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Friday, June 26, 2009

Durham County attorney retiring--but not because of 751 Assemblage suit

Posted by on Fri, Jun 26, 2009 at 12:46 PM

Updated: We've added additional quotations from Chuck Kitchen at the end of this post, at 12:57 p.m., and at 1:21p.m. added a reference to Southern Durham Development's initial filing.

After more than 30 years as a law clerk and attorney with Durham and Alamance Counties, Durham County Attorney Chuck Kitchen has announced his retirement, effective November 30, 2009.

The official announcement, on June 22, came just two days before Kitchen was named in a lawsuit against the county, filed by Southern Durham Development, the company seeking to develop 164 acres of land near Jordan Lake into a proposed mega-development known as 751 Assemblage. The suit seeks compensatory damages for the county's decision, upon Kitchen's recommendation, to follow state law and subject a map change affecting the property to a public hearing process--and for that decision to be ruled null and void.

In an interview with the Indy, Kitchen said the lawsuit had nothing to do with his decision to retire, which he said he made in consultation with his wife several weeks prior to the suit.

"Them suing actually made it much harder," he said. "That’s the kind of thing I like to do. But I’d already made the decision before then."

Southern Durham Development began its civil action against the county on June 12, with a briefing that was expanded into a 40-page lawsuit on June 24.

Instead, Kitchen attributed his retirement to the "shrinking" difference between his annual pay, and the pension that all local government employees in North Carolina are entitled to, depending on years of service. The Indy has requested Kitchen's salary information from Durham County.

"The difference between what you’re making, and what you’ll be making not working keeps shrinking," he said. "It’s to the point where, with all the financial issues the county has, and no raises for next year, I looked at it and said it really doesn’t make financially sense anymore."

In addition to claiming in the lawsuit that Kitchen's advice had violated their constitutional property rights, Southern Durham Development accused Kitchen of being embroiled in a personal plot to undermine the project. The company has levied this charge in the past.

In a letter dated March 4, 2009, Southern Durham Development attorney Bill Brian wrote to Kitchen:

We cannot understand why you have adopted such a strained reading of the ordinances in question unless you are trying to delay or derail our client’s pending rezoning request. The only reason for you to do this would be to assist those who oppose the proposed project in a manner which is outside the scope of your official duties. This is deeply troubling to us.

Southern Durham Development's lawsuit, meanwhile, refers to Kitchen's insistence that the map change go through a required public hearing process as a deliberate "misquotation" of Durham's Unified Development Ordinance, "made intentionally in an effort to invalidate the Official Interpretation and undermine the legitimate authority of the Planning Director." This allegation refers to Kitchen's February 27, 2009 letter to Southern Durham Development, in response to the developers' request that the controversial map change go forward without a public hearing.

The "Official Interpretation," by the way, is former planning director Frank Duke's unilateral decision to change Durham's watershed maps, at the request of Southern Durham Development partner Neal Hunter, without local or state review. That decision has since been invalidated by Durham County and considered by state regulators to be in violation of state code. Southern Durham Development's lawsuit hinges on the so-called "Official Interpretation" being "correct"--or, if it's not correct, the County being negligent. (For a full explanation, see today's earlier post.)

One of the most riveting aspects to the lawsuit is the allegation that Kitchen threatened to have County Manager Mike Ruffin fired for seeking a "second legal opinion" on Duke's actions. Instead of risking his job for going above his colleague, the lawsuit claims, Ruffin asked the developers themselves to fund the legal opinion--which they agreed to do "so that Mr. Ruffin would not risk termination resulting from Kitchen's threats."

Perhaps not surprisingly, the developer-funded legal opinion sided with the developers (PDF, 1.5 MB).

Ruffin was not immediately available for comment. Kitchen has declined to comment on any allegations in the lawsuit, but noted that they may preclude him from representing Durham in court.

“I may very well have to end up being a witness, since they make these personal allegations," he said.

When asked who would represent Durham in his stead, Kitchen said he would consult with the state Bar Association for advice, but speculated that his entire staff would be precluded from representing Durham as well, since they work for one of the people named in the suit.

“We will be responding in due course—I just have to figure out who’s going to be able to defend it," he said. “If I’m disqualified, so is my entire staff.”

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