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Monday, July 16, 2007
How Appalachian State University Operates, Part 2
The following history of university behavior toward the Town of Boone (exclusive of the proposed new College of Education, already detailed down-column) is compiled from publicly available documents:
CIVIL VIOLATION NUMBER 1 (TOB file AR2003-8)
January 9, 2003 ... Zoning Compliance/Permit application received by the Town of Boone for ASU's new central library project. Application filed by ASU consultants Site Solutions for both the library building and the adjacent parking deck. Grading compliance and floodplain compliance portions of the application have not been completed
February 4, 2003 ... Site Solutions resubmits a complete application
February 27, 2003 ... Town of Boone Development Coordinator David Graham writes Clyde Robbins, ASU Director of Design & Construction, a three-page letter outlining specifically why the proposed new central library project is being turned down for a building permit (the parking structure does not meet setback requirements, buffering and height requirements, is proposed to be built within the Howard Street corridor in violation of a previous agreement between the university and the town on a feasibility study for making Howard Street a thoroughfare, no traffic impact analysis has been done for the entire project, etc.)
February 28, 2003 ... George Cole, TOB Planning Supervisor, and David Graham meet with Clyde Robbins and Patrick Beville, project manager for the new library, to discuss the objections raised in David Graham's letter of Feb. 27
August 5, 2003 ... central library project manager Patrick Beville writes David Graham saying that the library project should be considered in two phases, that the parking deck will be completed as phase 2, and that ASU has decided to proceed with the library "based on the verbal approval provided by you and your office"
August 19, 2003 ... David Graham responds to Beville: "We do not recall making any statement regarding verbal approval for the Central Library .... when the office of Planning and Inspections approves or denies a particular project it is approved or denied in writing." Graham further points out that with the parking deck taken off the table, only three unresolved problems (regarding stormwater drainage) remain for the library. No building permit has been issued
August 27, 2003 ... ASU's contractor (Site Solutions) writes David Graham, asking that the stormwater requirements be "waived administratively"
September 3, 2003 ... David Graham replies to Site Solutions that storm drainage requirements cannot be waived administratively, that only the Board of Adjustment can grant a variance
October 7, 2003 ... TOB staff notes that the library is now under construction without a permit
October 22, 2003 ... TOB issues a notice of violation to ASU for beginning construction without a permit: "If the violations described in this Notice are not corrected within 15 days from [this] date ... the Town of Boone will take additional appropriate legal action against you .... Failure to correct the violation(s) listed above will subject you to penalties of $100.00 per day per violation effective upon receipt of this letter, plus court costs and attorney fees...."
November 21, 2003 ... ASU applies for administrative review by the town's Board of Adjustment, appealing the violation citation of 22 Oct. (This appeal has never been heard for reasons outlined below)
April 28, 2005 ... Site Solutions writes David Graham, revising the library plans with respect to stormwater drainage, addressing problems first raised by TOB on August 19, 2003
May 17, 2005 ... David Graham accepts Site Solutions' representations that the stormwater problems have been resolved for the new library, and he issues a TOB zoning permit for the construction of the new library approximately 567 days after construction began
May 20, 2005 ... David Graham writes library project manager Patrick Beville, pointing out that the notice of violation issued Oct. 22, 2003, for building without a permit, is still in effect and that ASU has now accrued a total civil penalty of $56,700
CIVIL VIOLATION NUMBER 2 (case file AR2005-1)
January 19, 2005 ... Application is submitted by ASU consultant Site Solutions for parking lot construction and stream restoration at the intersection of Hardin Street and Locust St. Plans show an existing apple tree, designated as "historic" by the TOB, which Site Solutions intends to cut down (NOTE: the tree is not in the footprint of the proposed construction)
January 31, 2005 ... TOB hand-delivers notification to a representative of Site Solutions that the historic apple tree must not be removed
February 3, 2005 ... ASU Dir. of Design & Construction Clyde Robbins, in a phone conversation with TOB Planning Supervisor George Cole, asserts that the town has no authority to dictate which trees must be preserved. The town has a "Preservation of Existing Trees and Vegetation" ordinance on the books (Article XX, Section 370)
March 4, 2005 ... ASU staff attorney David Larry writes TOB attorney Sam Furgiuele an e-mail advising the town that ASU will proceed with the destruction of the tree. Larry attaches a lengthy memo arguing (on the basis of South Carolina law) that the TOB does not have authority to prevent the cutting of trees. "I'm hopeful the town will decide not to press the issue," writes Larry
March 4, 2005 ... TOB attorney Furgiuele replies to Larry in an e-mail: "I'm constantly amazed by the hostile attitude of ASU to every effort by the Town to protect what's left here"
March 7, 2005 ... the apple tree is cut down and hauled away
March 9, 2005 ... TOB issues Notice of Violation to Clyde Robbins. Civil penalty: $3,000, due within 10 days of issuance of the notice. ASU is now noted as a "repeat offender"
April 6, 2005 ... ASU files an appeal for Administrative Review with the BOA. The appeal has never been heard (explanation below)
CIVIL VIOLATION NUMBER 3 (case file AR2005-2)
Same as # 2 above, involving an historic pine tree on the same property as # 2 above, and please note that the historic tree is not within the footprint of the proposed construction ... leading up to...
