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Thursday, August 5, 2010

Siler: I'm waiting on the attorney general's office in the easement legality.

Posted by on Thu, Aug 5, 2010 at 4:09 PM

Durham County Attorney Lowell Siler
  • Durham County Attorney Lowell Siler

Despite mounting public interest and calls for an urgent announcement, it could be Monday before the public hears the opinion of Durham County Attorney Lowell Siler on a legal matter that's holding up a county vote on the controversial 751 South development.

All eyes have been on Siler since July 26, when Durham County Commissioners were scheduled to vote on whether to rezone land that would allow the huge mixed-use development to go forward. But a last-minute wrinkle—a legal disagreement over who has rights to a 3.3-acre strip of land on the developer's property—caused Siler to ask the board to defer the vote until August 9 so he could consider the matter.

But the two-week delay hasn't lent much insight, as Siler said he's still waiting for information from the attorney general's office that is central to the legal matter. Siler said he requested information from the state office on July 28, and still hasn't received a response. (Siler's e-mail, PDF)

Noelle Talley, spokeswoman for the office of the attorney general, told the Indy Thursday that attorneys in her office are working on a letter to Siler that answers his questions. Time is of the essence, here, because whatever information the attorney general's staff gives will be central to how county commissioners proceed with their vote on Monday night.

The issue at hand revolves around that small strip of land, equivalent to just 3.3 acres. On July 13, Southern Durham Development, the proponents of 751 South, granted the rights on that land to the N.C. Department of Transportation so that highway N.C. 751 could be widened. If their project was approved in the future, Southern Durham Development would eventually have to give the state the right-of-way.

But the timing of granting it early was advantageous: with the state taking over the right-of-way, it would invalidate a protest that neighbors of the property had lodged with county commissioners. A valid protest petition would have required four of the five commissioners to vote in favor in order for 751 South to move forward. Without a valid protest petition, only three commissioners—a simple majority—must vote favorably for the project to go forth.

When the state realized its acceptance of rights to that small strip of land inadvertently sabotaged protesting citizens, it tried to remove itself from the situation by rejecting the land gift just before the July 26 meeting, when the commissioners originally were supposed to vote.

That's when Siler questioned whether the N.C. DOT could really give the land back. The attorney general, on behalf of the N.C. DOT, had filed notarized documents (PDF) with Durham's register of deeds rejecting the property. But Siler, and others, want the attorney general's office to show specifically where in the law they may do that.

"I would like to at least see where they're coming from," Siler said. "I would like to see their reasoning."

Despite being out this week on a family medical emergency, Siler said he was working and staff in his office tried to get in touch with Richard Moore, the lawyer at the attorney general's office who signed the N.C. DOT's rejection of the land on July 26.

County Manager Mike Ruffin said Thursday he had hoped Siler would have received a response and ruled as to whether the rejection Moore filed was legally sound and valid. Ruffin said he wanted commissioners to have the weekend to "meditate upon it."

It's unclear, though, when the attorney general's office will respond. Once the office does respond to Siler, he's expected to decide whether the N.C. DOT has legally reject Southern Durham Developer's land gift. That decision, in turn will affect whether the protest petition is valid, which is a decision ultimately made by Planning Director Steve Medlin. All of that information will be give to county commissioners before—maybe days, maybe hours before—they vote on 751 South.

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