Judge upholds Duke's original map change of Jordan Lake watershed | News
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Wednesday, December 16, 2009

Judge upholds Duke's original map change of Jordan Lake watershed

Posted by on Wed, Dec 16, 2009 at 5:50 PM

A superior court judge found in favor of Southern Durham Development on Wednesday in its major lawsuit against the county.

Superior Court Judge Howard Manning said that lines drawn in 2006 by a former planning director that outline the protective boundaries around Jordan Lake are binding and must stand.

This means that 146 of 165 acres on which Southern Durham Development was hoping to build a mixed-use community are no longer considered part of a protected zone that heavily restricts commercial and residential development, opening the door to broader development options.

In his ruling, Manning dismissed other arguments in the lawsuit against Durham County, including claims by Southern Durham Development that county officials were trying to undermine its development plans for the land (west of N.C. 751 in South Durham), and requests for $20,000 in damages.

Both parties seemed pleased with portions of the judge’s actions.

“We feel we’ve had the facts and the law on our side the entire time, and that’s what the court said,” said Alex Mitchell, president of Southern Durham Development.

On the other hand, County Attorney Lowell Siler and Brad Risinger, an attorney contracted by the county to handle the case, both said the fact that the judge dismissed other claims by Southern Durham Development was significant, also. That decision saved the county thousands of dollars in work hours and defense funds, as well as any indication of negligence or impropriety on behalf of the county or its employees regarding the project.

The ruling by Manning on the suit, which Southern Durham Development filed in June, upholds a map change made by former planning director Frank Duke. Duke changed county maps in 2006 based on data from a land survey to determine the exact location of the protective boundaries around Jordan Lake. The survey was commissioned and paid for by a private landowner, who is a party to the development company.

Prior to the survey, Durham’s planning department relied on outdated maps to determine where the boundaries were, so Duke changed the maps to reflect more up-to-date data. But later, the county said, what Duke did was tantamount to a zoning change—such a significant change always requires the approval of county commissioners, county officials said.

County officials reversed Duke’s action last year and this year took the map change through public processes, despite the protest of Southern Durham Development. County Commissioners voted in October in favor of maps that reflect exactly what Duke already had done, but this time it was thought to have been a proper public process in keeping with a local ordinance.

(The commissioners’ vote has since been challenged in a separate lawsuit filed last week by residents around the rezoned land who say they don’t want developers to build a new, densely populated community around the lake because it could pollute the reservoir and cause other problems.)

Attorneys for both sides argued Wednesday as to whether the map changes Duke made were simply corrections raised by the land owner, or whether Duke effectively rezoned the land without going through the public processes.

In the end, Manning ruled that the changes Duke made should stand. The map change is worth at least $18 million to Southern Durham Development—what the company paid for the land—plus millions more down the road if the company may carry forward with its commercial and residential development, which could include 1,300 residences.

Although Manning didn't officially rule against the county, he did have some harsh words for the county's actions from the start of this case:

"I've spent slightly over three hours reading the materials you all have submitted," Manning said at the opening of the hearing. "I must say at the outset that certainly Southern Durham Development is the victim here. They got had. This thing was botched by the planning department from start to finish."  Southern Durham Development did what it was supposed to do to get a correct survey completed of its land, and Manning said he had no doubt the lines in the survey indicating the Jordan Lake watershed are correct.

Now that the argument over where the protective boundary on Southern Durham Development’s land has been settled (at least temporarily) in court, the October vote taken by commissioners on the extent of the protective boundary has no bearing as it relates to those 165 acres. The October rezoning still applies to more than 700 acres of other land around the watershed.

It’s unclear what effect Wednesday’s decision may have on a lawsuit filed last week by four property owners challenging the commissioners’ October vote, or whether that case will continue.

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