City Council regular meeting — March 9, 2021

Mayor Manheimer said that this public hearing was held on February 23, 2021, and in accordance with recent legislation amending North Carolina G.S. § 166A-19.24(e), regarding public hearings conducted during remote meetings, written comments for this public hearing were accepted for an additional 24 hours. Hearing no more public comment, Mayor Manheimer closed the public hearing and said that members of Council have previously received a copy of the ordinance and it would not be read.

Mayor Manheimer said that City Council recently unanimously adopted a legislative agenda. What was not on that agenda was the selection process for the School Board members because it was uncertain whether Council supported moving forward with an elected School Board. She noted there are only two school boards in the State of North Carolina, including Asheville’s, whose members are appointed by the governing board. Since a change in the selection process requires a State legislative change, our actions today are just to indicate our support for or against an elected school board. From a timing standpoint, the earliest we could expect action would be the 2022 election cycle. She asked the City Attorney to draft two options

• one of which is a hybrid model which would move us to an elected and appointed School Board. The other is a fully elected School Board. She asked that Council vote on both options simply because we are not sure the hybrid model is legally allowed; and if it is not allowed, we need to give the legislative delegations some options. In response to Councilwoman Kilgore, City Attorney Branham said that all the other elected school boards in the state were either established as an elected school board from the beginning or were moved to that mode by State legislation. In response to Vice-Mayor Smith, City Attorney Branham updated Council on the possibility of a hybrid model. He said there currently is no other model existing in the state using a hybrid model; however, there is some limited precedent. When you go back to the late 1970’s, the City of Whiteville, which is fairly small, actually had a school board which had some appointed members
• oddly enough appointed by the General Assembly and not by the local government. But they also had elected members as well. So, there is some precedent in this. There is no specific authority granted in the State statutes. What we do know is there is no prohibition against having a hybrid model. He believed there is a good chance, given the precedent and the lack of prohibition against doing it, that a hybrid is a viable model. Vice-Mayor Smith favored a hybrid model for a seven member board, four of the members to be elected by the residents of the Asheville City Schools District and three members still being appointed by City Council, with the chair to be selected by the entire board. City Attorney Branham responded to Vice-Mayor Smith when she asked about the election methodology. In response to Councilwoman Roney, City Attorney Branham said that the membership of the School Board does not hinge on our population.

Background:

• An existing gabion basket retaining wall system is failing and is causing erosion along the stream bank in a section of the Dingle Creek watershed in the Pebble Creek Condominium Neighborhood.
• The identified project is inside an existing Stormwater Easement for which the City has maintenance responsibility.
• The existing retaining wall system must be replaced with a more sustainable wall and stream design before there is damage to the adjacent buildings or existing utilities.
• The bid was advertised on January 21, 2021 with a due date of February 11, 2021.
• Eleven contractors attended the non-mandatory pre-bid meeting.
• A formal virtual bid opening was held at 3:00 PM on February 11, 2021.
• Bids were reviewed on February 11, 2021. The following seven (7) bids were received:
• Austin Construction and Grading Company of Pisgah Forest, NC at $295,680;
• K&T Construction Company, RLLP of Green Mountain, NC at $378,057.88;
• B.H. Graning Contracting Inc of Sylva, NC at $381,618;
• Piedmont Utility Group, Inc of Mooresboro, NC at $429,528.49;
• RPM Partners, Inc of Kernersville, NC at $448,251;
• J. Bartholomew Construction, LLC of Hendersonville, NC at $487,110;
• Baker Grading & Landscaping, Inc of Old Fort, NC at $799,500.
• The lowest, responsive, and responsible bidder was Austin Construction & Grading Company.
• Construction is anticipated to start around the first week of April, weather permitting.
• The project should be completed in approximately five months.

