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Sylva leaders favor big business, local merchants say
By Carey King
Denying an appeal from brothers Russ and Bill Cagle Tuesday (Dec. 7) Sylva's zoning board made it official: The black and silver streamers at Performance Motors used car dealership must come down.
"Any car dealership you go look at – and there's some car dealers sitting in here – you'll see pennants and flags. It's how we do our business," Russ Cagle told board members.
The meeting drew a crowd of about 15, mostly area business owners concerned with the way town zoning ordinances are enforced.
Sylva ordinances prohibit signs in the public right of way, and also ban those that move, rotate or flutter – two standards the Cagles' streamers fail to meet.
While board members upheld Zoning Administrator Jim Aust's July judgment against the dealers' signs, they postponed until Tuesday (Dec. 14) a decision on the other issue at hand. The Cagles are also appealing another citation Aust issued five months ago – that they ignored a required 10-foot landscape buffer along the highway and a 5-foot buffer along the dealership's line with adjoining property.
Sylva's ordinances are "vague and ambiguous," both "in writing and application," said Diane Sherrill, the Cagles' attorney. She called the town's action against her clients a "thinly-disguised attempt at eminent domain" and an illegal restraint on both trade and free speech.
The town has been inconsistent in enforcing its rules, Sherrill said, since the Cagles have flown the streamers since they started Performance Motors in 1994. Sylva's current ordinances were passed in 1998, she said, but it's taken until now for Aust to inform her clients they are in violation.
"Why have we been picked on?" Russ Cagle asked. "That's what I'd like to know. Why has it taken 10 years for someone to say something about it?"
The Cagles met with Aust twice this summer, following their purchase of a lot adjoining the dealership's property.
"He came through the garage, and I'll just say he was not very professional," Bill Cagle said. "He used language you shouldn't be using on a ship 40 miles out at sea."
Bill Cagle asked Aust to leave, then two weeks later received notification that he was in violation on two counts, for both his signs and lack of landscaping.
"The town of Sylva needs to look at how their employees treat the businesses that pay taxes. There's been several other people in here who have been treated the same way," he said.
"I do see a lot of selective enforcement," said Tim Jones, owner of NAPA Auto Parts. "I think a lot of the time, it's who you are and where you're at.
"There are about 300 businesses in town, and I'd say every business could be visited in six months' time," he said. "Jim has been in this position (of zoning administrator) for several years. Everybody should have been visited by now."
"He (Aust) just took control like a high deputy. That's what makes it unconstitutional," Sherrill said.
Sherrill questioned the landscaping citation Aust issued, saying Aust had told the Cagles he would prepare a landscape buffer plan for them, but then never followed through.
"Due to the fact that there was no plan, there really are no grounds for enforcement," she said.
Town attorney Eric Ridenour defended Aust, saying that in his experience, both the zoning administrator and board have worked in the best interest of the town. The intent of the ordinance is to protect small business owners by lessening the disparity between them and the large chains who can afford much bigger signage, he said.
"Nobody likes the government telling them what to do, but we can't just ignore the law and the reasons for the law," Ridenour said. "Enforcement of the law is even a slower process, especially for a small town with one zoning administrator who wears many hats."
But business owners at the meeting said they thought the selective enforcement has a different cause: They said Sylva leaders seem intent on bringing national chains like Eckerds, Walgreens and Advance Auto Parts to town.
"I just think the town's looking out for big business and not the little man anymore," Russ Cagle said.
Walgreens approached the Cagles with an offer to buy their property, but the brothers said they refused. Bob Kelley of Kel-Save Drugs said that he, too, has been asked to sell, but also said "no."
"The town isn't picking on people if they don't sell, are they? Because then we'll all be in trouble," said Krismart's Jeannie Kelley.
"I'd like to know how many variances (Eckerds) received," Bill Cagle said.
The Cagles never applied for a variance from landscaping ordinances because they "didn't know they had to," Russ Cagle said.
Such is often the case with small businesses, the "bread and butter" of small towns, Sherrill said.
"Maybe they do need to go before the town board and ask for a variance, but they don't know they have to do it until someone comes out to enforce it," Sherrill said.
"We shouldn't have to hire attorneys to come to the town board to talk for us. It's a shame," Jeannie Kelley said.
Larry Nestler, zoning board chair, told the group that if they were concerned that ordinances are not enforced consistently, they have the option of turning names of offenders over to Aust.
Most, however, refused the idea.
"We don't do business that way," Russ Cagle said. "When (Eckerds) burnt down that building across the street, we washed every car we had. The town of Sylva paid for cars driving by, but we never sent the town a bill. We try to be a good neighbor."
Nestler suggested the group take their concerns to the town board, saying the zoning board is merely charged with enforcing policies, while members of the town board actually set those policies.
Aust did not sit in on the meeting, though he did watch some of the proceedings from the doorway.
Nestler told Sherrill that board members will prepare a written statement on their decision concerning the landscape requirements following their meeting at 5 p.m .Tuesday. He said he hopes some sort of compromise or variance can be worked out.
According to Ridenour, variances exist to prevent inequalities in instances where the ordinances would create a hardship.
"Everybody keeps saying, 'They got a variance,' 'They got a variance,' 'They got a variance,'" Ridenour told the business owners. "Well, apply for one. It's not too late. Apply."
Sherrill said the proceedings are lining the way for her to test the constitutionality of Sylva's ordinances before a higher body.
"I will wait for (the zoning board's) decision to decide whether we need to go to Superior Court," she said.
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