Judge to rule parkland must stay public, attorney says

Mark Barrett • MBarrett@CITIZEN-TIMES.com • STAFF WRITER • published August 28, 2008 12:48 pm

ASHEVILLE – Superior Court Judge Marlene Hyatt has asked attorney Joe Ferikes, who represents members of the family of the man who gave the land to the county more than 100 years ago, to prepare a draft order granting his clients’ request for judgment in their favor, Ferikes said at mid-day today.

Hyatt will rule that the property must remain available to the public, thus blocking plans by local developer Stewart Coleman to build a nine-story condominium building on the parcel, Ferikes said.

“It means the case is over and we’ve won,” Ferikes said.

The outcome won’t become official until Hyatt signs an order and it is filed, Ferikes said, and it is possible that the details of the order will not become known until then. It is common for judges in civil cases to have attorneys for the winning side prepare a draft order that becomes the basis for the judge’s order.

Ferikes said it will be possible for Coleman to continue to own the land but that Hyatt’s ruling would not allow Coleman to carry through with plans to put a condominium building on the property.

Hyatt’s action will mean that the land “can only be used for public purposes” but does not necessarily invalidate Buncombe County’s 2006 sale of the property to a Coleman company, Ferikes said.

However, he said, “I’m hoping the county does the right thing here. Give him his money back and take the title back and tell the public and all of us that they are never going to do this again and execute documents” to that effect.

Relatives of George Willis Pack, a wealthy lumberman who donated downtown parkland to Buncombe County in 1901, brought the suit last year.

Buncombe County commissioners voted in November 2006 to sell a small corner of City-County Plaza that contains a large magnolia to a Coleman company along with an adjoining alley and an old building. Coleman wants to combine that property with the Hayes & Hopson building at the corner of Marjorie and Spruce streets to build a nine-story condominium building.

Louise Pack Metcalf, an East Asheville resident who was one of the plaintiffs, could hardly contain her emotion shortly after hearing the news.

“I am so thankful. I just thank God that they left it as parkland,” she said. “I’m thankful that just one time the system worked for the people and not for the big man.”

The Packs were seeking simply to keep the land available to the public, Ferikes has said, not to have the land return to the Pack family.

Read Friday’s Citizen-Times or return to CITIZEN-TIMES.com for more on this story.

WNCA in the Mountain Express!

The Green Scene

A disturbing debate

by Rebecca Bowe in Vol. 14 / Iss. 50 on 07/09/2008

Elk Mountain resident Kathryn Geitz watched warily last month as a pickup truck pulled up to Ciel, a high-end development site near her home, and people wearing protective suits set to work spraying an herbicide throughout the property. In the following weeks, patches of vegetation turned brown.

“The spraying affected us and our dogs,” Geitz told Xpress. “We have recovered from the nausea and the vomiting but if you look at the animals, particularly the black bears, they are suffering the most from this act of cruelty to our natural setting.”

Mountain view: Before and after pictures taken late last summer (image on top) and this past April (bottom) show how a lot changed after the forest was thinned and the underbrush turned to mulch. Nearby residents say this land-disturbing activity continued for months, despite the developer’s failure to get a permit for it.

Buncombe County’s Planning Department called it a violation of the subdivision ordinance. The developer, David Zimmermann, had failed to adhere to the limits on land disturbance specified in the permits and spelled out by the county’s steep-slope-development rules. In a June 23 letter, planning staff notified Zimmermann that all existing permits would be frozen and no new ones issued until a plan for full revegetation had been submitted and implemented.

On its Web site, Ciel touts the subdivision as an “environmentally sound, resource-friendly” community.

Geitz, however, calls the county’s action “too little, too late.” She and other neighbors, she says, had called the county repeatedly to complain about tree cutting and land clearing at Ciel, which they believed was a violation, but nothing was done. “When one drives up Elk Mountain,” says Geitz, “one can see a remarkable difference in the landscape toward the top. ... It is like a bomb was dropped. The foliage has been mutilated and is dead, dead, dead.”

This annoyed neighbor isn’t the only one harboring suspicions about the county’s commitment to its steep-slope ordinance. Since April, activists from two local groups—the Western North Carolina Alliance and the Mountain Voices Alliance—have been sounding the alarm via widely dispersed e-mails, maintaining that proposed changes to the subdivision ordinance could weaken restrictions on “land-disturbing activity” in such developments.

