THE FOLLOWING IS AN OPINION PIECE WRITTEN BY ASHEVILLE RESIDENT BERNARD CARMAN:

Dear Asheville City Council members, past and present, and activists of our Asheville community:

My name is Bernard B. Carman. I am a long time resident of Asheville and a ~22 year home owner in Montford. I have lately become aware of a general problem with our zoning ordinances as they stand today and I would like to share with you some of my concerns and recommendations for improvements.

After living here for ~22 years in the Historic Montford Murray House at 191 Cumberland Ave. -- since the time when most people didn't feel safe walking the Montford streets, even in the day -- I find myself recently confronted with a problem which has apparently been negatively affecting individuals in our Asheville community, and one for which I'm sure you will seek remedy.

I recently received a "Notice of Zoning Violation" (Case No. 10-00005093) regarding the house in which I have lived since November of 1988.

I was initially told that I was in violation of the 1997 Unified Development Ordinance, because it carries a unique definition of "boardinghouse" which includes any house "which provides lodging to five or more tenants." Upon questioning this, I was then told that I was in violation of a NC State Residential Code which also includes another arbitrary definition of "Family" as "a group of not more than any five persons living together in a dwelling unit."

This was the very first time in 22 years I've ever heard of such arbitrary legislation which would prevent eight (8) individuals from living comfortably and affordably in a historic single family house designed with eight (8) bedrooms, plus ample shared living space and 100% off-street parking for residents. Such a living situation is the epitome of affordable housing -- something which Asheville desperately needs more of, not less.

Throughout the correspondence I've had with various local officials whose job is such oversight, I have been told I must come into compliance with these codes, which basically means I am to be forced to evict three (3) individuals from an affordable (and green) housing environment.

Simultaneously in doing so, I would no longer be able to afford to pay my mortgage, bills, and City taxes. Everyone is going through trying times right now, and at this time in our nation's faltering economy and housing market, when home foreclosures and unemployment are commonplace, I am still managing – barely – to keep my property afloat, while simultaneously continuing to provide affordable housing in Montford. If I were forced into taking such an action, it would certainly be a serious hardship for all my roommates, and would quickly send me to utter financial ruin. I can hardly think that my situation is unique.

Otherwise, the only other option presented to me is to bring the Montford Historic Murray House to commercial compliance, which would be exorbitantly cost prohibitive, and would also destroy the entire historic structure and atmosphere I have worked hard to preserve.

I recently met with Ron Evans, Building Safety Department, in order to sort out the specifics of all this. We agreed that these codes have apparently been written without considering that one size doesn't always fit everyone.

Further, in such situations as mine, there currently doesn't seem to be any reasonable recourse built into the construct of the legislation. We both agreed that there should be.

However, I have been told by one local official assigned to this case that because of this NOT being merely a UDO standard, an appeal through their office is most likely not the correct avenue and that in this case there is no clear solution that would appear to meet my needs.

This is wrong and needs to be addressed -- there needs to be recourse to arbitrary blanket legislation which simply cannot address every situation. Surely the original intent of those who wrote these arbitrary codes was to protect individuals, not to bring them harm. After all, these are people's lives we are dealing with – members of our own community.

There ought to be a provision in the code that allows a single-family home designed and constructed to comfortably accommodate eight people to be occupied by eight people; and one that does not require that four livable rooms be left perpetually empty entirely at the owner's expense simply in order to conform to general zoning laws designed to control growth and development in a given neighborhood, especially when the upshot of which runs counter to addressing the ongoing problem of providing affordable housing.

I explained that I would be contacting City Council, local attorneys, and various local activists in hopes of expediently addressing the matter, and keep the local related offices updated.

I would also ask that these local offices offer relief from associated fines throughout this process, as there is currently no viable recourse in my situation.

It is my intention to work with Council in addressing this issue and providing remedy so that no one in our community might be similarly aggrieved. The following contains more detailed information, including suggestions for action by Council.

I look forward to hearing from you at your earliest convenience,

Thank you,

8-)

Bernard B. Carman
infinitybbc@gmail.com
828-280-2580

---

Murray House History & Use Precedent

The Murray House, 191 Cumberland Ave., was completed in 1909 as an 8 bedroom house, including 3 full bathrooms and a host of common rooms, totaling approximately 4800 square feet -- that's 600 square feet of living space per person.

Therefore, this house was designed to accommodate 8 people at minimum. I purchased the house in 1988 through a local realtor, Appalachian Reality, with the shared understanding that in the RS-8 zoning district, multiple people could comfortably share the house and I could also operate a business there.

