Westpoint at 751: Another survey paid for by the developer | Durham County | Indy Week
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Westpoint at 751: Another survey paid for by the developer 

You get what you pay for—at least, that's what some Durham residents are afraid of.

Because of similarities between two recent South Durham projects, some residents and officials want to ensure that when developers hire consultants to survey their land, they aren't choosing cronies who will help the developments skirt environmental regulations.

The chatter about such conflicts of interest started a few years ago, when a developer wanted to build a massive complex of stores and homes called 751 South near the banks of Jordan Lake, which provides drinking water for several towns in the region.

The controversy resurged this week as Durham's City Council considered Westpoint at 751, a 17-acre project farther north in the Jordan Lake watershed, where Renaissance Parkway meets N.C. 751 near the Streets at Southpoint. The plan calls for one or two hotels, offices, a restaurant and a grocery store on land that abuts hundreds of acres where state and federal authorities are trying to protect 150-year-old trees, animals and rare plants, as well as Jordan Lake's water quality.

In both the 751 South and Westpoint at 751 proposals, studies developers paid for happened to favor their interests, showing that their projects were outside protected areas or wouldn't negatively impact them. Consequently, their development projects could move forward—but not without opponents of the projects hitching onto developer-paid evaluations as a cause for skepticism.

The common factor between the 751 South and Westpoint at 751 drew comparisons earlier this year by Durham's Planning Commission, which advises the city and county governments on planning issues. In January, the Planning Commission unanimously recommended that the city approve a zoning change that would allow Westpoint at 751 to move forward, but with some caveats.

Planning Commissioner Jackie Brown called for more transparency in the development process. "Developers have taken to hiring somebody to do these surveys for them," Brown said in an interview. "And who's to say it's wrong? They can go out and handpick who they want ... It just causes so much suspicion in neighborhoods that's unnecessary, to me, when a developer hires a private company to come in and do something for him and the neighborhood cannot afford to do the same thing."

City Councilman Mike Woodard, who, along with the rest of the council, voted to approve a map change Monday that will allow Westpoint at 751, said that although onlookers may speculate about impropriety in land evaluations, he doesn't believe there's an issue with consultants producing biased land surveys or reports.

"It's worth having a discussion about," Woodard said. "But it's important to remember surveyors are certified by the state ... That gives me some comfort that regardless of who's hiring them, they are meeting their ethical standards."

Ideally, Brown said, the city and county would have the money to conduct their own surveys to ensure accurate results and public confidence. But with a budget that wouldn't allow such expenditures, another solution would be for Durham's planning department to establish a list of highly qualified specialists. Developers would contract with those preapproved consultants, employing whoever was next in a rotation.

"That's the only fair way I see of doing it," Brown said.

Durham's planning department hasn't formally considered the idea, said Patrick Young, assistant planning director. "But we'd be willing to if directed to do so," he said.

The controversy over 751 South peaked last year, prompting two lawsuits and public backlash against Durham County and its commissioners. Initially, a large portion of the 164 acres to be built upon by Southern Durham Development was believed to be in Jordan Lake's critical watershed, which is legally protected from dense development. But a survey paid for by the landowner, Neal Hunter, indicated most of the land was outside that boundary.

Hunter's survey generated such suspicion that the Haw River Assembly, a nonprofit conservation group, funded its own survey of Jordan Lake to determine where the reservoir's boundaries were. The HRA's survey used a different methodology than the survey paid for by Hunter and showed different results: According to the Haw River survey, much of the land in question actually did fall in a protected area and developers of the project wouldn't be able to build as planned.

With two different surveys to consider, County Commissioners shot down the option to conduct their own independent study and, to much criticism, Commissioners changed county maps based on the survey Hunter provided.

In the case of Westpoint at 751, Durham's planning department initially recommended that the City Council vote against any zoning change, because maps showed the project would encroach on an area in the Durham County Inventory of Important Natural Areas, Plants and Wildlife, where rare plants previously have been documented.

So landowner Kirk Bradley, president of Lee-Moore Capital Company in Sanford and one of the names behind Chapel Hill's Governors Club gated community, hired Soil & Environmental Consultants of Raleigh to study the area. Scientists from S&EC found no evidence of rare plants that previously had been documented in the area, said Young of the planning department.

During the evaluation, S&EC also heard from specialists with the N.C. Department of Environment and Natural Resources, who urged that site designers maintain a buffer between the Westpoint at 751 and forest that will allow birds, deer and other woodland creatures to migrate to dry ground during wet seasons.

In its analysis, S&EC showed that there is a sufficient strip between the proposed development and the nearby floodplain that will allow woodland species to move freely.

Despite the fact that S&EC didn't find rare plant species on the site, five acres of the land at Westpoint at 751 have been designated as a Significant Natural Heritage Area, said Steve Hall, an invertebrate zoologist with the N.C. Natural Heritage Program, which is operated under the N.C. Department of Environment and Natural Resources.

That five acres of overlap is based on fluctuating boundaries, Hall said, but does lead to concerns about the environmental impact of this and other nearby developments.

The state has asked for the site designers to consider an additional buffer to further protect wildlife near the development. The designers haven't addressed that request with any additional commitments.

The reach of the N.C. Natural Heritage Program is limited, though, Hall said. The sites aren't protected by any regulation. "We identify them for planning purposes and hope they will be conserved," he said.

Planning Commissioner Wendy Jacobs agreed with Brown that ideally, the city and county would pay for their own surveys, eliminating any public doubt in the integrity of the process. But she added that Westpoint at 751 is not necessarily comparable to the Jordan Lake issue. Hall visited the site with the private consultants and provided guidance on lessening the impact to natural areas there. Hunter's survey of the Jordan Lake watershed didn't include the same involvement from public offices or Durham's planning department, she said.

"What happened in this case is the second-best scenario—the planning department and the people from the state were involved in the process," Jacobs said. "Hopefully, this will set a precedent now."

Corrections (March 4, 2010): The print version of this article did not completely identify Steve Hall. He is an invertebrate zoologist with the N.C. Natural Heritage Program, which is operated under the N.C. Department of Environment and Natural Resources.

Additionally, Durham's planning department did not recommend a specific firm to the Westpoint at 751 landowner for evaluation of the Durham County Inventory of Natural Areas, Plants and Wildlife. The landowner selected the consultant on its own.

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