Regulation ricochet

by David Forbes September 25, 2014

In a packed three hours, Asheville City Council hits issues including burying power lines, housing, graffiti and the surveillance of protesters

Above: power lines over a stretch of grass behind the Aloft Hotel and city parking deck at 51 Biltmore Avenue. The city will pay $250,000 to bury the lines so a 32-unit housing development can proceed. 

The meeting Tuesday, Oct. 23 wasn’t long by Asheville City Council standards, but a lot happened. Council extended incentives to a long-time developer to provide more housing downtown and ended up in a debate over if the units it was backing were truly affordable. It backed more subsidies for private property owners to clean up graffiti, over objections from some members of the public and one of its own. And Asheville’s governing board also ended up the target of a complaint about police videotaping peaceful protests.

Also, there was a plastic cannabis plant.

The evening brought together a rapid back-and-forth of different perspectives, and the far-reaching consequences, on some very complex issues facing Asheville.

Buried lines

Behind 51 Biltmore, the combined Aloft Hotel and city parking deck that was the result of a complicated and somewhat 2011 controversial deal between the city and private developers, there’s an empty patch of grass with some power lines, hitched to wooden posts, hanging overhead.

Public Interest Projects, a developer with a long record of building downtown, (full disclosure: I live in a building owned by the company), wanted $250,000 from the city to bury power lines around the area so the 32-unit development could proceed.

A “workforce” rate for a 1-bedroom unit would range from $820-1,267 a month according to the city’s current criteria.

Jeff Staudinger, the city’s assistant director for community and economic development, told Council that the units PIP was proposing, especially its 1-bedrooms, would come in at the lower end of that scale.

He also noted, “any building in that corridor is going to require the burying of the power lines.”

What the city considers “affordable” and “workforce” housing is a subject of debate and controversy. It bases its formula of criteria from the Department of Housing and Urban Development around local median income. Workforce units are supposed to take no more than 30 percent of the monthly income of a household making 80 to 120 percent of the area’s median income.

PIP President Pat Whalen asserted that the step needed to be taken anyway unless the city wanted the area to remain undeveloped, and that the increased property values and downtown housing were more than enough to justify the investment. PIP had for two-and-a-half years tried to put together a deal for dense, workforce housing on the area, but found lenders reluctant to support rental units with rates that low.

“We’ve got to work with the banks,” he noted.

But burying the power lines, he claimed, will make the numbers “pencil out” in a way that allows PIP to keep the units at a cheaper rate. Furthermore, workforce housing, he asserted, is where downtown has a significant shortage.

“Workforce housing is the biggest need to maintain our downtown as a working place for everybody,” Whalen said. “We have three to four times the number of luxury units as we have workforce units, we have four to five times as many affordable and subsidized units in downtown. The gap is in the middle.”

PIP has been a longtime developer downtown and Whalen asserted that the vast majority of its units have remained workforce housing since their renovation or construction. Additionally, he said that as many of the residents will be able to walk to work, it will make the units de facto more affordable than those with lower rates located farther outside the city’s core.

As for how long the units will remain workforce housing, on that score Whalen asked Council to “trust me based on our history and if you feel you can’t do that, that’s fine,” though he mentioned he’d like to pursue more incentives under the city’s land use policy, which does require developers to commit to keeping affordable or workforce rates for a set period of time.

Though he added that the policy has significant issues, he would be happy to work with the city in improving it. Council will hold a work session affordable housing before its Oct. 14 meeting, and the issue is one of several it will delve into there.

Despite the challenges, Staudinger said that PIP had managed to get some of the units within $75 a month of the affordable rate.

During public comment Lauren Bacchus — who said she works three jobs and still has trouble making ends meet — was concerned about how many in Asheville’s actual downtown workforce could actually afford the housing bearing that designation, including those working for the city and organizations that receive significant support from them.

“What is the average person doing in those jobs?,” she asked. “It’s likely they’re working in a restaurant or a retail store. That’s the reality of the situation. So when affordable and workforce housing is used as a term, I think there’s a lot of confusion within the actual workforce in Asheville.”

“I’m a city employee,” she continued. “I work at the civic center making $7.81 an hour. I work at the Asheville Art Museum for $7.25 an hour. I also work at a coffee shop. It’s a frustrating situation. That’s just an exmple of what I deal with as a single person. I work like 50 hours a week between these three jobs. It doesn’t seem like a lot of average working people will be able to afford these units.”

Clare Hanrahan, who lives in subsidized housing downtown and considers herself lucky, also said that the city’s rates aren’t realistic for downtown workers.

“I don’t think, as defined workforce or affordable housing is truly affordable for the workers,” “I hope when we use these terms that we define them clearly, so that people understand, so that we’re not duped.”

Retired planner David Nutter, however, felt that the “environmental and social advantages” of building the project meant the incentive should proceed.

Council member Cecil Bothwell, who opposed the original 51 Biltmore project, said he still couldn’t muster support for this.

“I have some serious problems,” he said, asserting PIP should have known during initial construction that the power lines needed to be buried. “They took us to the bank once, and now they’re going to take us to the bank again to build a project they said they’d build in the first place.

Earlier this month, Council declined to provide rezoning approval to a development on Sardis Road, because the developer wouldn’t commit to the housing remaining at workforce rates for a given period of time and Council members were worried that might set a bad precedent.

Council member Chris Pelly however, said that PIP was different, as they “have a great track record of serving our city. This is entirely different circumstances. This is a no-brainer for me.”

Smith, who opposed the original 51 Biltmore deal alongside Bothwell, was more favorable to this one.

“No matter what PIP does we’re going to have to spend this money,” he said. “Also, the track record is there: they build this stuff and they keep this affordable.”

