Below is an article about the hearing on April 13th, which was about how to deal with the issue. Page and Bowser wanted to move the boundary on the spot, as an administrative change, but Howerton voted with Reckhow and Heron to go through the usual process, which seems to have been the only legal option for the County government. Since April 13th many things have happened (a counter-survey, South Durham Development is sueing the County, the Haw River Assembly forced the County to let them join the lawsuit, and the County Attorney was fired). A few days ago the Haw River Assembly presented a landowner petition that would require a majority of four commissioners to approve the change. Then the Planning Department said there are not enough petitioneers. The Herald-Sun speculated that this is because the rezoning hearing involves not just landowners near New Hope Creek, but also part of RTP (around the EPA and NIEHS campuses), in the Northeast Creek basin.
The battle over where Jordan Lake ends along New Hope Creek
At the Durham Board of County Commissioners (BOCC) meeting April 13th a far-reaching dispute over where Jordan Lake ends along New Hope Creek came to a head. The edge of the Lake's normal pool, at 216 above sea level, is at issue, because Durham limits impervious surfaces and utility connections within the critical watershed, one mile from the shore, and this effects a proposed 164 acre development. The plan includes 384 houses, 916 apartments, 600,000 square feet of stores and offices, two schools, a fire station, a police station, and a YMCA off 751 near Fayetteville Road. Cree CEO and developer of nearby Colvard Farms, Neal Hunter, originally proposed 751 Assemblage. He is now a minority partner with the Southern Durham Development Company and their plan was renamed 751 South.
Hunter asked then Planning Director Frank Duke, now planning director in Norfolk, Virginia, to move the critical and protected watershed boundaries west based on a 2005 survey by licensed surveyors Hunter hired. Duke and the Planning Department approved the change January 6, 2006, putting the property over one mile from the Lake. One argument is over whether this was an administrative "correction" or a change, which Duke could not do unilaterally under Durham's Unified Development Ordinance (UDO), which went into effect five days before his action. A correction is only allowed for a line on one property or when half-acre parcels are involved. Duke's decision impacts around 320 Durham properties. County Attorney Chuck Kitchen [since fired, possibly because of this advice] said the change is illegal, because Duke did not go through the BOCC or the State's Environmental Management Commission (EMC). In August the Division of Water Quality (DWQ) found that the County did not have the authority to change the map without approval from Federal and State regulators. Duke said he was following procedure, and that he was advised by Keith Luck, at the time the planning supervisor and now assistant planning director.
November 10th the County Commissioners voted 3-2 in closed session to accept the survey and a second Hunter commissioned in 2008 [at the time Cheek was a commisioner and now works for the developer's law firm]. Then Planning Director Steve Medlin changed the map back, incurring the wrath of then BOCC Vice Chair Michael Page. Medlin said he had to change the maps to reflect the current boundaries. In December the Chatham County BOCC passed a resolution questioning the use of a private survey and offering to help pay the $95,000 cost of a new survey.
This boundary change had to be vetted through the DWQ, which approved the change February 4th, despite opposition from the Chatham BOCC and conservationists. Earlier, on November 26th, Hunter wrote to DWQ saying review should not be necessary, because NC only requires the critical watershed to be half a mile from the shore and none of the State mandated boundaries had changed, and that Federal review was unnecessary. Then there was argument over whether the change had to go through the volunteer Durham Planning Commission. Earlier, in January 2008, ownership changed when Southern Durham Development, connected to the Boylan Companies in Raleigh, bought the land for about $18 million. April 13th Company representatives said that they had thought it was no longer in the critical watershed.
In March Durham Planning Commission Chair George Brine, Haw Riverkeeper Elaine Chiosso, and south Durham activist Melissa Rooney asked the EMC to rule on the change. That decision will probably be made May 1st [the EMC declined to get involved].
In the meantime public debate was increasing. Environmentalists, the Haw River Assembly, Northeast Creek Stream Watch, and the Durham People's Alliance lobbied against using the surveys. At a BOCC working meeting March 23rd members of the Durham Committee on the Affairs of Black People held signs opposing holding a public hearing, in favor of promised new jobs. The developer's lawyers argued that a public hearing was not necessary, but this position did not prevail and it was scheduled for April 13th. The Duke and Old West Durham neighborhoods, Durham's Inter-Neighborhood Council, the Durham People's Alliance PA), and Democratic precincts approved a resolution against using the surveys. There was also lobbying by State groups like the Southern Environmental Law Council (SELC). Friends of Durham supported the private surveys, casting calls for a new survey as a waste of money and an unfair attack on Hunter by the PA. Their letter to the BOCC said the survey mirrored Federal topographic maps and that Durham protected water quality more than Chatham. The Durham Chamber of Commerce and the Triangle Business Journal also supported the survey.
