Not over yet

by David Forbes March 22, 2016

Body cameras, public housing, the fate of a public square and no action on LGBT protections as Council swings back from the end of winter

Above: Mayor Esther Manheimer. File photo by Max Cooper.

February was an unusually light month for Asheville City Council. So many items from what would have been the Feb. 9 meeting were delayed that the city cancelled the whole thing entirely, and the single item on the Feb. 23 agenda was a report on encouraging more “infill” development.

But March 8 made up for that light schedule with a vengeance and while much of Ashevillians’ attention was consumed with the primary elections and the Clinton vs. Sanders debates, Council waded into several major ongoing issues. Plans for the demolition and overhaul of Lee Walker heights, the city’s oldest public housing development, were presented. Police officials defended rules on body cameras, including controversial ones that keep the footage sealed from the public.

The plot of land across from the Basilica of St. Lawrence — a site that’s become a lightning rod for debates over public space in downtown — got another look as city officials gave the go-ahead for an effort aimed at bringing all “stakeholders” to the table. In the process, they showed how complicated that might just be, as they then decided to demolish a building over the objections of a nonprofit historically based in the area.

Notably some of the biggest news of the night wasn’t action but a lack of it. In response to calls from LGBT rights groups to pass Charlotte-style protections, city officials refused to take action and said that they didn’t plan to take any in the future.

There is, however, a lot more to that story, and by all indications it’s far from over. In fact, the same could be said for all of the issues above. On March 8, City Council’s actions — or lack thereof — proved a way point towards larger struggles.


Lee Walker Heights is Asheville’s oldest public housing development, dating back to 1950 and nestled nearby Mission Hospitals. It also has long-running problems due to age, isolation, a lack of funds and the general problems that afflict public housing. Starting last year, officials of the Housing Authority of the City of Asheville — the agency that oversees Asheville’s public housing system, launched a plan to demolish the old units and rebuild it with newer units and more of them. The new development would include the remaining residents as well as mixed-income units with a range of prices for the new residents.

Despite HACA’s name, it’s largely independent of city government, though its board is appointed by Asheville’s mayor. In the case of this overhaul, however, HACA has sought the city’s assistance, as well as a partnership with local non-profit Mountain Housing Opportunities.

The move came during a time of controversy over the future of public housing. HACA’s shift to a new management system and funding stream drew criticisms from some residents, while officials claimed it was necessary to deal with major funding issues caused by federal cuts. Combined with a spike in evictions and a history of tension over displacement of housing residents in previous schemes to overhaul such systems, any attempt to overhaul Lee Walker was going to face skepticism.

When the plans were first aired earlier this year, some activists and locals signed a petition expressing concern and seeking what they saw as necessary changes to make HACA more transparent.

But HACA officials claimed that they’d taken more care than ever to let the residents decisions drive the process, and that they would guarantee that when the units were demolished, all the current residents would have a place to stay and the ability to return if they chose.

Now HACA officials came to present Council with their master plan for the new development: 144 pages detailing what it would look like, its design, the type of housing it would contain and how the groups involved had arrived at those conclusions.

“We think this is probably the most transformational project we could possibly do,” HACA CEO Gene Bell claimed. “I think we’ve demonstrated that the residents are put first. They have it in writing, you have it from HUD and you have it from me that they will come back. It seems to be an issue but it’s not an issue.”

The project wasn’t up for formal Council vote or support yet, but the presentation of the master plan represented another step in that process.

David Nash, HACA’s COO, claimed that the overhaul would meet the city’s goals of providing affordable housing for low-income residents in mixed-income developments. The rents would range from around $200 a month for the returning residents to up to $800 to $1500 a month for the “workforce” units. The rent distribution for the remaining 100-300 units (HACA’s still working to acquire a neighboring site to expand the size of the development) wasn’t specified in the presentation.

In response to a later request from the Blade, Nash clarified that after the development’s overhaul, the 96 units would continue to house people from HACA’s public housing waiting list, with rent set at 30 percent of their monthly incomes.

“This project will do a lot to open up access to people with disabilities,” Nash said. “It will also help alleviate the high degree of poverty in census track 9, around 51 percent.”

