City on 751S: Annexation process under way, but not being hurried by developer (despite lobby by K&L Gates)

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Between the short video produced by 751 South opponent Tina Motley-Pearson and friends, and a resolution issued today by the Durham People's Alliance, critics of the controversial development planned for South Durham have once again mobilized quickly to block the project's progress.

Opponents are hoping to get the Durham City Council to reject, or at least delay, voting on an agreement that would extend water, sewer and stormwater services to the 167-acre mixed-use development planned in South Durham. The council is scheduled to discuss the agreement at its work session Tuesday and vote on the matter Jan. 3. No public hearing is required for the council to approve the agreement.

Critics of the project have said they believed the developer and/or its attorneys have been pressuring the city to move forward with the water and sewer agreement, which resulted in its being scheduled for the Dec. 21 work session and the Jan. 3 regular meeting for a vote—times when citizens are out of town for the holidays and might not have the chance to participate in any discussion.

But both City Manager Tom Bonfield and Councilman Eugene Brown said the process is following a timeline that was established by the project's managers in the city's budget office, and that the timeline was not hastened as a result of pressure from the developer or its attorneys.

Both Brown and Councilman Farad Ali confirmed that they had received phone calls from an attorneys with K&L Gates, the law firm representing Southern Durham Development. Ali said he didn't recall which attorney from the firm K&L Gates called him, or specifically what the lawyer asked for, but that he referred the attorney to the city's administration.

"What they asked was irrelevant to me, because I wasn't going to entertain the question," Ali said.

Brown said he received a phone call late last month from attorney Patrick Byker, who has been the lead attorney on the case, though several from the firm have participated in the project.

"He encouraged me to try to get the manager to move this process faster," Brown said, adding that Byker was just doing his job to lobby for his client, who is mounting carrying costs to the tune of $2,000 a day. Brown said he looked at the calendar set out by the project's managers, but he thought the timeline was fair and saw no reason to honor Byker's plea. (Neither Byker nor Alex Mitchell, president of Southern Durham Development, responded to e-mails requesting interviews about the water and sewer agreement.)

"I think there might be an alarmist tone," Brown said of the citizen concerns flooding his e-mail inbox. "I received a letter with everything stated with the proposed dates for this issue. Nothing is being swept under the rug. It will all be open to the public."

Both Bonfield and Brown also addressed citizen concerns on how the water and sewer agreement might affect a lawsuit that some 751 South opponents have filed asking a judge to evaluate the county's recent rezoning of the land.

Brown said he spoke with the city attorney, manager and planning director Monday morning, and that the court case would be rendered moot only if three steps take place: the city grants the developer utilities, as well as the desired zoning and annexation into the city limits. (The Indy is awaiting more details from City Attorney Patrick Baker, who said he's preparing a memo for council members for Tuesday's meeting).

Both Bonfield and Brown said the water and sewer agreement doesn't green-light either the zoning or the annexation the developer needs to move forward. They added that the agreement specifically states that it can be nullified if the city decides not to annex the property. The agreement also states that the city council may choose to provide water and sewer services to the location without annexation. (see page 2, item 2)

"The number one issue is that the extension agreement doesn't guarantee that the project will go forward," Brown said. "The way that the [attorney, manager and planning director] have set this up is that the council has the final say."

The council can't consider annexing the property until it has its annexation report, which Bonfield says is expected to be complete in time for a March public hearing.

If indeed city annexation of the property would render moot the pending lawsuit that the Chancellor's Ridge Homeowners Association has filed against Durham County, the plaintiffs in that case are facing a tight timeline. The plaintiffs initially appealed in September to the Board of Adjustment, then later filed a lawsuit asking a judge to recognize that when Durham county commissioners granted a rezoning request to Southern Durham Development in August to build its mixed-use community, it did so unlawfully. (Read details here.)

But the plaintiffs have been awaiting a response from County Attorney Lowell Siler since the beginning of November. Siler's office has now twice been granted extensions from the court, and isn't required to file a response until Jan. 11 (PDF). It's unclear how long it could take after a response is filed for a judge to consider the lawsuit and make a ruling. An attorney for the citizens suing the county did not return a phone call Monday.

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