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Tuesday, January 11, 2011

Durham county attorney asks for dismissal of 751 South lawsuit, saying plaintiffs didn't serve defendants in time

Posted by on Tue, Jan 11, 2011 at 8:03 PM

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After two month-long delays, Durham's county attorney filed a response today to a lawsuit brought against the county and board of commissioners over the validity of the most recent 751 South protest petition. (PDF)

Durham County Attorney Lowell Siler filed a motion to dismiss the case on grounds that attorneys for the plaintiffs in the case, Kristen Corbell, Kim Preslar and the Chancellor's Ridge Homeowners Association, didn't follow the proper process to serve the defendants within the two months as required by a state statute of limitations.

The lawsuit is an effort by opponents of the proposed 751 South development to derail the controversial plans, which would bring a community of 1,300 residences, a shopping center and offices to the southwest corner of Durham County, just above the Chatham County line. The development would be built off N.C. 751, a route to Interstate 40, but one that would mostly remain a two-lane highway despite the significant increases in traffic the project would be expected to generate.

The county voted to rezone the land to allow this large mixed-use development on August 9. As cited in SIler's response, the civil court complaint was filed October 5, but, Siler submits, the defendants weren't properly served until Dec. 13 when a deputy sheriff delivered a court summons to Michael Page, chairman of the county commissioners. Prior to that, Siler writes, a court summons had been delivered to a mail room employee before being delivered to the county attorney. Siler cites case law stating that neither party are authorized to accept the summons on behalf of the parties being sued because the parties are named "actual" people.

Both the county attorney and plaintiffs' attorney had declined to comment on this case thus far, so it wasn't clear late Tuesday what the plaintiffs' response would be to Siler's claims, or how quickly a judge would consider the case.

The plaintiffs are rushing to have the case heard before city officials decide whether to annex the 751 South land, rezone it and provide city utilities to it. City officials could begin considering these requests at the end of this month. A city attorney and council members have said that if the city does annex and rezone the land, the lawsuit will be moot.

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