“The residents who are there who will have the right to return, I’d like to repeat that at every opportunity,” Nash emphasized.

The importance of the overhaul — how it’s done and who it does or doesn’t leave out — reaches far beyond the 96 households of Lee Walker as well. Both HACA officials and city leaders have said that if they feel the Lee Walker overhaul is a success, they will pursue the same approach with the rest of Asheville’s public housing, home to about 3,100 people.

The Lee Walker residents on the committee that helped craft the plan claimed they felt HACA had included their voices and were supportive of the plans that emerged.

“It has been a challenge, however in that challenge we have all strengthened,” resident Crystal Reid said. “Asheville housing authority gave us a voice, and listened to our voice, kept an open door policy throughout this process. In creating this project we all had a helping hand.”

“I grew up in Lee Walker Heights,” Butch Worthy said. “It’s time to move forward with Lee Walker Heights. I love it, but I’m tired of it being hidden like it’s a secret.”

The result, Worthy claimed, would be a healthier environment, especially for the children in the housing development.

“Every step of the way, housing has included us,” Worthy continued. “They have made it open to all the residents. They’ve given a meeting, once a month, open to the community. So if there’s any complaints, I don’t see where they are.”

Amin Price Patel, of the San Francisco-based David Baker architects, said the plan was to create a neighborhood thoroughly connected to the surrounding area, with more open space and amenities like community space and shops in parts of the housing complex. The goal, Patel said, was to make Lee Walker a “mixed-use, urban, sustainable neighborhood.”

Council member Cecil Bothwell asked if denser development might allow for more affordable housing, and Nash replied that the planned density was at its maximum unless they built some form of parking deck.

Council member Gordon Smith praised the detail and depth of the plan and HACA’s outreach to address “people who may be reasonably suspicious because of things that have happened in the past” like urban renewal or previous problems with HACA.

Nash then added that the Lee Walker planning process had helped the organization realize the need for more input from residents.

“We learned how much more important that is than we thought it would be, honestly” he said.

“I’ve attended some of those meetings and I think that’s vital to the success of the project,” Manheimer said. “I look forward to continuing down this path.”

Watching the detectives

Next up was a presentation on the use of body cameras by the Asheville Police Department. Both protesters and advocates for reform have demanded the use of such cameras from departments around the country.

But the devil, for this particular policy, is in the details: who has access to the footage, when officers can or can’t turn the cameras off, who can destroy or edit it and how the public uses it to hold the department accountable.

The APD is relatively late in implementing this particular policy compared to the other major law enforcement agency in the county. The Buncombe County Sheriff’s office did so by the middle of last year, with 80 cameras for its patrol deputies and some of its deputies at the jail.

Now, APD Chief Tammy Hooper said, Asheville’s police were ready to take the same step, rolling the cameras over the coming months.

Notably, the legal justifications have a number of thorny areas to navigate, balancing the public’s need for transparency with the need to protect people’s privacy and criminal investigations. However, both the city of Asheville (and the sheriff’s office, for that matter) have taken the position that the videos aren’t public records. The North Carolina Press Association disagrees, asserting that body camera records are generally public and fit within the public’s right to know the circumstances of an arrest.

The controversy cropped up again after the sheriff’s office fired two deputies based on their actions in response to a domestic violence call, but refused to release the body camera footage.

In a presentation to the Council (“given the level of interest in this topic,” as Manheimer put it), Hooper said the APD had started researching the cameras in 2014 (when local and national protests began in earnest) and began implementation at the start of this year. She had also, she said, met with multiple groups locally.

About 180 sworn officers would eventually use the cameras, Hooper noted, and the city would hire a technology specialist to manage the whole enterprise.

The first phase would be 60 cameras by summer, with the first 10 going to the APD’s public housing unit.

“They were chosen to pilot this program because they have a lot of citizen contact and a lot of enforcement activity,” she said.

After the public housing unit used the cameras for 30 days, their use will expand to the downtown and traffic safety units, then to two cameras per patrol district per shift before expanding to all patrol officers. When that happens, Hooper noted, will depend on the level of grant funding her department can secure.

