751 South petitioners file appeal to Board of Adjustment | News
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Thursday, September 9, 2010

751 South petitioners file appeal to Board of Adjustment

Posted by on Thu, Sep 9, 2010 at 1:55 PM

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Two residents and the homeowners' association for Chancellor's Ridge, a neighborhood across from the site proposed for the 751 South development, have filed an appeal to the Durham Board of Adjustment in the highly controversial rezoning case along N.C. 751 in southern Durham.

This was not an unexpected action, as a resident who organized a protest petition against the rezoning for 751 South, had already announced she would take legal action against the county for actions in the rezoning process of the 167 acres, which could be built into a community of 1,300 residences, offices and a large shopping center. But questions remain about the path the complaint will take.

The appeal (PDF), filed Tuesday by Raleigh attorney Dhamian Blue, centers on the protest petition filed May 24 by resident Kim Preslar and other land and property owners near the proposed site for 751 South. Joining her on the complaint is resident Kristen Corbell and the Chancellor's Ridge HOA, represented in a signature by HOA President John Gunter.

(What's a protest petition? In rezoning cases, a protest petition that is valid and includes enough signatures of surrounding landowners requires a supermajority of county commissioners to approve it [at least four of five commissioners' support]. Without a valid petition, a rezoning may be passed with a simple majority of three affirmative votes. The petition was key to whether the rezoning would pass, as commissioners have historically been divided 3 to 2 on the matter.)

Planning Director Steve Medlin initially evaluated the petition, found that it was valid and released his evaluation in the spring, as county commissioners were scheduled to vote on the matter in May. But at the request of both opponents and proponents of the rezoning, the matter was continued and rescheduled to late July. During that time, the developer gave the N.C. Department of Transportation the right-of-way to a strip of land they would need to eventually widen N.C. 751. But the last-minute change in the lay of the land invalidated the petition on a technicality.

As Blue argues, there are three reasons Medlin's later ruling that the petition was invalid:

1) that the technicality on which the petition became invalid is included in a state law that was passed and effective on July 9, and that law cannot be retroactively applied to a petition that was filed in May;

2) that although Southern Durham Development gave the right-of-way to the N.C. DOT, the transportation department effectively revoked its acceptance of that land gift because the department did not want to interfere in this controversial land use case;

3) the N.C. DOT did not actively have rights to the land on Aug. 9, when the county voted on the matter. (This is a layman's summary. For actual legal language, see Blue's appeal.)

It is unclear, however, how the appeal to the Board of Adjustment will move forward.

Durham County Attorney Lowell Siler has said that any appeal to the protest petition findings must be appealed to superior court, a comment that was echoed Thursday by Medlin. A lawsuit from residents who signed a protest petition last year in a matter related to the 751 South case also went directly to superior court, not the Board of Adjustment, Medlin pointed out. Corbell is also a plaintiff in that case.

Contacted Thursday, Blue said his filing was appropriate.

"Our firm believes that the Board of Adjustment is the proper venue for this appeal at this time," Blue said. He declined to comment further on the case.

Medlin said the earliest the Board of Adjustment could hear the appeal would be the board's next meeting on Oct. 26 at City Hall, but that he is awaiting an opinion from Siler on whether the appeal should go through the Board of Adjustment, or whether Blue should file a civil lawsuit in court.

Meanwhile, the complaint adds another layer to a dispute among Chancellor's Ridge residents, who have argued over whether their homeowners' association should be involved in the protest petition or legal issues stemming from 751 South. Blue said that the homeowners' group has full authority to participate in the legal complaint.

Before Southern Durham Development may move forward with plans to build the huge community just north of the Chatham County line, it would have to be annexed by the city and served by city water and sewer lines. The city is considering the developer's request for water and sewer services and annexation, but Medlin said he has recommended that the city suspend its work on those agreements until the appeal is resolved.

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