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Developer loses appeal of zoning board's decision on Crab Creek storage units

A Henderson County Superior Court judge this week rejected a landowner's appeal of a county zoning board decision in 2021 that denied a permit for a ministorage development in the Crab Creek community, members of the organization that fought the zoning application said.

Judge Peter Knight issued the order after a trial in which the zoning applicant, Matthew Cooke, asked the court to overturn the September 2021 decision by the Zoning Board of Adjustment that turned down the application to build 1,000 self-storage units on 9½ acres on Crab Creek Road.

Rather than appeal, the landowner told the Lightning on Saturday that he plans to build a rental home development on the property.

The zoning board voted 5-0 to deny a special-use permit after hearing more than 11 hours of testimony and argument over three nights, saying in its order that traffic generated by the facility on the winding, narrow rural road would “detrimentally affect the health, safety and welfare of the community” and that the lack of fire hydrants and tight road configuration within the facility would “make adequate fire protection unlikely or impossible.” Cooke's attorney, Brian Gulden, filed the appeal the following month.

Fritz McPhail, one of the founders of the effort to defeat the storage units, said neighbors spent $90,000 in 2021 on legal fees, studies, expert witnesses and public relations to fight the effort before the zoning board and another $30,000 on the appeal in Superior Court. "If the developer appeals again, we’ll need to come up with $20,000 more," he said.

McPhail said the threat to the rural character of Crab Creek is not the only example of a disruptive commercial use threatening rural residential communities, pointing out that five years ago Saluda homeowners rose up to defeat a proposed gun range off Macedonia Road and that Green River residents fought a hotel off Cabin Creek Road last year.

"Our rural communities are fair game for developers because local rules allow residential sprawl and inappropriate commercial growth across much of the county," he said. "County leaders are now finishing a 22-year Comprehensive Plan that could tighten these rules. Unfortunately, drafts of the plan show too little commitment to changing the status quo."

A native of Henderson County and retired commercial real estate investor who chairs the Crab Creek Preservation Society, McPhail urged residents to call on the Board of Commissioners to use the new comp plan to bar commercial uses in rural areas, preserve low-density residential zoning and create a conservation fund to preserve farmland.

Cooke, who owns Apple Valley Storage on Chimney Rock Road, said instead of appealing the Judge Knight's ruling to the N.C. Court of Appeals, he plans to build homes on the land.

"We have the bridge halfway built across the river," he said. "It’s hard to just stop in the middle. Fritz put up a good fight and I like a good fight. I congratulate him. He won a battle.

"I’m going to move forward with something that has a P in front of it,” referring to a permitted use. He said he plans to construct 18 single-family homes on 10 acres of the site. “I have my construction permit in my possession." He said he plans to rent a 21,700-square-foot existing building for commercial use.

"I have a number of options on the table and we haven’t decided which one we’re going to rent it to," he said. “It’s more sad that I think the storage facility would have been nice and clean and I think (opponents) couldn’t see the forest for the trees. But that didn’t happen so it’s adapt or die. Sometimes it’s better to just get over something and move on to the next step.”

It was eye opening, he added, to live through process of government regulation and a Zoning Board of Adjustment case — which operates like a court case with sworn testimony, expert witnesses, examination and cross examination by lawyers. “It really was a lesson for me which will pay dividends for years to come.”