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Thursday, July 21, 2011

Lawyers for developer, Durham County ask judge to resolve 751 South case; hearing continues Friday

Posted by on Thu, Jul 21, 2011 at 6:47 PM

map of proposed 751 South site

Attorneys for Durham County and Southern Durham Development, the company trying to build a major new development near Jordan Lake, pushed for a resolution to a lawsuit against the county in Durham court Thursday. Superior Court Judge Wayne Abernathy heard arguments for about two and a half hours Thursday before adjourning court until Friday morning. Ultimately, Abernathy will decide whether to make a summary judgment in favor of the developer and Durham County, or whether the case should go to trial.

Both the county and SDD's lawyers say Abernathy should find that the Durham county commissioners acted appropriately last August when they voted to rezone more than 160 acres near Jordan Lake. SDD needed the rezoning to move forward with plans to build the large, dense community known as 751 South.

The plaintiffs, who sued the county last fall, say Durham's Board of County Commissioners' 3-to-2 vote to rezone the land did not consider their protest petition against the rezoning. The complainants, which include the Chancellor's Ridge neighborhood Homeowners Association and resident Kimberly Preslar, say the document met all requirements and was valid. They argue that the county didn't follow its own ordinance, which requires at least four commissioners to vote approval in a rezoning where there's a valid protest petition.

Abernathy, a visiting judge from Alamance County, said at the beginning of Thursday's hearing that he recognized the political significance that the case has had in Durham County and that he has no ties to Durham, and "I call 'em like I see 'em." (See a timeline of the embattled 751 South development)

The petition's validity hinges on a technicality of whether property owners who signed it are physically close enough (within 100 feet) to the boundary of the land SDD owns to legally petition its rezoning. When the nearby property owners filed their protest petition in July 2010, it was valid. But between the time the petition was filed and the day the county actually voted, SDD donated a strip of land fronting its total property to the N.C. Department of Transportation.

By granting the strip of land to the N.C. DOT for future highway widening projects, the developer moved its property boundary farther away from the protesting property owners—just far enough away (105 feet) that the petitioners suddenly became just out of reach to legally protest the rezoning. An attorney for the developer didn't disclose to the N.C. DOT that this would be the result, and maintains that SDD made the donation not to subvert the process, but as a "good faith" gesture to the N.C. DOT. (See more stories about 751 South and the last-minute donation to the N.C. DOT)

Arguments Thursday from all sides focused on whether the N.C. DOT employee who accepted the land donation actually had the authority to do so. Attorneys Dan Blue, also a state senator, and his son Dhamian Blue, represent the property owners who signed the petition and subsequently sued the county and its commissioners for their actions. The attorneys argued that the N.C. DOT employee who signed the document didn't have the authority to accept the easement and that the land was not legally transferred, which would mean the petition was still valid.

Attorney Cal Cunningham, a former state senator and 2010 candidate for U.S. Senate, represents SDD, and worked with Durham County attorneys Lowell Siler and Bryan Wardell in maintaining that the N.C. DOT employee did have the authority to accept the easement and that it was a valid transaction. They said the petition was invalid and the county acted appropriately.

SDD and Durham County have asked Abernathy to grant a summary judgment in their favor, ending the year-long issue over whether the commissioners' vote was legal. If Abernathy rules against the developer and the county in favor of the petitioners, the matter could go to trial, Dhamian Blue said after today's hearing.

The opposition to 751 South has focused on several criticisms, including that it would be cramming 1,300 homes, apartments and condos, plus retail and offices, into too little acreage. Opponents also say the development would cause a traffic nightmare in South Durham and northern Chatham County, and will further pollute Jordan Lake, which provides drinking water to several communities.

Abernathy said that after the hearing concludes, he'll need additional time before making a ruling, so it's unlikely that Friday's hearing will end in immediate resolution.

The end to the lawsuit would help SDD move forward with its plans. The company is currently asking the City of Durham to extend water and sewer service to the property so it can start building. Some members of Durham's City Council said they wanted to wait until the court case was resolved before making such a decision.

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