by Brian Sarzynski in Vol. 11 / Iss. 24 on 01/19/2005

Related topics: Asheville City Council, UDO

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At the outset of every conditional-use-permit hearing held by the Asheville City Council, City Clerk Maggie Burleson whips out the Bible. Sure, some Council meetings would try the patience of a saint. But Burleson isn't seeking solace in scripture -- she wields the Bible because North Carolina law requires it.

It's a sight familiar to anyone who watches Court TV: The bailiff (or, in this case, the city clerk) holds the Good Book steady while those who want to testify place their right hand upon it and "swear to tell the truth, the whole truth and ..." well, you get the idea.

But the controversy surrounding Campus Crest, a new development in Montford, has prompted Council member Brownie Newman to question both the "truth" told by a developer during a November conditional-use-permit hearing and the credibility of the entire permitting process.

"It is clear that the Campus Crest developers violated their commitment to the city and the residents of Montford to protect an existing 80-foot buffer of mature forest along Montford Avenue, one of the key provisions for Council's collective decision to approve the project," Newman proclaimed in a Dec. 16 e-mail to his fellow Council members and this reporter. "Virtually the entire buffer on Montford Avenue that the developers committed to preserving at the Council meeting has been clear-cut and graded." And the limited response by city staff, added Newman, "calls into real question the integrity off our staff and the City Council itself."

Not everyone agrees with Newman's assertions. Planning and Development Director Scott Shuford maintains that the developer is not in violation of the permit, and that the statements made by the developer promising to preserve the trees were "inaccurate" because keeping the existing 80-foot buffer contradicted the conceptual site plan the developers had submitted. That problem, says Shuford, was corrected by his staff during the hearing and reflected in the conditions approved by the Council.

Asked to respond to these charges, the developers instead issued a press release, insisting that it must be run verbatim. A subsequent version delivered some days later differed substantially from the last -- and, over time, glaring discrepancies between their account and Shuford's seemed to gradually drop out. A memo from Shuford received Jan. 14 as this issue went to press actually includes the final version of the developers' press release among the information it provides Council members in preparation for the Jan. 18 session, when Council was scheduled to consider the situation.

Conflicting opinions aside, the responses to this controversy clearly highlight the ambiguous nature of the seemingly airtight permitting process -- and the grave repercussions that ambiguity can have for the city and its residents. Indeed, the very language of the permit itself -- the developer's legal permission to proceed -- includes passages that appear to contradict each other.

Section one of the permit, under "Conditional Use Determinations," specifically states: "All existing perimeter vegetation will be preserved to meet the city's landscape requirements, supplemented with additional vegetation." But at the end of the permit is a list of 21 conditions approved by Council. Condition No. 18 states: "A landscape buffer containing the equivalent landscape material as a Type-A buffer should be provided along the Montford Avenue frontage."

And even as Montford residents were up in arms in the wake of the tree cutting, Mayor Charles Worley issued a Jan. 11 memo essentially cutting them out of the process -- and severely limiting Council members' ability to address citizen concerns or even explain what they themselves believed they were approving when they voted on the permit.

In the memo, Worley said he would put the Campus Crest project on the agenda of a future work session "for the very limited purpose of receiving a report from the Planning staff as to the developer's actions that have occurred and whether, in staff's opinion, they are in compliance with ... the permit. Questions from members of Council will be limited to clarifying or elaborating on information presented by staff. Questions concerning testimony and truthfulness thereof of witnesses at the conditional use public hearing, penalties of fines, or other matters of a similar nature will not be permitted. No public comment will be taken."

Whether conditions

Conditional-use-permit hearings are fundamentally different from the standard fare typically served up at Council meetings because, under state law, they're considered quasi-judicial proceedings. In other words, the stakes are raised: Such hearings are governed by strict rules of evidence and higher standards for approval. What's more, a petitioner can challenge the final vote to grant or deny the permit through the city's Board of Adjustment (and, if still not satisfied, in an appellate court).

In the past, some of the city's most controversial development projects -- such as the Wal-Mart Supercenter at the former Sayles-Biltmore Bleacheries site -- have required conditional-use permits.

In layman's terms, these permits amount to exceptions to the rules. A developer, for example, may request permission to build multifamily housing in a neighborhood zoned single-family residential -- and the city may decide to grant that permission, provided that certain conditions are met. But the UDO spells out in detail the criteria that must be satisfied in order to grant a conditional-use permit.

