AshevilleCity - County Gov.Leslee KulbaNews Stories

In Asheville, “community rights” trump property rights

By Leslee Kulba –

In an old-fashioned system where individual rights are protected, there would have been no issue; but these days, “community rights” trump property rights. Up for consideration was a council-initiated rezoning of three parcels. Councilman Chris Pelly, at the request of the Kenilworth Neighborhood Association, asked not that council rezone the property, but that they direct staff to study it for a recommendation on whether or not it should be rezoned.

Of interest were three parcels on Caledonia Road, at Finalee Avenue. The owner, Frank Howington, dba Caledonia, LLC, had, a few years ago, been denied construction of a 100-unit apartment complex in the area. Neighbors had at the time expressed grave concerns about the steepness of the terrain, congested narrow roads with limited sight distances, and the bulkiness of the buildings not conforming to their neighborhood. Not breaking any ordinances, Howington cleverly determined he would construct two 50-unit apartment buildings on the site. But before he got very far with his idea, city staff generated a proposal to rezone the property to RM-16, which means no more than 16 units would be allowed per parcel.

When the matter came before council, nine people spoke on behalf of the neighbors’ concerns. Caledonia’s attorney, Thom Holman, however, argued the proposed rezoning was “unlawful,” “inappropriate,” and “unfair.” He pointed out that council was usurping due process with an arbitrary and capricious rezoning. Not only that, his client had already invested substantially in the design of his project. Paul Smith, a local developer with no direct association with the project, commented on the message council was sending by changing the zoning of property after somebody began a project.

Tuesday, Councilman Cecil Bothwell said he would never forget how at 2:00 the afternoon of the public hearing to rezone the property, Howington hired an attorney from Councilwoman Esther Manheimer’s law firm. Even though Manheimer works for Van Winkle Law Firm, which with forty attorneys is one of the largest in Asheville, Bothwell considered the move intentional. Howington had already filed a valid protest petition, which, by state law, would require a three-fourths majority vote to approve the rezoning.

Staff wanted to be clear that the rezoning considered Tuesday did not pertain to the parcels that caused the stir the first time, but property owned by the same developers in the same neighborhood. That property is currently tied up in litigation the neighborhood association has launched against what they consider an improper subdivision, and an improper TRC approval for the 50-unit projects. The city’s ordinances expressly state, “No application for the rezoning of property shall be accepted or processed while an application for any of the approvals or permits listed . . . is pending for the same property or vice versa.”

In the current round, members of the Kenilworth Neighborhood Association addressed council with concerns that the slope and soil of the parcels were not suitable for a large edifice. The current zoning would allow uses like parking lots, convenience stores, libraries, and movie theatres, all of which would be “unsuitable.” They also argued the roads were too dangerous to admit more traffic than would be expected from an RS-8 zoning.

Mark Hunt wanted council to proceed with the study. He was concerned that the terrain, which currently supported mature trees on steep slopes, would not be safe for development. Bothwell added that he has begun an effort to get the city to apply its steep-slope ordinance to all elevations. “It made no sense whatsoever” to think that steep grades were dangerous only above certain heights.

Jan Davis approached the matter with his usual caution. He said he understood his peers’ concerns. However, council was disregarding property rights. They were about to set a “dangerous precedent.” He added later council was opening a can of worms and setting a “precedent for bullying.”

Hunt argued that the study would hopefully bring the developer to the table to negotiate. Mayor Terry Bellamy agreed. She wanted to see a coming together of the developer with the community. It was not in the best interest of anybody to continue litigating. A change in process was needed, because staff and the developer had gotten nowhere to date. Personally, Bellamy thought the developer should be sensitive about the need to transition property between the residential uses and more intense uses allowed on Swannanoa River Road. Pelly added that he was only asking for a study. If the city determined it was in their best interest to rezone the property, the owner could always file a protest petition.

“I share your hope that this may be a catalyst,” said Davis, but since rezoning typically consist in appeals from the property owner to the city, “this comes from the wrong direction.” Davis cast the lone vote against the study. Manheimer was absent, observing the high holy day of Yom Kippur.

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