Action claims ballot language was misleading, so November approval is invalid
By Roger McCredie
Two Asheville property owners have filed a lawsuit seeking to prevent the City of Asheville from issuing $74 million worth of general obligation bonds that were approved by the public on election day.
The suit was brought by retired attorney Sidney Bach and local businessman and former vice mayor Chris Peterson.
The plaintiffs are asking the court to declare the voting results invalid. Voters approved the three-bond bond package -- $17 million for parks and recreation, $25 million for affordable housing and $32 million for transportation – by a margin of approximately 70% - 30%.
Bach and Peterson charge that the language of the bond questions, as approved by city council and presented to voters on the Nov. 8 ballot, was “defective,” resulting in “an unfair misrepresentation of material facts” that made all three bond questions “inaccurate, prejudicial and misleading.”
Two defects in the wording of the bond questions render them no good, the plaintiffs say. One is the apparently inadvertent use of the word “Charlotte” instead of “Asheville” in the authorization resolution approved by city council on August 9; the other is a shift in verbs that alters the meaning of an important clause.
The August 9 resolution calls for a public hearing “to consider the issuance of bonds by the city of Charlotte … ,” an obvious mistake made as the result of “boilerplating” language from another city’s resolution and not caught by any subsequent proofreading – seemingly a small thing but sufficient to render the entire resolution bad, the lawsuit says.
“As it stands on the books right now, the authorization to vote on those bonds still stands in the name of the city of Charlotte,” Bach said Tuesday.
Also, public notices advertising the city’s intent said the city “shall” or “will” levy new taxes in an amount sufficient to pay for the bonds. But the August 9 resolution backed off that language and substituted the phrase “may be levied,” making it sound as though there were a possibility issuing the bonds might not, after all, result in a tax increase.
But, the suit alleges, the city was always fully aware that the bonds, if passed, would raise taxes. To change the wording to “may” on voter ballots rendered the entire statement false and constituted a misrepresentation, the suit says.
Bach said he was aware that his and Peterson’s attorney, Albert Sneed, personally pointed out the language inconsistencies to Mayor Esther Manheimer when there was still ample time to correct them before ballots were printed, but no changes were ever made.
Sneed and Manheimer are partners in the same law firm.
“This is all about due process of law,” Bach said. “You can’t issue bonds, which represent money, based on faulty language.
“Nobody is saying they can’t have a bond referendum but do it right,” he said.
Records show the suit was filed at 3:20 Tuesday afternoon. Bach said he understands a copy was delivered to Manheimer prior to city council’s regular 5:00 p.m. meeting
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