Council's Message: Don't Bribe, Donate - TribPapers

Council’s Message: Don’t Bribe, Donate

Architects went to lengths to make sure the hotel massing, materials, and features conformed to the historical village.

Asheville – Asheville City Council approved the construction of a new hotel on Hendersonville Road, in Biltmore Village. The 99-room hotel would include a restaurant, retail space, and underground parking. The sticking points for city councilors pertained to overlapping city ordinances that were at odds with each other.

The staff report explained that the development was “partially in the floodplain protection area, the ‘All Hotels’ Hotel Overlay district, and the Biltmore Village Historical District.” The project was subject to Level III review because it exceeded the 100,000 square-foot gross floor area threshold, and a conditional zoning was requested to alter setback and sidewalk widths, impervious surface requirements, and maximum building heights.

Urban Planner Clay Mitchell explained that this was a “tight site.” That is, the building would occupy almost the entire block. The developers were fitting on 0.77 acres, a building that, according to ordinances, should be built on a minimum of one acre. Setbacks and sidewalks were therefore going to be narrower than codes require, and only two loading berths would be constructed instead of the mandated four.

Councilwoman Sage Turner, in particular, was dissatisfied that the project did not qualify for granting community benefits to the city. Staff explained that the city’s community benefits table only applied to Level II development. It allowed developers to enjoy a streamlined review process if they promised to essentially donate to items on the city’s wish list, like green building features, payments to the city’s affordable housing or reparations fund, or supporting social causes. The latter included paying living wages, being a certified B-corp, working with minority- or woman-owned businesses, and supporting public art.

Asheville’s community benefits table was adopted in 2021 because the city couldn’t impose an outright ban on hotels. It serves to give the impression that, while council is allowing the construction of hotels their constituents don’t want, they are doing so by garnering social amenities their constituents are demanding.

Christian Sottile, the architect for the project, shared that the developer intended to provide community benefits even though it was not eligible for an expedited design review process. The “voluntary community commitments” were 800 feet of public sidewalks with streetscaping, a new public crosswalk serving two city bus routes, $6,000 per room for either the city’s affordable housing or reparations fund, $300 per room for public art, a subterranean stormwater retention system, twice the number of bike racks required, and the creation of a pocket park around a mature Oriental spruce that would be preserved.

Turner thought it was a bad idea not to extend the community benefits table to larger projects. She felt that the larger a project is, the more council should be extracting. The program wasn’t designed that way because the benefits requirement was tied to the expedited review process, and heated popular opinion is fueled by the perception that government isn’t providing enough oversight for huge projects. She still wanted the community projects this developer was offering to be conditions for granting the zoning change. She reasoned that if the developers are the party offering the community benefits, they should have neither cause nor grounds to sue the city for enforcing them. “Why don’t we risk it and push it a little bit and ask for all we can?” she asked.

Branham said that as legal counsel, it was his responsibility to look out for council’s worst-case scenario, not their best. He was supposed to protect council from overstepping the powers delegated to them by the state. The statutes did not go into detail about what can and cannot be included in a conditional zoning, so attorneys throughout the state were leaning toward erring on the side of caution. When the community benefits table was designed, staff tried to include items council wanted that went beyond what was legally enforceable in either by-right or conditional zonings. Actions that look like an attempt to leverage a zoning by making it conditional upon a payment to a municipal fund would likely not stand up in court and, under new law, make the city liable for attorney fees.

This developer, however, “volunteered” a set of conditions. Branham said he typically memorializes lists like this in his office separately from the zoning conditions. When Turner asked if developers had ever fallen short of their memorialized lists, Branham said not yet.

An attempt by Turner to make the community benefits part of the conditional zoning died for lack of a second. The conditional zoning as presented by staff was then adopted 4-2, with Turner and Kim Roney against.