Friday, November 20, 2009
Durham County / Durham / environment / News UDO: Does it offer another possible option for commissioners?
Posted by Samiha Khanna on Fri, Nov 20, 2009 at 1:16 PM
UPDATE, 2:43 p.m. Planning Director Steve Medlin explained the meaning of the UDO section Lowell Siler referred to yesterday. There have been no significant changes in the facts or circumstances of the area to be rezoned, Medlin said. Changes to the validity of the Jordan Lake protest petition have nothing to do with the area to be rezoned, he said, therefore, commissioners may not apply to rezone the Jordan Lake watershed until 12 months have passed.
But today, re-reading the Unified Development Ordinance that Siler cited, it appears there could be another option—at least in a very general, non-legal lay interpretation (i.e. - we are raising the question and looking for answers). We at the Indy are waiting for an official interpretation.
But yesterday, when Commissioner Ellen Reckhow asked Siler to reiterate what had been discussed at the commissioners' closed session Thursday morning, he stated he informed commissioners of section 3.5.15 of the UDO.
"When the body has taken action, no action can be taken again until 12 months have passed," Siler said.
He left out the second part, which is quoted here:
3.5.15 Subsequent AmendmentsWhen the governing body has taken action on a zoning map change, no new application may be filed for a similar zoning map change until at least 12 months have elapsed since the date of the previous action. The Planning Director, or designee, may waive this requirement if the application has been significantly modified or there has been a significant change in the facts or circumstances since the previous request.
We have called planning Director Steve Medlin, Siler, County Manager Mike Ruffin and several commissioners to see what, if any, discussion has already taken place on this ordinance that could be disclosed. Ruffin said today that Medlin could provide an interpretation of that second part of the UDO, but that a response most appropriately would come from Siler, who is out of the office today, but will return Monday. We'll update if/when phone calls are returned.
UPDATE, 2:13 p.m.
Commissioners Chairman Michael Page said the board didn't discuss the UDO or whether the board could apply again for rezoning based on new information when they met yesterday.
"What was advised to us yesterday was [court] would be the best option," Page said.
"I think in many ways, this is being done because this is going to end up in superior court anyway," he said, referring to already pending civil action surrounding Southern Durham Development and whether former planning manager Frank Duke had the right to move the Jordan Lake watershed boundaries.
Background, for those new to this issue:
The controversy surrounds a petition filed last month by an environmental group whose members wanted to make it harder for county commissioners to redraw protective barriers around Jordan Lake. Had the petition been valid, commissioners would have been required to cast a 4-to-1 vote in favor of redrawing the lines, instead of the regular majority (3 votes to 2) they ended up casting.
But Durham’s planning department, led by Steve Medlin, initially ruled the petition was invalid, so only a 3-to-2 vote was required of commissioners when they heard the rezoning case Oct. 12. Whether the petition is truly valid is still debated. A memo released Wednesday shows Medlin believes the petition is valid, but Siler said he still questions the validity of the signature of John Gunter. Gunter, president of the Chancellor’s Ridge Homeowner’s Association, signed the petition in representation of some common areas at the development.
The rezoning of the protective watershed is debated issue itself (read more). The county and developer Southern Durham Development have been in a tug-of-war dating back to 2006 about where the watershed lines should be. When commissioners voted Oct. 12 to redraw the boundary, they cleared a major hurdle for Southern Durham Development, which wants to build a sizeable residential and commercial development right next to Jordan Lake.
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The BOCC could handle this administratively, which would save the County many thousands of dollars. Another rezoning would be an obscene waste of time and money, and only further erode Durham's faith in its elected officials and staff. It is interesting that Commissioners Page, Bowser and Howerton weren't willing to spend a penny on an independent survey of the watershed, yet are blissfully shelling out thousands of dollars of our tax money on lawsuits. Attorney Siler acknowledged yesterday that there was NO case law regarding our situation, yet he somehow deduced that Durham citizens had only one remedy to correct the County's manifold mistakes: take them to court, where the County would oppose the citizens. Now that's incisive legal thinking. It takes a particularly talented bunch of pols and bureaucrats to infuriate both developers and environmentalists at the same time. Kudos!
If the county were to undertake all of the steps to correct this problem fundamentally, and by this I mean removing the watershed boundaries from arcs based upon radii from the "normal pool" of the lake, then the proposal would not be a "similar change" within the meaning of the UDO. In any event, as you point out, the planning director may waive the requirement. I think the discovery that the planning director made a bad call on the protest petition is a "significant change in the facts or circumstances." Of course to reach this conclusion you have to subscribe to the notion that the civil rights of the petitioning neighbors are sufficiently significant to be worthy of protection. The question now is whether our county government so subscibes. Tom Miller
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