This year that would cost $142,000, with unlimited cloud storage of the footage (and, incidentally, come as a package deal with 60 new taser weapons).

Combined with the additional staff costs, Hooper estimated an ongoing $300,000 a year to the APD for equipping patrol officers with body cameras.

Hooper claimed the department had studied multiple organizations’ recommended policies, including the ACLU, the UNC School of Government and national law enforcement organizations. The goal was in part to clarify when the cameras should or shouldn’t be turned on, for example in an emergency room situation.

“But the exceptions are very few,” Hooper said. “If it happens that an officer deactivates a camera for any of those reasons, they’ll need to document why a camera wasn’t used in those circumstances.”

Assistant City Attorney John Maddux claimed that generally body cameras were considered “criminal investigation or intelligence” records, which generally aren’t public, even if they didn’t depict any crime.

“This is a very broad definition, more than most folks understand,” Maddux claimed. “It’s any record that’s created with the purpose to prevent or solve a violation of the law, which encompasses a lot of things that police do and a lot of records they create.”

Body cameras could also be considered a personnel record, Maddux continued. The only time those records would be released, he asserted, is if Council or the City manager decided that doing so was necessary to preserving the public trust. In the case of investigatory records, the police chief (or city manager) has the discretion to release them.

The city attorney’s office had also used the broad “criminal investigation or intelligence” exemption to claim that videos of peaceful protesters, some a decade old, were not public record, a position which landed them in court when the Asheville Citizen-Times asserted in a lawsuit that the videos were clearly public record.

Those investigatory records, Maddux continued could even extend to a recording of someone asking an officer for directions, he claimed, because it could be construed as helping to prevent a crime.

But he noted that the city opted not to treat body camera footage as completely confidential personnel records, as some cities like Greensboro had.

“We want to keep the option of being transparent,” Maddux said, something that would be at the chief’s discretion. “It’s a great middle ground: if everything’s open, we have serious privacy concerns, if everything’s closed we have serious transparency concerns. This way, we have the option to be transparent if we need to.”

“It’s really about balancing the privacy of the people in the videos with our need to have accountability for officers,” Hooper said. “We do have to restrict who has access to them.”

Within the department, she continued, supervisors will randomly check the footage to make sure officers are using the cameras correctly, and the department’s internal affairs as well as the city attorney’s, would have access to it.

Hooper said that people in the footage — or their guardians or next of kin — would have access to it. The footage would be retained for just 60 days if there was no complaint or crime involved. Otherwise, they would retained until the matter was resolved or as long as state law requires (evidence of a homicide, for example, is retained forever).

“This is an evolving thing: we don’t know where the laws are going to land, we don’t know where the courts are going to land,” Hooper said, but the APD would pay close attention.

Manheimer clarified that people in the video would have an automatic right to see the footage, and Maddux noted that there were some state bills affecting the wearing of body cameras, but none have become law yet.

Council member Keith Young said “there was nothing” in the policy that caused him concern but wondered what would happen if footage did reveal an officer did step out of line or abuse their authority. Hooper replied that they would handle it through their usual disciplinary process. He also asked about the 60-day limit.

“There doesn’t seem to be a consistent decision about that time frame is,” she said, but believed it was a decent time period to figure out if an issue had happened “without holding records for years and years.”

“Nothing sticks out like a sore thumb in this policy, and I thank you for drafting it,” Young said, though adding, as multiple officials had during the discussion, that state legislation on the matter may change the rules entirely.

Hooper promised to keep assessing the use of the cameras as the APD’s various units put them into practice.

“Almost everything here is the same as the ACLU’s suggestions,” Bothwell said, except for the possibility of retaining the videos for up to six months, and a recommendation that anyone in the videos be able to obtain a copy of them.

But Hooper claimed that wasn’t practical due to the amount of staffing it would require.

“We couldn’t do redcation and things like that, if you’re thinking about thousands of hours of footage,” she said.

In a brief ensuing discussion about classifying the footage as personnel or investigative records, Hooper and Maddux admitted that there was plenty of legal grey area in how to classify them.

“It’s obviously a law that was put in place at a time that didn’t contemplate this,” Manheimer said.

