by Matt Saldaña
The developers behind a proposed 164-acre mega-development near Jordan Lake have expanded their initial, one-paragraph complaint against Durham County, into a sweeping, 40-page lawsuit (PDF, 1.8 MB) that accuses individual county officials of personal plots to "attack" and "undermine" the project, and charges the county with several constitutional violations (including the "taking of Southern Durham's Property without just compensation") and acts of gross negligence. Among other charges, the suit alleges that the Board of County Commissioners' April 13, 2009 vote to follow state procedure and subject a map change affecting the property to a public hearing process "was an unlawful attempt to strip Southern Durham of its rights to develop the Property."
In fact, the April 13 vote did not involve Southern Durham Development's plans to develop the so-called 751 Assemblage, which is pending a separate re-zoning request. Instead, the 3-2 vote hinged on whether the county should follow state open meetings law, and hold a public hearing process before making substantial changes to a protected watershed. Despite intense pressure from the developers, a majority of commissioners voted to follow procedure, apparently prompting Southern Durham Development's litigation.
The suit is seeking at least $20,000 in damages, plus attorneys' fees, for property rights violations and negligence. Patrick Byker, a lawyer representing Southern Durham Development, has declined comment on the suit, and did not return the Indy's phone call.
In addition, Southern Durham Development is asking the court to uphold the disputed map change without public review, which would effectively move the so-called 751 Assemblage project outside a one-mile protected area surrounding Jordan Lake and allow it to be developed more densely in the future. In 2006, prompted by a private survey commissioned by Neal Hunter, a developer who later sold the 164-acre property to Southern Durham Development for roughly $18 million and a stake in the company, former planning director Frank Duke approved the map change without local or state review. In a twist of irony, Southern Durham Development's suit now alleges that by "attempting to invalidate" Duke's actions--which state regulators determined to have exceeded Duke's authority--the Durham County Board of Commissioners itself "exceeded its limited statutory authority."
This argument closely mirrors that of Commissioner Michael Page, who during a Nov. 24, 2008 public hearing repeatedly said he felt "disrespected" by current planning director Steve Medlin's decision to change the county's watershed maps back to their original location, once Duke's actions had become public knowledge. Page has since voted in favor of the project going forward without legislative interference. At the April 13, 2009, hearing, Page voted in the minority to reject the public hearing process for Hunter's survey, saying Durham should be more "receptive" to business interests.
"Page chastised Medlin for altering the County Maps without first being directed to do so by, or informing, the BOCC," the lawsuit claims.
The lawsuit attributes Medlin's decision to revert the maps to their original location to former Board of County Commissioners Chair Ellen Reckhow's alleged personal "opposition" to the project:
Upon information and belief, as a result of Reckhow's opposition to Southern Durham's proposed mixed-use project on the Property, [Reckhow] took a series of actions designed to undermine and invalidate [Duke's] Interpretation.
[...] Reckhow directed [County Attorney Chuck] Kitchen to take whatever action he could as the County Attorney to attack and attempt to invalidate [Duke's] Interpretation.
Upon information and belief, Reckhow's instruction to Kitchen to order Medlin to alter the County Maps was malicious and done with reckless indifference to Southern Durham's rights, was injurious to Southern Durham, and was not authorized by or disclosed to the BOCC.
Medlin has stated publicly that he changed the maps back "to ensure that the maps do reflect what was, in fact, the legal status at that point," and without orders from anyone on the board; Kitchen and Reckhow declined to comment on any of the charges against them because of the pending litigation.
Kitchen, who is retiring in November 2009, told the Indy that he doubts he will be able to represent the county in the lawsuit, because he may be called as a witness.
"I may very well have to end up being a witness, since they make these personal allegations," he said, declining to offer specific comment on the suit.
In all, the lawsuit contains more than a dozen unconfirmed personal allegations against Reckhow and Kitchen, ranging from Kitchen typing "multiple misquotations" of the Unified Development Ordinance in a letter "in an effort to invalidate [Duke's] Interpretation and undermine the legitimate authority of the Planning Director" to Reckhow, "upset with having been unable to prevent the submission of [Duke's] Interpretation to DWQ for approval .... attempt[ing] to influence DWQ ... by communicating inaccurate and irrelevant information and otherwise trying to pressure members of DWQ's staff."
The lawsuit refers to no other current commissioners by name, except to cite concerns raised by Page and Joe Bowser--both of whom have voted in favor of Southern Durham Development--as facts, not opinions. In one passage, the suit describes County Manager Mike Ruffin seeking a second legal opinion on the public hearing process, which Kitchen recommended, from attorney Michael Brough. Southern Durham Development Principal Alex Mitchell, the lawsuit claims, "offered to have Southern Durham hire Mr. Brough to provide the opinion Mr. Ruffin sought so that Mr. Ruffin would not risk termination resulting from Kitchen's threats" to recommend he be fired.
Ruffin was not immediately available for comment; Kitchen has declined any comment.
Finally, Southern Durham's allegations that Durham County was negligent appear to contradict the entire thrust of the lawsuit: that Duke's action in 2006 "correctly located the boundary of the Critical Area of Jordan Lake in the vicinity of the Property," and, further, "confirmed that a substantial majority of the Property was not, and never had been, located within 1 mile" of the lake. In an apparent contradiction, the lawsuit alleges:
The Planning Department negligently failed to follow proper procedures for DWQ approval of the correction of the one-mile Critical Area boundary on the County Maps in conjunction with its issuance of the Official Interpretation.
The lawsuit claims that DWQ's February 2009 approval of Hunter's survey (which, despite reports in other media, did not approve Duke's actions surrounding the survey) "remedied" the Planning Department's "negligent failure to obtain DWQ approval." Yet, Southern Durham Development has consistently argued that DWQ need not approve the survey (See Neal Hunter's November 26, 2008 letter arguing as much.) In fact, Hunter cites Durham County's actions surrounding a publicly-funded survey of Ellerbee Creek as evidence that the county need not submit the survey to DWQ, which they did then. Yet, the lawsuit states:
In 2005, the County knew or should have known that DWQ approval was necessary to fully process the Petition, based on the County's experience with the Ellerbee Creek Correction several years earlier.
In other words, Southern Durham Development is arguing that Durham County violated its constitutional rights by attempting to invalidate a "correct" action. But that action is, at the same time, improper. (Keep in mind, Duke never informed the Board of Commissioners, or state regulators, that he had altered the county's watershed maps.) Confused? Well, there's also this-- in case the court finds that Duke's 2006 action was, in fact, "not valid"--ostensibly undermining Southern Durham Development's basis for a lawsuit--the developers still have a backup:
In the event that the court determines that [Duke's] interpretation was not valid, its issuance and the various actions taken by the County pursuant to its terms, including without limitation the correction and publication of the County Maps, were grossly negligent.
In effect, what this lawsuit appears to be saying is that Durham County is damned if it does anything about a former employee's negligent actions--and equally damned if it doesn't.
More updates to follow.