State attorney's letter spells out DOT power to reject easement; still no opinion from Siler | News
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Friday, August 6, 2010

State attorney's letter spells out DOT power to reject easement; still no opinion from Siler

Posted by on Fri, Aug 6, 2010 at 4:40 PM

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A lawyer from the office of the attorney general sent a letter to Durham's county attorney today, laying out the powers the N.C. Department of Transportation had when it reversed its acceptance of land from a company behind a controversial development planned for south Durham. The information in the letter could make or break that company's project, 751 South, when Durham county commissioners consider its scope Monday and vote on whether it should go forward.

The letter (PDF) is addressed to County Attorney Lowell Siler, who asked for the information as he considers whether the N.C. DOT was legally allowed to accept a 3.3-acre piece of land from Southern Durham Development, then reject it days later. The DOT revoked its acceptance of the land on July 26 (PDF), its officials learned that by accepting the land, they were inadvertently interfering in the long and controversial rezoning battle over 167 acres of land slated for 751 South. The rejection was filed in court and signed by State Highway Administrator Terry Gibson. But Siler didn't take it on face value—he wanted an explanation from the attorney general's office, which is representing the N.C. DOT and orchestrated the rejection documents, to help inform his own opinion on whether the N.C. DOT even has the legal right to reverse a deed.

W. Richard Moore, an attorney with the N.C. Department of Justice, outlined his legal backing in the letter. He quoted state statute and administrative code that state, among several items, the state highway administrator is delegated to execute documents pertaining to the acquisition of right-of-way, and "release interests in land acquired for right-of-way, but not used or needed for right-of-way," and that duties of the secretary of transportation or the board may be delegated to the state highway administrator.

Siler's opinion is central to whether 751 South passes or fails. The N.C. DOT issue and its resolution will dictate whether the developer needs three 'yay' votes, or four, to gain approval for the project. The board has historically been divided 3-2 in favor of 751 South, so it could go either way.

Here's what Siler has to decide: If the N.C. DOT was within its rights to give the land back to the developer through the process it followed, that upholds a protest petition filed by opponents to the project, which could include 1,300 residences and 600,000 square feet of retail and office space. The valid petition would require four of the five county commissioners to support 751 South for it to move forward.

If Siler suggests the N.C. DOT did not legally refuse the land, that means the N.C. DOT still possesses the right-of-way. Its possession inadvertently rules that citizen protest petition invalid, on a technicality. An invalid protest petition means that only three commissioners must approve the development for it to move forward.

Opponents of 751 South who filed the petition say the development is too dense for a rural corner of Durham County, is too far from the city's core, lacks public transportation and could further damage the already polluted waters of Jordan Lake, which is about a mile from the development site.

Siler is expected to share his opinion over the weekend with county commissioners. He is supposed to offer the opinion to Planning Director Steve Medlin, who ultimately decides whether the protest petition is valid.

At the latest, opinions from Siler and Medlin will be publicly announced Monday when commissioners vote on 751 South. The meeting begins at 7 p.m. on the second floor of the county building at 200 E. Main St., in downtown Durham.

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