Council rediscovers lost art of discretion

December 1, 2012 Asheville , City - County Gov. , Leslee Kulba , News Stories 1087 Views
Council rediscovers lost art of discretion

By Leslee Kulba –

George Morosani wished to develop land next to the Airport Road Walmart. The land had been split-zoned to accommodate 41 manufactured homes on the back portion, but the area was quickly becoming commercialized. Morosani had therefore planned to create shadow stores for the Walmart, but decided the city had a greater need for more affordable housing. He came to council Tuesday evening to request a reversion of the commercial zoning. He needed a conditional zoning because the lots in many ways were not compliant with the city’s ordinances.

The plan was to rebuild homes on the infrastructure that was installed prior to the property being annexed by the City of Asheville. However, to live up to the standards of the city’s UDO, the developer would have to rip up pads and tear down trees, just so he could add new pads, new utility hookups, and new trees.

Twelve lots did not have the 50’ minimum width or the 5000 sq. ft. minimum area. 44 lots lacked the necessary 20’ front setback, and 25 lots were less than the requisite 35’ from the property lines. Existing roads were narrower than the city’s 20’ minimum width, and the developer did not intend to rip up housing pads to accommodate 10 extra feet of right of way.

The city also required the installation of streetlights and sidewalks. The developer intended to lay sidewalk along Airport Road, but there was no room for sidewalks running from house to house. Ordinances further required the developer to set aside 10 percent of the land, or 1.37 acres, as open space or provide a fee in lieu of it.

Jan Davis, who visited the site, thought it was attractive and functional as-is. In fact, it had many amenities, like a clubhouse, that go beyond expectations for similar developments. Mature trees grew beautifully on-site and, as Cecil Bothwell noted, the city ordinance would require them to be chopped down and replaced with little trees elsewhere. In fact, the old trees outnumbered the minimum required for the site; they were just in the wrong places. Furthermore, it would be greener to reuse existing infrastructure than to waste and replace it.

Chris Pelly had a different view. He said the land may contain pleasant shade trees, but they would be on private property. The intent of the open space requirement was to provide public spaces accessible by everybody.

Staff had recommended approving the development with the standard conditions plus two more: providing an easement for a bus shelter and either open space or a fee in lieu thereof. The criteria imposed on all developments in the city include the submission of a detailed lighting plan conforming to the Lighting Ordinance; and preparation of a tree-save plan locating, identifying, and dimensioning all existing vegetation.

Members of council asked City Attorney Bob Oast to explain the city’s fee in lieu of open space requirement. Morosani would have to remove more than a couple lots to meet the minimum requirement, or pay approximately $50,000. The funds would then go to a fund for creating green space “reasonably proximate” to the site in question.

Davis said something did not feel good about imposing a policy about which members of council were so unfamiliar. Indicating Morosani would not use the word, Davis said he felt council was engaging in extortion, and “sending the wrong message to developers.” Bothwell agreed and attempted to make the motion approved by staff, but amended to remove the fee-in-lieu requirement.

Morosani had already agreed to add street trees and install a new water main with a fire hydrant. One home would be rotated so as not to straddle two lots. The sidewalk he would construct was going to cost $38,000. Representatives of the development argued they would have begun their planning with the location of green space had they not been trying to be conservative with existing home pads.

Davis was wary about nitpicking the ordinance. Attempts to make it perfect could cause a majority on council to vote against the project altogether, thereby wasting Morosani’s investment to date. If council wanted to remand the proposal to the Planning and Zoning Committee, the development would be delayed, and “time was money.”

Oast had greater concerns. He did not know if it was legal for the city to simply ignore its ordinance requiring open space or a fee in lieu. Vice Mayor Esther Manheimer, who was conducting the meeting in Mayor Terry Bellamy’s absence, asked how much time Oast needed. He said he might be able to arrive at an answer in fifteen minutes, but would prefer council to approve the rezoning request as staff recommended, but subject to council amending the open-space requirement at some later date. Council approved the suggestion unanimously.

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