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Tuesday, June 30, 2009

House committee narrowly approves Racial Justice Act; cost estimates released

Posted by on Tue, Jun 30, 2009 at 8:01 PM

By a 7-6 vote, the House Judiciary I Committee approved a "clean" version of the Racial Justice Act (SB 461), which would prevent the execution of defendants who can prove race was an underlying factor in the decision to seek, or impose, the death penalty at the time of their trial. The committee had previously passed a similar House version of the bill.

The bill the House J1 Committee approved today does not include controversial clauses that would ensure the resumption of the death penalty in North Carolina, which were added on the Senate floor but later removed in the House Ways and Means Committee. It also contained several technical amendments to the version Ways and Means had passed. The bill now heads to the House Appropriations Committee, before coming up for a vote on the House floor. If House members succeed in keeping the bill free of the execution amendments, a compromise will likely need to be struck in conference committee.

After a discussion by committee members, Committee Chair Deborah Ross asked if anyone in the audience wished to speak against the bill. Nobody raised his hand.

Rep. John Blust (R-Guilford) offered an explanation: "People might not like the idea of coming forward and being against something that's titled 'the Racial Justice Act." He added:

If we really want to talk about racial justice we need to think about the people out there right now, in the various communities in this state, some of whom live in very rough communities and face a survival question day-to-day, at the hands of people who often prey on them. And it's those African-American citizens, out in the community, that I have more concern about their racial justice, to be able to live their lives. That's going to be impacted with the DA's having to look over their shoulders in prosecuting capital cases from now on.

The Rev. William Barber II, president of the NAACP state chapter, walked to the podium to debunk the concern: "African-Americans want to see this passed."

In an interview after the vote, he cited better schools, jobs and economic development--not the death penalty--as "the deterrents that we need in regards to the issues [Blust] was talking about."

"The African-American community is somewhat conservative, when it comes to crime," he said. "We believe, if you do the crime, you ought to do the time. What we fight for is there not being one system of sentencing for black folk, and then another system for others."

He added: "No prosecutor that's really interested in justice is worried about anyone reviewing what they have done."

Meanwhile, a fiscal note (PDF, 96 KB) has been added to the Racial Justice Act's page, including broad estimates on the cost of implementing the bill. N.C. Indigent Defense Services estimated "there will likely be a net savings associated with implementing the bill," due to the removal of trial and post-conviction appeal costs when defendants successfully make a Racial Justice Act claim, meaning they would instead be sentenced to life without parole, or, if their trial has not yet begun, tried for life without parole.

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Monday, June 29, 2009

Haw River Assembly survey says Jordan Lake is '6,200 feet upstream'

Posted by on Mon, Jun 29, 2009 at 7:14 PM

Image Courtesy Haw River Assembly
  • Image Courtesy Haw River Assembly

According to a new survey and hydrologist's report (PDF, 196 KB) commissioned by the Haw River Assembly, an environmental advocacy group, Jordan Lake's easternmost point is "approximately 6,200 feet upstream" from the drinking-water source's present location on official County maps. The survey, which according to a Haw River Assembly press release was paid for by donations from more than 100 citizens, is significant because it shows Jordan Lake extending in the opposite direction from a disputed survey now undergoing a public hearing in Durham County.

In 2005, Southern Durham Development partner Neal Hunter commissioned a survey that moved the easternmost point of Jordan Lake downstream from its present location, effectively removing 273 acres of property in Southwest Durham County from the protected area that extends one-mile from the lake's boundaries in Durham County. Of those 273 acres, Hunter either owns, or has a stake in, 240--including a 164-acre project, proposed by Southern Durham Development, that calls for 1,300 dwellings and 600,000 square feet of combined office and retail space. Patrick Byker, an attorney for Southern Durham Development, has acknowledged to the Indy that the project, known as the 751 Assemblage, would be impossible if it remained within the protected area, which severely limits development.

In 2006, former planning director Frank Duke accepted Hunter's survey, and changed Durham's maps, without submitting the revisions to Durham's elected officials, or to state regulators. Last year, the Durham County Board of Commissioners submitted the survey to the N.C. Division of Water Quality for the first time. In February 2009, the agency approved the survey on technical merit, after determining that Duke had exceeded his authority in changing Durham's maps without review. Since then, Durham County has initiated a state-mandated public hearing process to reflect the survey's changes in the County's watershed maps. In response, Southern Durham Development has sued the County, calling its vote to initiate the public hearing an "unlawful attempt to strip Southern Durham Development of its rights to develop the Property” and demanding that Duke's changes be implemented immediately.

