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Landowner appeals denial of permit for Crab Creek self-storage units

Although he put up a sign announcing that rental homes were coming to the site, property owner Matthew Cooke says he’ll wait until the zoning case is decided before pursuing that option.

CRAB CREEK —Homeowners’ fight to prevent construction of a 1,000-unit self-storage facility in Crab Creek is not over yet.

The landowner seeking permission to build the warehouses on 9½ acres on Crab Creek Road filed an appeal on Oct. 28 of the decision by the Henderson County Zoning of Adjustment to deny a permit.

Attorney Brian Gulden filed the appeal on behalf of Matthew Cooke, a storage-unit business owner who bought the property on May 13 for $277,000.

“We have been notified that the applicant has filed an appeal to the courts to have the decision reviewed,” County Manager John Mitchell said. “The county attorney is going to defend the validity of the decision. We’re the referee in these types of zoning matters and the county is going to defend the process that was taken.”

The Zoning Board of Adjustment on Sept. 15 voted 5-0 to deny a special-use permit to allow the development in a medium-density residential zone after hearing more than 11 hours of testimony and argument over three nights.

In an order and findings of fact it adopted on Sept. 29, the zoning board cited the opponents’ expert witnesses and evidence that the self-storage warehouses would harm the community because of traffic, stormwater runoff, fire and emergency access and property depreciation.

The traffic generated by the facility on a winding, narrow rural road would “detrimentally affect the health, safety and welfare of the community” while the lack of fire hydrants and the tight roads within the facility would “make adequate fire protection unlikely or impossible,” the board said in its order. “The ZBA does not find the proposed use of the property — a commercial use leaving less than 10 percent of the acreage as open space — to be in harmony with the surrounding area, which is overwhelmingly single-family residential.”

‘Generalized fears and mere opinion’

In the lawsuit, Gulden argues that:

  • The R2R (medium to low density residential) district allows rural commercial and light industrial uses and other uses that would be even less palatable to the community, including a solid waste facility, recycling center, outdoor shooting range and utility substation. Among uses allowed by special-use permit besides self-storage warehouses are wastewater treatment plants, kennels, machine shops and manufacturing plants up to 10,000 square feet.
  • “Contrary to law,” the board gave across-the-road homeowner Randy Doss “party status,” granting him standing to oppose the permit. Doss’s testimony “addressed generalized, nonspecific concerns” about traffic, property values and general welfare.
  • On behalf of Cooke, Gulden presented “competent, substantial and material evidence” that the project met the requirements for a permit as spelled out in the county’s land development code — that is, that it would not adversely affect public health, safety or welfare of the community.
  • The petitioner offered numerous conditions to address environmental concerns, erosion, stormwater runoff and emergency access.
  • Despite standards meant to prevent the board from exercising “unguided discretion” in hearings, the ZBA used “vague, overreaching and nebulous standards” in its rulings and decision. The standard that a proposed use “may not materially endanger the public … welfare” is unconstitutional, Gulden said, because it fails to furnish a standard that is uniformly applied and subjects applicants “to the unguided will and unbridled discretion” of the ZBA.
  • Testimony by opponents amounted to “speculative assertions of generalized fears and mere opinion” by laymen, not competent expert testimony that would support denial of the permit.

Gulden filed a request on Oct. 28 asking the court to order the county to turn over the zoning board record of the proceedings, including exhibits, minutes, court reporter’s transcript and audio tapes. The clerk of Superior Court issued the writ of certiorari the same day.

Rental home threat?

County Attorney Russ Burrell will have help in defending the zoning board’s rulings and its decision. John Noor, who represented Doss and the Crab Creek Preservation Society in the zoning board hearing, has signed on to the defense.

“With any lawsuit, if your interests might diverge from the other party’s you each need separate representation and we just don’t know that at this point,” Nina deCordova, executive director of the Crab Creek Preservation Society, said in an interview. “My understanding is that the county is very interested to defend the decision but our interests are not exactly the same as the county.”

Noor, an Asheville-based land-use specialist, gave the homeowners a projected cost of  $7,500 to $22,500 “for this first level of appeal,” deCordova said. Another neighboring homeowner, Fritz McPhail, has covered much of the cost of the attorney so far. “We’re going to have to raise” the money from the community, deCordova said.

An appeal of a Zoning Board of Adjustment decision goes to the Henderson County Civil Superior Court and could be appealed to the state Court of Appeals.

Cooke’s announcement that he and his wife are into moving to a building on property next door to the proposed storage unit site has caused consternation in Crab Creek.

“I am moving to the Crab Creek community to create some type of recurring income because that’s the business that I’m in, and I’m going to do something with that 9½-acre lot,” he said. “It’s not going to just stay vacant. It’s going to be developed in some fashion but I’m not a home builder. I don’t buy things or sell them. I’m in the recurring income business. I’ll figure out something to do with it if my first game plan is not successful.”

Cooke put up a sign in the vacant field announcing that rental homes were coming soon. But told the Lightning he won’t pursue a subdivision unless his zoning appeal fails. Asked whether it would be fair for neighbors to regard the rental home sign as a threat, he said he is trying to keep options open.

“I would hope they would say that I purchased some property and that I do have certain property rights,” he said. “If for some reason now they don’t want two rental homes per acre then I don’t have any answer for that.”

The rezoning request became a catalyst for Crab Creek residents to organize for a larger battle. Neighbors have become active in attending public meetings and giving input as Henderson County planners begin to draft a 2045 comprehensive land-use plan and they view the storage-unit threat as a warning flag for the future.

“The bigger question is what will happen to Crab Creek as the county moves forward with its comprehensive plan review,”  deCordova  said. “There are a lot of bigger decisions the county needs to make. Do we want to preserve and protect communities like Crab Creek or will Henderson County become carpeted with subdivisions and commercial units?”