By Tim Peck
June 8, 2006
Usually, when someone complains about something, I take it that they mean to do something about it. But there is often that person who is all bark and no bite. You know the type. As long as someone else is responsible, they feel confident in noting every fault and recommending remedies for others to carry out. But when asked for solutions and a commitment to achieving them, they go quiet and recede from the field of action, deferring instead to the competent.
Well over a year ago, the Coalition of Asheville Neighborhoods (CAN) took issue with a number of violations of the city’s Uniform Development Code (UDO). It seems that certain developers had built structures that were not in strict conformance with the code. Illegal loading docks drove heavy-duty traffic into quiet side streets; garish commercial signage rose to the status of eyesore; and mature trees began to mysteriously disappear under the cover of night as though sucked back into the earth.
Developers seemed to be insisting that if they could not break the rules outright, could they not at least bend them only enough to rankle the few and thereby avoid penalties and impositions from those with the power to impose them?
The strategy worked. It seemed so much better to ask forgiveness later than to ask for permission now. After all, permission requires declaring your intentions and submitting to a severe approval process, whereas forgiveness comes lightly and after the fact and those bells rarely gets unrung.
So, after a string of absolutions from the cloaked priesthood of city officials, what’s a poor neighborhood association to do?
One solution might be to elect like-minded representatives to city council who would form an effective phalanx against the unsavory encroachments of business and property owners. But then those council members found their zeal for control handcuffed by the law.
Another solution would be to use that law to gain satisfaction by appealing to the city’s Board of Adjustment. Surely if a zoning code had been violated this would be the political body to hear all about it. But the appellants found that they had no standing to appeal the violations. The appeals were not brought in a timely fashion, as they must be, and no proof could be provided that any one of them was a bone fide aggrieved party. To be aggrieved, the appellant must show some quantifiable material harm from the violations. None could and the several complaints were dismissed without a hearing.
Holding out for some opportunity to make their case in a spirit of cooperation, CAN members made several attempts to deliver their message to city council and key staff members using sophisticated slideshow presentations detailing the violations and written recommendations for proceeding with greater care in the future. Alas, the city only seemed interested in the future and countered CAN’s costly recommendations with one of their own: Hire a Neighborhood Coordinator, answerable to the city manager and salaried at taxpayer expense, to act as liaison between community groups and city officials.
With this judo move, the city has appeared conciliatory, has avoided taking responsibility for existing violations, and, by feigning engagement, has given CAN the impression that they are moving toward an amicable solution and has given them the sense that this will be an end to distressing development mishaps. And what is more important, the city has avoided, for now, the prospect of litigation in a year of multimillion-dollar budget deficits.
Add to this the Mayor’s laudable initiatives for community involvement. Twice now Mayor Bellamy has invited the public to city planning forums and encouraged input on the issues uppermost in their minds through a standard consensus-building process. Along with the usual calls for more parks and greater crowding along bus routes, the recurring theme of UDO violations and its enforceability emerged as a common concern that still seemed insoluble.
And there has also been great interest shown in significantly revising the UDO. It is too complicated, too technical and is too open to interpretation. Several measures have come before city council that promise to overhaul the UDO and make it a more meaningful document; including several specific neighborhood re-zoning recommendations.
Clearly the status quo will not do and there has been little enthusiasm that adding a layer of bureaucracy—by purchasing the services of an official Neighborhood Coordinator who is beholden to city government—would truly bring about the transformation in direction that community members clamor for in an idyllic city that is growing faster than its management capabilities.
Several options are open to the city of Asheville and its inhabitants. We can give up and let the city develop as it will as we stand by. We can argue for incremental changes and hope that they will give us what we want while remaining open to the same risks, abuses and frustrations. There is a mix of these two options evident in our current course.
Or we can take decisive action and ensure that the citizens of Asheville take the reigns and lead the city toward fulfilling a shared vision. Toward that end, there are two things that must be done.
First, the city must be taken to court to address all existing code violations. The specific and valid complaints exist in a contest among groups with conflicting interests. The citizens are interested in seeing concrete remedies applied to rectify unlawful action. The city is interested in having the issues quietly go away with little to no cost to bear. The only way to resolve the matter and fully ensure that future incidents do not occur is to adjudicate the matter in an adversarial setting; which is the function the civil court system is instituted to perform. Only when there is a real cost or an impending cost does a liable party make amends.
Second, a new political body must be conceived, established, empanelled and empowered: The Neighborhood Zoning Authority.
The concept of the neighborhood coordinator is not a bad one; the problem is that it’s not good enough. Consider that the coordinator works for the city, is paid for by taxpayers to the tune of $85,000, and does not become a stakeholder by fiat. Further, this solution keeps the planning and development focus city-wide rather than community-based. (Note: As of this writing, the coordinator position is not included in the city budget for FY 2006/2007.)
The Neighborhood Zoning Authority moves radically away from centralization toward localized, neighborhood empowerment by material stakeholders. It is an autonomous body that has authority to plan, establish and enforce its own set of development ordinances within the larger constraints of a limited municipal government in a federalist model.
While city council is busy playing SimCity to the satisfaction of no one, each community could be about the business of SimNeighborhood to the satisfaction of many. The Neighborhood Zoning Authority has the quality of maximizing freedom in an environment of conflicting interests.
We have several neighborhoods that could qualify for becoming a zoning authority: Merrimon, Montford, Broadway, Haw Creek, and Downtown. A Merrimon Neighborhood Zoning Authority, for example, could convene a group responsible for determining the physical boundaries of the neighborhood, the criteria for inclusion, a vision for development and growth, a code of ordinances, and a method of implementation and enforcement. This authority would not be concerned with basic city services but only planning and development issues. And the city could continue to perform the task of technical reviews, only now against a varying set of standards, as specified in a charter with a given NZA.
The benefits would be numerous. This would obviate the need for a city coordinator—and the expense. The direct stakeholders would be actively setting their own course without a city liaison recapitulating communications. Developers and property owners would be able to choose among competing standards. It would minimize bureaucracy. City officials would be able to limit their planning efforts to non-participating neighborhoods and relieve themselves of the burden of oversight over the most vital sectors of town. Transient students from far away colleges would feel less welcome to blithely register their discontent over development projects in neighborhoods they will never invest in.
Finally, community members and leaders would be able to demonstrate their sincerity and commitment to the ideals they espouse and which they struggle to promulgate on an incremental, case-by-case basis. Job descriptions for the volunteer positions implicit in a Neighborhood Zoning Authority would necessarily be simplified; as would any resulting set of codes developed by them as well as their ongoing governance.
The Coalition of Asheville Neighborhoods has acted in good faith and has pursued its ideals and concerns with some vigor. But it has not been, and in my opinion will not be, enough. It has not been my experience that CAN shrinks from a sense of duty and mission, but they do run the risk of having their vision postponed and their grievances swept aside. If their leadership is serious about moving forward in a progressive direction then it will seriously consider the tandem options of litigation and of establishing The Neighborhood Zoning Authority as a practical and earnest approach to community planning and sustainability for the long term.