City Manager Gary Jackson confirmed May 5 that the grading plan used by the contractor, which had been approved by the city Engineering Department, is inconsistent with the site plan approved by City Council. The grading plan calls for excavation within what's supposed to be a buffer zone.

In Asheville, lying down in front of construction equipment is the kind of thing that engenders breathless admiration from some folks, but Wallace says she didn't wake up that Monday intending to take the plunge into such flesh-and-blood activism. And even as the developer was trying to mend fences with both the city and the neighborhood, city staffers themselves seemed poised to be the next to feel the heat.

Both developer Greg Edney of Northwest Property Group and consultant Gerald Green have taken responsibility for communications breakdowns that resulted in the tree-shearing and have met with Fenner Street neighbors to come up with a landscaping plan to mitigate the damage. A first attempt, said neighborhood resident Kirk Wallace (who is Leigh Ann's husband), was scuttled because the proposed trees were too small. But a more recent plan including a detailed tree list seems to have patched things up somewhat.

Planning and Development Director Scott Shuford said May 3 that he expected to see the fruits of that agreement, including a corrected grading plan and site plan, any day. Shuford said he did not anticipate issuing any fines, unless "we find that the developer is resistant," adding, "There is no sign of that now."

But Asheville City council member Robin Cape said the city needs to step up and take its share of the blame. "I think the city has some culpability here: We issued a grading permit that was in conflict with the site plan," she told Xpress. "The developer has taken responsibility, and that's big of him, but we've got some responsibility to accept."

The situation, said Cape, is part of a larger trend of development projects that violate the intentions of City Council and the Unified Development Ordinance. "We do a very poor job of planning," she observed. "Things are going to break down."

The development was approved by the city last November after an extensive public-input process that gave neighbors a say in such key concerns as buffers, lighting and parking were determined, all with the input of residents adjacent to the site (674 Merrimon Ave.).

"I was in support of the project," said Kirk Wallace. "I felt that anything besides [Burger King] would be an improvement.

A similar misunderstanding developed earlier on the same site, when a small wooded area that was supposed to be preserved was also cleared.

Neighbors first caught wind of the contractor's plans to clear trees on Friday, April 30. Late-afternoon calls to City Council and staff yielded no results, said Leigh Ann. And when they heard the machines start up at the site Monday morning, the Wallaces and several other neighbors tried to stall the workers but were rebuffed. The site foreman, Kirk told Xpress, showed him a grading permit authorizing the work. After that the conflict escalated: Leigh Ann got in front of the backhoe, there were reports of physical threats, and then the police arrived.

Meanwhile, the neighbors were also calling the city. Initially they succeeded in stopping the digging on the bank, and a later order from Shuford's office halted work altogether.

Jackson said he is exploring ways to improve communication between city departments to head off a repeat of such problems.

– Brian Postelle