In voting no on 751, Durham expects retaliation from lawmakers

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This post was updated at 11:09 a.m. with post-vote remarks by Eugene Brown.

The Durham City Council would not be pawns.

Council voted 4-3 Monday night against the annexation of 751 South, the controversial project planned for the Jordan Lake watershed. By doing so, the council also refused to extend water and sewer service to the 253-acre development that under recent negotiations, bundled the already-built Colvard Farms in southern Durham County into the deal.

Voting no were Councilors Eugene Brown, Diane Catotti, Don Moffitt and Steve Schewel.

Mayor Bill Bell, Mayor Pro Tempore Cora Cole-McFadden and Councilman Howard Clement voted yes.

The vote was the latest bold move in a four-year game of chess between the City of Durham, concerned citizens and Southern Durham Development over 751, which calls for 1,300 homes and 600,000-square feet of commercial space in an environmentally sensitive area near the Durham-Chatham county line.

SDD has used not only legitimate negotiations but also legal sleights of hand, political pressure and large campaign contributions—it formed Durham’s first Super PAC—to compel city and county leaders to approve the project.

“I cannot ignore the maneuvers that have gotten us to this point,” Catotti said shortly before voting no. “It’s the poster child for poor planning: backdoor schemes and intimidation, the disregard of sound science and the subversion of citizens’ rights to protest petition.”

Neither the developer Alex Mitchell nor SDD attorney Cal Cunningham attended Monday's Council meeting, which is highly unusual considering the importance of the vote.

In 2012, Durham County Commissioners voted to extend sewer service to the development, a controversial move with long-ranging ramifications.

“We were dealt the cards we have,” Mayor Bell said.

Mayor Bell negotiated additional concessions from SDD, including a widening of part of N.C. 751. However, the project, larger than the original, still included 81 acres of impervious surface—pavement—that could result in pollution running into the Jordan Lake watershed.

"Let's don't sell Durham's soul for a road widening," Schewel said.

Many political observers wondered how the vote would split—and whether Councilman Howard Clement, a 751 supporter—would show up. Clement, who has been ill for some time, has attended less than a quarter of City Council meetings and work sessions this year. In 2012, according to council minutes, he attended about a third.

If Clement made the meeting, it was speculated, then the project would pass, 4-3.

But the wild card turned out to be Eugene Brown, who, until Monday afternoon, had intended to vote yes.

Brown told the INDY Tuesday morning after the vote that after talking to his colleagues, including Bell, and several state legislators from Durham, he changed his mind. “I can’t run around talking about the absurdity of the General Assembly and then go along with this deal.”

Brown, who works in real estate, also cited practical reasons for his vote. People in the market for expensive homes like those projected to be built at 751, want certain amenities, he told the INDY: “They want a reasonable commute. And unless you widen the road, you can’t sell the houses.”

In impassioned remarks before the vote, Brown said, “Why sell our public soul for a development that’s too big, too close to Jordan Lake and too upsetting to neighborhoods? I don’t like being intimidated by anyone. Bullies are not welcome in Durham.

“To rise up and vote against this development tonight is the equivalent of giving the finger to General Assembly, they may give us their fist,” he went on. “I hope they’re not that petty."

The City Council vote will likely incur the wrath—or pettiness—of Republicans in the General Assembly, who are expected to introduce a bill this week forcing Durham to annex and provide utilities to the development.

Last year, Rep. Tim Moore, a Republican from Cleveland County—200 miles from Durham and a friend of SDD attorney Cal Cunningham—sponsored a bill that would have done just that. It passed the House, but failed in the Senate by one vote. Sen. Floyd McKissick, a Durham Democrat, and Sen. Richard Stevens, a Wake Republican, worked together to defeat the bill. But this session, Stevens is gone, and the Senate is loaded with Republicans who would likely pass a similar bill, which, according to sources at the General Assembly, is already written.

Bell’s negotiations with SDD this year were an attempt to thwart such a power move by state lawmakers.
Although the language has yet to be public, such a measure could force not just Durham but any municipality in North Carolina to annex a development if certain criteria are met.

If it’s introduced, the bill would be one of many this session disarming local governments of control over their planning, zoning and resources. Lawmakers are trying to control Wake County school board elections, have stripped Charlotte of its airport authority and Asheville of its water utilities.

If a bill passes, Durham could file for a temporary restraining order. Wake County Superior Judge Donald Stephens recently issued a TRO against the state over the Asheville bill.

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