Citizen Appeal of Development Review

Asheville's new Downtown Master Plan would give developers the right to appeal a negative ruling on their project to City Council. That needs to be balanced by giving the public the right to appeal a positive ruling on a bad project to City Council. There needs to be a way for Asheville as a community to "pull the fire alarm" on a project that's plainly inappropriate but still slipped through the net.

"We need a level playing field on development issues" is a commentary on this subject by Steve Rasmussen, published July 22, 2009 in the Asheville Citizen-Times.

Here also is important background information on the right of citizens to appeal a flawed development approval:

1. Letter sent to city officials, media, etc. before City Council's review of the Master Plan. Includes info on North Carolina state law and case law giving implicit right of citizen appeal, and on how other cities apply this right (in bold).
2. Address to City Council at public hearing on Master Plan arguing necessity of citizen appeal as a democratic "check-and-balance," and suggesting how the right should be worded in the Master Plan (in bold).
3. Letter to local citizen activists giving a general overview of the issue, and some suggestions for how to apply the right in a reasonable way (in bold).

1. Citizens' Right to Appeal Development Approvals

Submitted May 11, 2009, by Steve Rasmussen
[sent to City Council, city staff, media outlets, activists, et al.]

(N.B.: The Downtown Master Plan will be [was] presented to City Council on Tuesday, May 12, and a public hearing with opportunity for public comment on the Plan will be [was] held during the Council meeting on Tuesday, May 26. See http://www.ashevillenc.gov/downtownmasterplan.)

Asheville's famous diversity frustrates many who see our community's passionate disagreements over issues such as downtown development as a weakness. But others see it as a strength -- the strength of authentic democracy, in which every individual has a say and is, to an extent rarely seen in less independent-minded towns, judged by his or her wisdom, not by his or her wealth.

The reforms of Asheville's development-review process that are proposed in Strategy 6 of the Downtown Master Plan make tremendous strides toward their stated goal of making "downtown project review transparent, predictable, and inclusive of community input." Mandating developer meetings with the public at the beginning of the review process, and ensuring that both oral and written public comment are given serious consideration throughout, would go far toward putting behind us the days when decisions shaping our cityscape for decades to come were the exclusive province of a revolving-door clique of builders, bureaucrats and politicians.

We need to take one more key step, however, to achieve a just balance between the right to develop private property and the responsibility to preserve the public commons. We need to firmly establish in our downtown development-review process a fair procedure for citizens' appeals.

An equitable procedure for appeals will play an important role as a democratic check-and-balance if the city adopts Goody-Clancy's controversial recommendation to shift much of the decision-making authority for downtown development from City Council to the Planning and Zoning Board. Even if steps are taken -- as they would need to be -- to broaden the diversity of members' backgrounds and occupations on what would immediately become a much more politically charged P&Z, the board will always be a step removed from accountability to the Asheville public because its members are appointed, not elected.

Strategy 6 would give final approval/denial authority for Level I projects (less than 20,000 square feet, under the new DMP) to the Technical Review Committee; for Level II projects (20,000 to 175,000 sq. ft.), to the Downtown Commission and P&Z; for Level III (larger than 175,000 sq. ft.), to City Council. A developer whose proposal is denied at his project's level of review would be allowed to appeal the decision to the next-higher level. A denial of a Level II project by P&Z or the Downtown Commission, for example, could be appealed for final review to City Council.

The argument I've heard made for this provision is that the prospect of a stressful, contentious public hearing in Council chambers would serve as an incentive to developers to conform to the DMP's design guidelines -- the next-best alternative, I'm told, to "mandatory review, mandatory compliance," which state law allows only in Local Historic Districts.

But if a developer can appeal a proposal's denial, it's only fair that the converse should be true -- that an affected citizen or citizens should be able to appeal a proposal's approval to the next level.

I've researched citizen appeal of development review for some months now, aided by a professional urban planner (who has worked in several states, and currently works in California). My conclusion -- with the caveat that I'm not an attorney -- is that the same state law that allows the developer to appeal also allows the citizen to appeal, within limits.