In the end, the measure moved to victory, with only Bothwell voting against.

‘Option Five’

This Spring, Council approved a new graffiti rule, to go into effect Oct. 1, requiring property owners to clean up graffiti. Before that time, however, the city would foot the bill for all or most of the cost for any clean-up.

The clean-up efforts, which the city pulled $300,000 from its savings to back, have been somewhat controversial. While city staff and the business organizations that pushed the proposal see it as a way to deal with a public ill, some public arts advocates asserting the funds could have been far better spent on public art and that the program is ineffective in stoppin graffiti anyway. With the ordinance — and its penalties — set to go into effect, the city’s still received far less takers for that program than anticipated and has spent only a fraction of the total money — just over $41,000 — allocated for clean-up, despite an extensive media campaign.

So Public Works Director Greg Shuler presented Council with four options — using the remainder of money to clean up graffiti for however long it lasted, just letting the penalties go into effect, extending the deadline for 90 days or requiring owners to bear half the cost.

“We’ve had relatively small numbers, but it’s gaining,” Shuler said. “Graffiti is not a victimless crime. Where there’s graffiti there’s other crime.”

What the city ended up hashing out was what Smith dubbed “Option 5” to let the ordinance, complete with penalties, go into effect on Oct. 1 as originally planned, but to give property owners who had yet to take advantage of the clean-up plan a one-time $500 credit toward clean-up over the next year.

“It would still allow for those who hadn’t heard it to get the benefit, but after that everyone would be subject to same rule,” he said. “That would be a way to offer an olive branch to those who are just now hearing about it, but to move ahead.”

However, Shuler added that there were “10 to 20” sites where clean-up, even with the city footing part of the bill, would be quite expensive, from $8,000 to $10,000 apiece.

“A lot of the folks have already paid to clean those up once,” he said. “If you keep one of the large ones and continue to work with the APD, next time it won’t be as big.”

Council decided to have Shuler present a more precise estimate of that clean-up at its Oct. 14 meeting.

But the plans didn’t sit well with everyone. Bothwell, who voted against the original measure, said it still was a bad plan overall.

“What is effective is to fine property owners for not cleaning it up, that’s what works elsewhere,” Bothwell said, noting that with the money’s spent already, “that’s 20 to 40 affordable homes we could subsidize under our current process.”

“Is not affordable housing more important than cleaning up somebody’s idea of art?” Bothwell asked. “This is private property. Why are we spending tax dollars to clean up private property? When I look at the pictures, most of those look like art to me. I’ve seen things painted over under this program that look like art to me. I’m really uncomfortable with the idea that we’re extending taxpayer money that we could put toward things we really want to do.”

Council member Jan Davis, who supported the clean-up, did note he didn’t think there would be a new wave of people taking advantage of the city’s program.

Nor did some of the members of the public think the city was doing the right thing.

Hannah Lazan, speaking during public comment on the matter, said “it sounds minimally effective not long-lasting; the money will be gone and the graffiti will be back. It feels like the research was missing.” She noted that other cities like San Francisco had hired artists to paint over graffiti with murals or art, making it less likely that it would be tagged again.

“It seems more effective than shabby paint jobs that make a building look less owned and more open for graffiti,” she said.

Hanrahan said that she saw crumbling sidewalks that posed a danger to the elderly far more than she saw graffiti.

“That’s where I feel insecure,” she said. “Redirect your concerns.”

The “Option 5” extension of the city’s bonus for cleaning up graffiti passed 6-1, with Bothwell against.

‘Really, really pissed’

At Council’s usual open public comment period at the end of the meeting, more controversy continued, this time over the APD recording protests, specifically the Moral Monday rally that drew thousands to downtown in early August.

A recent Asheville Citizen-Times investigation found that the APD did not have a formal retention policy and videotaped multiple political protests in a “seemingly unorganized system” and that police officials gave conflicting reasons for retaining the videos, from training purposes to criminal investigations and has refused to release the videos when requested to under the state’s open records law.

Jonathan Robert, who’s repeatedly complained about the taping over the past two months, told Council that the APD’s actions violate its civil liberties resolution, which prohibits videotaping peaceful political activity unless there’s a clear relation to an ongoing investigation.

“It’s my belief that this tape that never should have been made in the first place should now be destroyed,” Robert said, and the denial of making the record available was also ominous. “What could there be about people exercising their right to peacefully assemble that could warrant a criminal investigation?”

“This is in direct contradiction of the spirit and the letter of what y’all passed,” he added, noting that if Council didn’t rein in the APD, he would go to the American Civil Liberties Union and pursue a lawsuit.

Hanrahan, a longtime protester, also noted that she had been targeted during Occupy Asheville based on police taping of a protest, and arrested on trespassing charges that were later dismissed.

“Something’s wrong if we’re chilling free speech,” she said.

Bothwell, the architect of the civil liberties resolution, visibly angered, blasted the conduct of the APD.

“I am personally appalled the police department is not following the resolution we approved,” he said. “The police don’t videotape Shindig on the Green, the don’t videotape Splashville, they don’t videotape Moogfest, but they videotape a political gathering.”

“It is wrong and I intend to push on this, I am going to see that process stopped,” he continued. “I see no excuse that there’s going to be some kind of ‘training benefit’ from a peaceful gathering. I’m sorry, I am really, really pissed.”

City Manager Gary Jackson committed to bringing more information back to Council about the process. But so far, it looks like Council is divided on the issue of what to do about the recordings.

As for the plastic pot plant, after waiting on various chairs and laps in the Council chamber throughout the evening, it had its moment. Toward the end of public comment, resident Todd Stimson, who recently walked to Raleigh as part of a pro-legalization protest, held it before Council. It was, he told them, time for the drug war to end.

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