After clarifying the anticipated $300,000 a year cost, Smith noted “that this is obviously a really important step ahead for transparency and public safety, but there is a very real half-a-million price tag associated with it.”

“Yeah, it’s an expensive program,” Hooper replied, and when Young asked for follow up, she clarified that baed on $78,000 a year for the initial 60 cameras and storage, times three (to get up to 180 cameras) and then $70,000 for a staff member to handle the footage.

Mayfield then asked what would happen if someone was incapacitated and couldn’t request viewing of the footage. Hooper noted that she could use her discretion in that case to let the person’s next of kin view of the footage.

Council member Brian Haynes wondered if footage would be viewed as part of an officer’s perofrmance evaluation, Hooper replied that they would, and that her eventual hope would be to use that footage to assess officers on how they dealt with an incident from beginning to end.

“Great work,” Smith said. “Really complicated topic.”

“My hope is that this will have a civilizing effect,” he added.

“I’m sure the citizens will be glad to know that you won’t use your discretion to post the funny ones to Youtube,” Bothwell quipped.

“Only the ones with City Council members in it,” Hooper shot back.

During public comment on the topic, local Sean McNeal praised the city and Hooper for being proactive about keeping officers accountable, but that the city needed to try to anticipate the future so other chiefs or officials wouldn’t abuse the system or misuse their discretion.

“That way it won’t be used in the future to protect the police or any institution instead of the public,” McNeal said. “The ACLU has a great proposal, and a lot of the things very similar,” but that some of the group’s proposals that were left out of the city’s policies needed another look.

He continued that the city needed to make expressly clear that officers will face disciplinary action for erasing or failing to turn in the footage. Additionally, he felt the city needed to spell out in the policy that it would favor defendants who could reasonably show that evidence had been destroyed or not captured, and the same for civil plaintiffs suing against officer misconduct to ensure “a proper consequence.”

“Spelling out rights for the public in these policies would be a great thing to do,” he said, adding that the city should clarify its rules on recording other employees as well.

“I’m sure most people in this room have been deeply impacted and affected by the events happening across this country in the past year and a half, where people have caught on their cellphones the instances of police abuse of power that have gone as far as unarmed citizens being shot and killed,” Michael Collins said, adding that while many had welcomed the advent of body cameras to better monitor police forces around the country, some aspects of the new policy were disturbing.

“I can’t help but feel somewhat disturbed by the fact that we’d be paying $300,000 or maybe $500,000 for body cameras in which the public had little or no access to the footage being recorded, so the mechanism for accountability is not there,” Collins said.

So Collins asked Council to continue to look at its policy and take seriously alternatives for more public access to footage, especially that flagged for serious misconduct.

“The public oversight that creates accountability does not exist at this point,” he concluded.

A piece of the square

Across from the Basilica of St. Lawrence, there’s a plot of land. Owned by the city, it was once site to abandoned buildings and a crumbling two-story parking deck. Right now it’s a pit with high walls, gravel and some adjoining parking. Currently, city government’s renting it out for the construction of the neighboring Cambria Suites hotel.

Since 2005, two major city plans for the site have fallen through in the face of major opposition: first for a parking deck and second for a hotel run by the McKibbon group.

Since the McKibbon deal fell through in 2013, the city looked for another buyer to recoup the money it had spent on the land and bring some activity to the area. But over the ensuing years dissatisfaction with the pace of downtown development, especially the hotel boom, combined with skepticism (given the fact that the previous plans were for a parking deck and a hotel) to lead to a backlash, with considerable support from some local progressives. That led to a contentious debate about whether the site should be a park or similar public space or if this time the city could find some deal that was a bit more appealing in a changed political climate.

But elections matter, and the issue became an important one in last year’s Council races, emerging as a rallying point tied to larger concerns about the use of public space downtown and criticisms of city government’s handling of the challenges of downtown development. Two of the three candidates elected last year — Brian Haynes and Keith Young — specifically supported turning the site into a park or public space. A petition effort by the Friends of St. Lawrence Green (of which Council member Cecil Bothwell was an active supporter) gathered over 4,000 signatures, and supporters of the effort also mounted a major push during the campaign.

