DURHAM — Zoning and land-use changes that remove a proposed subdivision site from a critical area near Jordan Lake won approval from the Durham County Board of Commissioners Monday night.
Their 3-2 vote culminated months of controversy, but left multiple matters unresolved, including whether the "751 Assemblage" can be built at all.
"Knowing the development is going to come back to us, I know this is not the end of this process," commissioner Brenda Howerton said after the vote.
Howerton voted for the changes, along with commissioner Joe Bowser and Chairman Michael Page. Commissioners Becky Heron and Ellen Reckhow opposed them.
This is only to move a watershed boundary line," Commissioner Joe Bowser said. "The other part of the process is to follow."
Southern Durham Development Co., which wants to build the subdivision on a 160-acre tract about a mile southwest of Southpoint shopping center, has a rezoning request of its own that is yet to enter the public-hearing process required by Durham's development ordinance.
Also, it will have to gain the city's agreement to extend water and sewer lines to serve the subdivision. The city has approved water-sewer service for a smaller project at the site, but a development the size of what Southern Durham proposes will require a new agreement.
Southern Durham also has filed a lawsuit against Durham County, contending that the boundary location had been properly set in 2006, with an administrative decision by former planning director Frank Duke and that the public-hearing process concluded Monday improperly delayed the project.
Durham County has yet to respond to the suit, which was filed in June. How Monday's vote affects the lawsuit is yet to be determined.
In Durham County, the lake's critical watershed, in which development is highly restricted to protect water quality, is the area one mile from the "normal pool elevation" of 216 feet above sea level.
Duke based his decision to reset the boundary based on a 2005 survey commissioned by Southern Durham partner Neal Hunter. He regarded the survey's location of the 216-foot point more accurate than the 1970s data used to set it originally.
After Southern Durham announced its plans in early 2008, then-County Attorney Chuck Kitchen concluded that Duke had exceeded his authority by not getting state approval for the boundary adjustment. The state Division of Water Quality concurred and, subsequently, approved Durham County's use of the Hunter survey data to set the 216-foot point and relocate the boundary.
Since moving the boundary would affect zoning and land-use designations for dozens of properties, Kitchen and current Planning Director Steve Medlin maintained that the Uniform Development Ordinance required public hearings by the Durham Planning Commission, a citizens' advisory body, and the commissioners.
The Planning Commission voted 12-0 to recommend against the changes' approval.
"It doesn't matter what that commission says," said former City Councilwoman Jackie Wagstaff, who spoke in favor of the changes and told the commissioners, "I hope you don't succumb to political bullying."
Wagstaff was referring to the changes' opponents, who outnumbered advocates in the audience Monday.
Opponents have claimed that changing the watershed's boundary reduces protection for the already-polluted Upper New Hope Creek arm of Jordan Lake, the reservoir's most-polluted section.
This past summer, the state General Assembly approved a program for restoring the lake's water quality and cutting pollution flowing in. Levels of nitrogen and phosphorus exceed those allowable under the federal Clean Water Act.
Complying with the Jordan Lake Rules will cost Durham taxpayers an estimated $570 million over a 20- to 30-year period.
"The pollution is going to cost us hundreds of millions of dollars, so what is the logic of adding additional development that is ... going to add to our cost?" former county commissioner Deborah Giles said.
A survey commissioned earlier this year by the environmental group Haw River Assembly, however, indicated a location for the 216-foot point that would have kept the 751 Assemblage within the critical boundary. That survey, though, used a different method than Hunter's for determining the 216-foot point. DWQ has no guidelines for which method is preferred.
The Haw River Assembly also filed a protest petition against the rezoning and land-use change. The petition would have required a 4-1 commissioners vote to approve, but the planning department ruled the petition was invalid.