Between 1988 ~ 1995, I owned and operated a computer business in one of the various rooms of the house. For a few years in the late 1990s, there was a beauty salon in the same location. From 1988 ~ present, the house has also served as an affordable and comfortable residence for various members of our community.

For the entire duration of my living at the property, these various uses presented no problem to the local community, and on the contrary, provided various services for the community. Most notably, I have been providing affordable housing in Montford for 22 years, certainly among the best value in all of Montford.

Single-family houses in which individuals share have always existed in Montford. This has been a precedent for at least as long as my house has existed, which is now over 100 years. One day an elderly lady stopped by to admire the house, explaining that she once lived in it when it was a boardinghouse for girls – the Murray House is even precedented to have already been a true boardinghouse.

It is noteworthy that such a precedent has been set for over a century, yet these codes have been constructed since and without regard to pre-existing uses.

Surely I'm not the only member of our community who has been or will be negatively affected by this oversight. Also, surely I'm not the only member of our community who has also spent years – about half my life in my case – restoring an old house in need of much repair. Let us all remember that it was the energy and effort put forth by many of us who have made Montford – and Asheville – what it is today.

Thus, regarding any claims over violation of UDO Section 7-8-4 (c):

(c) Prohibited uses. Any use not specifically listed as a permitted use or a use by right, subject to special requirements or a conditional use in the RS-8 Residential Single-Family High Density District shall be prohibited.

RECOMMENDATION FOR COUNCIL ACTION:

Adopt language in this section of the UDO which would better explain that members of our community using their house in accordance with a set precedent, are to be considered to fall into the category of "use by right".

Comprehensive Plan Compatibility

Also noteworthy, providing such affordable housing conforms to the intent behind the Asheville City Development Plan 2025 (aka: Comprehensive Plan 2025):

http://www.ashevillenc.gov/business/development_services/planning_zoning/default.aspx?id=1144

The following are a few appropriate excerpts worth consideration:

Appendix C
Charter of the New Urbanism - The Region

6. The development and redevelopment of towns and cities should respect historical patterns, precedents, and boundaries.

7. Cities and towns should bring into proximity a broad spectrum of public and private uses to support a regional economy that benefits people of all incomes. Affordable housing should be distributed throughout the region to match job opportunities and to avoid concentrations of poverty.

The Neighborhood

4.Within neighborhoods, a broad range of housing types and price levels can bring people of diverse ages, races, and incomes into daily interaction, strengthening the personal and civic bonds essential to an authentic community.

Vision

Smart Growth is often best understood when contrasted with its alternative -- sprawl.

Smart Growth Land Use Policies
Adopted by the Asheville City Council; 2000

4. Traditional neighborhood development patterns should be recognized and encouraged.

Transportation Vision

Walking and bicycling are indicators that urban growth is occurring in a pattern that promotes livable communities.

Affordable Housing

Affordable housing is one of the most pressing problems facing the City of Asheville. There is a growing gap between the incomes of City residents and the price of available housing in the City. The City's Sustainable Economic Development Strategic Plan listed lack of affordable housing as the number one economic development problem for the community, recognizing the connection between affordable housing and economic development.

Few apartments are actually available at or below "Fair Market Rent".

Goal III. Explore the full range of zoning tools necessary to increase both the supply of affordable housing and the compatibility of such housing with existing neighborhoods and community development patterns, including development incentives, code streamlining efforts, neighborhood design standards, and inclusionary zoning practices.

Goal V. The City should encourage the construction of affordable housing throughout the community.

Strategies:
1. Pursue, individually or in concert with other local governments, legislative authority to implement inclusionary zoning regulatory tools at the local level.

Future Development Pattern – The Smart Growth Alternative

Policies and strategies developed to implement the goals identified in this plan must assure that a range of options are available that will meet the housing needs of all residents regardless of lifestyle, income, and interest.

Smart Growth advocates a density of use. Historic residential and commercial neighborhoods were built to be dense and continue today with existing mix-used developments and new infill buildings. The diversity of housing sites, qualities, styles and characteristics of historic neighborhoods stands in sharp contrast to the commonplace character of current subdivisions. The diversity of housing options means a diversity of people who can live in historic neighborhoods. Reinvestment in historic areas in and of itself revitalizes and revalues the nearby existing investment of both the public and private sector.

During the late 1970s Asheville's Downtown and several of its historic neighborhoods were on a downward spiral into the depths of decay. That erosion led to vacant buildings, marginal businesses, and empty streets in Downtown. Once proud neighborhoods turned into groups of redlined, crime-infested, and run-down buildings, where dilapidation was the norm rather than the exception. Today, those neighborhoods adjacent to Downtown, like Montford, Albemarle Park, and Chestnut Hill, are experiencing a resurgence. This revival has supported the renaissance of Asheville's Downtown.

