Developers proposing a massive, mixed-use project near Jordan Lake have sued Durham County for allegedly acting maliciously to "attack" and "undermine" a map change that would benefit the development.
After nearly a year of pressuring Durham County to redraw Jordan Lake's boundaries without regulatory oversight or public review, Southern Durham Development has filed a lawsuit (PDF, 1.8 MB) alleging the county's public hearing process to change the maps—required by state law—would violate the company's private property rights.
In its legal battle, Southern Durham Development has found an ally in Board of County Commissioners Chairman Michael Page, who, in an interview with the Indy, seemed to blame the lawsuit on his fellow commissioners and the media, for "painting" county officials who agreed with the developer as "bad people."
"You guys criticized us for this, and now we're being challenged in a legal court for this," he said of his position that the controversial map change should proceed without a public hearing. "I do think the maps should be placed back in the correct place, and then allow the courts to decide in this matter."
Although the county commissioners were following state law in voting to allow a public hearing on the boundaries, the lawsuit alleges the county engaged in "an unlawful attempt to strip Southern Durham of its rights to develop the property." The vote was 3-2, with Page and Joe Bowser opposing the public hearing.
The suit seeks at least $20,000 from the county in compensatory damages, plus attorney's fees, for alleged negligence and constitutional violations for actions that were "arbitrary, capricious and malicious, and were not in furtherance of any legitimate governmental purpose."
The proposed map changes are essential for Southern Durham Development to build a proposed 164-acre mixed-use project known as 751 Assemblage. Currently, the land is almost entirely within a one-mile protected area of Jordan Lake that prevents such dense development. A 2005 survey commissioned by Southern Durham Development partner Neal Hunter, however, moved the land outside this boundary. In 2006, former planning director Frank Duke accepted the revision without local or state review.
After seeking the opinion of state regulators and county staff, Durham Planning Director Steve Medlin in mid-2008 changed the maps to pre-2006 boundaries, he said, "to ensure that the maps do reflect what was, in fact, the legal status at that point."
In November 2008, after learning of Duke's actions, commissioners submitted Hunter's survey to the N.C. Division of Water Quality, which approved it on technical merits but also determined Duke had exceeded his authority in changing Durham's maps.
Many of the lawsuit's charges are based on unconfirmed allegations, such as the claim that former Board of County Commissioners Chair Ellen Reckhow ordered County Attorney Chuck Kitchen to "take whatever action he could ... to attack and attempt to invalidate" Duke's map change after state regulators and county staff determined it had violated state code.
Kitchen and Reckhow declined to respond to the charges, citing pending litigation. Patrick Byker, an attorney representing the developer, did not return calls to the Indy.
Page, without offering any evidence, insists there was collusion among county officials in restoring the map to its original boundaries.
"I hope it will be proven in a court of law, so that these people who have been whining and complaining will actually realize who's behind all of this, that's costing the county thousands of dollars," Page said of the lawsuit's allegations. "The truth is going to come out regarding who instructed the planning director to move the maps back—and that's who I want to see answer to the government in regards to all of this."
In an ironic twist, Southern Durham Development's suit alleges that the county commission "exceeded its limited statutory authority" by "attempting to invalidate" Duke's actions.
This argument closely mirrors that of Page, who, during a Nov. 24, 2008, meeting repeatedly said he felt "disrespected" by Medlin's decision to change the county's watershed maps back to their original location.
Meanwhile, Page dismissed the opinions of the county attorney, state regulators and a UNC professor, that Duke's initial map change violated state law—and reflected an inappropriate action that never went before the board.
"I've been told that [Duke] had the right to change [the boundaries]. By the appropriate authorities, I was told that," Page said. "Other attorneys have said that he had a right, as a planning director, to change those maps without asking for authorization."
K&L Gates, the firm representing Southern Durham Development, was among the attorneys claiming Duke had the right, Page acknowledged, though he contended he never met with K&L Gates attorneys "once the controversy began."
"That's highly inappropriate," he said.
However, Page and K&L Gates often agreed with each other in e-mails obtained by the Indy. On Feb. 25, 2009, after the N.C. Division of Water Quality had accepted Hunter's survey, Patrick Byker of K&L Gates e-mailed commissioners (PDF, 68 KB) to argue "there is no legal basis for public hearings," adding, "We are at a loss to understand the need for such a process."
Page seemed to agree. "This is insane!" Page wrote in a reply (PDF, 96 KB) later that day to commissioners and staff, arguing that the map revision should be considered "a done deal."
Later that night, he wrote to commissioners (PDF, 104 KB) to say, "I have serious concerns with the actions of certain board members in regards to the Jordan Lake survey issue and how we are being inappropriately advised." He added: "What totally disturbs me is the actions of our board members in undermining my authority as chairman of the board."
In an interview with the Indy, Page declined to elaborate on the alleged actions.
Commissioner Bowser, who did not return e-mail and phone messages, also sided with the developers in the e-mail exchanges.
"It is just hard for me to believe this!" he replied to Byker's e-mail (PDF, 96 KB). "This underhanded stuff must stop no matter who is the culprit. Get a grip and let's take care of the people's business and not continue beating on a dead horse."
Page and Bowser have since voted in favor of the 751 Assemblage proceeding without further interference. At the April 13, 2009, hearing, they voted in the minority to reject the public hearing process for Hunter's survey, with Page noting that Durham should be more "receptive" to business interests. Before the vote, Bowser proposed a failed motion, seconded by Page, that would have explicitly barred a public hearing, and borrowed Southern Durham Development's language in declaring Duke's approval of the private survey a legal "correction" to the county's maps.
If the court finds that Duke's acceptance of Hunter's private survey was invalid, it would ostensibly undermine Southern Durham Development's basis for a lawsuit. However, the developers have an alternative up their sleeve—a strange and contradictory charge of negligence: Southern contends that in 2006, the county should have known it needed DWQ approval of Duke's survey, which they since have fought. And the county was "grossly negligent" in accepting that survey, the very one that has benefited Southern Durham Development.