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Friday, July 22, 2011

Hearing in 751 South development case concludes; judge to decide next week

Posted by on Fri, Jul 22, 2011 at 1:57 PM


This long and winding case dates back five years. Read our timeline to see how we got here.

IIt will be the end of next week—or even longer—before Superior Court Judge G. Wayne Abernathy will decide on a lawsuit against Durham County regarding 751 South, a controversial development planned near Jordan Lake.

Abernathy presided over a hearing on July 21 and 22 in the civil case the Chancellor's Ridge Homeowners Association and individual residents brought against Durham County last fall. Southern Durham Development later joined the county attorneys as a defendant, asking for the case’s resolution.

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 751 South, a community that could include 1,300 homes, apartments and condos, plus retail and offices.

The plaintiffs, Chancellor’s Ridge HOA, who sued the county last fall, say Durham County commissioners didn't properly account for the HOA’s protest petition against the rezoning when they voted 3 to 2 to approve the zoning change. Their lawsuit argues that the petition met all requirements and was valid, and that the county didn't follow its own ordinance, which requires at least four commissioners to vote to approve a rezoning if there's a valid protest petition.

Arguments both Thursday and Friday focused on a small strip of land—less than four acres—and who owned or controlled it at the time of the Durham commissioners' vote. Just before county commissioners voted on the rezoning, SDD gave the N.C. Department of Transportation right-of-way access on a strip of land running along the front of its property line on N.C. 751. If SDD were to build the project, it would eventually transform a portion of N.C. 751, currently a meandering two-lane road, to a four-lane divided highway, and the N.C. DOT would need access.

But the developer also granted the strip of land to invalidate—on a technicality—the protest petition filed by neighboring property owners. The petition's validity depends on whether those property owners who signed it were physically close enough (within 100 feet) to the boundary of the land SDD owns to legally petition its rezoning.

When the property owners filed their petition in July 2010, they were within 100 feet of the property line. But when SDD donated the land to N.C. DOT, it widened the distance (on maps) between its property boundary and the protesting property owners—just far enough away (105 feet) that the petitioners suddenly became just out of reach to legally protest the rezoning.

Last July, when N.C. DOT officials realized their acceptance of the right-of-way had inadvertently wedged the state agency into the middle of a long political battle over the 751 South development, DOT officials tried to undo their actions, rejecting the land donation. Durham County and SDD lawyers say their legal paperwork rejecting the land transfer, which was filed with the Durham County Register of Deeds, wasn't sufficient.
The case for both sides hinges on whether the land rights did belong to the N.C. DOT—whether the correct person signed for the acceptance, whether the land was legally transferred and who controlled the land at the time of commissioners' vote.

If DOT did legally control the land, the buffer from SDD's property to the petitioners' properties would have been too wide (more than 100 feet). If there were loopholes in the process, and the correct person at N.C. DOT didn't sign to accept the land, or if control of it was somehow in flux, the petition may actually have been valid and the plaintiffs could prevail.

The judge must decide whether to grant a summary judgment, as defendants Durham County and Southern Durham Development have asked, or whether there are still facts in dispute that would require further inquiry. If there are still facts in question, that could warrant a trial.

As he adjourned the court hearing Friday, Abernathy wielded an armful of binders of evidence, similar cases and affidavits he said he needed to go back through before issuing a decision. He hoped to finish the reading by next week's end, he said, but that was a "goal, not a promise."

Just a few citizens who had been following the long and twisting 751 South saga sat in the courtroom to watch the proceedings.

"The wheels of justice grind slowly," said Steve Bocckino, an outspoken opponent of the project who has followed it since it was proposed in 2008. "And I hope they grind exceedingly fine."

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