Cary zoning board denies Pedcor appeal for affordable housing project

Developer needs supermajority on zoning variance from Cary Village Board

CARY – In a 4-3 decision, the Board of Zoning, Planning and Appeals voted to deny an appeal from the developers of the Pedcor affordable housing project, which was seeking to reverse an earlier village decision regarding the use of porous asphalt in lot coverage calculations.

The denial means Pedcor would need a zoning variance to move forward with the project as proposed. The zoning board gave a negative recommendation to a variance that would have allowed the porous asphalt in August, meaning the measure would need a supermajority vote to pass through the Village Board.

The decision came after an hour of public comment and two hours of presentation, argument and testimony from attorneys for both sides, largely focusing on interpretations of two specific passages in the village’s code and one passage in Pedcor’s planning documents.

The vote, which represents another road block for the controversial project, came at about 11 p.m. Thursday at Cary Junior High and was met with applause from the audience.

Board members James Graziano, Patrick Jasper and Holly Kelps voted to grant the appeal. Board President Joseph Tournier and members Patrick Khoury, Jennifer Meyer and Frank O’Laughlin voted against it.

Pedcor was appealing an Aug. 4 decision by Community Development Director Brian Simmons that said porous asphalt did not count as uncovered land for zoning purposes. Zoning requires no more than 45 percent of the land be covered. The site plan included 108,885 square feet of lot coverage, constituting 54.8 percent of the site.

The porous asphalt was proposed for the development’s parking lot after village officials discovered the original site plan presented did not include the required percentage of uncovered land.

After Simmons’ August decision, Pedcor sought a variance to allow the porous asphalt; when that failed, the company filed the appeal to try to make that variance obsolete.

Village Administrator Chris Clark said Pedcor has several options regarding its next step. The developer could choose to resume the variance process, which was suspended when it filed the appeal. Pedcor also could redesign its plan to fit the existing zoning requirements.

Pedcor Vice President Tom Crowe said the company hadn’t yet decided on a course of action.

“We’re going to have to take stock of tonight and make a decision thereafter,” Crowe said.

In making Pedcor’s case Thursday, attorney Tom Burney questioned Simmons, Public Works Director Erik Morimoto, Crowe and attorney Thomas Zanck about their interpretations of village code.

Simmons, in a notion later enforced by village attorney Victor Filippini, said his decision was based not on whether the porous asphalt technically was pervious or impervious, but on his belief village code counts parking lots as covered land regardless of what material is used.

Village code defines lot coverage as, “The part or percent of the lot occupied by impervious surfaces, including buildings and structures, and vehicle accommodation areas.”

Citing punctuation rules from the grammar reference book “The Elements of Style,” Filippini argued that the middle clause should be taken out and the rule should read, “The part or percent of the lot occupied by impervious services and vehicle accommodation areas.”

The lengthy dialogue about the vague nature of the village codes led Khoury to call for a sweeping review of the code’s wording.

“This process requires us to review the entire code from beginning to end so this type of situation doesn’t occur again,” Khoury said.

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