The decades-long residential living arrangement actually in existence at the beautiful and historic Murray House in Montford is, in my view, fully consistent with the spirit of the affordable housing goals and Smart Growth community architecture established by the City of Asheville several years ago through a series of community forums, council retreats and the special research dedicated to these objectives.

The question now is whether the letter of the law is sufficiently consistent to fulfill the spirit of the law. It is my hope that an equitable resolution in the case I am bringing before you will accomplish that.

Complaint Driven Ordinances

Apparently these codes are only generally enforced if/when there is some form of complaint. This includes any kind of general complaint where someone new to the community might elect to contact the City prior to contacting the resident of a house.

This basically means that someone could call the City about any house in Asheville, claiming there might be too many people living there and the City would have to inspect each one, regardless whether or not there was any actual problem.

In my situation, the anonymous complaint is unprecedented and not predicated upon the occurrence of any incident. For about two decades, no one has ever complained about excessive noise, unsightly grounds, neglect of maintenance, parking difficulties, etc.

This complaint was made entirely upon inquiry into a longstanding condition of number of residents in the household -- in effect, there was no legitimate complaint actually made.

Such a construct is not conducive to addressing real problems concerning the well being of individuals and needlessly burdens the City's officials.

Also, the 30-day grace period extended by the city to a purported code violation is a grossly inadequate timeframe in which to respond to a notice of violation of such an inconsequential nature.

RECOMMENDATION FOR COUNCIL ACTION:

Whenever the City is contacted in such a way, there should be an actual legitimate complaint made in order for the matter to be taken seriously.

Council should also revise its policy to allow a 90-day window to afford the least able working, home-owning laymen sufficient opportunity to conform to or dispute erroneous claims. Should council see fit to take this particular action, I would urge them to make it effective retroactively and applicable to my case.


Overcoming One-Size-Fits-All NC State Legislation

Federal, State, and Local governments were constructed in America order to provide specific areas of jurisdiction. Matters of zoning and property use have always been the jurisdiction of City and County municipalities.

It is unreasonable for the State of NC to deal with such localized matters as zoning and housing safety. Raleigh simply cannot know Asheville as do the members of our own community.

When specific situations arise which do not fit the given mold, it should be up to the City of Asheville to make exception to such one-size-fits-all legislation, and should accommodate members of our own community, without having to endure needless hardships.

RECOMMENDATION FOR COUNCIL ACTION:

Adopt a provision which would allow local oversight for dealing with specific housing situations that do not fit generic and/or arbitrary NC State legislation.


UDO "Boardinghouse" Definition Update

I have been told that the UDO defines my house as a "boardinghouse", and that a boardinghouse is not allowed in the RS-8 zoning.

However, I have learned that the UDO carries a unique definition of "boardinghouse", inconsistent with the official and traditional definition found within various dictionaries and other reputable sources.

Asheville Code of Ordinances:

Chapter 7 Development
ARTICLE II. OFFICIAL MAP, RULES OF CONSTRUCTION, AND DEFINITIONS
Sec. 7-2-5. Definitions.

Boardinghouse means an establishment which provides lodging for compensation to five or more tenants; is enclosed within one structure; which may have only one kitchen, a common dining room or study area, and no dining facilities or kitchens in the lodger's rooms; and where meals may be prepared and served; excludes hotels, motels, bed and breakfast homestays and bed and breakfast inns. The total number of residents shall include the owner or manager when they reside on the property.


Within the first sentence, this legislation effectively defines a "boardinghouse" to include any house "which provides lodging to five or more tenants."

This is far too general and arbitrary. We don't understand by what criteria this arbitrary number of "five or more" tenants is determined to be excessive, and on what basis it was incorporated into the definition of "boardinghouse".

Further, within the UDO's odd definition of "boardinghouse", there is absolutely no indication of, or reference to, the official and traditional meaning, which always includes "room & board" – note:

Merriam-Webster: a lodging house at which meals are provided.
New Oxford American: a house providing food and lodging for paying guests.
Cambridge: a private house where you can pay to stay and receive meals.
Dictionary.com: a house at which board or board and lodging may be obtained for payment.
iGoogle: boardinghouse - a private house that provides accommodations and meals for paying guests.
TheFreeDictionary.com: boardinghouse - A house where paying guests are provided with meals and lodging.

The UDO attempts to re-define what has been defined for centuries. The term "boardinghouse" came into being nearly 300 years ago, attested from 1728, implying "room" & "board" (board, in its extended sense of "food", via notion of "table"; source: Online Etymology Dictionary).

