Cary citizens file suit over rezoning | Wake County | Indy Week
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Cary citizens file suit over rezoning 

The intersection of Davis Drive and High House Road is a crossroads of Cary's past and future. Red barns still dot the rolling green fields of Sears Farm on the southeast corner, where developers have the go-ahead to turn 75 acres into a mix of office, commercial and residential spaces, including a retirement care facility. At the southwest and northwest corners are the Cornerstone and Stone Creek Village shopping centers.

And at the northeast corner, another swath of farmland is slated for the most controversial development in the town's recent history—unless a lawsuit filed by 19 citizens succeeds in stopping it. Their appeal of the zoning decision, filed in Wake County Superior Court in August, seeks to overturn the Cary Town Council's vote this summer to approve a dense, 42-acre mixed-use development proposal because, they say, the town violated its own rules in disregarding their registered protests. (Download maps of the proposed development changes below.)

"You should at least follow the rules of the game," says co-plaintiff Lloyd Hinnant, who lives across the street from the proposed development. "Don't find loopholes and gray areas."

However the lawsuit proceeds, it's one sign of a growing feeling among citizens that development is moving too quickly, and that town leaders aren't listening to their input. The intersection of Davis and High House has become a symbol for discontented neighbors who have mustered community opposition to dense developments in their backyards only to have those developments, or others like them, approved. As Cary's Oct. 9 municipal election draws near, that discontent could play a part in the mayor and town council races.

When the Charlotte-based real estate development company Crosland filed its first proposal last winter, it was planning even denser development over 68 acres. Neighbors were concerned about the density of the Sears and Crosland developments; given the two shopping centers, they believed two more corners of the same would overwhelm the area with traffic and flood their neighborhoods with stormwater runoff.

Thirty-four households filed protest petitions, though only 20—those signed by residents living within 100 feet—were considered valid. Under state law, that number was enough to require a supermajority vote of the council (6-1) to approve the development.

Crosland negotiated with neighbors and the town by trimming residential units from its apartments, square footage off its commercial and office spaces, and acres of development, from 68 to 48. The boundary moved west, and in the town's eyes, that rendered invalid six of the petitions, but there were still enough to require a supermajority.

After the planning and zoning board voted 5-3 to deny Crosland's application, the company amended its plan further. Five households eventually withdrew their petitions.

Meanwhile, in a more controversial and significant move, Crosland shaved approximately 6 more acres off the eastern boundary, reducing to 42 acres the area it planned to develop. Town planners say that reduction invalidated the protest petitions of five more households, and the number of valid protest petitions no longer met the requirements for a supermajority vote.

On July 26, with an unusually large crowd of some 400 citizens flooding the council chamber, the council voted 4-3 to approve Crosland's proposal to build 20 townhomes, 320 apartment units, more than 220,000 square feet of commercial, office and non-residential space, as well as free-standing commercial buildings of up to three stories and 50,000 square feet.

Council Member Julie Robison voted in the minority with Ervin Portman and Marla Dorrel.

"I was revolted by what happened," Robison says. "I think the process was really flawed. I had a sickening feeling about it as it unfolded and I certainly didn't like how it came down."

In the weeks following the vote, Preston Forest resident Richard Byrne, co-founder of the citizens group DavisAndHighHouse.org, began questioning the legality of the town's decision. He and 18 others filed suit Aug. 23. The plaintiffs argue that state law requires the entire parcel to be considered part of the rezoning, so moving the project's boundary shouldn't have invalidated the petitions. The suit seeks to overturn the zoning decision; it does not seek any monetary damages.

Ruibin Zhou is one of those whose protest petition was rendered invalid when the boundary line moved the first time. "To me it's just like a trick," he says. "They divided the land into two parts. The other part of land that is not in the plan can be put on the table later." Zhou says he realizes that something will be built on the site, but he signed onto the lawsuit in the hopes that there will be "more discussion and better plans."

"I don't want to totally discourage a developer from the area," Zhou says, "but I don't know why this mixed-use development idea is so popular. Because Cary is more like a laid-back town, it's not like a city."

On July 24, two days before the council's 4-3 vote, the town clerk instructed council members that the protest petition "is no longer valid due to signatures being withdrawn from the petition." But a map provided by the planning office demonstrates that, even counting the withdrawn petitions, had the boundary line not moved west, the number of valid protest petitions would have been enough to require the supermajority.

Minutes of the July 26 meeting further confuse the issue: They instruct council members that a valid protest petition is in place, and that six yes votes are required to approve the proposal. According to minutes and video of the meeting, the first mention that the protest petitions were invalidated came in the middle of a discussion among council members, in which Portman raises the issue. "I think for many folks in the community, as they look at it, [it] strikes [them] as a non-fair-play approach," he said.

Portman, who was appointed to an at-large council seat in February, is up for election next month. He is campaigning on a platform of more carefully planned growth. In a recent forum, he cited his vote against the Crosland proposal as proof that he's "willing to say no" to development plans that don't meet environmental and infrastructure standards.

Among those who voted for the Crosland proposal, Mayor Ernie McAlister and council member Nels Roseland are also up for re-election this year. Roseland did not return a request for comment, but in a candidate questionnaire for the Independent, he said, "I proudly voted for" the proposal. "Three-to-four-story true vertical mixed-use building in the geographic center of Cary is a reasonable land use.... The process was difficult, yet the final proposals were scaled down significantly." The neighbors' request to maintain the residential zoning was "not a realistic recommendation," he said.

McAlister did not return requests for comment, nor did he submit a questionnaire.

DavisAndHighHouse.org continues to organize neighbors, recently releasing a set of endorsements for mayor and council candidates that support "a balanced approach to growth," according to the site. The group endorsed Portman and opponents of both McAlister and Roseland.

The town's official response to the suit was a statement that officials "are confident that we acted appropriately, and look forward to judicial review of our processes."

As for Crosland, which is not named in the suit, Senior Vice President David Ravin says: "We still feel that it would be a great addition to that corner, but we have a long way to go to making everything work out how it was approved to be worked out. The mixed-use projects in Cary are approved with a lot of conditions that have to be met. We worked with the adjoining landowners and gave more commitments on things we would do. We have to now go through and underwrite all of those commitments to the town and neighbors and make sure it's still a viable project."

Correction (Oct. 1, 2007): This article incorrectly stated the amount of commercial, office and non-residential space allowed under the Crosland development proposal approved by the Cary Town Council; it is 220,000 square feet, not 470,000. Also, the maximum height of outparcel buildings is three stories, not four. These corrections have been made in the above text.


Maps of the proposed development changes and affected protest petitions:

Maps provided by the Town of Cary planning department.

  • The intersection of Davis Drive and High House Road is a crossroads of Cary's past and future.

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