Back on Aug. 24, representatives of Campus Crest at Asheville, LLC, the developers of The Grove at Highland Park, came before City Council seeking permission to build a 154-unit apartment complex in Montford that would be marketed to UNCA students. But because of the size of the project (commonly referred to as Campus Crest in the ensuing debate), they needed a conditional-use permit in order to proceed with the plan.

As often happens in such hearings, the neighbors came out in droves to oppose the project, arguing that it would increase traffic, devalue adjacent properties, create an unacceptable amount of noise, and clash with the scale and style of nearby homes. One key point of discussion was the 80-foot swath of trees and vegetation along the Montford Avenue side of the proposed site. And some neighbors who'd complained about the project's likely aural and visual impacts found a measure of comfort in the developers' unequivocal promise to preserve the existing, mature vegetative buffer -- thus screening the large buildings from view.

According to a transcript of that hearing, the following testimony was given by Campus Crest partner Mike Hartnett. He was joined at the lectern by the developers' attorney, Albert Sneed. Here is part of what they told City Council and assembled members of the public, under oath:

Harnett: "I'm not sure you'll ever get a true sight line on the property from Montford [Avenue], because we're going to be keeping the existing 80-foot tree buffer."

Sneed: "From the houses across the street on Montford, will you be able to see this property at all?"

Harnett: "Well, I've got a shot here [shows photograph of mature forest on overhead projector]. This is an actual photograph, a digital photograph. It's a view from the westernmost home adjacent or across the street from our property line. That's the current view, looking across Montford."

Sneed: "Do your plans envision cutting any of those trees?"

Harnett: "No, sir."

Sneed: "Do you have any other photographs?"

Harnett: "I've got the one next to the house to the east [shows photograph]. That's the existing vegetation along Montford. Once again, our plans show keeping the existing 80-foot width of vegetation from Montford down to our property line. One more shot [shows third photograph], the next time to the east. That's the existing vegetation that, once again, we plan on keeping."

The permit was approved on a 5-2 vote, with Newman and Council member Holly Jones opposed.

But according to the minutes of the meeting (which are considered by the courts to be the official record of the proceedings), Council members placed a number of conditions on the permit, including the following: "A 15-foot type 'A' buffer is required along the West, East and South sides of the property, all of which are heavily wooded. The project will be heavily buffered from adjoining properties by the preservation of existing vegetation supplemented with additional plant materials as needed."

A type 'A' buffer -- a combination of trees and shrubs planted to a depth of 15-feet -- is the minimum level of plantings the city can require in a development project. But 15 feet of newly planted trees are clearly different than 80 feet of mature, existing ones.

A Jan. 12 visit to the site by this reporter revealed extensive cutting and grading within the 80-foot swath of "existing vegetation" the developer had promised to preserve.

An inaccurate statement

On Dec. 16, after learning about the removal of the trees, Newman fired off an e-mail outlining his concerns to his Council colleagues and to Scott Shuford (whose department is charged with enforcing the rules). In that e-mail, Newman quoted Shuford's Nov. 16 e-mail to Council members, as follows:

"You may have been or will be contacted by Montford residents concerning the buffer to be provided along the Montford side of the Campus Crest project. The developer has removed some trees to accommodate the driveway. There will be a type A buffer installed; in addition, the developer has agreed to install 2 rows of 6'-8' tall Norway Spruce at 25' on center and staggered, so there would be 12.5' between each tree. This will allow for a complete evergreen visual barrier once the trees are mature. This approach and species was suggested by Tree Commission member Doc Halliday. As far as the site plan and code requirements are concerned, the developer is in complete compliance."

Newman, however, took issue with Shuford's assertion, noting: "There has been real damage to the site, and the property owners across the street on Montford Avenue will just have to live with it for a long time. The project was already going to have a major impact due to the level of grading necessary for the project, but it's just that [much] uglier because the buffer of the mature forest the developers told us they would preserve no longer exists.

"An even greater concern, however, is that this calls into real question the integrity of our staff and the City Council itself. When we approve developments, people expect the commitments that are made at our meetings to be upheld. The developers and the staff take an oath on the Bible at the beginning of our hearings and swear to us that the evidence that they are presenting to us is truthful. The citizens of our community should be able to take them, and us, at our word."

