UPDATE, 3:30 p.m. - Rep. Paul Luebke (D-Durham) confirmed that the N.C. DOT plans to announce this afternoon it is rejecting the easement it accepted earlier this month from Southern Durham Development, as not to interfere in the local zoning process. Luebke said he credits the swift action of 751 opponents, who sent hundreds of e-mails to Gov. Bev Perdue and Secretary of Transportation Eugene Conti.
"It proves clearly that an involved citizenry can—and did—make a difference," Luebke said.
Luebke also said he believes Conti and Durham's DOT staff were not aware of all the ramifications of accepting the easement.
"I thought that if they’d had the full information as to how the acceptance of this easement would change the entire decision making process... that they would not have accepted it," Luebke said. "They asked why there was urgency and were given what seemed like a reasonable answer, and so they moved forward. It’s understandable that government agencies can be caught up in the details of decisions and not realize how one small decision can affect a very large project."
Moments later, Greer Beaty, spokeswoman for the NCDOT confirmed to the Indy that her office had filed a notarized legal document in Durham court revoking the department's acceptance of the easement. NCDOT officials became aware of the conflict over the weekend as a result of public outcry of the acceptance, Beaty said. When the land rights were granted, Southern Durham Development did not disclose to NCDOT's right-of-way staff that its acceptance would have this effect on the protest petition.
"Had we known ... we would not have accepted that donation," Beaty said. To her knowledge, she added, the NCDOT has never had to rescind such a decision, and had to consult dozens of experts to file today's legal revocation of the land rights gift.
"We worked really hard today to come up with a process to pull ourselves out of this issue," Beaty said. "This is a community issue. We in no way want to interfere." Read the full NCDOT statement (PDF)
UPDATE, 6:45 p.m.: Reached at the start of the commissioners' meeting, Southern Durham Development attorney Patrick Byker said he wasn't authorized to comment on the NCDOT's decision.
Last-minute change in 751 South case likely means developer needs only simple majority tonight
As soon as they filed their formal petition against the proposed 751 South development, several opponents of the project mused on what challenges could strike their petition invalid. The planning department could find that they didn't get enough signatures, or somehow missed a rule. Land owners who had signed the petition could reconsider and remove their signatures.
Those opponents seemed hopeful last week that the petition, which was ruled valid on July 13, would hold. The valid petition would require four of five of Durham's county commissioners to vote in support of 751 South at a public hearing tonight in order for the project to move forward. That would prove difficult because it seemed likely the developers would get approval from possibly only three commissioners, while the remaining two—Ellen Reckhow and Becky Heron—were expected to vote against the rezoning.
But then, Friday morning, that nagging possibility in the back of many opponents' minds that the petition would become invalid became a reality.
Patrick Byker, an attorney representing Southern Durham Development, notified Durham's county attorney that 10 days earlier, the developer dedicated a strip of land along N.C. 751 to the N.C. Department of Transportation in anticipation of needing to widen the highway if the development was built.
According to an e-mail to County Manager Mike Ruffin this morning from NCDOT engineer Joey Hopkins, it's unusual for a developer to donate a right-of-way to the DOT before its project has been approved, but the "NCDOT had no reason to deny the voluntary donation of the [right-of-way]. In fact if the rezoning is not approved, it could even be beneficial to NCDOT for a future TIP project to widen 751," Hopkins wrote to Ruffin. Ruffin, anticipating questions about the last-minute dedication and accusations of impropriety, had asked the DOT for a response this morning, he said.
Hopkins added: "Patrick Byker was in a hurry to donate the [right-of-way] and when asked why the rush, he stated that the developer wants to show a good faith by donating the [right-of-way] prior to the next public meeting."
The dedication of the 3.3 acres widens most of the right-of-way along the front of the proposed development site to more than 100 feet, said planning Director Steve Medlin. And, if the right-of-way is more than 100 feet, the residents across the street who signed the petition are essentially out of range to be considered valid signatories for the petition, thereby nullifying its validity.
Hopkins' email later stated: "We do not normally contact City or County staff concerning [right-of-way] dedications and did not approach the City about this dedication. We did accept the donated [right-of-way], not knowing the '100' rule". If the District Engineer or [right-of-way] office would have known the '100' rule", we would certainly not have accepted the [right-of-way] so quickly."
County Attorney Lowell Siler is expected to present the findings with Medlin tonight that the petition is no longer valid.
Medlin said in his 24 years as a planner in Durham, he's never seen a right-of-way easement lead to the invalidation of a protest petition.
He also stated he didn't know the reason Byker waited until Friday morning to notify the county of the easement, and that Byker isn't required to give a reason. But based on the events, Medlin said, he might recommend that county commissioners look at this situation and consider including language in the city and county ordinances that would account for such last-minute events or at least allow the planning department more time to deal with such changes.
Medlin said he didn't receive documents on the NCDOT easement until Friday afternoon, forcing his staff to work against a tight deadline for this evening.