751 South gets 3-2 approval after DOT revocation denied

Staff writerAugust 10, 2010 

— With the NCDOT ruled out of line and a citizens' protest petition ruled invalid, Southern Durham Development won its rezoning request for the 751 South subdivision by a 3-2 vote Monday night.

Commissioners Joe Bowser and Brenda Howerton and Chairman Michael Page voted in favor while Commissioners Becky Heron and Ellen Reckhow voted against.

City-County Planning Director Steve Medlin declared the petition invalid after County Attorney Lowell Siler issued his opinion that DOT did not have authority to revoke its acceptance of Southern Durham's donation of a right-of-way easement.

By donating the land, a 41-foot wide strip along N.C. 751, Southern Durham moved its own property outside the area subject to the protest petition.

"Now we move forward," Southern Durham President Alex Mitchell said, in a prepared statement issued after the vote.

But the vote came only after an acrimonious discussion among the commissioners, including accusations of unethical behavior, "gifts being given" and unspecified "underhanded and sneaky things being done."

"You know who you are, you've created divisiveness on this board," said Chairman Michael Page.

"It would be a good thing for this board to disclose any kind of donation" made, said Commissioner Becky Heron, to which Commissioner Joe Bowser replied,

"Name the people out here who have given you money."

Heron: "The reason they haven't said anything about me is I'm squeaky clean."

Bowser: "If I was not squeaky clean they would have dragged me through the mud by now and I would not be sitting here."

Commissioner Brenda Howerton: "This has gotten nasty."

Southern Durham's project has stirred emotional controversy ever since it was announced in early 2008, with opponents and proponents only growing more polarized as its review and approval process has gone through repeated hearings, surveys, petitions, claims, counterclaims and three lawsuits.

"Our development has met every regulatory and other legal standard throughout the nearly two years already invested in planning," Mitchell's statement said. "Our project has been planned responsibly and will be built in the best interests of Durham's citizens."

Siler gave his opinion only after several citizens spoke for and against the rezoning in a public hearing continued from July 26.

The comments echoed pro and con arguments made previously, and included a statement for the rezoning from the Durham Association of Educators and against it from the Soil and Water Conservation District's Board of Supervisors.

Proponents claim the project would create jobs and expand Durham's tax base; opponents dispute the job-creation forecasts and claim that the project's density -- up to 1,300 residences and 600,000 square feet of commercial and office space on a 167-acre tract just north of the Chatham County line -- both threatens water quality in Jordan Lake and violates the county's adopted long-range land-use plan that concentrates residential density close to the central city.

Proponents, though, claim 751 South will be environmentally friendly -- the developers added several environmental-protection commitments to their plan before Monday's commissioners meeting -- and describe it as a model of New Urbanist/Smart Growth principles including a mix of uses, pedestrian accessible and attractive to residents at a variety of income levels -- including some below the federal poverty line.

Public comment at the July hearing was suspended after Siler asked time to research DOT's revocation, which was completed and filed the afternoon before the hearing.

"I have concluded that NCDOT did not follow [statutory] procedure in abandoning the easement," Siler said, to a standing-room-only crowd in the commissioners' chamber as well as an audience watching on television.

Although a letter sent Friday from Deputy State Attorney General Richard Moore appeared to uphold DOT's Declaration of Revocation, Rejection and Termination of Easement, Siler cited statutory procedures by which DOT may abandon property, requiring either a 60-day public notice or Board of Transportation approval.

"Since the easement created a property right in the state ... I have concluded that NCDOT did not follow procedure in abandoning the easement," he said.

Commissioner Ellen Reckhow, who voted against the rezoning along with Heron, raised some objections to Siler's reasoning, while Heron objected to Southern Durham's making the donation without telling DOT the effect it would have on the protest petition.

DOT filed its Revocation upon learning of that effect, stating it did not want to be involved in a local zoning issue.

"There has to be something in the law. ... They wanted to invalidate the protest petition, that's the whole idea," Heron said.

"Even if what the developers did doesn't pass the smell test, it was still legal," Siler said.

jim.wise@newsobserver.com or 641-5895

jim.wise@newsobserver.com or 641-5895

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