Caledonia Loophole

Issue

Two unintended faults in the Unified Development Ordinance (UDO) were identified by the Caledonia Apartment project in Kenilworth. The Caledonia Apartment project which is adjacent to residential zoning in Kenilworth was unanimously denied a conditional use zoning request by City Council (date?) for a 100 unit building.  However, the developer immediately turned around (date?) and split the project into two 50 unit buildings separated by 501 ft and then resubmitted it as a Level 2 project which only required TRC (Technical Review Committee) approval.  Another issue with the project was that it was made possilbe by a zoning pocket which no longer meshed with surrounding zoning and should have previously been updated.  The Citizen Times article on the Ordinances Pass page is a good review its passage and  implications.

Proposed Ordinance

As discussed in the Staff Report to City Council and further explored in the CAN Q&A, the ordinances would make it harder to divide larger development projects into smaller pieces as a means to reduce the review threshhold and effectively circumvent intended Council review and/or conditions designed to mitigate the impact of larger projects.  

The first and second ordinances read as follows with underlines being additions and _{bold subscripts} being deletions.

1. No application for approval of a _{conditional use} development project (conditional use, site plan, project plan) under any approval process (Level I, Level II, or Level III), shall be filed with or accepted by the planning and development department if that project _which is identical or substantially similar to a conditional use or conditional zoning application which has been denied by the city council within one year of the final action by the city council denying the request.
2. Properties not adjoining or fronting single-family zoning, that are within 500 feet of each other, under the same ownership and/or developed by the same developer over a period of three years or less shall be considered to be one development and reviewed as such. Properties adjoining or fronting single-family zoning, located within 1,500 feet of each other, under the same ownership and/or developed by the same developer over a period of three years or less shall be considered to be one development and reviewed as such.

Per the Staff Report:

Pros:
• Will protect the intent of the Council when they deny a conditional use application, and
• Will better protect residential areas from inappropriate higher density/higher intensity development
Cons:
• Will limit development options for properties that were denied a conditional use approval, and
• Will put some additional limits on property in residential areas

Public Votes

The Planning and Zoning Commission (P&Z) and City Council (CC) reviewed and voted on the ordinances as follows:

Per the Staff Report to City Council P&Z voted 4-0 and 2-2 to deny these ordinances because:

The Planning & Zoning Commission reviewed these proposed amendments at their January 20 meeting. With 4 of 6 current commissioners present, they voted 4-0 to not support the first amendment (related to applications similar to denied proposals), and 2-2 on the second amendment (separation requirements). Because these amendments were initiated by the staff, they proceed to the Council with these recommendations.

The Commission generally seemed to express concern that the proposed amendments were too closely related to the recent Caledonia project, and needed more time and thought to consider what “unintended consequences” they might cause. Two commissioners supported the change to the separation requirement, supporting the staff position that the UDO change that decreased the separation requirement was not intended for locations that adjoined residential neighborhoods, but for commercial areas.

Per Barber Melton who represented CAN at the City Council meeting: Mayor Bellamy voted no claiming that the vote had been too rushed and that she feared that the Caledonia Attorney would sue the City; Jan Davis claimed he voted no for the same reason that Mayor Bellamy did; and Bill Russell voted no which was no surprise.  Mayor Bellamy's concern about the city being sued did not make sense to Barber because this development has already been approved by TRC, and unless they can not meet the 103 Conditions placed on them by TRC, then they will get a Building permit.  See CAN Q&A for further exploration of Mayor Bellamy's reasoning.

The P&Z minutes for the appeal of the Caledonia Apts TRC approval can be found here. 

CAN and Neighborhood Action:

The Kenilworth Neighborhood Assocation who is a member of CAN has been extremely active, present, and professional through all stages of the Caledonia project and in support of these ordinances.

The CAN Board passed the following CAN resolution which Barber Melton, VP of Government Affairs, presented at the February 8th City Council.  The vote record by neighborhood is included below.

"The Coalition of Asheville Neighborhoods' (CAN) Board of Directors which is comprised of representatives from each member neighborhood enthusiastically supports the two ordinances to modify the development process with regards to resubmittal of denied conditional use or conditional zoning projects and to increase separation requirements for developmnets adjacent to single family neighborhoods.

The CAN Board of Directors additionally encourages City Council to support Staff in their continued review of pockets of zoning near single-family zoning which no longer make sense in light of surrounding development."

For the February 22nd City Council vote, CAN is continuing to educate the community about the issue and encouraging neighborhoods and neighbors to write their City Council members and/or attend the City Council meeting to support these ordinances.   

                               Vote Record