Judge issues key ruling on Jordan Lake | Durham County | Indy Week
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Judge issues key ruling on Jordan Lake 

Dropping the hammer

Superior Court Judge Howard Manning had spent more than an hour on a recent afternoon listening to a throng of attorneys argue the most minute, mind-numbing details—geological data, county ordinances, quasi-judicial hearings—of a controversial Jordan Lake lawsuit.

Finally, Manning paused. "We'll take a short recess," he said. "Then I'm going to come back and drop the hammer."

A sampling of Durham's most powerful figures had gathered in the grand jury room of the county courthouse. County commissioners, County Manager Mike Ruffin, attorneys dressed in dark suits and wealthy developers sat silently in the wooden rows of the gallery. The heat in the courtroom blasted incessantly. The air became thick and stuffy.

Manning was to settle a long-standing dispute between the county and real-estate developers Southern Durham Development over a 165-acre residential and commercial center the company wants to build near Jordan Lake. That disagreement has incited a power struggle between county commissioners and their constituents, pitted residents against one other and cast doubt on the competence and motivations of some county employees.

And in one moment, Manning's decision could further erode public trust in Durham's leadership or obliterate an $18 million land investment by Southern Durham Development.

The company's project has been stalled for three years over disagreements with the county and private citizens on several matters: whether the company's land falls inside the lake's protective boundaries, what scientific method to use to determine those boundaries and the proper procedure for changing county maps to show where the boundaries are.

Southern Durham Development sued Durham County in June, saying the county was trying to undermine its plans. The developers were seeking legal fees and $20,000 in damages, and asked a superior court judge to handle the matter swiftly without a trial. The county, in turn, asked a judge to dismiss the case.

After hearing both sides, Manning deliberated for less than 15 minutes. He returned and, as promised, dropped the hammer.

He ruled for Southern Durham Development.

The silence in the courtroom continued. The onlookers barely stirred, as if waiting for the judge to say more.

"That's it," Manning concluded.

In siding with Southern Durham Development, Manning ensured the company could move forward on its project, one that would include commercial buildings and 1,300 residences.

Manning stated that the protective boundaries were properly established in 2006 and must stand. That means 146 of 165 acres of Southern Durham Development's land is not considered part of a protected zone that heavily restricts commercial and residential development, opening the door to options of what the company could build.

Manning also dismissed other arguments in the lawsuit against Durham County but criticized county officials for how they've handled the process.

"I've spent slightly over three hours reading the materials you all have submitted," Manning said at the opening of the hearing. "I must say at the outset that certainly Southern Durham Development is the victim here. They got had. This thing was botched by the planning department from start to finish."

Manning's ruling upholds a map change made by former Planning Director Frank Duke based on data submitted in a survey that the landowner himself had paid for. Prior to the survey, Durham's planning department relied on outdated maps to determine where the boundaries were, so Duke changed the maps in 2006 to reflect more up-to-date data.

Duke did not notify county commissioners of his actions. State and county officials learned of the map changes only last year and said Duke wasn't authorized to change county maps without public hearings and a vote by commissioners.

So the county reversed Duke's actions and started over. Durham's planning department applied for a map change, allowed the public to comment and asked county commissioners to vote on the matter in October, over the objections of Southern Durham Development. When commissioners voted in October, they agreed to do what Duke already had attempted—change the protective boundary in keeping with data shown in the 2006 survey.

The commissioners' October vote has since been challenged in a separate lawsuit filed Dec. 11 by residents around the rezoned land, who say a new, densely populated community around the lake could pollute the reservoir and cause other environmental problems. The plaintiffs say the county failed to properly evaluate a protest petition they filed that might have changed the outcome of the vote. Residents raised $8,000 to help four property owners sue the county, said Melissa Rooney, a southern Durham resident who helped orchestrate the fundraising.

"Despite my disappointment with Durham County government in all this, my faith in the Durham County citizenry just gets stronger," Rooney said of the citizen support.

But now that the argument over the protective boundary on Southern Durham Development's land has been settled in court, the October vote taken by commissioners has no bearing on the Southern Durham Development land. Thus the pending lawsuit filed by four property owners may also be affected.

The attorney handling the lawsuit filed by those property owners said he will not announce the next step for his plaintiffs until he evaluates final written orders in the case, which are yet to be filed.

Alex Mitchell, president of Southern Durham Development, said he felt vindicated by the outcome. "We feel we've had the facts and the law on our side the entire time, and that's what the court said," Mitchell said.

However, the company's proposal must continue through the evaluation process by the City-County Planning Department, Durham's Planning Commission, and finally, county commissioners.

On the other side, County Attorney Lowell Siler and Brad Risinger, an attorney contracted by the county to handle the case, were pleased that the judge dismissed other claims by Southern Durham Development. That decision freed the county from monetary damages, as well as any accusations of negligence or impropriety against the county or its employees, they said.

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