Vendor Outreach Efforts:

• The City’s Goal Setting Committee has set an annual aspirational goal for construction projects at 4.6% MWBE participation, in alignment with the City’s Business Inclusion Policy.
• Staff performed outreach to minority- and women-owned businesses through solicitation processes which include posting on the State’s Interactive Purchasing System, the City of Asheville website, the City of Asheville Twitter account, and requiring prime contractors to reach out to Minority & Women-Owned Business Enterprise (MWBE) service providers for subcontracted services.
• The Stormwater Capital group also reached out to MWBE contractors that were identified through Yoruba Life, NCDOT HUB certified website, and The Color of Asheville directory.
• Past contractors who have shown interest in bidding on City of Asheville projects were informed about the project’s advertisement.
• During preparation for advertising this contract, the contract was shared with the Business Inclusion Manager in the Community & Economic Development Department.
• Out of the seven (7) bids received, two (2) bidders self-identified as MWBE business owners; three (3) bidders had incomplete ABI Affidavits where they did not designate if they are MWBE firms or not; and two (2) bidders represented that they would be utilizing MWBE sub-contractors.
• The lowest responsive, responsible bidder does not self-identify as a MWBE firm.
• Although the lowest responsive, responsible bidder is not utilizing a MWBE subcontractor, the Asheville Business Inclusion Office (ABI) reviewed the bid submission and found that adequate documentation of outreach for MWBE subcontractors was provided.
• The two prime contractors that self-identified as MWBE firms were not selected because their bid amounts were significantly higher than the lowest responsive, responsible bidder, and would have put the project over budget.
• One of these two bidders was determined to be non-responsive during review by the ABI Office. Committee(s):
• None Pro(s):
• The contract will address severe erosion at the base of the existing gabion wall structures that has resulted in stream bank failure and potential risk to the adjacent condominiums due to their proximity to the stream.
• The new wall system and flow control measures to be installed are more sustainable and will improve conveyance and safety for the surrounding structures. Con(s):
• Construction may be somewhat disruptive to nearby residences. Efforts will be made to notify the residents and minimize disruptions.

Fiscal Impact:

• Funding for this project is budgeted in the Stormwater Capital Fund.

Background:

• Asheville Rides Transit (ART) service continues to be impacted by the COVID-19 event.
• Capacity limitations on buses, in place since March 2020, and occasional driver shortages from COVID-19, have resulted in routes being suspended and/or passengers being left behind.
• During July 2020, the City contracted with Young Transportation Inc. for $962,000 to assist ART by providing supplemental transit operations on the highest ridership routes and by filling in for drivers impacted by COVID-19.
• During October 2020, the City amended the contract with Young to add $560,000 to the contract and extend the term to March 31, 2021.
• During April 2020, $3.668 million in CARES Act funds were allocated to the City to assist with transit operations.
• These funds have been used to fund the contract with Young Transportation, provide additional cleaning and personal protective equipment, provide bus barrier doors, provide a one-time bonus for front-line/on-site ART staff, provide administrative leave for ART staff impacted by COVID-19, and to cover fare loss and the loss of state transit funds (SMAP).
• All of the CARES Act funds have been expended.
• The paratransit budget for the current fiscal year was approved at $1.7 million; however, paratransit service has decreased substantially due to the COVID-19 event so the expected cost for paratransit this fiscal year is estimated to be between $675,000 and $725,000.
• The anticipated savings in the paratransit budget could be used to offset the cost of the current amendment. Committee(s):
• None Pro(s):
• Continue providing supplemental transit service through the end of the current fiscal year.
• Able to provide increased passenger capacity.
• Able to “fill-in” when ART drivers are sick. Con(s):

None Fiscal Impact:

• Until this time, the City has used CARES Act funds to fund the Young Transportation contract, however CARES Act funds have been depleted.
• Savings from the paratransit budget are proposed to be used to fund the additional Young Transportation service.