At the same time, other Council members weren’t (and aren’t) quite so convinced and still advocate a sale in some form; the elected officials noticeably differed in one of the new Council’s first post-election meetings.

Still, for the time being the site isn’t up for sale and Council is moving forward with its usual approach to try to cut tricky public policy knots: a committee representing “stakeholders,” public input sessions and bringing in outside assistance.

But who those stakeholders would be, and how that process would work, was another question. Planning Director Todd Okolichany noted that there were questions even about which properties the city would include in the discussion (the site is technically multiple properties owned by the city) and what road changes would need to happen to make it either more functional as a public space or more appealing for sale.

Okolichany asked Council to approve a “community visioning” process for the scale and future of the site, including $15,000 and the assistance of the Asheville Design Center. Things would kick off with an advisory team with members from groups (like the Downtown Association or Friends of St. Lawrence Green) as well as a number of city boards and departments. The center would lend its expertise to the process and help narrow down what could be done with the site.

Chris Joyell, the design center’s director, noted that once constraints on what could be done were established, the public could put its insights to use.

“Once we understand what the constraints are on the site then I think we can really open this up to the public and let their creativity run wild,” he said, adding that they’d invited Projects for Public Spaces, a New York City-based non-profit focused on sustainable public places, to help with the process and train the advisory team in “understanding the science behind placemaking.” After that, they’ll hold a public presentation on spaces around the world and how they do (or don’t) work and why.

“I hope, with that, to change the tenor of the conversation from opposing viewpoints battling it out to all of us realizing that we have a real shared interest in this site and have some fundamental opportunities here,” Joyell said. “Then we can open this up to a public process.”

Following two workshops and that public input, Joyell noted the center hoped to deliver a result that would allow the city to proceed with either designing a public space or asking for proposals from private organizations with a much clearer idea of what the public wanted.

Immediately, however, the question of who would sit on the advisory team became key. Mayfield suggested including the Civic Center Commission as “it’s their front door.” Okolichany replied that staff were still open to suggestions. Bothwell then broached that the busker’s collective should also be part of the team. That boosted it to 16 members, with three at-large seats appointed by Council and the rest representing other groups.

“Now, there’s been a study out that committees larger than 12 are dysfunctional,” Manheimer said. “But I don’t see how we can trim this down with the groups involved here.”

But Bothwell noted that because the board wouldn’t make legal decisions, a quorum wasn’t as important as it would be in other committees.

“For our benefit it’s having the networks these stakeholders have to get the word out to make sure we can get a robust public input,” Okolichany said, praising the “great diversity” of the committee.

Given the importance of the site’s fate, Vice Mayor Gwen Wisler wanted the at-large members Council would directly appoint to get a major, open public hearing.

During public comment on the measure, Timothy Sadler cautioned that “the list of groups that are participating are largely within the echo chamber of the government here and the business community” and might reach a different conclusion from the public at large.

Andrew Craig, Asheville Sister Cities’ president, wanted the group included on the advisory board as well. Former mayor Russ Martin advised the same, noting the group “has a big stake in this.” Manheimer added that given the possible need to rearrange the roads around the site, neighboring property owners should probably be included as well. While the homeless network was raised as well, Smith said he’d pursue a representative of that population from the

But while Bothwell noted that Sister Cities’ request “certainly seems reasonable,” and that Council could add more members, if necessary, later.

“It’s a little bit of a slippery slope,” Manheimer warned.

“Downtown is everyone’s backyard, everyone comes into the city, so to have downtown overly represented or tilted in that direction would leave out the vast majority of residents,” Smith said.

Council proceeded forward with the 16-member board, with the inclusion of the Civic Center Commission and the Buskers Collective, but no further groups, along with the $15,000 for the process. Both measures passed unanimously.

Demolition time

The next item focused on a property that may well end up folded into the site discussed above, and one of the groups that had unsuccessfully pressed for inclusion in the committee. Since 2004, Asheville Sister Cities had rented a neighboring building, paying just $1 a year to the city. Originally intended to be a temporary arrangement, as city officials planned to tear down the aging building and replace it with a parking deck, they ended up based there for over a decade.

