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Planning Board endorses rezoning for 699 homes at Tap Root land

By Lightning Reports, Published: May 21, 2020

The Henderson County Planning Board Thursday night voted 6-1 to support a rezoning request that would allow 699 homes and townhomes on the Tap Root dairy farm property.

The Planning Board's recommendation for one of the largest subdivision request in recent history contrasted with its vote a year ago to turn down the application. The rezoning request goes next to the Board of Commissioners, which denied the development request last July in a 2-2 vote. The advisory vote came despite the overwhelming opposition from neighboring homeowners, who said the development would overburden roads and schools.

This time, the owners of the Tap Root dairy, the Johnston family, and not a developer filed the application. But, as in the contentious zoning fight a year ago, the Asheville Regional Airport again implored the board to reject a large residential development on farmland under the airport runway approach.

Ahead of the Planning Board meeting, an attorney for the Johnston family and the airport submitted competing memos to the Henderson County Planning Board.

Lew Bleiweis, executive director of the airport, told the Planning Board that the owners are barred from applying a second time because it's been less than 12 months since the Board of Commissioners turned down its original application, in July 2019. As it had said repeatedly last year, airport officials say allowing a residential development so close to the runway conflicts with the county land development code's goal of promoting public health, safety and welfare.

Bill Alexander, the attorney for the Johnstons, dismissed the airport's argument, saying they're not based "significantly in issues of safety." There's been only one accident off the runway since 2002, and that small plane was outside the flight path when it crashed. (The crash, last December, involved a Piper PA32 that veered left after getting airborne and crashed in the Ag Center parking lot.)

The airport's greater concern, Alexander said, is that "it will get sued over issues of noise, dust and noxious odors." To remove that threat, the applicants submitted an "avigation easement" that would require homebuyers to waive "rights to sue (if any such right existed) over these types of issues."

The Johnston family first put the land on Butler Bridge Road on the market 20 years ago when it became clear that a fifth generation would not carry on the dairy farming business. The family’s roots in dairy farming go back a century and a half  when George Washington Vanderbilt bought farmland from C.W. Johnston for his Biltmore estate. Johnston used the money to move his farm to Fairview before passing it down to his son, Samuel Ervin Johnston, the patriarch of what is now five S.E. Johnstons. Samuel E. Johnston V is known as Quint.

The family has applied for a rezoning from regional commercial to conditional district, which allows the county Board of Commissioners to place conditions on the development. The development would cover 297 acres of a 320-acre tract, with 19 acres along Butler Bridge Road set aside for possible commercial development. At 699 units, the proposal is a little more than half the original request, which sought approval for 1,218 homes, townhomes and apartments. The new application eliminates apartments — which neighbors had opposed — and limits townhomes to 227 units. Under the current regional commercial zoning, 4,500 units could be allowed, Alexander said. The application seeks approval for 472 single-family homes and 227 townhomes, priced from $260,000 to $325,000. Construction would take place in four phases.

The former Tap Root farm is across Butler Bridge Road from River Stone, which has 549 lots, and near Hollabrook Farm, with 101 lots, and the Glens of Aberdeen, which is approved for 109 lots. Density of the Tap Root development would be 3 units per acre.

During the Planning Board hearing streamed via Zoom, staffers read comments from the public. The planning department received more than 50 comments on the rezoning, all but six opposed. Among the concerns were traffic, crowding of schools, the hazards of the airport flight path, the risk of authorizing a large development in an economic crisis, flooding and noise from a six-lane I-26. Among the comments were:

• The development is inconsistent with the county's development goals.
• Business use, not residential would be a better use of the land. "We need jobs, not more strain on our schools."
• "Butler Bridge Road cannot support a thousand additional cars each day," a Hollabrook Farm homeowner said. "Many of us in Hollabrook Farm moved here to be in the Glenn Marlow school district."
• Homeowners would be exposed to "fire and debris from aircraft and an after takeoff crash would be catastrophic."
• "We do not have the infrastructure to support this development. A dairy farm is a dairy farm, is dairy a farm, is a dairy farm."
• "The Amazon distribution is bad enough. Even more important the fabulous Glenn Marlow Elementary School will be overwhelmed and overcrowded."
• "I find it antithetical that anyone would oppose (the development). It smacks of the idea that is what is good for me is not good for others."
• "Why approve a development in a way that would be an eyesore." Why not approve development that "protects the integrity of our landscape."
• "While the county does need housing, this is not a place for a large housing development."
• At $400,000 for a home, "This is not affordable housing by Henderson County guidelines. What the county needs is affordable housng, this is not it."
• "The area already is overcrowded and now the new construction of the Amazon Distribution Center will cause even more traffic and overpopulation."
• "We definitely shouldn't be considering anything of this magnitude as we're dealing with the economic devastation from the global pandemic."

The Airport Authority asked the Planning Board, if it recommended approval of the rezoning, to add conditions requiring noise mitigation features in construction of the homes and bar homeowners from planting trees that bear fruit or berries known to attract birds or to add water features that attract birds and or add lighting aimed upwards into the flight path. Alexander said the noise-reduction would be cost prohibitive but that the lighting and tree planting rules would be OK.

In a first-ever public input process, the Planning Board used Zoom streaming software to hear from four other commenters. Forty-nine people started out watching the hearing on line and two hours later 45 were still on board.

School Board member Jay Egolf spoke in favor of the rezoning. "We need more places for younger families to live," he said. The county school system, which ranks sixth out of 100 counties in North Carolina, attracts young families.

"Valid concerns have been raised," said Brian Upchurch, "and I hear those and they need to be considered but we need to keep in mind that the county is actively recruiting businesses to come here and I see a problem when you're asking businesses to come here and then telling the landowner and developer that has provided a well thought out plan that they don't have a right to develop that property when you have created a demand for that housing. We cannot stop growth, it's inevitable. But we do have an obligation to steer that growth in a productive way and I think this meets that requirement. These objections are going to come up with any development but we've got time to address them. ... The county should approve this request for the greater good of Henderson County."

Linda Upchurch, Brian's wife, added: "This family should not be punished for being the last family to sell. I think it's unreasonable to deny the petition. They have tried to address the concerns by reducing the number of houses."

County Attorney Russ Burrell supported the determination by the county planning staff that the new application is a new request, not the same request, and not barred bynthe one-year rule. It was submitted by the Johnston family, not a developer, he said, and as a conditional-use request is different from the 2019 request.

Alexander told the Planning Board that the applicants had responded to objections raised by opponents by making streets wider, adding more sidewalks than required under the zoning code and setting aside land for use by the community.

"How many children are going to result from this project in the Glenn Marlow school district we don't know," he said. "We don't know what the age of people will be. We anticipate young people, we also anticipate retired people. We trust our School Board to look at education seriously and to devote the necessary resources for the education of our children."

Alexander also disclosed that D.R. Horton, a large Texas-based residential developer, has signed on to build the homes on the Tap Root site.

If the airport position's held, the attorney said, the county would bar development in broad swaths of land approaching the airport. Yet, the airport through aggressive promotion in recent years, has more than doubled the number of flights to and from the airport.

"What the airport is basically saying to you is that no new residential construction should be allowed anywhere near the flight path but they encourage increased flights all over the county," he said. "We think their position on this is not supportable and essentially would result in condemnation of my client's land without compensation."

County Commissioner Rebecca McCall, an ex officio member of the Planning Board, thanked the applicants for responding to opponents' points.

"Any concerns I had are already addressed," she said. "I will continue to be concerned about the proximity to the airport but that is obviously up to the people to decide to live there if they do."

McCall's vote is critical when the Board of Commissioner takes up the request is crucial. When the board turned down the request last July, McCall and Commissioner Michael Edney voted no. Commissioners Bill Lapsley and Charlie Messer voted yes, resulting in a 2-2 vote that killed the request. Board Chairman Grady Hawkins recused himself because his wife's sister is one of the landowners.

The Board of Commissioners will hold a public hearing on the request at 6 p.m. Thursday, July 6, at the West Henderson High School auditorium.