Editor's note: This story has been modified since its original post.
A judge in Durham dismissed a lawsuit Friday (PDF) that opponents of the controversial 751 South development near Jordan Lake filed in 2010. The ruling means the judge agreed with the defendants, that the actions Durham County Commissioners took to rezone the case in 2010 were legal. No word yet on whether the plaintiffs will appeal.
Residents near the land to be developed brought the civil lawsuit against Durham County after Durham County Commissioners voted to rezone the land to allow a large, dense development along N.C. 751, which is near the environmentally sensitive lake in southern Durham County.
Numerous property owners had signed a protest petition against the project. By local law, if enough adjacent property owners petition, at least four of five commissioners have to approve the rezoning. And while the petition met all the requirements, a last-minute technicality involving a land-transfer to the N.C. Department of Transportation botched their efforts. The commissioners approved the rezoning by a 3-2 vote, a simple majority. (See a timeline of events)
The Chancellor's Ridge Homeowners Association was one property owner that signed a petition. The HOA sued the county saying its petition shouldn't have been invalidated on the technicality, and thus that commissioners didn't lawfully approve the rezoning. Many residents in the Chancellor's Ridge neighborhood, which is across from the 167 acres to be developed, have said they don't want to live through the estimated 10-year construction of 751 South, which could include 1,300 homes and apartments, plus shopping and office space.
But in his order Friday afternoon, Superior Court Judge Henry Hight sided with Durham County and the project's proponents Southern Durham Development, which intervened in the case and helped defend the county in the lawsuit. Hight granted the parties' request for a dismissal, essentially agreeing that the protest petition was no longer valid when commissioners rezoned the land for 751 South. Hight is a judge from Henderson who has just begun a regularly scheduled rotation presiding in Durham.
"I’m very disappointed," said Steve Bocckino, one of the most vocal opponents to the project. Bocckino was not a plaintiff in the case, but supported their cause. "I do think that Southern Durham Development was guilty at least of trickery in giving land to N.C. DOT and I’m sorry that the judge didn’t recognize that." Plaintiffs in the case couldn't be immediately reached for comment. It is unknown whether the plaintiffs will appeal the judge's findings. However, representatives of the plaintiffs had indicated in recent months that they would appeal if the case was not decided in their favor.
Southern Durham Development President Alex Mitchell issued a statement through his attorney: “We are pleased with Judge Hight’s decision. His order shows Southern Durham Development has consistently acted above board and within the law. We hope this puts to rest any concerns that may have been generated during the course of this lawsuit. We look forward to being part of Durham’s future success.”