But late last year, the building’s long-running problems with leaks and structural issues proved too much, and city inspectors found it unsafe, moving Sister Cities to space in the Parks and Recreation offices.

Now Council had to decide to demolish the building or fix enough of its issues to prevent some of the leaks and water damage, though not enough to make it habitable again. Staff recommended against that, finding the issues so severe that the cost would be prohibitive, $500,000 or more. Demolition would cost about a fifth of that, as would enough repairs to limit further damage. The property itself is worth $850,000, but staff estimated the decaying building was reducing the value.

Sister Cities was interested in keeping the facility if the city went for the repair option, Craig later noted, and if they did so “will take over responsibility from there.”

“Asheville Sister Cities is a downtown organization,” Craig said, and wanted to remain so.

Mayfield broached that instead of making a decision that night, Council could opt to send the decision to its Historic Resources Commission for more input. But Assistant City Manager Paul Fetherston said that the state of the building was such that staff needed a decision soon. Smith said he was “inclined towards demolition,” in part because it would allow its incorporation into whatever project emerged with the neighboring properties.

Given that, Mayfield also said she didn’t see much point in the renovation options, especially “if something much more beautiful and useful could emerge on the site,” but she still wanted to get input from the city’s committees first.

But Jack Thomson, director of the Asheville-Buncombe Historic Preservation Society, cautioned that despite the fact that the building was “hard to love,” it still was a historic structure and part of the fabric of downtown.

“The Preservation Society would view it as very unfortunate that the first demolition of a contributing structure in downtown after the adoption of a historic preservation master plan is done so with the decision of City Council,” Thomson said. “The rush to raze this building under the argument that it may facilitate the planning upcoming is inaccurate.”

“We are ever so grateful to the city for its ongoing support,” Karen Hultin, of Sister Cities, said, and the site had hosted visiting dignitaries from abroad many times. “Over the years so many wonderful things have developed around boardroom tables at 33 Page.”

Martin cautioned the city not to demolish such a building and to instead work with Sister Cities to save it, as its location played a major role in the group’s effectiveness.

“This building has meaning for us: it has provided the city of Asheville with an international face,” he said. “There’s more to this than dollars and cents.”

“Would you rather have a parking lot or a building that might appreciate over the years?” he asked.

But Council, on the whole, wasn’t persuaded by the pleas of Sister Cities and its supporters.

“One thing that this emphasizes to me is that the city’s agreements need to be reviewed, often, and the expectations with all parties clarified, often,” Wisler said. “We’re not doing that right now.”

“I can’t justify spending the kind of money to renovate this building for occupancy,” she added.

Mayfield hoped that the organization would find “another wonderful place downtown,” noting that the years in the building were a “gift” that no one involved originally anticipated. She did, however, say that Thomson had a point and the city should have a clearer process on the fate of historic buildings in downtown.

Smith agreed, but said that he was ready to move ahead with the demolition in this case, given the cost involved and the importance to the larger discussion over the Haywood site.

“The truth is, if we’d regarded this as a historic structure we would have put a roof on it,” Bothwell said. “But it’s been let go intentionally this whole time.”

The demolition then passed 6-1, with Haynes against.

Riding the fence

During this meeting, the open public comment period also proved important, though less for what Council did than what it announced it wasn’t going to do.

Last month, Charlotte City Council passed increased protections for LGBT residents, including access to public accommodations like restaurants, stores and bars as well as taxis and non-discrimination in local government contracts. That would mean, for example, that a lesbian couple couldn’t be refused service at a local restaurant because of their sexual orientation. This was done by an addition to that city’s existing non-discrimination ordinance, which added local protections to federal and state ones for categories like race, religion, national origin, sex and more. The ordinance changes also protect trans people accessing the bathroom matching their gender identity.

While part of a much larger ordinance change, that last one has attracted much of the media attention and ire from opponents of the Charlotte ordinance. The backlash to that part of the measure has seen the use of blatantly bigoted stereotypes based around the myth that legal protections allowing trans people access to restrooms matching their gender identity will suddenly allow violent predation. While this has, to anyone’s knowledge, never happened in areas where similar ordinances or state laws have been passed, some local candidates in the recent commissioners’ primaries even went so far as to threaten to go armed into restrooms if trans people were legally allowed to use them.