March 10, 2005 ... historic tree is removed
March 14, 2005 ... notice of violation sent to Clyde Robbins. Civil penalty: $8,500
April 6, 2005 ... ASU files appeal with the BOA (appeal has never been heard)
CIVIL VIOLATION NUMBER 4 (case file AR2005-3)
January 6, 2003 ... meeting is held between representatives of ASU and TOB to discuss a new Student Recreation Center (among other proposed projects)
January 9, 2003 ... ASU consultants Corley Redfoot & Zack submit packet of information about proposed construction plans
February 19, 2003 ... David Graham, development coordinator for TOB, outlines for Clyde Robbins a number of compliance problems with the plans for the new Student Recreation Center. Major problems include the need to rezone a portion of the property and the planned use of retaining walls in excess of 4 ft. high
February 28, 2003 ... Clyde Robbins and Patrick Beville, representing ASU, meet with TOB Planning Supervisor George Cole and David Graham to discuss Graham's objections to ASU's plans, as outlined in his letter of Feb. 19th. Although Robbins says in the meeting that he will direct the project architect to redesign to fix the wall problem, he also says he does not agree that the TOB has any jurisdiction over several other items of concern, including landscaping and parking
March 17, 2003 ... ASU applies for rezoning of a portion of the property
May 13, 2003 ... TOB approves the request for rezoning
August 25, 2003 ... TOB receives plans from Corley Redfoot & Zack for the Student Recreation Center with NO noted changes to the retaining wall design
October 23, 2003 ... David Graham writes Clyde Robbins, again raising the issue of too tall retaining walls
November 12, 2003 ... Corley Redfoot & Zack submits response to David Graham's Oct. 23rd letter and an application for zoning permit. However, staff review reveals that although the wall problem has been mostly solved, it still encroaches at one point into the setback and is 9 feet tall (making it 5 ft. over what is allowed by law)
November 24, 2003 ... TOB planning officials note that construction of the Student Recreation Center is underway, with no permit
December 16, 2003 ... David Graham writes Clyde Robbins that the Student Recreation Center is NOT approved
May 23, 2005 ... Notice of Violation is issued against ASU for proceeding with construction without a valid permit. The notice advises that if the violations are not corrected within 30 days, the university is subject to a civil penalty as a repeat offender of $1,000 plus penalties of $250 per day per violation
May 30, 2005 ... Clyde Robbins replies to the notice of violation, saying that TOB had no basis for issuing it and saying further, "I was assured by the Town staff that ... the University was within its rights to proceed with the construction of this facility"
June 14, 2005 ... TOB Director of Development John Spear responds to Clyde Robbins' May 30th letter: "Your allegation that Town staff provided assurance that the University 'was within its rights to proceed with construction' of this facility is completely erroneous and contradicts all correspondence between the Town and University regarding zoning approval of this facility"
June 15, 2005 ... ASU appeals the notice of violation, filing for administrative review by the BOA (appeal has never been heard)
CIVIL VIOLATION NUMBER 5 (case file 20070366)
June 6, 2007 ... David Graham writes Lorin Baumhover, "chief of staff" to ASU Chancellor Ken Peacock, that the construction of an exterior covered entry to Hoey Residence Hall on Hardin Street is illegal, pointing out that ASU has neither applied for nor received zoning approval for its construction. The covered entry encroaches "entirely" into the 20-foot street setback required by law and has been built directly on top of the sewer main, in violation of law. Graham orders ASU to discontinue construction immediately and to remove the structure within 30 days
June 19, 2007 ... Cindy Wallace, ASU Vice Chancellor for Student Development, responds to David Graham's notice of violation, saying essentially that the TOB ought to be happy with a beautiful new bus stop, and that whereas other dorm renovations did not require TOB permits, surely the Hoey renovation didn't either ... without bothering to address the total encroachments into the required setback and onto the sewer line
July 6, 2007 ... ASU files an appeal with the BOA which is scheduled to be heard on August 2nd, 2007, but probably won't be ... because ...