Earlier this month, the Durham City-County Planning Commission delayed a vote on whether to recommend changes to Durham's Comprehensive Plan and Unified Development Ordinance, based on Hunter's survey, in part so they could consider the Haw River Assembly survey. The Planning Commission's recommendation on the map changes is the first step in the public hearing process.

Byker, and Durham Planning Director Steve Medlin, were not immediately available for comment on the Haw River Assembly survey.

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EPA rates 12 N.C. coal residue impoundments with a "high hazard potential"

Posted by on Mon, Jun 29, 2009 at 4:49 PM

North Carolina is home to ore than a quarter of the nation's coal combustion residue (CCR) impoundments that carry a "high hazard potential rating," meaning that if the impoundment failed, it would probably cause loss of human life. This is according to an Environmental Protection Agency report released today, which designated 12 North Carolina coal residue impoundments with the rating. Ten are operated by Duke Energy; two are operated by Progress Energy. The EPA identified 44 such impoundments nationwide.

According to the EPA, the rating is not an indication of the structural integrity of the unit or the possibility that a failure will occur in the future; it allows dam safety and other officials to determine where significant damage or loss of life may occur if there is a structural failure. 

There are three CCR impoundments in Spencer, which is near Salisbury. The following towns have two: Arden, south of Asheville; Eden, north of Greensboro near the Virginia-N.C. line; and Mt. Holly, just northwest of Charlotte. Belmont, which is south of Mt. Holly, Walnut Cove, north of Kernersville, and Terrell, which is near Lake Norman north of Charlotte, have one each.

Here's more from the EPA announcement:

The EPA made its determination using the criteria developed by the National Dam Safety Program for the National Inventory of Dams. Hazard potential ratings are generally assigned by the State Dam Safety officials.

These impoundments contain fly ash, bottom ash, coal slag and flue gas desulfurization residue. CCRs contain a broad range of metals, for example, arsenic, selenium, cadmium, lead, and mercury, but the concentrations of these are generally low. However, if not properly managed, (for example, in lined units), CCRs may cause a risk to human health and the environment and, in fact, EPA has documented cases of environmental damage.

EPA’s assessment of the 26 facilities that have units with high hazard potential ratings continues to be an Agency priority. EPA has conducted on-site assessments, which are undergoing Agency review, at 11 of these facilities. The remaining 15 of these facilities have had state inspections within the past 12 months and EPA will be reviewing the reports from those inspections. EPA plans to make public the results of our assessments as soon as they are completed.

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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.

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Jordan Lake developers cover all the bases in lawsuit against Durham County

Posted by on Fri, Jun 26, 2009 at 9:18 AM

The developers behind a proposed 164-acre mega-development near Jordan Lake have expanded their initial, one-paragraph complaint against Durham County, into a sweeping, 40-page lawsuit (PDF, 1.8 MB) that accuses individual county officials of personal plots to "attack" and "undermine" the project, and charges the county with several constitutional violations (including the "taking of Southern Durham's Property without just compensation") and acts of gross negligence. Among other charges, the suit alleges that the Board of County Commissioners' April 13, 2009 vote to follow state procedure and subject a map change affecting the property to a public hearing process "was an unlawful attempt to strip Southern Durham of its rights to develop the Property."

In fact, the April 13 vote did not involve Southern Durham Development's plans to develop the so-called 751 Assemblage, which is pending a separate re-zoning request. Instead, the 3-2 vote hinged on whether the county should follow state open meetings law, and hold a public hearing process before making substantial changes to a protected watershed. Despite intense pressure from the developers, a majority of commissioners voted to follow procedure, apparently prompting Southern Durham Development's litigation.

The suit is seeking at least $20,000 in damages, plus attorneys' fees, for property rights violations and negligence. Patrick Byker, a lawyer representing Southern Durham Development, has declined comment on the suit, and did not return the Indy's phone call.

In addition, Southern Durham Development is asking the court to uphold the disputed map change without public review, which would effectively move the so-called 751 Assemblage project outside a one-mile protected area surrounding Jordan Lake and allow it to be developed more densely in the future. In 2006, prompted by a private survey commissioned by Neal Hunter, a developer who later sold the 164-acre property to Southern Durham Development for roughly $18 million and a stake in the company, former planning director Frank Duke approved the map change without local or state review. In a twist of irony, Southern Durham Development's suit now alleges that by "attempting to invalidate" Duke's actions--which state regulators determined to have exceeded Duke's authority--the Durham County Board of Commissioners itself "exceeded its limited statutory authority."