Proposed by county staff and Planning Board members, the changes have been submitted to the Board of Commissioners but have not yet been formally approved. Meanwhile, county staffers contend that critics of the rule changes are misinterpreting the ordinance’s language.

At the heart of the dispute is a disagreement about what the current ordinance actually says. The activist groups maintain that one proposed change in particular, which would count land disturbance for infrastructure separately from that allowed for construction, would undercut the law. “This change would allow significantly more land clearing—up to 60 percent of a site, in some cases—than permitted under the current ordinance,” the WNC Alliance claims.

But county planner Debbie Truempy says the change merely clarifies the ordinance’s original intent. “What we’re proposing is to put limits on the [infrastructure] when there are none now,” she told Xpress.

In an e-mail to Elk Mountain residents, a county staffer wrote: “Currently, the Planning Board only applies the land-disturbance limits to the development of individual lots and does not apply any land-disturbance limits to the installation of infrastructure. The perception that we are allowing the developer to clear up to 60 percent of the lot is not the case at all. In the past, the developer did not have any limits on the amount of disturbance for roads, water-line installation, etc.”

But Ryan Griffith, outreach coordinator for the WNC Alliance, maintains that land-disturbance limits for infrastructure have been in the ordinance all along—they just haven’t been enforced. “It appears that the planning staff has never actually enforced the [current] land-disturbance rule,” says Griffith, citing attorneys whom her group had asked to look over the ordinance. “They’ve never actually counted in the infrastructure building as part of land-disturbing activity. ... Now they’re trying to change it so that they can separate that out—which sort of covers their butts for not ever enforcing it.”

Also at issue is the proposed elimination of a requirement that a specified portion of the property “remain in a natural state,” defined as “the condition prior to development or other human activity.”

According to Truempy, this requirement has proved too restrictive because, it doesn’t allow for the removal of invasive plants. Yet this is precisely the basis on which the county found Ciel to be in violation.

Meanwhile, Board of Commissioners Vice Chair David Gantt has also voiced concern. “So they’re doing the roads, disturbing a great portion of the mountain, and then they’re saying OK, we have so much percentage left ... that we can disturb—which was not the intent,” he says. “And [the ordinance] clearly says that. I don’t understand why that’s not being done. We’re going to hopefully get some new Planning Board people on there who will basically look at what we say, instead of just doing their own interpretation. They’re basically saying that you can disturb it all, and ... that’s not what we said the first time.”

Alien Invasion!

As you know, the WNC Alliance works really hard at removing invasive exotic plants from critical habitat. Here is a little jewel of a video that we found that perfectly describes how bad invasives can be.



And here are photos from an invasive outing we did last fall at Sandy Bottom in Bent Creek last fall. Look how much alien butt we kicked!



Look, our pile is the size of a medium-sized child! Whoohoo! Take that, Japanese Stiltgrass!

Cowee Rockstars!

Check this out and learn about Norma's porch.

Victory against the proposed concrete plant!

Board unanimously rejects concrete plant

by Brian Postelle on 05/15/2008

After seven hours of testimony, public comment and deliberation Wednesday night, the Buncombe County Board of Adjustment voted unanimously to deny a conditional-use permit for a concrete plant proposed for north Buncombe County.

Blue Ridge Concrete, an offshoot of a Savannah-based company, applied nearly a year ago for a permit to build a plant on Murphy Hill Road near the intersection with Old Mars Hill Highway. Since then, neighbors of the site have argued that the area, though open zoned, is actually a residential community unfit for a concrete plant’s industrial nature. (Pictured at right is the site of the proposed plant.)

Community activist Martha Claxton, organizer of the North Buncombe Community of Concerned Citizens, said that she was elated with the 7-0 vote to refuse the permit. She’d expected a victory, she added, but not necessarily such a decisive one.

Roughly 300 people showed up at the hearing held at North Buncombe Middle School, a site picked after a March hearing venue was too small to fit the turnout of opposition.

Meanwhile, Blue Ridge Concrete still owns the Murphy Hill Road property, but there is no word as to what is next for the company. Owner Mark Turner had no comment after the decision.

Look for full coverage in the May 21 issue of Xpress.