Background:

• The French Broad River Greenway West will connect the French Broad River Park to the existing greenway that terminates at the Haywood Road Bridge.
• This will be a 1.02 mile paved greenway extension that further enhances the pedestrian and bicycle infrastructure constructed with the RADTIP project.
• A 2018 Federal Grant will be paying for 80% of the construction costs for this project through the N.C. Department of Transportation.
• The Construction schedule is anticipated to begin April 2021 and end in June 2022.
• Duke Energy Progress, LLC owns the majority of the property that this greenway will be constructed on.
• The City of Asheville holds a lease for the public recreation and greenway purposes.
• Duke Energy Progress has notified the City that the camping on the path has created a safety hazard in that it does not allow them to access the transmission lines in the event of an outage or a fire at this location.
• Additionally, the City has concerns over the safety of individuals during the construction of the greenway which is tentatively scheduled to start in April.
• Asheville Police Department’s policy on homeless persons related to encampment procedures provides seven days to vacate the property.
• For this particular project, we are proposing a 30 day notification period.
• One of the terms of this lease stipulates that the lessee (the City of Asheville) shall be “solely responsible for maintaining and securing the Leased Premises against the activities of trespassers (such as unauthorized campers).”
• No less than two weeks prior to starting construction, the City of Asheville and other community resources will work with the existing unauthorized campers to find alternative accommodations to abide with the terms of the property lease and avoid any dangerous conditions with the greenway construction.
• Nine bids were received and formally opened on January 28, 2021.
• The resulting bids (including bid alternate 1-parking improvements at French Broad River Park) are listed below: Contractor Location Amount
• Tennoca Construction Candler, NC $ 6,089,292.25
• Baker Grading and Landscaping Old Fort, NC $ 5,569,609.00
• TP Smith Construction Forest City, NC $ 5,161,455.41
• Dane Construction Mooresville, NC $ 4,534,397.60*
• Buchanan and Sons Whittier, NC $ 4,167,037.00
• NHM Construction Asheville, NC $ 3,739,376.00
• Bryant's Land Development Ind. Burnsville, NC $ 3,349,850.40
• IPC Paving, LLC dba IPC Structures Hendersonville, NC $ 3,252,544.00
• Penland Contracting Company Franklin, NC $ 2,217,796.75* improper bid form was used for two bids listed above, which deemed these two bidders non-responsive.

Vendor Outreach Efforts:

• With all Federally funded projects, the Disadvantaged Business Enterprise (DBE) program is required.
• The federally established DBE goal for this project is 5% participation.
• Staff performed outreach to minority and women-owned businesses through solicitation processes which include posting on the State’s Interactive Purchasing System.
• IPC Paving’s bid includes 5.36% DBE participation.
• This DBE participation is achieved by utilizing JLS Company, LLC from Skyland, NC as a subcontractor. Committee(s):
• None Pro(s):
• Federal funding will be covering approximately $2.8M of the expected total $3.5M in construction cost.
• This project will finish a one mile long gap between two older sections of the French Broad River Greenway creating a four mile stretch of continuous greenway along the river through four parks.
• It will also pave the 0.02 mile long dirt trail underneath the Amboy Road Bridge. Con(s):
• The project construction area will cause a temporary disruption to individuals that are actively using the area.

Fiscal Impact:

• Funding for this project will come from the previously approved existing CIP budget.

Background:

• On October 27, 2020, City Council adopted Resolution No. 20-188 authorizing the City Manager to apply for and accept, if awarded, grant funding from NCDEQ to provide outreach and education to increase backyard and community-based composting.
• NCDEQ selected the City of Asheville proposal for funding for Fiscal Year 2021.
• The Backyard Composting Grant grant award is for $18,000 and requires a 20% match. The match of $3,600 will be split evenly between the Office of Sustainability and the Public Works Sanitation Division.
• This budget amendment will move the matching funds from each department to a project budget along with the grant funds. Committee(s):
• None Pro(s):
• Helps support the City’s waste reduction goal while leveraging state funding. Con(s):

None Fiscal Impact:

• A cash match of $3,600, or 20% of the requested grant funds of $18,000, will be provided from the Sanitation Division ($1,800) and the Office of Sustainability ($1,800).
• This budget amendment moves the matching funds and grant funds into a Special Revenue Fund budget.