WHY NONE OF THE ASU APPEALS HAVE BEEN HEARD
The Board of Adjustments for the TOB cannot convene a full hearing panel for ASU cases because so many members and alternates on the BOA would have a possible conflict of interest ... because many of them are employed by the university.
TOB Director of Development John Spear informs us via e-mail today that if the Town Council fills two vacancies on the BOA this month with non-ASU employees, there would be enough non-university members to have a full hearing panel for the multiple ASU appeals of TOB civil violations of the law.
AND THE BEAT GOES ON
Noted in the June 2007 list of on-going construction projects in Boone are two university projects, a new dining hall and the parking deck next to the central library, for which no permits were issued. In response to our queries about these projects, Director of Development Spear said today:
CIVIL VIOLATION NUMBER 1 (TOB file AR2003-8)
January 9, 2003 ... Zoning Compliance/Permit application received by the Town of Boone for ASU's new central library project. Application filed by ASU consultants Site Solutions for both the library building and the adjacent parking deck. Grading compliance and floodplain compliance portions of the application have not been completed
February 4, 2003 ... Site Solutions resubmits a complete application
February 27, 2003 ... Town of Boone Development Coordinator David Graham writes Clyde Robbins, ASU Director of Design & Construction, a three-page letter outlining specifically why the proposed new central library project is being turned down for a building permit (the parking structure does not meet setback requirements, buffering and height requirements, is proposed to be built within the Howard Street corridor in violation of a previous agreement between the university and the town on a feasibility study for making Howard Street a thoroughfare, no traffic impact analysis has been done for the entire project, etc.)
February 28, 2003 ... George Cole, TOB Planning Supervisor, and David Graham meet with Clyde Robbins and Patrick Beville, project manager for the new library, to discuss the objections raised in David Graham's letter of Feb. 27
August 5, 2003 ... central library project manager Patrick Beville writes David Graham saying that the library project should be considered in two phases, that the parking deck will be completed as phase 2, and that ASU has decided to proceed with the library "based on the verbal approval provided by you and your office"
August 19, 2003 ... David Graham responds to Beville: "We do not recall making any statement regarding verbal approval for the Central Library .... when the office of Planning and Inspections approves or denies a particular project it is approved or denied in writing." Graham further points out that with the parking deck taken off the table, only three unresolved problems (regarding stormwater drainage) remain for the library. No building permit has been issued
August 27, 2003 ... ASU's contractor (Site Solutions) writes David Graham, asking that the stormwater requirements be "waived administratively"
September 3, 2003 ... David Graham replies to Site Solutions that storm drainage requirements cannot be waived administratively, that only the Board of Adjustment can grant a variance
October 7, 2003 ... TOB staff notes that the library is now under construction without a permit
October 22, 2003 ... TOB issues a notice of violation to ASU for beginning construction without a permit: "If the violations described in this Notice are not corrected within 15 days from [this] date ... the Town of Boone will take additional appropriate legal action against you .... Failure to correct the violation(s) listed above will subject you to penalties of $100.00 per day per violation effective upon receipt of this letter, plus court costs and attorney fees...."
