751 South lawsuit headed for trial | Durham County | Indy Week
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751 South lawsuit headed for trial 

It could be late fall before a court case delaying a controversial housing development near Jordan Lake is settled.

Although attorneys for Durham County and Southern Durham Development had hoped a civil lawsuit related to the 751 South project would be decided last week, Superior Court Judge G. Wayne Abernathy ruled that there are still unanswered questions in the case that may require a trial to resolve.

A trial date for the lawsuit, which was brought against Durham County late last year by residents opposed to the 751 South project, has been set for Nov. 28. There is a chance the case could be expedited, said Assistant Durham County Attorney Bryan Wardell.

Wardell and an attorney for Southern Durham Development had asked Abernathy last month to decide the case through a summary judgment. But in his ruling last week, Abernathy denied the request, citing one unresolved question and another he could not rule on.

Residents of the Chancellor's Ridge neighborhood in south Durham filed the lawsuit after Durham County Commissioners voted to give Southern Durham Development land-use rights to build a large community of homes, offices and stores.

Several residents and the Chancellor's Ridge Homeowners Association oppose the project, which is slated for 167 acres near their properties. The lawsuit takes issue with how the commissioners handled a petition the residents filed to officially protest the proposed development.

Initially, the petition was deemed sufficient to require at least four commissioners to vote yes to give Southern Durham Development permission from the county. But just before the commissioners voted in August, an attorney for the developer used a backdoor maneuver to invalidate the petition on a technicality. As a result, county attorneys said, the 3-to-2-vote was legal.

In their tactic to invalidate the petition, the developers and their attorneys donated rights to a strip of land on the project site to the N.C. Department of Transportation without disclosing that the land transfer would cancel the residents' petition. An employee of the N.C. DOT signed a deed to accept the land, penning his name on behalf of another N.C. DOT employee who is designated by the state agency to sign for such transfers.

The transfer of land rights to the state invalidated the petition. When the N.C. DOT learned of the possible consequences to the petitioners by accepting the land, it immediately filed legal documents to revoke its decision. But a Durham County attorney said at the time that the N.C. DOT's rejection wasn't legally sufficient, and the commissioners went forward with their vote.

Abernathy wrote in his ruling that, based on what attorneys for all parties have presented, he is unsure whether the N.C. DOT employee who signed the deed had the authority to do so. Abernathy also refrained from ruling on a second unresolved question—whether the N.C. DOT took the proper and necessary measures to reject the land once agency officials learned of the issue.

To move forward with construction, Southern Durham Development is waiting for Durham City Council to agree to extend water and sewer service to the site, which is currently outside city limits.

The council will discuss the potential utility extension at a special meeting at 10 a.m. on Thursday, Aug. 18, in the second-floor Committee Room at Durham City Hall. Check the Indy's Triangulator blog on the outcome of that meeting.

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