Background:

• At its January 12, 2021, meeting, City Council adopted the Fiscal Year 2021-2022 (FY22) Budget Calendar.
• Since adoption of that calendar, City Council’s meeting schedule has been revised to move the Council Retreat from February to either late March or early April.
• In order to allow for time to incorporate input from the Council Retreat into the budget process prior to submission of the City Manager’s Proposed Budget, staff is recommending changes to the calendar.
• Changes to highlight include:
• Formal presentation of the City Manager’s Proposed Budget moved from May 11, 2021 to May 25, 2021.
• The Public Hearing on the Proposed Budget moved from May 25, 2021 to June 8, 2021.
• Budget adoption moved from June 8, 2021 to June 22, 2021. Committee(s):
• None Pro(s):
• Provides City Council, staff, and the community with a revised calendar of upcoming dates related to development of the FY22 budget. Con(s):
• None.

Fiscal Impact:

• None.

Background:

• The current pressure reducing valve (PRV) located near Windy Gap Road in the upper region of Haw Creek Valley was installed in 1990.
• The current water pressure entering the PRV is approximately 265 psi at any given time.
• The pressure is extremely high due to the elevation difference from the Peach Knob storage tank to the PRV.
• The PRV reduces the pressure to approximately 70 psi as it flows down into Haw Creek Valley.
• Due to the age and condition of the current application, it has reached the end of its life cycle.
• Water Resources staff is observing an upward trend of pressure leaving the PRV which means the current valve is slowly failing.
• The existing installations have fulfilled their useful life.
• Given the condition of the equipment and the design and installation constraints of these sites, the PRVs are unsafe and present a hazard to City infrastructure, City staff, and private property due to impending failure.
• In the event the Upper PRV fails completely, there are approximately five miles of infrastructure and 47 houses that would be compromised with pressure that would be too great to sustain.
• In 2019, Water Resources Department staff began working in collaboration with the engineering firm Cavanaugh and Associates to develop a plan to implement a new application at the previously mentioned sites. The outcome of this plan was the recommendation of a full replacement of the PRV. The recommended mechanism for installation was utilization of a third-party contract installer, procured through a formal bid process.
• The contract duration is scheduled to last no longer than 150 consecutive calendar days.

Formal Bid Process:

• Staff performed outreach to minority-and women-owned businesses through the solicitation processes which include posting on the State’s Interactive Purchasing System and requiring prime contractors to reach out to Minority & Women-Owned Business Enterprise (MWBE) service providers for subcontracted services.
• No Minority & Women-Owned Business Enterprise (MWBE) firms submitted bids.
• Three firms submitted bids for this project:
• TP Howard, Fairview, NC
• $240,000
• Carolina Specialties, Hendersonville, NC
• $206,724
• Cooper Construction Company, Flat Rock, NC
• $124,625
• Cooper Construction Company was deemed the lowest responsive responsible bidder.
• The RFP was released prior to the January 1, 2021 Business Inclusion Policy effective date.
• The bid was deemed responsive by acceptable minority business outreach efforts in place at that time. Committee(s):
• None Pro(s):
• Safeguards City infrastructure along with 47 private homes from impending damage and liability.
• Sustains the integrity and reliability of the water system.
• Progresses the City toward updating its aging infrastructure, which will ultimately result in higher confidence by customers and stakeholders. Con(s):

None Fiscal Impact:

• The funding needed for the contractual agreement is currently allocated within the Water Resources Capital Improvement Project Fund in the Meter/Vault Repair budget line item.

