Judge rules against Southern Durham Development, county, in 751 case | News
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Wednesday, August 10, 2011

Judge rules against Southern Durham Development, county, in 751 case

Posted by on Wed, Aug 10, 2011 at 9:10 PM

Late this afternoon, Superior Court Judge G. Wayne Abernathy ruled against a request by Durham County, Durham County Commissioners and Southern Durham Development for summary judgment in the 751 South case.

Both the county and SDD's lawyers said during last week's hearing that 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 defendants had hoped that such a ruling would have settled the case.

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. In light of today's decision, the lawsuit could go to trial in November.

According to the judge's ruling, the sticking point was the developer’s dedication of an easement to the N.C. Department of Transportation in July 2010.

More than a year ago, Southern Durham Development gave the N.C. DOT enough property to increase the right of way of N.C. 751 by to more than 100 feet. The effect of this easement, unknown to N.C. DOT at the time, was to invalidate a protest petition by citizens who were challenging the 751 South Development by placing them too far from the proposed development’s property line.

The N.C. DOT later realized it had become embroiled in a local issue and revoked the easement.

Abernathy ruled that there is no “genuine issue of fact and, as a matter of law" that the deed was sufficient to dedicate a valid easement to the N.C. DOT, provided it was accepted by an authorized person. He added that the court "reserves ruling on the validity" of the N.C. DOT's revocation of the easement.

Read the order here: 751.pdf

Check back tomorrow for an update and analysis of what the ruling means for the city's possible future annexation or extension of water and sewer service to the proposed development. The Council has scheduled a meeting about 751 South for Aug. 18.

Read the Indy's coverage of last week's hearing that lead to the ruling.

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