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Thompson v. City of Asheville

Is there more to this story?

By Leslee Kulba- At the last meeting of Asheville City Council, Joe Minicozzi, an urban planner who has been representing Reid Thompson in an ongoing property rights dispute, placed a copy of North Carolina General Statutes, Chapter 14, Section 14-230 (a) on the overhead and said a few words

Asheville’s former BB&T Building

He then remained silent so people could read the excerpt for the duration of his allotted 3 minutes. The strategy implied there would be more legal action if the city did not remedy the problem. When city staff does not articulate its motivations, citizens are left to wonder.

Urban Renewal?

For those unfamiliar with the matter, John Swann, a buy-local, natural food grocer, went into business with Chuck Pruitt of Chattanooga to open Greenlife on Merrimon Avenue. While nobody complained about having a fresh food market within walking distance of their homes, there was considerable outcry when the store opened in 2004. It was the usual NIMBY concerns about noise and traffic, and soon after opening, Swann reported spending $100,000 trying to mitigate neighborhood concerns.

Four years before that, when the area was blighted and homes could be purchased for $20,000-$80,000, Reid Thompson, a real estate investor, purchased a lot of run-down houses on Maxwell Street. Fixing them up for rental not only was a profitable venture for Thompson, it revitalized the old neighborhood and furthered what would later become a recurring strategic priority of city councils for years: increasing affordable housing stock. At the time, Thompson said he literally had to chase prostitutes off his property.

Across the street was a low-impact business. As Minicozzi described it, “The use before Greenlife was the Visiting Health Professionals. Basically, a bunch of on-call nurses. The nurses (best that I know) never had tractor trailers, pumper trucks, or even a dumpster.”

The problem with Geenlife/Wholefoods was, and remains, the preposterous approach to its loading dock. To get there, tractor trailers and grease trucks must drive down Maxwell Street, a narrow, tree-lined road with old homes, and back into a lane that runs parallel and practically adjacent to the road to reach the dock. Big trucks, of course, make an obnoxious beeping noise when they back up, a point driven home by the fact people in the council chambers quake in their boots when Thompson shows up, lest he air another recording of sounds from his street during public comment.

Today, from the outside, the dock looks makeshift, like something one would see in a hippy commune. A wooden fence, which screens sights if not sounds of beeping, slamming metal, and pumping grease from the residences, is painted powder blue with something like an abstract mushroom design. At the corner of Maxwell and Marcellus, the smell of ripe trash could compete with that of downtown LA on a hot summer night.
Neighbor Velvet Hawthorne likes to recall the time a truck smashed into her new car and dragged it down the road; another neighbor, Brandee Boggs, describes trucks hitting cars parked legally in the street as a common occurrence.

Minicozzi recounted Greenlife couldn’t put the dock where it made sense to them because city staff did not have the authority to approve something that, “expanded the nonconformity” that could be grandfathered-in, even though uses cannot be grandfathered after a lapse of 180 days, and the lapse had been 12 years. Then, Minicozzi said plans for the existing dock configuration were approved by staff over a weekend, with neither a board of adjustment hearing nor pursuit of alternative compliance, one of which would be required for removing the mandatory buffer.

The UNC School of Government agreed that, among many “errors” made by the planning department while approving the project, both the location of the dock and the use of a residential street violate the UDO.

Thompson sued the city and Greenlife in 2007 as a means of bringing the property into compliance with the UDO, but the city briefly denied all counts, and the case was dismissed. Thompson’s appeal was also denied because the statute of limitations ran out, but Thompson argues he waited so long because he was waiting to first hear from the city whether or not staff would initiate remedial measures without the appeal.
Retaliation?

In the meantime, then City Manager Gary Jackson banned Thompson from city properties. Thompson, both hot-headed and provoked, was accused of screaming, cursing, and “on one occasion, following a staff member [Planner Shannon Tuch] down the street.” Then Police Chief Bill Hogan couldn’t comment due to the lawsuit, but referred the press to Thompson’s criminal record.