November 21, 2003 ... ASU applies for administrative review by the town's Board of Adjustment, appealing the violation citation of 22 Oct. (This appeal has never been heard for reasons outlined below)
April 28, 2005 ... Site Solutions writes David Graham, revising the library plans with respect to stormwater drainage, addressing problems first raised by TOB on August 19, 2003
May 17, 2005 ... David Graham accepts Site Solutions' representations that the stormwater problems have been resolved for the new library, and he issues a TOB zoning permit for the construction of the new library approximately 567 days after construction began
May 20, 2005 ... David Graham writes library project manager Patrick Beville, pointing out that the notice of violation issued Oct. 22, 2003, for building without a permit, is still in effect and that ASU has now accrued a total civil penalty of $56,700
CIVIL VIOLATION NUMBER 2 (case file AR2005-1)
January 19, 2005 ... Application is submitted by ASU consultant Site Solutions for parking lot construction and stream restoration at the intersection of Hardin Street and Locust St. Plans show an existing apple tree, designated as "historic" by the TOB, which Site Solutions intends to cut down (NOTE: the tree is not in the footprint of the proposed construction)
January 31, 2005 ... TOB hand-delivers notification to a representative of Site Solutions that the historic apple tree must not be removed
February 3, 2005 ... ASU Dir. of Design & Construction Clyde Robbins, in a phone conversation with TOB Planning Supervisor George Cole, asserts that the town has no authority to dictate which trees must be preserved. The town has a "Preservation of Existing Trees and Vegetation" ordinance on the books (Article XX, Section 370)
March 4, 2005 ... ASU staff attorney David Larry writes TOB attorney Sam Furgiuele an e-mail advising the town that ASU will proceed with the destruction of the tree. Larry attaches a lengthy memo arguing (on the basis of South Carolina law) that the TOB does not have authority to prevent the cutting of trees. "I'm hopeful the town will decide not to press the issue," writes Larry
March 4, 2005 ... TOB attorney Furgiuele replies to Larry in an e-mail: "I'm constantly amazed by the hostile attitude of ASU to every effort by the Town to protect what's left here"
March 7, 2005 ... the apple tree is cut down and hauled away
March 9, 2005 ... TOB issues Notice of Violation to Clyde Robbins. Civil penalty: $3,000, due within 10 days of issuance of the notice. ASU is now noted as a "repeat offender"
April 6, 2005 ... ASU files an appeal for Administrative Review with the BOA. The appeal has never been heard (explanation below)
CIVIL VIOLATION NUMBER 3 (case file AR2005-2)
Same as # 2 above, involving an historic pine tree on the same property as # 2 above, and please note that the historic tree is not within the footprint of the proposed construction ... leading up to...
March 10, 2005 ... historic tree is removed
March 14, 2005 ... notice of violation sent to Clyde Robbins. Civil penalty: $8,500
April 6, 2005 ... ASU files appeal with the BOA (appeal has never been heard)
CIVIL VIOLATION NUMBER 4 (case file AR2005-3)
January 6, 2003 ... meeting is held between representatives of ASU and TOB to discuss a new Student Recreation Center (among other proposed projects)
January 9, 2003 ... ASU consultants Corley Redfoot & Zack submit packet of information about proposed construction plans
February 19, 2003 ... David Graham, development coordinator for TOB, outlines for Clyde Robbins a number of compliance problems with the plans for the new Student Recreation Center. Major problems include the need to rezone a portion of the property and the planned use of retaining walls in excess of 4 ft. high
February 28, 2003 ... Clyde Robbins and Patrick Beville, representing ASU, meet with TOB Planning Supervisor George Cole and David Graham to discuss Graham's objections to ASU's plans, as outlined in his letter of Feb. 19th. Although Robbins says in the meeting that he will direct the project architect to redesign to fix the wall problem, he also says he does not agree that the TOB has any jurisdiction over several other items of concern, including landscaping and parking
March 17, 2003 ... ASU applies for rezoning of a portion of the property
May 13, 2003 ... TOB approves the request for rezoning
August 25, 2003 ... TOB receives plans from Corley Redfoot & Zack for the Student Recreation Center with NO noted changes to the retaining wall design
October 23, 2003 ... David Graham writes Clyde Robbins, again raising the issue of too tall retaining walls