Principal Planner Shannon Tuch said that this is the consideration of an amendment to the Unified Development Ordinance Articles V, VIII, XI & XII related to discretionary decisions in order to bring the City’s development code into alignment with recent state legislation. This public hearing was advertised on February 26 and March 5, 2021. Background:

• 160D refers to a new chapter in the North Carolina General Statutes (NCGS) that reorganizes the land use regulatory laws of the State and came into effect through Session Law 2019-111 “AN ACT TO CLARIFY, CONSOLIDATE, AND REORGANIZE THE LAND-USE REGULATORY LAWS OF THE STATE.”, adopted July 11, 2019.
• The purpose of 160D is to clarify and reorganize the land use regulatory laws of the State and is the first major recodification and modernization of city and county development regulations since 1905.
• The new 160D also consolidates these laws into one chapter in order to provide a uniform set of statutes applicable to both cities and counties (formerly found in Chapter 160A for cities and Chapter 153 for counties).
• Per Session Law 2020-25, local governments are required to enact zoning text amendments that align with 160D by July 1, 2021.
• 160D is comprehensive; therefore, City staff are addressing these revisions in sections, expecting to complete all necessary revisions by the deadline.
• This zoning text amendment is the third in a series of amendments and seeks to align the City’s UDO (Chapter 7) with 160D by removing the authority for staff to make discretionary decisions.
• This is achieved by either 1) removing the authority where it is not necessary; or, 2) adding objective criteria for certain decisions.
• Summary of changes: The majority of changes eliminate the language that authorizes a staff person to make exceptions or modifications to development standards.
• There are a few instances where objective criteria have been updated and/or added to provide flexibility under certain circumstances.
• These instances include:
• Sidewalk and open space fees-in-lieu (objectively identifying under what conditions a fee may be paid in lieu of constructing the sidewalk or providing open space)
• Setback and parking flexibility (allowing for minor reductions where commonly encountered constraints warrant)
• Table of permitted uses (establishing criterion on how to classify a land use not included in the existing table)

Comprehensive Plan Consistency:

• This proposal best aligns with the Living Asheville Comprehensive Plan theme of Responsible Regionalism that seeks to “improve Regional Collaboration, Coordination and Communication” by aligning the City’s development code with state statutes. (p. 288) Committee(s):
• The Planning & Zoning Commission reviewed this proposed amendment at their February 3, 2021 (public hearing) and February 5, 2021 (vote) meetings and voted unanimously (6:0) to approve the amendment. Pro(s):
• Proposed changes will align the City’s development standards, practices and procedures with newly enacted NCGS Chapter 160D.
• Clarifies practices and procedures for the development community and provides objective criteria where additional flexibility can be considered in the UDO.
• Reduces likelihood a legal challenge based on discretionary or subjective decisions. Con(s):
• None.

Fiscal Impact:

• None; however, the fees and charges manual for FY 2020/21 will be amended as part of the budget process to establish a fee-in-lieu option for sidewalk and related infrastructure construction. In response to Councilwoman Wisler, if we encounter any conflicts with 160D, we will identify them and remove them at a later date. If we find something has been omitted for change by July 1, 2021, then state law controls. Mayor Manheimer opened the public hearing at 6:23 p.m. Mayor Manheimer announced that there was one advanced live call-ins for this item; however, that person did not join into the meeting. In accordance with recent legislation amending North Carolina G.S. §166A-19.24(e), regarding public hearings conducted during remote meetings, written comments for the public hearing to amend the Unified Development Ordinance Articles V, VIII, XI & XII related to discretionary decisions, in order to bring the City’s development code into alignment with recent state legislation, will be accepted for an additional 24 hours. Therefore,

Streets Division Manager Chad Bandy said that this is a public hearing to consider permanently closing a portion of an unopened right-of-way known as Trade Street. This public hearing was advertised on February 12, 19, 26 and March 5. Background:

• N.C. Gen. Stat. § 160A-299 grants cities the authority to permanently close streets and alleys.
• Meinch Construction, Inc. has petitioned to close this right-of-way. They are the owners of 99999 Trade St, PIN # 9638-98-2756. Joining this petition are Butler and Celeste Wiltse. They are the owners of 28 Trade St., PIN # 9638-98-3860.
• This closure allows maximum land use potential for further development complying with Living Asheville
• A Comprehensive Plan for our Future.
• This closure allows for the development of 99999 Trade St by providing more room for construction by adjusting the property lines.
• The right-of-way is needed to provide the required screening in the back of the property for 4 residential units that will front on Roberts Street.
• A resolution to set this public hearing was adopted on December 8, 2020, and signs were placed at two locations along Trade Street. Committee(s):
• Multimodal Transportation Committee
• October 28, 2020: Supported closing the right-of-way by unanimous vote. Pro(s):
• The closure would allow for more efficient use of the existing adjacent properties.
• Meets Council’s goals to promote sustainable high density infill growth that makes efficient use of existing resources. Con(s):
• None noted.

Fiscal Impact:

• There will be no fiscal impact related to this closure. Mayor Manheimer opened the public hearing at 6:26 p.m. Mayor Manheimer announced that there was one advanced live call-ins for this item; however, that person did not join into the meeting. In accordance with recent legislation amending North Carolina G.S. §166A-19.24(e), regarding public hearings conducted during remote meetings, written comments for this public hearing will be accepted for an additional 24 hours. Therefore,

Interim Finance Director Tony McDowell said that this is the consideration of a public hearing to consider adopting the initial resolution for the 2021 Limited Obligation Refunding Bonds. This public hearing was advertised on February 26, 2021. Background:

• In May, 2018, Council authorized the issuance of a Limited Obligation Bond Anticipation Note in an amount not to exceed $48 million.
• Since that time, the City has drawn down $34.9 million on the loan.
• In order to refund the principal, the City intends to issue long-term, fixed-rate LOBS & SOBS Refunding Bonds in late April 2021.
• Projects funded with this debt issuance include TIGER VI construction in the River Arts District, Charlotte Street improvements, and the replacement of lighting at various parks facilities.
• The issuance of the LOBS Refunding Bonds requires a public hearing.

Council Goal:

• Financially Resilient City Committee(s):
• None Pro(s):
• Converts Limited Obligation short-term variable-rate debt to Limited Obligation and Special Obligation long-term, fixed-rate refunding bonds.
• Spreads capital costs over a longer term to better match assets’ lives. Con(s):

None Fiscal Impact:

• Annual debt service payments will increase because long-term fixed rates are higher than short-term variable rate debt. This increase is included in the City’s long-range financial model for issuing and paying-off debt. The final amounts of the new debt service payments will be determined on the bond sale date. Mayor Manheimer opened the public hearing at 6:30 p.m. Mayor Manheimer announced that there was one advanced live call-ins for this item; however, that person did not join into the meeting. In accordance with recent legislation amending North Carolina G.S. §166A-19.24(e), regarding public hearings conducted during remote meetings, written comments for this public hearing will be accepted for an additional 24 hours. Therefore,

Mayor Manheimer said that this public hearing was held on February 23, 2021, and in accordance with recent legislation amending North Carolina G.S. § 166A-19.24(e), regarding public hearings conducted during remote meetings, written comments for this public hearing were accepted for an additional 24 hours. Hearing no more public comment, Mayor Manheimer closed the public hearing and said that members of Council have previously received a copy of the resolution and it would not be read.

Mayor Manheimer said that this public hearing was held on February 23, 2021, and in accordance with recent legislation amending North Carolina G.S. § 166A-19.24(e), regarding public hearings conducted during remote meetings, written comments for this public hearing were accepted for an additional 24 hours. Hearing no more public comment, Mayor Manheimer closed the public hearing and said that members of Council have previously received a copy of the resolution and it would not be read.

Mayor Manheimer said that this public hearing was held on February 23, 2021, and in accordance with recent legislation amending North Carolina G.S. § 166A-19.24(e), regarding public hearings conducted during remote meetings, written comments for this public hearing were accepted for an additional 24 hours. Hearing no more public comment, Mayor Manheimer closed the public hearing and said that members of Council have previously received a copy of the ordinance and it would not be read.