Asked about the matter, Shuford e-mailed this reporter the following response:

"During the developer's initial presentation at the City Council meeting, an inaccurate statement was made by the developer that an 80-foot undisturbed buffer would be provided along the Montford Avenue frontage. This was true only for the area adjacent to Klondyke Homes, where a wide buffer using existing vegetation was to be provided to separate Campus Crest from the Klondyke development. Grading for access, parking and building pads precluded such an extensive buffer in other areas along Montford Avenue. Later in the Council meeting, City staff suggested that a type A buffer be provided and existing vegetation be preserved as shown on the site plan. This wording became a condition imposed by Council in approving the project."

A matter of opinion

According to Barber Melton, former president of the Coalition of Asheville Neighborhoods, the Campus Crest controversy has an all-too-familiar ring to it:

"This is an ongoing problem. ... We've talked about this for 20 years -- enforcement, enforcement. It's easier [for developers] to go ahead and do what you want to do and get forgiveness than it is to follow the UDO. That's been our biggest complaint -- we have a set of guidelines, they are not followed. ... It's not only Campus Crest. ... I could go on and on.

"If you go into a meeting with the department heads in Planning or Engineering or with City Council, you will hear that 'We're trying to build the trust level up; it's very bad.' And when everyone sits down at the table, you'd be surprised about how much consensus you can come to. ... You will walk out of the room feeling like maybe you made a little progress, [but] then you go to the next Council meeting and, bless my soul, you've been stabbed in the back again. The credibility gap is alive and well, and the trust issue is very bad. We really need to sit down and have a long, slow process of trying to trust each other and know that we're not out to try and cut their throats and they're not out to try and cut ours."

Others share Melton's frustration. Montford resident Dee Eggers, a UNCA professor who'd asked Council to deny the permit during the Aug. 24 hearing, sent an e-mail to Brownie Newman on Jan. 9 saying she's "concerned and frankly angry that Asheville City Council has failed to do its job with respect to the Campus Crest development. I was at the 'quasi-judicial hearing' at which Campus Crest promised to leave an 80-foot buffer of trees along Montford Avenue. It is clear in the tapes of that meeting. They swore under oath that their testimony was the truth."

Communication -- or the lack of it -- appears to have been a key part of the problem. In a Jan. 11 memo to City Council, Shuford reiterated that "during the Council meeting at which the development was approved, the developer did state that an 80-foot buffer would be provided from Montford and clearly indicated that it would be undisturbed. As the meeting went on, staff stated that a buffer of that depth wouldn't be feasible due to grading, driveways and sidewalks and suggested language that would work with the site plan. Council adopted this language as suggested. It calls for a type A buffer and retention of some of the existing landscaping. This means that the Montford Avenue buffer will consist of both existing and installed landscaping."

But despite a careful review of the DVD of the meeting, this reporter (who originally covered it for Xpress) could not find any such statement by city staff to Council. Even when Council member Terry Bellamy expressly asked if the 80-foot buffer would be preserved, Shuford made no mention of any inaccurate statement by the developer, instead referring to the type A buffer. And Council member Newman said he has no recollection of it.

Truth and consequences

As public anger over the city's inaction grew and protest signs began cropping up in front of Montford homes, Newman told Xpress that he believes choosing not to levy some sort of punitive measure against the developer would send a negative message to the community.

"Why should people believe us anymore at conditional-use-permit hearings?" asked Newman, adding, "In the future, this could actually hurt our chances to promote growth and bring in business, because developers will know that they'll face even more resistance from neighborhoods. It will have a chilling effect. I want to be clear: I do not want to see this project killed; I'm not trying to be vindictive. We just need to ensure that standards are met consistently and that we enforce our regulations."

And in her Jan. 9 e-mail to Newman, Eggers wrote: "There are multiple issues here, including communication between City Council and City Planning (which approved a site plan that was not consistent with what was verbally and visually presented at the meeting), as well as the extent of the legal obligation incurred by the developers during the hearing. This letter is about the other main issue: This letter is about Council's response. I have asked about this, and I understand that the current plan of Council is to do nothing. The message this sends to the community is that you are not going to hold people responsible for their promises to Council. ...

"In addition to the message, have you thought about the precedent 'no action' will set? In the future, you may in fact wish to take action against a party that does something they said they would not do. In that case, their legal counsel would have a good argument that City Council is being 'arbitrary and capricious' in choosing to enforce in that case after completely ignoring this one. Their lawyers would have you for lunch."

As this issue went to press, Newman told Xpress that at the Jan. 18 Council work session, he planned to challenge the restrictions imposed by Mayor Worley and insist on a public hearing.