November 12, 2003 ... Corley Redfoot & Zack submits response to David Graham's Oct. 23rd letter and an application for zoning permit. However, staff review reveals that although the wall problem has been mostly solved, it still encroaches at one point into the setback and is 9 feet tall (making it 5 ft. over what is allowed by law)
November 24, 2003 ... TOB planning officials note that construction of the Student Recreation Center is underway, with no permit
December 16, 2003 ... David Graham writes Clyde Robbins that the Student Recreation Center is NOT approved
May 23, 2005 ... Notice of Violation is issued against ASU for proceeding with construction without a valid permit. The notice advises that if the violations are not corrected within 30 days, the university is subject to a civil penalty as a repeat offender of $1,000 plus penalties of $250 per day per violation
May 30, 2005 ... Clyde Robbins replies to the notice of violation, saying that TOB had no basis for issuing it and saying further, "I was assured by the Town staff that ... the University was within its rights to proceed with the construction of this facility"
June 14, 2005 ... TOB Director of Development John Spear responds to Clyde Robbins' May 30th letter: "Your allegation that Town staff provided assurance that the University 'was within its rights to proceed with construction' of this facility is completely erroneous and contradicts all correspondence between the Town and University regarding zoning approval of this facility"
June 15, 2005 ... ASU appeals the notice of violation, filing for administrative review by the BOA (appeal has never been heard)
CIVIL VIOLATION NUMBER 5 (case file 20070366)
June 6, 2007 ... David Graham writes Lorin Baumhover, "chief of staff" to ASU Chancellor Ken Peacock, that the construction of an exterior covered entry to Hoey Residence Hall on Hardin Street is illegal, pointing out that ASU has neither applied for nor received zoning approval for its construction. The covered entry encroaches "entirely" into the 20-foot street setback required by law and has been built directly on top of the sewer main, in violation of law. Graham orders ASU to discontinue construction immediately and to remove the structure within 30 days
June 19, 2007 ... Cindy Wallace, ASU Vice Chancellor for Student Development, responds to David Graham's notice of violation, saying essentially that the TOB ought to be happy with a beautiful new bus stop, and that whereas other dorm renovations did not require TOB permits, surely the Hoey renovation didn't either ... without bothering to address the total encroachments into the required setback and onto the sewer line
July 6, 2007 ... ASU files an appeal with the BOA which is scheduled to be heard on August 2nd, 2007, but probably won't be ... because ...
WHY NONE OF THE ASU APPEALS HAVE BEEN HEARD
The Board of Adjustments for the TOB cannot convene a full hearing panel for ASU cases because so many members and alternates on the BOA would have a possible conflict of interest ... because many of them are employed by the university.
TOB Director of Development John Spear informs us via e-mail today that if the Town Council fills two vacancies on the BOA this month with non-ASU employees, there would be enough non-university members to have a full hearing panel for the multiple ASU appeals of TOB civil violations of the law.
AND THE BEAT GOES ON
Noted in the June 2007 list of on-going construction projects in Boone are two university projects, a new dining hall and the parking deck next to the central library, for which no permits were issued. In response to our queries about these projects, Director of Development Spear said today:
"With respect to the Dining Hall, all of the UDO standards were met. However, the Fire Department had an access issue and would not approve the site plan submitted. We therefore did not issue the zoning permit. Subsequently, they [may] or may not have worked out the Fire Department's issue.That's called forbearance on the town's part. What's ASU's performance over the last 4+ years called?
"The Parking Deck likewise met UDO standards with one possible exception -- the Commercial Development Appearance Standards. They would not submit some of the information pertaining to required building features necessary to demonstrate compliance with appearance standards. We therefore did not issue the zoning permit.
"At the time, I would have sent a Notice of Violation for the Parking Deck except that the Town was in the process of entering into a land use agreement with the University. It was in a sprit of cooperation and with full anticipation of finally executing a comprehensive land use agreement that the Town decided not to pursue a violation to commercial appearance standards when everything else had been met."