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Thursday, June 25, 2009

Seven Triangle doctors make NC Medical Board's disciplinary report

Posted by on Thu, Jun 25, 2009 at 1:26 PM

Seven Triangle doctors, two from Durham County and five from Wake County, made the N.C. Medical Board’s bimonthly disciplinary report for actions including allegedly failing to monitor a patient undergoing a screening colonoscopy to allegedly performing dubious genital examinations on patients with learning difficulties.

The report, nc-medical-board-report, covers March and April 2009.

Here are two notable cases:

In Raleigh, Dr. Richard D. Adelman’s license was suspended for one month, with an additional 11 months’ probation after the family practitioner allegedly failed to appropriately monitor a patient undergoing screening colonoscopy in his office.

The patient died during the procedure; an autopsy determined the patient died from cardio-respiratory arrest due to complications from sedation. According to the medical board, the patient was given Demerol and Versed before the procedure, and then eight minutes later, given and additional dose. Demerol is often used to relieve pain, while Versed is used to produce sleepiness or to relieve anxiety before surgery or other medical procedures.

The board reported there was no documentation of why the patient was administered additional sedation.

In Durham, Dr. Melvin David Levine allegedly performed genital examinations on five patients whom he was treating for learning difficulties. However, the board could not find any record that these exams were medically necessary.

According to the report, Dr. Levine told the board that if he is prepared to present testimony at a board hearing that all physical and neurological exams of these patients “were medically indicated and consistent with standard medical practice in identifying physical abnormalities that might cause, contribute to or complicate patients developmental difficulties.”

Nonetheless, last year Levine voluntarily deactivated his North Carolina medical license. In March, he agreed to permanently keeping his license inactive, to never apply for reinstatement in North Carolina and to refrain from practicing medicine in outside the state.


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Statement from owners of Varsity Theater (yes, it’s closing tonight)

Posted by on Thu, Jun 25, 2009 at 1:20 PM

Buster Keaton in Sherlock, Jr., released in 1924several years before movies began playing at the present site of the Varsity Theater.
  • Buster Keaton in Sherlock, Jr., released in 1924several years before movies began playing at the present site of the Varsity Theater.

Just an hour ago, Bruce and Mary Jo Stone, the owners of the Varsity Theater on Franklin Street, released a written statement confirming the closing of the theater. Although the document doesn't specify the effective date, presumably the theater will close after tonight's final showings of The Hangover and The Brothers Bloom.

In the statement, signed by Bruce Stone, several factors are cited. First,

[T]he numbers currently don't support the continuation of both theaters [the Varsity and the Chelsea, also owned by the Stones] as viable enterprises. The Varsity especially has been struggling for over two years, with no prospect of an upturn any time soon. Although the film exhibition business is a highly variable, feast or famine sort of business, the assumption has always been the feasts and famines eventually even one another out. However, there has been much more famine in recent years, with the summers being especially difficult.

The statement goes on to discuss changes in the business model that make it hard for specialty theaters to survive against multiplexes. Citing a May article in Variety , Stone writes, 

[Specialty distributors] still in business prefer to withhold their prestige product until the fall winter awards season. When an indy film suddenly gains traction and becomes successful with a wider audience (or "crosses over"), the distributors quickly book these films into multiplexes everywhere, thereby undercutting the business being done at the specialty theaters.

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Wednesday, June 24, 2009

Kay Hagan: States should have a hand in a reformed health care system

Posted by on Wed, Jun 24, 2009 at 12:05 PM


Sen. Kay Hagan, on a conference call with reporters about her financial literacy bill, took a couple of questions on the health care reform debate as well. Health care costs are rising at rates that are unsustainable over the long run, Hagan said. On the other hand, she's "extremely concerned" about the prospective costs of health care reform legislation that should, she went on, assure that every American has access to affordable care "through life's ups and downs."

I asked her what she thinks about the "public option" proposed by President Obama, a federal insurance plan that would compete with private coverage in the marketplace and, as Obama argued in his press conference yesterday, be a check on what private insurers can charge.

Hagan said she's among those --  "a number of us" -- who are looking instead at the idea of public plans in every state, with administration at the state level. "I think that in something this large," she said, "the states should have a hand in it."

State-level plans might be called "public" or be publicly-administered "coops", she said, but the idea is that they would be available to anyone who can't find good coverage in the private market.

