently hit by vehicles on the street, she says. And her front porch looks right at the store's small loading dock and trash compactors. At times, the smell is "horrible," says Boggs.
Boggs dismisses Greenlife's new plan as a "Band-Aid." She would prefer to have all loading and unloading moved to the other side of the building. Thompson (who also owns 17 Maxwell, which sits across Marcellus from Greenlife, as well as two other houses farther down on Maxwell) shares that view. So does Joe Minicozzi, who formerly worked as a city planner in West Palm Beach, Fla.
Moving all the loading activity, he says, "would eliminate the incompatibility of commercial-truck delivery with the residential street. The building and distance separation from the residences would buffer the noise and smell. Additionally, the other side of the building has more room for storage and staging, and it is accessed by commercial streets, which is what the law requires."
Swann, however, says the suggestion is impractical for a number of reasons. The steep grade on that side and the location of the store's refrigeration rack and electrical service would make building a dock there "prohibitively expensive." It would also interfere with future plans for a two-story parking deck on what's now a gravel lot on that side of the building.
"How exactly are we supposed to get a truck to this dock?" wonders Swann. If tractor-trailers came from the Merrimon side, the approach would eliminate much of the store's current core parking, he says. And if tractor-trailers entered from Marcellus, the future residents of apartments under construction there probably wouldn't be happy about it. "All it does is move the problem to the other side of the building."
[Freelance writer and translator Jonathan Barnard lives in West Asheville.]
Although the city has explained in detail why it believes it would be procedurally inappropriate for the court to re-examine the permitting process, little ink has been spilled actually defending Asheville's interpretation of the Unified Development Ordinance. In Reid Thompson's May 18, 2007 suit, he repeatedly cites the law and explains why Greenlife appears to be violating it. Each time, the city's motion to dismiss simply responds, "The allegations of [the relevant paragraph] are denied." For instance, paragraphs 22 and 23 of Thompson's petition read:
"Section 7-11(g)(1) of the UDO provides that driveways from two-way public streets into nonresidential projects be between twenty four (24) feet and thirty-six (36) feet wide.
"The driveway opening on Maxwell Street is approximately eighty (80) feet wide at the sidewalk and forty-nine (49) feet curb to curb."
In its motion to dismiss, the city responds:
"The City admits that the language of City Code Section 7-11-1 'Parking, loading and access standards' speaks for itself. Except as admitted, the remaining allegations of Paragraph 22 are denied.
"The allegations of Paragraph 23 are denied."
"It's not rocket science," says Coalition of Asheville Neighborhoods President Joe Minicozzi, who's also a paid consultant to Thompson. "Just take out a tape measure. ... Reid shouldn't be forced to sue the city to get it to follow its own laws."