Let me observe first that citizen appeal isn't about "mamas with babies on their hips" showing up at the last minute to arbitrarily cost the developer more money, as one local advocate for laissez-faire growth is said to have characterized the Asheville public's increasingly vocal concern over inappropriate development.

Nor can we assume that a sufficiently perfect set of guidelines will ensure that all approvals are unimpeachable, as some in the planning community contend. Concerned residents have seen repeatedly how development-review boards -- which tend to be heavily stocked with development and real-estate professionals who sympathize with (and may have even worked for) the developer bringing the proposal -- allow numerous variances and exceptions from the rules in order to avoid what they see as the drastic step of denying the proposal.

The public is the ultimate stakeholder in a development approval, since it's the public that has to live with the consequences for many years after the developer has made his profit and moved on. This is especially true for the neighbors of a development -- as residents near the Staples building on Merrimon can attest, to cite one notorious example.

Fortunately, the North Carolina statutes governing development review do allow for those most harmed by a development-review approval -- the specific phrase is "any person aggrieved" -- to appeal it, and I believe they clearly allow for such citizen appeal to be incorporated within the three-tiered review process outlined in the DMP.

Interestingly, they also appear to allow for any other city board or official to appeal an approval. For example, if a post-DMP P&Z issued a Level II approval with variances that permitted the destruction of an inordinate number of trees, the Tree Commission could legally appeal to City Council to have the approval overturned. (Even now, if I read the statute correctly, the commission could appeal to Asheville's Board of Adjustment.)

I've found two forms of appeal outlined in North Carolina General Statutes Sect. 160A, Article 19: Planning and Regulation of Development, the section of state law that governs city development review. The first, Sect. 160A-385 et seq., covers the process of appealing zoning changes by a protest petition and what Asheville calls a "supermajority" vote.

The second, Sect. 160A-388, appears more relevant to development-review appeals. Although it refers to a Board of Adjustment, one of the sentences I've EMPHASIZED below makes clear that these rules apply to any planning or governing board designated by a city to handle these duties -- as would be the case under the DMP with the Planning & Zoning Board, Downtown Commission and City Council.

NCGS § 160A-388.  Board of adjustment.

(a)       The city council may provide for the appointment and compensation of a board of adjustment consisting of five or more members, each to be appointed for three years. ... [Description of appointments, terms, alternate members.] ... A CITY MAY DESIGNATE A PLANNING BOARD OR GOVERNING BOARD TO PERFORM ANY OR ALL OF THE DUTIES OF A BOARD OF ADJUSTMENT IN ADDITION TO ITS OTHER DUTIES.

(b)       A zoning ordinance or those provisions of a unified development ordinance adopted pursuant to the authority granted in this Part shall provide that the board of adjustment shall hear and decide appeals from and review any order, requirement, decision, or determination made by an administrative official charged with the enforcement of that ordinance. AN APPEAL MAY BE TAKEN BY ANY PERSON AGGRIEVED OR BY AN OFFICER, DEPARTMENT, BOARD, OR BUREAU OF THE CITY. Appeals shall be taken within times prescribed by the board of adjustment by general rule, by filing with the officer from whom the appeal is taken and with the board of adjustment a notice of appeal, specifying the grounds thereof. ...

The statute does not allow for just anyone to appeal a development decision, baby-on-hip or no. In legal terms, an "aggrieved" person or party isn't simply someone who's aggravated -- it's "a party with a legally recognized interest that is injuriously affected esp. by an act of a judicial or quasi-judicial body and that confers standing to appeal," according to a typical definition (at http://dictionary.getlegal.com/party).

Exactly what kinds of "interest" and "standing" qualify a citizen -- or in legal parlance, a "third party" -- to appeal a development approval will need to be debated and defined, with the aid of legal experts, as the DMP proposal undergoes further examination and discussion. But confining "aggrieved persons" to owners of property directly abutting the development would be far too restrictive, in my opinion.