Hagan is a member of the Senate Health, Education, Labor and Pensions Committee (HELP), which is trying to produce a bill spelling out how health-care reform should work. The Senate Finance Committee, she noted, is working on how to pay for it. A week ago, Jane Hamsher at reported that Hagan and Sen. Jeff Bingaman, a New Mexico Democrat, were refusing to sign on to a bill that includes a public option. Meanwhile, Sen. Bernie Sanders, the Vermont independent who caucuses with the Democrats, was refusing to support a bill without a public option. With committee chair Sen. Ted Kennedy on the mend back in Massachusetts, the upshot is that this 12-10 Democratic majority committee hasn't been able to reach agreement on anything so far.

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Tuesday, June 23, 2009

Varsity Theater to go dark Friday, June 26

Posted by on Tue, Jun 23, 2009 at 7:26 PM

[caption id="attachment_4387" align="aligncenter" width="461" caption="UNC-Chapel Hill freshman Walker Percy, later the author of "The Moviegoer" and many other books, extends his leg while waiting in line for a movie at the Varsity Theatre, then known as the Carolina Theatre, on Franklin Street, circa 1933-34. Photo courtesy of North Carolina Collection, UNC-Chapel Hill"] [/caption]

The Varsity Theater, which has been in operation under different names on Chapel Hill's Franklin Street for more than 80 years, will go dark this Friday.

Owner Bruce Stone wouldn't directly confirm the theater's closing, but when asked if the fact that the Indy had not been provided with movie listings for the Varsity meant there would be no movies there, he replied, "That would be a correct inference."

Stone said he would make a formal announcement about the Varsity's operations on Thursday or Friday. Stone's other theater, the Chelsea, which is located in the Timberlyne shopping center, will remain open.

The Varsity's closing has been long-rumored, and earlier this month I wrote a story about the financial realities of the business of running a specialty movie house.

For the record, the Varsity is currently showing The Brothers Bloom and The Hangover. The final screening for the former film is 9:20 p.m., while the final screening for the latter is 9:30.

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Monday, June 22, 2009

Anti-bullying bill passes the House, an historic win for gay rights in N.C.

Posted by on Mon, Jun 22, 2009 at 9:51 PM


By a 59-57 vote, the N.C. House tonight approved the School Violence Protection Act, or anti-bullying bill -- Senate Bill 526 -- on second reading. Final passage requires a second vote (aka, a third reading) in the House, which should come in a day or so.

(Update, 6/22: How members voted here.)

(Update, 6/23: Because the losing side asked for it, a second House vote was needed to pass the bill. It was conducted today, following another lengthy debate marked this time by a series of failed Republican amendments, and the tally in favor was 58-57.)

SB 526 previously passed the Senate. (Background on the Senate action here.) Gov. Bev Perdue is expected to sign it if and when it reaches her desk. The bill would require every school district to adopt an anti-bullying policy that spells out who's most likely to need protection from bullying and the "strategies and methods" that will be used to protect them.

If enacted, the bill would offer gays and transgender citizens  recognition in state law for the first time: The bill's enumeration of the categories of kids who must be protected from bullying includes race, creed and -- for the first time -- sexual orientation and gender identity.

Rep. Darren Jackson, D-Wake, provided the most dramatic moment in a 90-minute long debate preceding passage. (His full statement is worth your time and is appended below the fold.) Jackson read a letter from a parent complaining that her autistic child is bullied because he's different. (Autism is another enumerated category in the bill.)

Jackson went on to say that the issue isn't some "cultural war" clash, as far as he's concerned, but rather is very personal. He described a 10-year old boy who's been called "sissy," "homo" and other names because he's small, likes to dance and likes the color pink. That child, he said, "should be free to be what God made him," and indeed, at 10, he doesn't yet know what he is.

Controlling his emotions, Jackson said that when the session ended, he'd go home and kiss that 10-year old boy good night. "And if that costs me my seat in this chamber, so be it."

Opponents of the bill, including virtually every Republican, argued that the best way to protect kids from bullying is simply to outlaw it without regard to specific categories of kids.

House Minority Leader Paul Stam, R-Wake, predicted that the language about sexual orientation, though ostensibly only about children, will be used in North Carolina some day -- as it was in Iowa by the Iowa Supreme Court -- to support an equal-rights decision in favor of same-sex marriages.

But Rep. Mickey Michaux, D-Durham, countered that argument with some civil rights history. The nation was founded on the principle that "All men are created equal," he recalled. Later, all men was redefined to mean all men and women too. But discrimination against people based on their religion and race continued, Michaux said, until it was specifically barred by law. "So what's wrong with identifying the people who are subject to being harmed, or discriminated against? Michaux asked.

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Pittman is simply crazy, demented, deranged! No other explanation needed. Perhaps he should stop and reflect on what he could …

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