Three common water-cooler topics of the summer: the Gulf oil spill, the World Cup and... the bumpy roads in downtown Durham, which are being fixed by the N.C. Department of Transportation, but, according to the number of complaints, not quickly enough.

The repaving of Roxboro, Mangum and Chapel Hill/Kent streets, and Lakewood Avenue, has jolted drivers with new traffic patterns, unmarked lanes and those troublesome manhole or sewer covers that jut up inches from the ground, forcing motorists to slalom among them. But the temporary inconvenience could be a small price to pay for smooth new roads—except that the project has almost reached its 120-day deadline, and as Durham county commissioners will hear on Monday, the $861,000, stimuius-funded project will probably take longer than expected to finish.

Commissioners put the item on their agenda for Monday after hearing a number of complaints. Commissioner Joe Bowser received a call from a constituent who said the fuel tank on her car ruptured as a result of driving through the construction area, according to an e-mail sent to the N.C. DOT by County Manager Mike Ruffin.

One of the major questions being posed by residents: why did the N.C. DOT contractor, Rea Contracting, remove the top surface of Roxboro and Mangum streets if it was going to be several weeks before they came back to finish the work?

The problem, according to an e-mail from N.C. DOT engineers to Ruffin (PDF), was that as soon as the contractor started removing the top 1.5 inches of asphalt, workers discovered a lot more problems, from sinkholes to parts of the road that were only 1.5 inches thick to begin with, and didn't have the proper foundations underneath. The engineers compared the situation to renovating a house—when you rip out a wall, you never know what you'll discover.

• Durham County Attorney Lowell Siler

Before presenting his legal opinion (PDF) Monday night that the N.C. DOT didn't follow the proper procedure in returning land to a local developer, Durham County Attorney Lowell Siler consulted five law experts: Two representing the developer, one representing opponents of the project, and one each from the office of the N.C. Attorney General and the UNC School of Government.

The consensus? There was none, but Siler used those conflicting legal opinions to nullify a citizens' protest petition.

Siler's final determination was central to the approval of the controversial 751 South project. It determined whether a protest petition filed by opponents to the project was valid, and thus whether it would take the approval of a simple majority of three commissioners to pass the project, or a supermajority of four commissioners.

The input sent to Siler's office during the past two weeks was divided, and of the five lawyers and legal experts, only one was an independent party: Charles Szypszak, a retired professor from the UNC School of Government, who provided a one paragraph opinion stating he was "reluctant to conclude that the state's revocation was ineffective." (PDF)

Two lawyers said that the N.C. DOT acted within its rights to reject the land it had been given by Southern Durham Development. The first was W. Richard Moore, of the state attorney general's office, who outlined for Siler statutes and administrative code that gave the state the right to reject the land. (PDF)

The second was Dhamian Blue, who, the Indy learned Tuesday, is representing opponents of the 751 South project in a possible lawsuit against Siler and the county. Blue urged Siler to find that the deed easement had no bearing on the protest petition, in part, because the right-of-way didn't technically belong to the N.C. DOT yet—the donation of the land was contingent upon the development being approved, Blue wrote, and therefore couldn't invalidate the petition, since the extended right-of-way didn't yet exist. (Letter 1 PDF, Letter 2 PDF, Letter 3 PDF)

The remaining two lawyers in the case took the side of Southern Durham Development, stating that the N.C. DOT didn't lawfully reject the easement.

Opponents of the controversial 751 South development, which county commissioners approved 3-2 this week, are planning to file a lawsuit against the county, a representative said early Tuesday.

Kim Preslar, a resident of the Chancellor's Ridge neighborhood who organized a formal petition against the project, confirmed that she and other opponents of the project have been working with Raleigh lawyer Dhamian Blue, of Raleigh firm Blue Stephens & Fellers.

"We will be pursuing a legal complaint and it will be challenging Lowell Siler's opinion," Preslar said. Siler, the Durham County attorney, offered a controversial opinion Monday night stating the N.C. DOT didn't lawfully reject a land gift recently given to it from Southern Durham Development.

Siler's opinion, and subsequent interpretation by planning Director Steve Medlin, dictated that since the N.C. DOT now possesses an extended right-of-way, most signatures on the protest petition filed by Preslar and other homeowners was invalid.

A valid protest petition would have required four of the five county commissioners to approve the controversial 751 South development. But since the petition was invalidated by the N.C. DOT's involvement, only three commissioners were needed for the development plans to pass.

UPDATE, 11 a.m. Tuesday, Aug. 10: Read Lowell Siler's memo to the planning director with the reasoning that led to the protest petition being ruled invalid. (PDF)

Original post: With a 3-2 vote, Durham County Commissioners finally put to rest (at the county level, at least) the ugly battle over 751 South Monday night, voting to allow Southern Durham Development to move forward with plans to build a huge community in south Durham.

But boy did the two-and-a-half-year-battle go out with a bang.

Monday's meeting was a continuation of a public hearing that started July 26. When that meeting ran past midnight, commissioners continued it to Monday. The meeting brought new information on a couple of important aspects of the development. First, the developer announced it would commit to some more strict environmental regulations and amenities that it wasn't originally willing to promise. Second, Durham's planning director also announced that a protest petition that project opponents filed was no longer valid.

The protest petition was a major game-changer—it would have required four of the five commissioners to approve the rezoning instead of just three. But the once-valid petition became ineffective in mid-July when the N.C. Department of Transportation accepted the right-of-way on a small piece of land as a gift from Southern Durham Development. The gift came with strings attached: By accepting the land, the N.C. DOT inadvertently foiled the protest petition on a technical detail involving the width of the right-of-way. So the N.C. DOT tried to reject its acceptance of the land. But, Siler said, the state had no statutory authority to do so and didn't follow proper procedure to abandon the land rights. Thus, the state still had the right of way and the protest petition was invalid. (Check Triangulator Tuesday for updates and Siler's written opinion).

As if the last-minute twists did not conjure enough drama by themselves, there was another blow. Tension among commissioners and the project's supporters and opponents finally erupted, and commissioners got a lot of yet-unsaid things off their chests.

Over several months, rumors have bubbled about the commissioners' new majority, comprising newcomer Brenda Howerton and veterans Michael Page and Joe Bowser, that has historically voted favorably for 751 South. Opponents of the 751 South project have made accusations that the three officials had cozied up to the developer. They even have asserted that Southern Durham Development or its representatives had bought the commissioners' support with gifts, or gifts to charities with which they are affiliated, but only anecdotes—not hard evidence—have surfaced.

Though those accusations had mostly only been insinuated in past meetings, some decided Monday to stop tip-toeing and dive right in.

"I’m really concerned that I’ve heard so many stories out there about commissioners receiving gifts from the developers," Becky Heron said before the board started to vote.

As she spoke, Howerton chimed in: "I wonder who started that conversation. Hmm." Howerton said it again, sarcastically jabbing at the two-member minority of the board, Heron and Commissioner Ellen Reckhow, who have in the past voted against the development.