Several out-of-state cities provide broader definitions of aggrieved persons eligible to appeal. Burlington, Vermont, allows "the applicant, the city, an adjacent property owner, or a group of any 10 Burlington citizens" to appeal a decision by its Development Review Board. (http://www.ci.burlington.vt.us/planning/dguide/drb.pdf)

Bellevue, Washington, mandates that "only those persons who submitted comments prior to issuance of the decision may appeal unless a showing is made to demonstrate that environmental issues raised in the appeal were not known to the appellants and could not reasonably have been known to the appellants in time to submit comments." (http://www.bellevuewa.gov/bellcode/bellcc22.html#22)

But I have not found any NC cities so far whose eligibility requirements go beyond the state's terse "any person aggrieved" and "officer ... of the city" requirements. [However, court rulings on whether private citizens have standing to challenge city zoning-law proceedings, such as the oft-cited Taylor v. City of Raleigh, 227 S.E.2d 576, 583 (N.C. Ct. App. 1976), imply that "private individuals" do have the explicit right to appeal if a city's ordinances give them "specific statutory authority to do so."]

Finer points aside, it seems clear that the same NC state law that gives developers the right to appeal a development-review decision also gives aggrieved citizens the same right. Other NC cities whose development statutes I've researched -- notably Raleigh, in Sec. 10-2142 of its municipal code, and Durham, in Sec. 3.16 of its code -- adopt the "any person aggrieved" language from NCGS § 160A-388 into their ordinances governing appeals, and Asheville would be wise to do likewise if we accept the three-tiered appeal system recommended by Goody-Clancy. If the city restricts the right of appeal solely to developers, I believe it would open itself up to a lawsuit on the grounds of violation of state law.

Finally, the cities I've examined allow anywhere from 10 to 30 days after a decision for an appeal to be filed. All information about the case is forwarded (often by the Planning Director) to the body that will hear the appeal, which typically is required to give public notice of the appeal and hold a public hearing at its next meeting.

I'll be happy to provide any further information requested, if possible.

-- Steve Rasmussen
15-year resident, West Asheville
(828) 335-2486
stevencrasmussen@gmail.com
www.oldenwilde.org

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2. Address to Asheville City Council

Given by Steve Rasmussen at May 26, 2009 public hearing on approval of Downtown Master Plan

Although I support much of the Downtown Master Plan, like many other Asheville residents who want to see our development-review process made genuinely transparent and fair, I have some reservations about some of the changes proposed under Strategy 6.

Some claim that these changes are intended to “take the politics out” of the process by shifting development approvals into the hands of experts and rulebooks, but the reality is that politics will always play a role in decisions in which millions of dollars and the quality of our lives are at stake. The true question is whether those politics are just and representative of everyone's interests, or too easily manipulated by wealthy special interests. That's why America's founders wisely modeled our republic, not on Plato's ideal republic of the best and brightest enforcing their vision of what's best for everyone else, but on a carefully counterpoised system of checks and balances, where the buck ultimately stops with elected representatives of the people. The public, after all, is the ultimate stakeholder in a development approval, since it's the public that has to live with the consequences for many years after the developer has done his work and moved on.

In that light, there are two main issues here that need to be pulled out for further study and debate. The first is the degree of authority this plan would transfer from our elected City Council to an appointed Planning and Zoning Board. The County has a board with that kind of authority, and its problems are well-known – all of its members work for the very real-estate and development industry they are supposedly regulating, and appointments to the board have traditionally been unduly influenced by interests that have lots of money to use to put pressure on the County commissioners who appoint them. If we take this step, we would need to closely re-examine the structure of our P&Z board, the diversity of interests appointees need to represent, and whether we should have County appointees serving on this City board as we currently do.

But that brings me to the second issue. An even better check-and-balance on such a Planning and Zoning board would be a fair and well-defined procedure for appeal of a development APPROVAL. Right now this Master Plan allows only for developers to appeal a denial of their project to City Council. It's only fair – and legally just – to allow city residents affected by a proposal to appeal its approval. State law allows “any person aggrieved” by a city board's development decision to appeal it to a higher authority; and although I've found in my research into this that the question of who has legal standing as a “person aggrieved” is a very thorny one, I've also found that case law appears to acknowledge the right of the city to answer that question in its ordinances.

