Civic

Asheville Board of Adjustment, Working 9-9

Martin Moore, chair of the board of adjustment, tells the commissioners about marathon meetings.

Asheville – In a routine update, Martin Moore, chair of the board of adjustment, informed the Buncombe County Commissioners that, after signing up for 2.5 hours a month, the board of volunteers was now enduring multiple monthly meetings, some lasting more than nine hours. Indeed, the board’s archives show they met from 9 am – 7 pm January 13, and 9 am – 5 pm January 13. December only had one 9 am – 5 pm meeting, but November first had a 9 am – 9 pm on the 5th and then a 9 am-noon on the 18th. There were three meetings in October, but they were much shorter.

Moore said three years ago when he joined the board, it used to mainly handle business among neighbors, like building a garage in a buffer or encroachment. But, “Given how things have blown up in the last few years,” he repeated as if a standalone sentence. He said the number of applications the board reviews has been steady, but, “the length and complexity of meetings have increased dramatically.”

Throughout the presentation, Moore did not want the audience to lose sight of how all board members, though slammed, had a good attitude and were prepared to render themselves adequate to the task. He also frequently expressed gratitude for the support of the county’s legal team. He explained only he and one other member of the board of seven with seven alternates had law degrees; the rest had been appointed for their backgrounds in real estate or development. The marathon meetings, he said, were necessitated by high-powered legal teams representing multifaceted projects and “standing.”

The discussion sounded cryptic like there was a subtext available to anyone caring to view all those nine-hour meetings online. Was Antifa crowdsourcing public comment? Were they doing it because powerful lawyers were inventing more and more outrageous loopholes? After the meeting, a call was placed to the planning department and fielded by Director Nathan Pennington.

Pennington explained the county was experiencing a boom in larger development projects in the “controversial urban fringe,” formerly defined by the now-defunct Extraterritorial Jurisdiction (ETJ). The phenomenon was a result of large numbers of people wanting to move into the area, wanting their own “slice of heaven,” unobstructed by change. Moore had mentioned five complex megaprojects, some of which involved sophisticated legal teams representing both sides.

Before board meetings went into Zoom mode, one project, Crossroads at West Asheville, proposed 802 residences, along with a retail and office component, for land near the Crossroads Assembly in West Asheville. That application was withdrawn after an overflow crowd showed up to protest. Hitting the board at the same time was a request for an 852-unit residential complex, Busbee, off Sweeten Creek Road. The list also planned for The Farm at Pond Road, a 697-unit, a residential development for Enka; Orion Retreat, a dog boarding and daycare facility proposed near Weaverville; and the Ranger Project, which would construct 1,200,000 square feet of manufacturing space for Pratt & Whitney near the NC Arboretum. The latter has met ongoing, seminar opposition for building “tools of war” in “our community.”

Whereas the board of adjustment can issue legislative yes/no decisions on questions of zoning, the larger projects are applying for conditional use permits. These permits require a quasi-judicial or discretionary, review that must follow statutory procedures, one of which is establishing standing for everybody who wants to give testimony. Given the size, complexity, and emotional impact of these projects, the volume of people seeking standing to comment has been tremendous.

On a lark that publishing a list of qualifications for standing might help interested parties self-screen – when it would more likely only help the desperate find workarounds – Pennington was asked for a reference, and he obliged by emailing photocopies of pages pertinent to the discussion from Owens, David, Lovelady, Adam.  Quasi-Judicial Handbook:  A Guide for Boards Making Development Regulation Decisions. School of Government, The University of North Carolina at Chapel Hill, 2017, which he repeatedly insisted must be cited.

Standing in these hearings is a determination that an individual or party could suffer damages from a project that would not be inflicted on the general public. Parties with standing include those who own, lease, or have other legally-documented rights to use the property; the entity requesting the particular use; the city or county whose zoning is in question; or an individual or group with at least one member who could suffer from externalities like decreased property value, more traffic, compromised parking, public safety risks, stormwater runoff, or noise. A group seeking standing could be a Homeowner Association, but not an ad-hoc affiliation formed expressly to oppose a project. (Pennington’s example was Parents Concerned about Neighborhood Dogs.)

After establishing standing, the board may then proceed to the hearing, in which they weigh opposing viewpoints to establish the facts in the case. In doing so, they must consider whether the “facts” demonstrate compliance with legal criteria and are pertinent and reliable. Claims that may be used, in a sense, consists of assertions on which two reasonable persons may agree, such as whether or not traffic volumes are increasing. Examples of claims that may not be used typically involve non-expert opinion and are characterized by abstract adjectives, such as “beautiful,” instead of “integrating architectural elements of adjacent buildings.”

When Commissioner Jasmine Beach-Ferrara asked how the commissioners might lighten the load, Moore only replied an assurance of “health breaks” and lunch would be good.