After months of carefully applied pressure from developers pushing a mega-project near Jordan Lake, the Durham County Board of Commissioners voted 3-2 Monday to reject their argument and require public hearings before redrawing the lake's protective boundary.
"This has been a tough decision for me," said Commissioner Brenda Howerton, whose position had been a source of speculation. "Where I'm going to stand on this is that we need to follow procedure."
Howerton offered the comment before voting to send the proposed map changes—based on a developer-funded survey—through a state- and county-mandated process, which includes public notification and at least two hearings.
Southern Durham Development purchased a 164-acre tract from Neal Hunter—who commissioned the survey and is a partner in the company—to build the high-density 751 Assemblage project, a complex of 1,300 dwellings and 600,000 square feet of office and retail space.
Company president Alex Mitchell argued that requiring a public hearing "appears to be the newest attempt to try to strip us of our property rights."
Patrick Byker, an attorney representing the developer, asserted that former planning director Frank Duke's acceptance of the map change in 2006 "was done in complete accordance with watershed regulations."
"The state Division of Water Quality approved this correction earlier this year, and so there's nothing left to do," he said.
In fact, the state agency that acts as a watchdog on behalf of the Environmental Management Commission merely approved Hunter's survey, without signing off on Durham's approval of it, which was done without review, in violation of North Carolina's administrative code.
"We've never had a public hearing on what Frank Duke did," said Commissioner Becky Heron. "What he did was totally in violation of our ordinances, unbeknownst to any of us. So that ought to settle that point."
Commissioner Ellen Reckhow, citing state law and the advice of the county manager, attorney and planning director, made the motion to open public debate on the survey—a substitute for a motion by Commissioner Joe Bowser that would have bypassed any public hearings on the matter.
"We took an oath of office that we would uphold the laws of this state and the laws of this community. Now we're sitting here, and we're ready to throw them right out the window, and I'm not going to be a part of it," Reckhow said earlier in the night.
Adopting language used by the developers, Bowser's unsuccessful motion stated that Duke's actions were merely a "correction" and called for no public hearings.
"How can we possibly do what Joe said—and he purposefully put in 'no public hearing'?" Heron asked.
"Because it's a correction," Bowser said.
"I'm wasting my breath," Heron said.
According to an analysis by the Division of Water Quality, Duke's ruling was a gross misinterpretation of the planning director's powers. The section of Durham's Unified Development Ordinance that Duke used as a rationale empowers the planning director to make administrative corrections to the exact watershed boundary when a property has been split in half, or to exclude or include lots of a half-acre or less. In Hunter's case, Duke agreed to move more than 100 acres of property out of the critical watershed area—a decision that should have gone through the county and state.
In a recent letter to commissioners, David Owens of the UNC School of Government concurred with the position that any map changes must "go through the public notice and hearing process."
"Why do we have a process if we're not going to follow it?" Howerton said after the vote. "That's why we're in the mess we're in right now."
"It specifically states in [the UDO] that there's a provision for correction—and this is a correction," Bowser said, scrunching up a plastic water bottle near his microphone for punctuation. To Howerton, he added: "You're not listening to us. You're listening to Becky and Ellen."
In addition to Bowser, Howerton fended off insults from Durham Committee for the Affairs of Black People Chairwoman Lavonia Allison, who said she was "glad to be with the developers" and spoke over commissioners after the vote.
After the hearing, Allison said of Howerton, "I told y'all she can't be trusted."
"You are not up here, Dr. Allison, I am," Howerton said when Allison interrupted commissioners from her front-row seat.
"You might not be for long," Allison replied.
"Well, I've got four years," Howerton said.
The heated exchange was one of many on display before a standing-room-only crowd. Bowser and Michael Page, the dissenters, suggested that their colleagues on the board were being led astray by anti-growth activists.
"This all started as a result of our discussion in November that water quality is going to be bad," Page said. "It's then been pushed out into the community for a reason to say that the water quality is bad."
Jordan Lake has been on the federal Environmental Protection Agency's impaired waters list since 2002, due to pollution.
Afterward, Page lamented that Durham wasn't business-friendly enough.
"I talked to some homebuilders in Durham recently, and what I gathered is that we are not the most friendly folk toward development. I hope that we would change our attitude, and our perception, that when people are trying to grow our community, and grow our tax base, that we are a lot more receptive."
In an interview after the hearing, Allison said she was willing to substitute good government for the promise of jobs—even as she acknowledged that previous developers had failed to live up to that promise.
"It's in the public interest," she said of giving Southern Durham Development a pass. "If you're talking about achieving jobs for hungry folks—which is better, the jobs or the process?"
Meanwhile, Heron told the Indy that she was "very pleased with the three votes" in favor of the public hearing process.
"As long as we've got three votes, we'll follow the procedures," she said. "At least we've taken the first step to do what's right," Heron said.
Asked if Southern Durham Development wished to comment, firm attorney Bill Brian said, "Absolutely not."