State officials are concerned about Durham County’s letting developers postpone paying environmental fees until after construction begins on their project near Jordan Lake.
“Development projects may have an impact on nutrient loading once construction begins. Waiting until the certificate of occupancy stage, when construction has already been completed, could create a delay in offsetting the nutrient loading,” wrote Sarah Young, spokeswoman for the N.C. Division of Water Resources.
“Waiting until construction is completed before requiring payment could also introduce other factors that may cause further delay, such as the developer going out of business before a project is completed,” she said.
Those comments echo statements by Commissioners Ellen Reckhow and Wendy Jacobs after the Durham County Board of Commissioners voted 3-2 Monday to let the cash strapped Southern Durham Development postpone paying nearly $1 million in state environmental fees.
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Commissioners Michael Page, Brenda Howerton and Fred Foster voted in favor of the payment delay. Reckhow and Jacobs voted against it.
At this point, the state division won’t take any action to address the concerns.
“Ultimately, we leave the local programs in the hands of local governments, so it’s their decision on how to handle this particular process,” said John Huisman with the state Division of Water Quality.
In general, all development within the Falls Lake and Jordan Lake watersheds must meet nutrient pollution management rules. The rules mandate that the bulk of the nutrients, nitrogen and phosphorus, be managed on site through stormwater devices, said landscape architect Dan Jewell, who represented Southern Durham Development. Once a certain level of on-site thresholds are met, a mitigation payment has to be made to a state fund, which pays for other water-quality enhancement projects within the same watershed basin.
Those mitigation payments are generally paid at the time of a development’s site plan approval, before actual construction begins.
Jewell successfully asked commissioners to allow that payment to be made before the Certificate of Occupancy is granted, which is after construction is completed.
The request follows the state’s increasing in late 2014 the rate of the offset payment for phosphorus by a factor of three and for nitrogen by a factor of 12, Jewell said. That increased Southern Durham Development’s payment for phase one from about $100,000 to $800,000, he said.
It is not a law or a city or county ordinance that requires the payments be made before the site plan is approved, Jewell said.
“It’s not even a written policy; it is just simply the practice that has been followed,” he said.
As initially proposed, 751 South is set to include as much as 600,000 square feet of office and commercial space, and as many as 1,300 residences. The project has been the focus of multiple lawsuits since it was announced in early 2008.
Opponents claim the project threatens water quality in the already-polluted Jordan Lake and objected to tactics the developers’ supporters have used to win government approvals for the project.
In July 2013, the General Assembly approved legislation that overruled the Durham City Council’s vote against a utility extension and annexation for the 167-acre 751 South and the 87-acre adjoining Colvard Farms Tract near Jordan Lake and the Chatham County line.
Supporters have touted the project’s economic impact and the jobs it would bring to the county. The developers say their stormwater controls will keep 751 South from harming the lake.
The first phase of the 751 South site plan was fairly close to getting its final approval last week, said Bo Dobrzenski, zoning compliance supervisor for the Durham City-County Planning Department.
The first phase requires the disturbance of nearly 82 acres. The phase includes 1,750 square feet of office space, 190 town homes, 206 single-family houses and eight apartments
Reckhow said mitigation payments should be made before construction begins to mitigate any damage during the process.
“The worst water-quality impacts can actually happen during construction,” she said.
Jacobs expressed concern about the developer running out of money and not paying the fee.
Reckhow and Jacobs, who both asked for the vote to be delayed, expressed concern about statements made by staff indicating it would result in an increased amount of work following the change.
“This is not just about this project,” Jacobs said, pointing out that the action could impact future development requests.
Reckhow and Jacobs also said they were worried about the impact the decision would have on drinking water. Jordan Lake provides drinking water to 300,000 in the Triangle.
Reckhow asked whether the county could explore requiring a performance bond that would ensure payment is made if the development goes bankrupt.
Page said he was concerned about the divisive project not moving forward after it has come so far. He likened it to the opposition to The Streets at Southpoint – a place where he said he can never find a parking place.
Howerton, who pointed out that she had been re-elected since she supported the project, said she doesn’t understand the resistance to the project. During the initial consideration process in 2008, Howerton said, people left her telephone messages with death threats and made racial comments, she said.
Howerton received between two and 10 death threats in 2008, she said. Howerton mentioned the threats to the sheriff, who advised her to let him know if she feared an actual attack.
“I just took it that whoever it was doing it was some coward that felt they had to be behind closed doors,” she said.
The racists comments continued in the years that followed, she said.
“It is unbelievable that because somebody wants to build something in the community, that instead of talking to people, that they call their elected officials, send emails and threaten their lives because of a vote,” Howerton said. “Whoever is listening that did that, I want them to hear my voice, because that is stuff that I thought we left in the ’60s, but it exists here in Durham. It existed in 2008. It existed when I ran in 2012, and it existed when I ran this time.”