by Matt Saldaña
The would-be developer of a controversial 164-acre development project within Jordan Lake’s protected area is pressuring Durham County commissioners to forgo a public hearing for a major watershed boundary change that would affect the property, documents show.
In a Feb. 26 letter (PDF, 332 KB) addressed to county attorney Chuck Kitchen, Southern Durham Development attorney William Brian argues that changing the county’s watershed maps to accommodate the development “is not a legislative, discretionary action of the type that the Commission must take.”
However, that view directly contradicts with public hearings provisions in the North Carolina General Statutes, and the Unified Development Ordinance's procedures for changing watershed boundaries, according to Kitchen. In a Feb. 27 response (PDF, 328 KB) to Brian's letter, Kitchen writes that sidestepping a public hearing “would allow wholesale changes to the zoning maps without the required public hearings and notice provisions of the General Statutes.”
In 2006, former planning director Frank Duke changed the county’s watershed maps without review, moving Southern Durham Development's 164-acre plot, known as the "751 Assemblage," outside the critical watershed area surrounding Jordan Lake. In 2008, state regulators determined the action--which did not come up for a public hearing--to be in violation of North Carolina’s administrative code.
After learning of Duke's actions, county commissioners voted 3-2 in November 2008 to re-submit the survey on which Duke had based his changes to the N.C. Division of Water Quality. The survey had been commissioned by private developer Neal Hunter, who owned the 164 acres at the time of the survey. (In 2008, Hunter sold the land to Southern Durham Development, of which he is currently a minority shareholder.)
This month, DWQ approved Hunter’s survey, but noted that Durham was responsible for adopting any changes to its zoning maps. Planning Director Steve Medlin confirmed in an interview that the change would require amendments to the Comprehensive Plan and Unified Development Ordinance, and public hearings at both City Council and the County Commission.
Yet despite these findings, Brian writes that Duke's changes to the watershed maps should never have come up for a public hearing in the first place, because they "did not change anything."
“All the Planning Department did in the Determination was accurately locate the normal pool and the boundary of the critical area of the watershed overlay, and recognize that the majority of Mr. Hunter’s Property never actually had been within the critical area,” Brian writes.
In his Feb. 27 letter, Kitchen notes that Brian’s argument against public review, already debunked by state regulators, relies on the same logic Duke used when he changed the maps, in Hunter’s favor, in 2006.
Duke justified his unilateral action then by referring to a clause in the Unified Development Ordinance that grants the planning director limited administrative power to move watershed boundaries around parcels that have been split in half, or to exclude or include lots of a half-acre or less. Brian points to this same clause to argue that Hunter’s survey, and Duke’s approval, reflect “routine, nondiscretionary zoning ordinance matters carried out by the staff.”
However, Kitchen writes that this clause has “no application to the property of your client,” because Southern Durham Development is seeking to move nearly all 164 acres outside the boundary.
In addition to shrinking the one-mile watershed boundary toward Jordan Lake—moving the 751 Assemblage outside the critical area—Hunter’s survey expanded the reservoir’s five-mile watershed boundary, which carries less stringent development restrictions, in the opposite direction. As a result, roughly 350 south Durham properties would move into the protected watershed, limiting them to a maximum of 70 percent impervious surfaces. Durham City Council is considering whether to close a 25-mile “donut hole” where many of these properties lie, by incorporating them into citywide water quality standards. However, these standards would carry no specific density restrictions.
Yet Brian argues that moving his client’s property out of the critical watershed boundary should have occurred without the consideration of any other properties. This point, to which Kitchen did not directly respond, would seem to undermine his client’s earlier arguments that Hunter’s survey was intended to provide “better information” to Durham County.
“The original request for the Determination applied only to certain identified properties, none of which are affected by the location of the 5 mile boundary,” Brian writes. “If Durham County believes it has a problem with the 5 miles boundary, that problem was not caused by the Determination, is not relevant to the Property, and has no impact on Southern Durham’s rezoning request.”
We’ve requested a comment from county commissioners, and will update when we hear back.