A few days after the Charlotte ordinance changes passed, local and regional LGBT rights groups called on Asheville’s Council to do the same thing. Reactions on Council ranged from enthusiasm to hesitation, though none outright opposed such a step.

In public comment, those stereotypes came out once more, with Andrew Sluder, pastor of Bible Baptist Church asserting that trans people’s presence in bathrooms could constitute “indecent exposure” under state law.

“Aside from the legal aspect, there’s also the common-sense aspect, I could quote scripture but I’m not going to,” Sluder said. “I think everyone would understand the difference between a man and a woman biologically. If you identify as that well, biblically I think you’re wrong, but it’s none of my business how you identify your gender. If you’re a man, you want to identify as a woman that’s your business, but when it comes to public safety a man should use a man’s bathroom and a woman should use a woman’s bathroom.

Most of the commenters who spoke on the issue, however, called on Council to support ordinance changes.

“I would request that you consider, adopt and pass an ordinance that would protect the rights of the LGBT community here in Asheville similar to the one passed recently in Charlotte,” Lacey Winter said. “It is my belief that this would only provide for equal rights under city ordinances for the LGBT community that are afforded other people within this community. This will protect us from arbitrary discrimination in terms of housing, services, public and private facilities and general safety issues as we go about our daily lives.”

“It reminds me of history, when whites and blacks had to use different restrooms,” Chris Oakes said. “I believe we should have equality.”

“One of the reasons I came here is that I was down in Central Florida and I literally ran because of their policies there,” Tara Darby said. “I knew, coming here, that I would be accepted. I have had some difficulties with employment and some discriminations as far as that’s concerned. But overall Asheville is a forward-thinking area and I’m glad to be here.”

“Coming forward with this kind of ordinance and these kind of protections would really be great for our community,” she continued.

Martin Ramsey encouraged Council not to fall prey to false stereotypes about LGBT people.

“I encourage you to go ahead and pass this ordinance and welcome the opportunity to stand with members of my community to say that and strongly consider what they’re asking for,” he said.

In remarks about the city’s position, Manheimer did not mention the public accommodations portion of the issue, and just focused on the restroom provision. As part of its ordinance changes, Charlotte’s government removed old language limiting restroom access. Since Asheville’s government doesn’t have a local nondiscrimination ordinance, Manheimer claimed, they had nothing to update or modify.

“Charlotte’s ordinance said something along the lines of ‘you can’t discriminate except the following things don’t fall under the nondiscrimination provision’ and included in that list of items were bathrooms,” she said. “They had an ordinance on the books that could be interpreted to mean that discrimination could be imposed in the use of bathrooms. So they had something to fix, in other words. Asheville doesn’t have anything like that.”

“We would be the same as any area in the United States that didn’t have a law saying who could and couldn’t use the bathroom,” Manheimer continued. “So Asheville isn’t in the position of having something to fix.”

So the city’s Governance Committee (composed of Manheimer, Wisler and Young) came to the conclusion “that there wasn’t anything to address” as Manheimer put it through Charlotte-style LGBT protections but

Smith did shoot back against the stereotypes expressed by some of the speakers, asserting that trans people were far more likely to be the targets of violence than the perpetrators when using the bathroom.

“There’s some really brave people who are being who they are in the face of a word that may not recognize or validate their experience,” he said. “When this kind of thing is debated in terms of pathologizing people’s experience, the areas that happens in you see transgender suicides rise. If you’re talking about violence in bathrooms it’s people who are transgender who are most often the victims of violence in bathrooms.”

“You’ve been in bathrooms with lesbian, gay, bisexual and transgender people your entire lives, everyone,” Smith continued. “Asheville respects the dignity of all people and respects the civil rights and gender identity of all people. Bigotry has no place in Asheville.”

After the meeting, the Blade asked City Attorney Robin Currin about the public accommodations protections the LGBT rights groups had asked for, and if the city had considered its legal options on such an ordinance.

“That’s a whole different ball of wax,” she replied.


