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Commissioners let common sense trump zoning


By Leslee Kulba –

It was a beautiful concept, an airport-side high-rise that could house a Marriott or a Hilton, and likely provide office space to recruit businesses to the region to create jobs. Mike Summey had tried to get it off the ground several years ago. The FAA had even granted him permission to extend the structure twenty feet higher than the 140 feet he had requested. But then the economy dried up, and, like most developers with big plans in the Asheville area, Summey had to shelve his project indefinitely.

All seven of the Buncombe County commissioners liked the plans. The only problem was, it ran afoul of countywide zoning.

Summey explained how he had once owned eight of the ten parcels to be zoned. He gave some of the parcels away so people could have yards, and he mowed and otherwise maintained a lot for use as a public greenspace. His plans for the high-rise were perfectly consistent with local laws and ordinances – but then the General Assembly ratified what had originated as House Bill 552. The legislation required the City of Asheville to turn over its interests in the airport either to the authority created by the act or the State of North Carolina. The act further transferred zoning authority over airport lands to the county.

As a result, the ten parcels could now be zoned by the county. They had previously escaped countywide zoning because they had not been contiguous to county land, being surrounded by DOT-owned I-26 and the city-controlled airport and WNC Agricultural Center. With the contiguity criterion satisfied, staff and the commissioners felt compelled to zone. The problem for Summey was, the county had no zonings that allowed buildings to rise higher than 90 feet.

Commissioner Ellen Frost acknowledged Summey had great plans, but said many other property owners did, too, when they fell subject to countywide zoning. In the interest of fairness, she did not wish to grant Summey an exception. Later in the meeting, citizen Alan Ditmore called Frost out for fallaciously believing county residents were so vindictive they would want others to share similar misfortunes in the name of fairness. “I don’t want a boot on your neck just because it’s on mine,” he explained.

Ditmore estimated over 90 percent of good development plans are suppressed because people are not willing to bow before the dais to beg and satisfy burden-of-proof criteria. The price, paid in lost self-respect, was too high.

Joe Belcher described the plans as looking no different from the hotels that typically flank airports. Mike Fryar, who had been sympathetic toward the developer for all the money he had already sunk into the project, acknowledged it would be a hardship to go back to the drawing board, and counseled his peers not to provide incentives for the jobs the development could create to migrate to Henderson County.

Deputy Director Michael Reisman represented the airport’s interests. He said the airport had no problem with Summey’s plans; however, the commissioners were technically considering a zoning, not a project. Should Summey be unable to complete his plans and sell the lot, anything could be built on an unzoned parcel, and the commissioners would have little if any legal powers to stop it. The problem with that was the FAA had recommendations for what they would not want built in a cone of airspace affecting aviation. As two examples, Assistant County Manager Jon Creighton mentioned towers of excessive height could become obstacles for aircraft, or something like a tire factory, that could smolder for days if it caught on fire, could adversely affect visibility. The recommendations were not binding, but failure to comply would jeopardize the airport’s eligibility for future FAA funding.

Brownie Newman was conflicted. The proposed Employment (EMP) zoning was the most conforming option available for Summey’s project, but it was inadequate. Creighton did not want to change the EMP zoning to allow taller structures, saying nobody wanted something akin to a missile in the Swannanoa Valley. Creating a special zoning for the project would be spot-zoning, and that would not be upheld in a court of law. In the end, it appeared Summey would have to either apply for a variance or make a case that he could build with a “use by right.” Either way, commissioners were disappointed that somebody who had invested a large amount of money in planning for a structure, that was totally viable under former ordinances, would now have to shoulder a burden of proof. Newman argued, somewhat in jest, that when the economy recovered enough for Summey to continue work, he “may not have enlightened folks up here like you do now.”

In the end, the commissioners voted 6-1 to kick the can down the road. Airport lands would soon be subject to a land use plan and a zoning overlay. Holly Jones was not hip to the idea of imposing one zoning on Summey and then changing it twice more. Creighton said the county could expedite work on the land use plan, nailing down variables for reconsideration of the zoning by the first Tuesday in October. Only Frost voted against buying time.

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