Environmentalists Say a Developer Is Trying to Push Through a Plan to Build on Sensitive Land Before Durham Can Enact New Regulations | Durham County | Indy Week

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Environmentalists Say a Developer Is Trying to Push Through a Plan to Build on Sensitive Land Before Durham Can Enact New Regulations

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Ed Harrison holds an existing-conditions map as he looks at the slope height near New Hope Creek. photo by Caitlin Penna

If you've spent much time in Durham or Chapel Hill, a chunk of it was probably in traffic on 15-501, a thoroughfare so central to movement and commerce that locals sometimes call it The Nile. Idling in the 5:00 p.m. slowdown, it may be difficult to imagine that, not so far away, otters, coyotes, and mussels can be found in and around New Hope Creek, which passes under 15-501 at a bridge near Garrett Road.

"It's the Amazon of Durham," says Ron Sutherland, a conservation scientist with Wildlands Network, who monitors the world underneath that bridge.

With a developer planning to flatten nearby property—a process known as grading—and future development assured, given plans for a light rail station across the highway, advocates for the New Hope Creek Corridor say there aren't sufficient rules in place to protect this area. They also argue that the developer is trying to push through plans to grade the land before the city can impose stricter regulations— undermining years spent planning the corridor and the light rail system.

The developer, Beacon Properties, has submitted a plan to the city of Durham to grade about 25 of 108 acres across eight parcels owned by Oakridge 58 Investors and bordered by 15-501 and New Hope Creek.

Chris Howlett, Beacon's founder, says there is currently no development plan, but whatever goes there will likely be in line with priorities identified for a compact neighborhood district around the future Patterson Place light rail station: jobs and housing, particularly affordable housing.

The New Hope Creek Corridor Master Plan—created after the governments of Chapel Hill, Durham, Orange County, and Durham County jointly decided to protect the area—foretold the threat of development.

"Even the steepest of the slopes should remain open and undeveloped. This is not because it is not possible to build upon them; with care, delicacy, very good design, and appropriate uses, it is possible to build there," the plan reads. "Rather, they should be left in their natural state because they are dramatic, botanically significant, they offer inspiring scenic views, and provide a very different natural environment for people to have as part of their heritage."

Even if it had a plan, Beacon Properties couldn't begin developing the site for at least another two months. Durham discourages clear-cutting land by prohibiting development on clear-cut sites for up to five years; because six of Oakridge 58's eight parcels were clear-cut in 2013—four years before Beacon was hired to develop the site—that clock won't expire until October 31.

In the meantime, city and county planners have sent the grading plan back to Beacon to correct various problems—including that the proposed grading would come too close to the water—and say it won't be approved until it's fully up to code.

Beacon will also need an erosion control plan and a land disturbance permit from the county before it can begin flattening the land. Actually developing the site, says city-county planning director Patrick Young, would require a detailed site plan and a "whole new suite of regulatory requirements."

There are different rules for the two halves of the 108 acres, thanks to a 1988 zoning decision based on plans for a senior housing facility at the site. The developer at the time volunteered to dedicate about fifty acres for open space and limit grading of the steep slopes that surround New Hope Creek.

One portion of the site, including much of the area Beacon wants to grade, is governed by that decision, which limits the density and footprint of what can be built there and stipulates that no more than 15 percent of the total area of steep slopes can be disturbed—less than an acre in this case. Beacon is proposing to grade 14.8 percent of the total area, including some slopes not far from the boundary of what the state considers a Natural Heritage Area based on the plant and animal life found there. (That boundary was recently changed to include less of the Oakridge property; Beacon says it hired an outside engineering firm to survey the land and didn't find the kind of plants or animals on the slopes to warrant the designation.)

In order to build more than six dwelling units per acre or build on a larger footprint, Beacon needs the city council to rezone the property.

As part of a planning process for the Patterson Place Compact Neighborhood District, planners have proposed stricter environmental rules that, by Beacon's estimate, could reduce the area the developer is able to grade by as much as about 70 percent.

One planning-department proposal would broaden the definition of what is considered a steep slope and prohibit any disturbance of them. Another would require a setback of three hundred feet from the floodplain around the creek and its tributaries, one of which cuts through the center of Oakridge 58's land. According to planning documents, these changes would protect wetlands, plant and animal habitats, and trees.

Beacon, however, views these restrictions as overzealous, arbitrary, and prohibitive of development in an area where the city is trying to encourage it.

Last week, the Durham Open Space and Trails Commission passed a statement in support of the proposed regulations, citing two reports recommending setbacks of at least three hundred feet.

Tom Stark, an attorney representing Beacon who has served on the commission since the 1990s, points out that the setbacks recommended by those reports refer to a distance measured from streams, not the surrounding floodplains, as the proposed changes dictate. (Stark says he sat out the vote on the statement and will recuse himself from any matters related to the project).

But advocates for the New Hope Creek Corridor, including some involved with its establishment thirty years ago, say these restrictions are necessary for the health of the ecosystem, and city-county planners argue that "scientific findings" support their proposal. The grade, location, and soil of the slopes attract unique plant life and, in turn, wildlife, and having an undeveloped setback from the creek gives animals a refuge when it floods.

The land has already been damaged by clear-cutting and construction of a sewer line. Grading would erode it further, says Ed Harrison, a former Chapel Hill Town Council member who conducted the field studies for the 1991 New Hope Creek Corridor Master Plan.

"This could qualify for a state park," says Harrison, who remembers finding a wooded slope as tall as a five-story building in 1989.

The corridor—once home to an Occaneechi village first documented by an explorer in 1701—is unique in its own right, particularly the section that crosses 15-501, described by the master plan as "perhaps the hub of hydrological and biological systems occurring in the entire area."

In addition to the coyotes, mussels, and otters, it's home to deer, an elusive orchid called the Yellow Lady Slipper, and several plants and animals considered by the state to be threatened or significantly rare. The corridor also serves as a connection between Duke Forest and Jordan Lake.

"It's important because it's a key link between a lot of special habitats," says Reynolds Smith, chair of Durham Open Space and Trails Commission's open-space committee. "Without the connection, those threatened species would die."

If new slope and setback regulations are adopted while Beacon's grading plan is actively under review, it would be grandfathered in, assuming the grading plan, land disturbance permit, and erosion plan are all approved. (Planning for the district is still in the public input phase.)

Stark says Beacon isn't rushing to beat the tighter regulations.

"I think they were concerned that they needed to go forward under current regulations because what was being proposed, one, might take some time and slow down—which is not a good thing in the development business, because it's so costly if you do—and, two, it was felt that the proposals were not based on science," he says.

Advocates for the creek who spoke with the INDY say they agree with the effort to cluster jobs, services, and housing around the light rail stop, but development should taper off to mitigate disturbance of natural areas—and shouldn't move ahead while rules for the compact neighborhood are still being written.

Bob Healy, an environmental policy professor at Duke and chairman of the New Hope Creek Corridor Advisory Committee, says Beacon's plans amount to "environmental vandalism" seeking to avoid future regulations; grading the land as proposed would make it "impossible" to develop this area in accordance with the planning that has already gone into the New Hope Creek Corridor and the Durham-Orange Light Rail line.

"It's yet untamed wilderness," says Sutherland, "and it's being whittled away before we get a chance to discover it."

swillets@indyweek.com

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