For now, I propose adding the following language to the Master Plan on page 11, for Strategy 6. To Item J., which says:

Let's add:

And then let's ask our City Attorney and other interested parties to research this issue further, then bring it before City Council and the public for further review.

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3. Letter to Citizen Activists

March 19, 2009

The Downtown Master Plan would give developers the right to appeal a negative ruling on their project to City Council. That needs to be balanced by giving the public the right to appeal a positive ruling on a bad project to City Council. There needs to be a way for Asheville as a community to "pull the fire alarm" on a project that's plainly inappropriate but still slipped through the net.

Granted, these are on the whole good guidelines, and they should go far toward preventing future Parksides or BB&T Buildings. And one very wise thing they would mandate is that developers meet and discuss their plans with the public at the very beginning of the review process, which up till now has been only recommended in the UDO, not required. Developers who've done so have found that the public has excellent suggestions and important concerns, and when the developer incorporates them his project sails much more smoothly to approval.

But what ensures that the developer keeps his promises? Look at the case in West Asheville where the developer of a condo project going up on the site of the old St. Joan of Arc Catholic School agreed to a community request that he preserve the old church where a lot of locals had been married, baptized, etc.

Then, claiming it had been vandalized, he bulldozed the church without giving the community a chance to save or fully salvage it.

Multiply this by the many times in recent years developers have betrayed the public's trust -- shown outright contempt for us, in fact -- and you can see why we demand teeth in making them comply with their promises.

Developers claim, "It's my private property, I should be able to do what I want with it." That's a selfish view. This isn't about your right to paint your front door purple or dry your underwear on your balcony. Big buildings affect everyone -- they change the view, the traffic, the environment, the very look and feel of Asheville. We shouldn't have to camp out in front of City Hall to stop an obvious atrocity from being built.

In arguing for a public right to appeal, I've been told we should trust "the experts," the urban planners and planning boards. And the Master Plan would widely expand the powers of the city's Planning and Zoning Commission, transforming it from a merely advisory body that makes a recommendation for or against a project to City Council, into the final granter of approval for buildings from 20,000 square feet up to 175,000.

The assertion I've heard is that this takes development approval out of the unpredictable, "political" arena of City Council and puts it in the predictable, "professional" hands of people with planning and building degrees and experience, who would follow a clear set of requirements in judging each project.

Trouble is, these experts would be appointed, not elected. That puts them a step removed from accountability to the public. And as soon as you give P&Z real power, watch the sharks begin to circle City Council, which would make the appointments. It's no secret that developer money has long dominated our local elections, and you can see the effect on Buncombe County's appointees to the county P&Z, which does have real authority to set and enforce regulations. There, you've got a board that's 100% filled with people who are employed in the development and real-estate industry. Many served a full term past the end of their official term recently, and they are notorious for rubber-stamping sprawl and slack enforcement of regulations such as steep-slope controls that developers don't like.

Experience shows that no matter how careful we are about getting the right regulations in place, it's just too easy for a developer to sway his professional colleagues on a regulatory board into granting him variances and exceptions to the rules. They sympathize with him because they ARE him.

It's this revolving-door of insiders that put, for example, the president of a peanut company who is alleged to have knowingly shipped salmonella-tainted peanut butter on the national board that regulates peanut-butter safety!

That's why, in a democracy, the public must be the final safety check. Of course, a public right to appeal must be fair -- you don't want any old guy with a grudge (like, say, a business rival of the developer's) to be able to sabotage a project at will. Depending on what state and local laws allow, a strong but fair public-appeal mechanism might be based on a petition process, similar to Asheville's current process for re-zoning appeals (if a certain percentage of neighboring property owners sign a valid protest petition, C.C. can approve the re-zoning request only by a 6-1 "supermajority"). Or it could be based on appealing variances and exceptions, or grounded in the requirements and recommendations incorporated into the UDO -- or a combination of all of the above.

-- Steve Rasmussen

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