The official and traditional definitions for "boardinghouse" do not include anything about the number of people residing on the property, but rather specify that it is a house where guests pay for lodging and food.

If we were to take this UDO definition literally, and attempt to apply it to all of Asheville, there would certainly be an awful lot of "boardinghouses", leading to an awful lot of erroneous "violations".

RECOMMENDATION FOR COUNCIL ACTION:

Change the definition of the term "Boardinghouse" in the UDO to read:

"Boardinghouse means an establishment which provides lodging and food to guests for compensation; is enclosed within one structure; which may have only one kitchen, a common dining room or study area, and no dining facilities or kitchens in the lodger's rooms; and where meals may be prepared and served; excludes hotels, motels, bed and breakfast homestays and bed and breakfast inns. The total number of residents shall include the owner or manager when they reside on the property. This is not allowed in the RS-8 zoning district."

This much needed modification would not only bring the UDO's definition of "boardinghouse" into line with the official and traditional definition, but also prevent members of our community from having their house put into an erroneous category.

Reasonable Recourse Process

When there is a potential ordinance violation, there should be a reasonable recourse process to address the matter. However, this currently doesn't seem to be the case in Asheville.

The "Notice of Zoning Violation" letter I received states:

"Should you fail to comply with this Notice within thirty (30) days or file an appeal to the Board of Adjustment within sixty (60) days, you may be assessed a civil penalty of one hundred dollars ($100) per day for the number of days the violation(s) continues under the provisions of Section 7-18-2 of the UDO."

Upon first read, I was confused by the wording. Beyond that, the fine amount seemed exorbitant – especially for a minor technical violation that is in dispute and for which compliance could take several months to achieve.

Also, that it took nearly four weeks to get a reply from the appropriate office after I sent an email the very next day after receiving the notice, left me somewhat concerned to say the least.

When I questioned about the appeal process, I was informed that in the City of Asheville, the "fee" for a Board of Adjustments (BOA) appeal for this "Notice of Zoning Violation" is $520, non-refundable. For comparison, here are the fee schedules of some other locations in NC:

In Buncombe county there is no fee for "Appeal of Zoning Administrator Decisions":
http://www.buncombecounty.org/common/planning/planning_feeschedule.pdf

The Town of Boone has a fee of $25 for "Administrative Review: Related to excessive occupancy":
http://www.townofboone.net/departments/development/info/sig-mult-spec-cond-sub-sign/DSDFEESCHEDULE.pdf

The City of Greensboro has a fee of $160 for a "Rehearing Request":
http://www.greensboro-nc.gov/departments/Planning/forms/fees.htm

The City of Charlotte has a fee of $150 for a BOA Appeal:
http://ww.charmeck.org/Planning/Fees_Applications/ZoningAdministrationApplicationPacket.pdf

The City of Raleigh has a fee of $200 for an Appeal to RHD:
http://raleighnc.gov/government/content/BoardsCommissions/Articles/BoardofAdjustment.html

The City of Winston-Salem has a fee of $200 for a BOA Appeal:
http://www.ci.winston-salem.nc.us/Assets/CityOfWS//Documents/Inspections/New%20Fees%20Web%20Brochure_7-1-2010.pdf

The City of Statesville has a fee of $300 for a BOA Appeal:
http://www.ci.statesville.nc.us/Departments/PlanningampZoning/BoardofAdjustment/tabid/301/Default.aspx

The City of Rocky Mount has a fee of $250* for an "Appeal of Administrative Decision/Interpretation" (* If Board rules in appellant’s favor half of fee returned to appellant.):
http://www.rockymountnc.gov/planning/documents/Review%20Permit%20Board%20Rates%20FY09-FlyerB.pdf

How is it that among all these various cities in North Carolina, Asheville being one of the smallest has the overwhelmingly highest fee – twice that of the most expensive and nearly four times that of Charlotte – merely with regard to a simple Board of Adjustments appeal?

While Rocky Mount charges $250, the BOA there at least has made an attempt at a step in a direction showing good faith, offering half the fee back if the ruling is in the appellant's favor.

People in such a situation have committed no crime; therefore, no one should be forced to pay such an exorbitant non-refundable fee for such a simple appeal. Both the appeal costs and fines are entirely unreasonable and should be amended immediately. And really, in all such cases the appellant is a taxpayer, paying for government to exist to hear such appeals in the first place.

RECOMMENDATION FOR COUNCIL ACTION:

A far more effective method of preventing frivolous appeals while simultaneously preventing members of our community from being penalized for committing no crime, would be to charge a reasonable fee (perhaps $50 or $100) for an appeal, which would then be entirely refunded should the ruling be in the appellant's favor.

###