County Attorney Kitchen asked UNC School of Government professor David Owens to review the case. Owens argued that if there was "an amendment to the boundaries of a zoning district" or if a map was used, there had to be a public hearing. The developer's attorneys argued that Owens did not settle the question. The Commissioners asked planners in Buncombe, Vance, Mecklenberg, Cumberland, and New Hanover counties for advice, but only Buncombe replied by the April 13th hearing.
The almost three-hour hearing was very full, with more than 100 people, of which 45 commented. The first comments were against the private survey. A representative of the Trinity Park Neighborhood Association in downtown Durham said his organization cared about this issue and was opposed. SELC attorney Kay Bond, the Haw River Assembly's Elaine Chiosso and others criticized the survey methodology. A silver-haired man forcefully spoke for the development, saying that he drove for hours to represent his daughter, who was undergoing surgery for cancer. He said progress had allowed him to get to Durham. Jack Steer, of the conservative Durham Citizens Council, said it was too late to reverse course. A resident of nearby Chancellor's Ridge said that hairs were being split, education was a better use of taxes, and that development would bring improvements. Melissa Rooney showed photos of many nearby commercial sites that are vacant, indicating that there is a glut. Rooney and several others wore Clean Water/Clean Government t-shirts, with a picture of fox in a henhouse. There were also clean water stickers. Some private survey opponents held signs, while supporters held Jobs for Durham signs.
Southern Durham Development officials and their lawyers spoke. Among other things, they mentioned the estimated employment and tax revenue generated, and said the development would be a high quality, national example of New Urbanism and environmentally benign. Neal Hunter said "The commissioners should put an end to this continuously moving target, and acknowledge the property rights that I have. You have no right to change the rules on taxpayers and citizens. As landowners, how can we rely on anything in the future?" The surveyors defended their qualifications and results.
Chatham County Commissioner Sally Kost was the first speaker questioned by a Commissioner, when Bowser pointedly asked whether Chatham sets the critical watershed at half a mile or one mile from the Lake. Kost then asked whether Durham mandates buffers along ephemeral streams, which it does not, while Chatham does. Lawyer Tom Miller forcefully told the Commissioners that the approval process had gone out the window and that they had to start over or would be acting illegally. Deborah Giles accused developers of frequently using promises of jobs to manipulate the public. John Kent, of New Hope Audubon, was the final speaker. He mentioned the group's monthly water testing along New Hope Creek and the over 2000 valid signatures he had presented, from an online petition started by Rooney before the DWQ decision.
Another hour of deliberations followed. Four commissioners had already staked out positions. Current Vice Chair Ellen Reckhow and Becky Heron continued to oppose using Hunter's surveys. Chair Michael Page voted for the surveys in November and newly elected Joe Bowser opposed even having the hearing. Brenda Howerton, previously a Soil & Water District Supervisor, was also newly elected, and gave no sign of her position. In response to a question from the commissioners, Medlin said he could not say if the development would reduce water quality. Reckhow said "we would be terribly remiss to not follow the advice of our County Attorney and our County Manager." At one point, Bowser asked why Reckhow and the County Manager had not stopped this problem sooner. He also said "I'm not going to do anything to destroy the water quality in Jordan Lake." Reckhow later said "We took an oath of office that we would uphold the laws of this state and the laws of this community. Now we're sitting here and we're ready to throw them out the window, and I'm not going to be a part of it." Heron said the developers were "speculators" who knowingly took a risk in buying the land.
Bowser read a motion that the surveys be accepted, as a correction. Page seconded. Predictably, the Board split. Howerton abstained in order to ask a question and state that, while Durham has too much unemployment, "Where I stand on this is that we need to follow procedure." Reckhow's alternative motion, to follow the process, was seconded by Heron, and was carried through with Howerton's vote. The crowd was getting restless and someone in the back yelled no during the vote. People in the audience on each side rallied people to clap loudly at points, despite Page's earlier admonitions.
After the vote, Durham Committee on the Affairs of Black People's Chair, Lavonia Allison said "I told ya'll [Howerton] can't be trusted." Howerton replied "You are not up here, Dr. Allison, I am." Allison said "You might not be for long" and Howerton retorted, "Well, I've got four years." Bowser alleged that the forces that had opposed Southpoint Mall were behind this, and would destroy the tax base. Page said "I talked to some homebuilders in Durham recently, and what I gathered is that we are not the most friendly folk towards development. I hope that we would change our attitude, and our perception, that when people are trying to grow our community, and grow our tax base, that we are a lot more receptive." There was even arguments over the Treyburn Industrial Park and the prospect of a Wal Mart next to Southpoint. Reckhow was going to suggest a motion, but decided to hold off and Page closed the meeting.
There will be a landowner meeting May 1st and the boundary change could come before the Planning Commission in June. The developers have requested the comments sent to the BOCC on this issue.
Video of the meeting is available on Durham County's website.