Thompson’s record showed he had, in the past, pled guilty for things like possessing pot for personal use and driving with an open adult beverage; and had charges dismissed for reckless driving, making a harassing phone call, and failing to wear a seatbelt. Charges that weren’t dismissed pertained to confrontations at Greenlife, even though videotapes taken by Thompson have suggested conclusions different from those of the justice system.
A search of the criminal record revealed nothing to disqualify Thompson as a landlord or deny him the right to appeal to the city for redress of grievances. Representing Thompson, attorney John Gresham described the city’s action as “retaliatory.”

Fast-forwarding to 2010, Swann’s partner sold the company out from under him to Whole Foods, owned by Jeff Bezos of Amazon fame. This prompted locals, like columnist Jason Sandford, to appeal to Bezos to invest a pittance of his resources in some community-building. Others suggested it would be easier for the big company to just build a superstore in another part of town. It did, but the neighborhood store, and all the drama, abided.
The property remains in the ownership of the family of Representative Brian Turner, d.b.a. Merrimon Avenue Investments.

And, while numerous allegations have flown that city council is in the deep pockets of the power structure, the Turners have, in turn, passed responsibility for compliance off on their property manager, Leslie & Associates. Furthermore, members of council have advocated for remediation since the days of Robin Cape, who asked how one is supposed to know a sign banning 10,000-pound trucks doesn’t ban 10,000-pound trucks; Bryan Freeborn, who suggested physically closing the Maxwell Street access; and Brownie Newman, who explained early on that city council does not have the authority to tell staff how to do its job.

Maxwell Street is now a loading zone, according to posted signs. Multiple signs banning trucks weighing more than 10,000 pounds are still there, too; but former City Attorney Bob Oast long ago explained trucks, like moving trucks, are allowed to use the street if they have to, and the rules say Maxwell Street is the approved route of ingress and egress to the loading dock. In other words, only semis joy-riding through the neighborhood on a lark are not allowed.

Perpetual [Public] Works?
There are also rules against trucks blocking sidewalks, so neighborhood advocates tried engaging law enforcement to reclaim the residential feel of the street. Thompson repeatedly videotaped trucks on the sidewalk, and neighbors asked for enforcement of the rules. The city responded, stationing a cop on the street, and Thompson was cited for allowing an untrimmed bush to encroach 8 inches over the sidewalk.

An inquiry from Councilor Julie Mayfield last November showed that within less than a month, 44 vehicles were cited on the street, 39 of which were cars. Multiple requests for the number of trucks servicing Greenlife that were cited apparently went unanswered, but Minicozzi doesn’t believe any were.
Looking at the numbers, Councilor Brian Haynes stated, “When council asked that violations be enforced on Maxwell Street, it was meant to address Whole Foods violations, not to further disturb the quality of life for the residents. I am extremely disappointed in how we’ve dealt with this matter and think more often than not the wrong parties have been targeted.”

If You Can’t Beat ’Em –
Thompson’s next move in the game of, “I fight authority, authority always wins,” was to convert his properties into Airbnbs and then get the use grandfathered-in. He argued no renter wanted to put up with the truck traffic and noise for more than a few days.

That did not go smoothly, either. There was the usual request to resubmit plans in accordance with the pattern followed in the first submission kind of thing. But Minicozzi was disappointed to see Tuch remained involved in the approval process following his request that she not be due her involvement and oversight in the “erroneous Greenlife approvals,” and a failure to “follow through with the remediation options” the public had been led to believe were forthcoming.

In addition, Minicozzi said the city consequentially downzoned Thompson’s property while the application was underway. Supplying before-and-after zoning maps in a file entitled “Map Messing,” he argued, “Staff tampered with a piece of our evidence, and never told us they were doing it.” As an aside, Minicozzi noted, by the same map amendment, parcels owned by Chris Peterson and Jim Seimens, “both of whom have beefs with the mayor and city staff,” were also downzoned.

Thompson’s application was, of course, denied. Reasons cited included the traffic and noise short-term rentals would add to a residential area. Mayfield at the time indicated Thompson was taking an obtuse tack to fixing the unacceptable situation with Whole Foods.

The last time anybody counted, Thompson, had racked up around $1,000,000 in fines for operating short-term rentals without council approval. He further refuses to pay, citing the city’s selective enforcement of its codes and ordinances on only one side of the street, something Minicozzi has suggested could constitute a 14th-Amendment violation.

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