by Matt Saldaña
A UNC School of Government official has concluded that the Durham County Board of Commissioners must hold public hearings on changing the Jordan Lake watershed boundary, echoing a long-held legal opinion of the North Carolina courts. However, the Herald-Sun and the Triangle Business Journal have insisted on making the public hearing issue a debate, when there is none.
In advance of an April 13 public hearing on the Jordan Lake watershed saga, the BOCC sought opinion from the UNC School of Government on implementing a developer-funded survey that would significantly alter the protected areas surrounding the drinking-water reservoir.
In response, UNC School of Government professor David Owens wrote that state law requires a proposed change to the Jordan Lake watershed boundary--as with any change to a zoning district's boundaries--"go through the public notice and hearing process." Citing several decades of case law, and North Carolina's General Statues, Owens writes:
The fact that the original district boundary may have been in error or more accurate information is now available to determine where the district boundary should be is legally irrelevant. The purpose or merits of the amendment are not the controlling factor. The simple requirement is that if a zoning district boundary is being changed, it must go through notice and hearing.
Yet, in reporting on Owens' letter today (reg. required), the Herald-Sun, wrote that "parties to the dispute disagree on whether the document supports the county attorney or a developer's attorneys." (As we've reported here and here, attorneys representing Southern Durham Development do not want a public hearing; County Attorney Chuck Kitchen, meanwhile, has insisted on one.) How could Owens' letter support the position that no public hearing is required to amend Durham's watershed maps? Per the H-S:
[Southern Durham Development attorney Bill] Brian, however, said that Owens did not address the heart of the matter. The crux, said Brian, is section 4.11.2 of the Unified Development Ordinance, which in writing defines the watershed overlay in question as being one mile from Jordan Lake.
As Owens notes, local ordinances--no matter how crux-worthy, or holy--do not supersede the state's mandatory re-zoning procedures. To back this fairly straightforward reading of the law, Owens points to several historical attempts by local governments to go around the state's requirements, all of which have since been invalidated by North Carolina courts. (Read the full letter here.)
Meanwhile, the Triangle Business Journal has weighed in on the controversy, with a March 20 print article titled, "Logjam in Durham," (reg. required) that contains several factual inaccuracies. TBJ reports:
[Former Planning Director Frank] Duke , who has since left the position, approved the revisions based on surveys paid for by [Southern Durham Development shareholder Neal] Hunter. The North Carolina Division of Water Quality confirmed the revisions in a February decision made at the request of County Commissioners.
In fact, DWQ approved Hunter's survey, but not did not "confirm" Duke's revisions to Durham's watershed maps, which it has stated were done in violation of state code. Nevertheless, in an accompanying editorial (reg. required), TBJ editor Sougata Mukherjee writes:
If the approval relating to the change in the watershed was done legally and stamped by county and state officials, it is hard to argue that the deal was mishandled from the start. Even more important, with unemployment about to reach double-digits in Durham County, why would anyone put walls on a project that, when completed, would add needed jobs and dollars to the county's tax base?
For starters, Duke's approval never received a "stamp" by state officials, and at the time did not receive a public hearing, or the approval of local elected officials, either. That's why DWQ found that it violated state code. And secondly, "walls" (e.g. public hearings) are what constitute a free and open government. Though Mukherjee is calling for "a fast track during these times," the state of the economy does not give you a free pass from state law.
Check back here for more updates between now and the April 13 Board of County Commissioners hearing on the Jordan Lake revisions.