— Brian Postelle, staff writer

A New Model For Growth

"A conspiracy against property rights? (An opinion letter from the Franklin Press)

Have you followed the Mountain Landscapes Initiative story in our local press? What great promises they make. We will have a neat, clean, orderly community, consisting of seven western counties, because participation by the people will make the laws MLI drafts righteous. Now here is the rest of the story.

The Lawrence Group from St. Louis, specializing in "New Urban Planning," will be conducting the meetings. Someone from St. Louis is supposed to tell us how to plan here in the mountains?

Let's be clear, they will be preparing land use plans that will impact our property rights. But how can environmental groups or non-government offices like Land Trust for the Little Tennessee, Western North Carolina Alliance, Preservation North Carolina, Cowee Community Development Organization, or even the Department of Transportation draft laws that affect us? What happened to the "peoples voice" concept. Are special interest groups like these appropriate to draft laws for us, the citizens and taxpayers? No, they are not!

We need to be clear-the central planning which MLI proposes is directly opposite to our present model of property rights and property management. Why are we being offered a new model when there is nothing wrong with the present one?

Central planning like this has been tried over and over but always comes to an unsatisfactory end. America was not founded on socialism.

All of this begs the question. Why did our commissioners pay Mountain Landscapes Initiative, a non-governmental organization, $10,000 to write laws that will have a serious impact on our property rights and not require any accountability? Further, MLI was not voted in so it cannot be vetoed out. Which, in my opinion, makes them very dangerous as they will be around indefinitely, chiseling away at our property rights.

Norman Roberts

Franklin"

****************************************************

Thank you, Norman Roberts for taking the time to voice your concerns in the Franklin Press.
Without viewpoints such as yours we would not have the opportunity to have these discussions that the Mountain Landscapes Initiative is facilitating.

You ask, "Why are we being offered a new model when there is nothing wrong with the present one?"

Let's unpack that for a minute. First of all, lets talk about the "offering" of this new model. The Lawrence Group, based out of St. Louis, are only consultants. A consultant is someone who offers advice on an area of expertise, and it just so happens that the Lawrence Group are experts at architecture and planning. But we here in Western North Carolina are also consultants- we are experts at knowing the changes in the land- whether it is a natural change or a man-made one. That's why locals are involved in this process. While the Lawrence Group may be sophisticated and very savvy at the general principles of architecture and planning, we, the people of WNC, know what has and has not worked in this region for many generations. The end result, therefore, will not be an "offering" on the Lawrence Group's part of a new model, but a collaborative effort between experts in planning and experts of WNC to create this new model.

Which brings us to our second point- the present model is NOT working. Look up at your mountains for a minute. We are looking at ours right now, and they are beginning to look like patchwork home sites for 9,000 sq ft homes. Whether or not you think this is right is not the point- at some point this development begins to effect the area around it. Locals are being taxed off their land that has been in their family for generations because of the rise in property value due to the rise in demand for that property. Wells are running dry because of the added pressure that development is putting on our aquifers. Houses are being built in areas that are destined for major landslides- which is not only unsafe for the new homeowner but is also very dangerous to the locals in the valley below. Residents are terrified that they are loosing grip on the beauty and serenity of a mountain lifestyle that their families have stayed here for generation after generation. These are only a few of the issues that accompany unbridled development.

On that tone, we recognize that growth WILL happen, but we want it to happen on our terms. We do not want to pay the cost- rising taxes and the like- for the pressure that large, unplanned developments are putting on our infrastructure. We don't want to deal with the long term effects that a developer from Florida imposes on us when he/she is here to make a quick buck and then leaves. This is OUR community, and while we are excited to have a new diversity and new faces to look at and share it with, we want it on OUR terms.

This is not socialism. This is regionalism. We are proud of our communities and landscape and want to see them stay in tact for hundreds of years to come. This doesn't mean unchanged- it means promoting the values of this area that our great-grandparents would be proud of. When it comes down to defending property rights, we are on the same page- we just want to have something left to defend.

Haywood County Rockstars!

The Haywood Community Alliance is a group of rockstars who are working hard to protect the communities and mountains in Haywood County. Since their inception, they have created model ordinances for the County Commissioners to implement, activated other members of the community through a petition requesting an environmental disclosure statement from developers of large subdivisions, and started their own campaign to raise awareness about development issues in Haywood County.

So basically they rock. Here is a recent video taken by the Mountain Landscapes Initiative (find out more at http://www.mountainlandscapesnc.org/) featuring two of our active members of the Haywood Community Alliance.