Asheville CIty Attorney Robin Currin, who’s differed with her Charlotte counterpart and asserted that the city doesn’t have the right to pass similar LGBT protections. File photo by Max Cooper.

Pressing the envelope

The next day, March 9, the city of Asheville issued a statement that “no action was taken and none is planned” on Charlotte-style protections.

Of course, as with many issues in North Carolina the state legislature may intervene: the general assembly starts a special session tomorrow aimed at overturning Charlotte’s ordinance.

That, obviously, will affect what Council does or doesn’t do. In the meantime, the push continues and it remains an open question if local elected officials will take action.

The day after the meeting, Aaron Sarver of the Campaign for Southern Equality told the Blade that they had every intention of pressing forward, and that the group looks forward to working with the city and other local groups to pass such an ordinance.

“We still think it would be important to have something on the books or some statement form the city attorney saying people are able to use the bathroom that matches their gender identity,” Sarver said. “We also stand by our initial call for a Charlotte-style ordinance.”

While Smith had criticized the stereotypes, he didn’t call for such a move at the meeting itself. The Blade asked if anything was in the works.

“We have an opportunity to affirmatively reflect what Charlotte was trying to do,” he said, adding that he looked forward to working with CSE and the other groups who had called for changes to craft similar protections for Asheville for an “explicit protection, a very reasonable and equitable thing to ask for and not a fairly heavy lift for government to accomplish.”

He also said he hoped to minimize “open bigotry” and avoid a heated, Charlotte-style showdown.

The issue has also pointed to a divide that taps into a larger question: drastically different views on the extent of the city’s legal ability to regulate private business. On this front, it’s a reminder of how powerful roles like City Attorney can be in shaping what local government officials feel they can or can’t pursue.

In comments to the Blade and a legal memo defending the ordinance, Charlotte City Attorney Robert Hagemann, who dealt with civil rights and land use law before joining that city’s legal team in the 1990s, asserted that cities are well within their rights to regulate business and, in this case, try to protect LGBT residents: they have robust powers to do so, though certainly with some limits.

Currin, a land use and development attorney before taking the city’s top legal job in 2014, has historically taken a much more narrow view, asserting that the city does not generally have the right to regulate private business, with a few exceptions. So far, that’s the view Council’s gone with on a number of issues (like, for example, the question if Asheville could pass its own minimum wage).

Talking about a possible ordinance with the Blade, Manheimer noted that Currin’s views on the matter went far beyond her “ball of wax” remarks or the restroom component addressed in the meeting. In this case Currin had taken a narrow view on the city’s powers to pass non-discrimination protections that applied to private business, disagreeing with Hagemann that the city had the power to do so.

“The city attorney explained to us that she’d reviewed his opinion and did not agree with him,” Manheimer said. “Every city ordinance of every city is legal until someone challenges it.”

“It’s one thing for an ordinance to be on the books and not be challenged,” “That’s a decision cities have to make, if they want to become activist cities in different areas. I think we as a city have chosen to do that in certain areas, with regards to our housing policies, though we try to make sure it’s couched in a strong enough legal position.”

“But to me you want to begin in the areas of the strongest need,” when it came to such ordinances, and claimed that the city hadn’t received complaints from LGBT people about a lack of access to accommodations.

So what areas does Manheimer consider “the strongest need”?

“Where do you begin to see change? Where the envelope is pushed, Minimum wage might be a good place to start. But in general we try to work within the authority of the state, and we’ve chosen not to venture outside of it because our Supreme Court doesn’t seem inclined to move the constitutional interpretation in that direction and it’s quite expensive for the inevitable litigation.”

Asked if the LGBT protections were another area to press on, Manheimer replied that “it’s complicated” and while she was open to looking at the city’s nondiscrimination protections, for the moment she wouldn’t push for any change.

But Currin’s view, and Council declining to take action, are likely to face public pressure in the weeks ahead.

At this past weekend’s LGBT in the South conference, both local and statewide activists met for a two-hour long session discussing how to proceed, and noted that they still intended to push for Charlotte-style protections in Asheville and increased LGBT rights at the local level, regardless of whatever action the general assembly takes.

“We’re going to put a lot more muscle behind this,” Sarver said.

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