Before presenting his legal opinion (PDF) Monday night that the N.C. DOT didn't follow the proper procedure in returning land to a local developer, Durham County Attorney Lowell Siler consulted five law experts: Two representing the developer, one representing opponents of the project, and one each from the office of the N.C. Attorney General and the UNC School of Government.
The consensus? There was none, but Siler used those conflicting legal opinions to nullify a citizens' protest petition.
Siler's final determination was central to the approval of the controversial 751 South project. It determined whether a protest petition filed by opponents to the project was valid, and thus whether it would take the approval of a simple majority of three commissioners to pass the project, or a supermajority of four commissioners.
The input sent to Siler's office during the past two weeks was divided, and of the five lawyers and legal experts, only one was an independent party: Charles Szypszak, a retired professor from the UNC School of Government, who provided a one paragraph opinion stating he was "reluctant to conclude that the state's revocation was ineffective." (PDF)
Two lawyers said that the N.C. DOT acted within its rights to reject the land it had been given by Southern Durham Development. The first was W. Richard Moore, of the state attorney general's office, who outlined for Siler statutes and administrative code that gave the state the right to reject the land. (PDF)
The second was Dhamian Blue, who, the Indy learned Tuesday, is representing opponents of the 751 South project in a possible lawsuit against Siler and the county. Blue urged Siler to find that the deed easement had no bearing on the protest petition, in part, because the right-of-way didn't technically belong to the N.C. DOT yet—the donation of the land was contingent upon the development being approved, Blue wrote, and therefore couldn't invalidate the petition, since the extended right-of-way didn't yet exist. (Letter 1 PDF, Letter 2 PDF, Letter 3 PDF)
The remaining two lawyers in the case took the side of Southern Durham Development, stating that the N.C. DOT didn't lawfully reject the easement.
One opinion came from K&L Gates attorney Patrick Byker, who is representing Southern Durham Development. Shortly after the N.C. DOT revoked the land easement from Southern Durham Development, Byker wrote a letter to the N.C. DOT, stating they had not followed the proper procedure to abandon the land rights. In his legal opinion Monday, Siler quoted the same state statute in his own legal opinion that Byker quoted, which states that only the Board of Transportation has the right to abandon the easement. (PDF)
The final legal analysis came from Lacy Reaves, from Raleigh firm Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan. In the letter, Reaves discloses that
she he represents Neal Hunter. Hunter is a minority partner in Southern Durham Development. Reaves states, "The execution and recordation by the N.C. DOT of the Declaration of Revocation was entirely without legal basis and is a nullity." (PDF)
It's likely these attorneys will be arguing over the matter for months to come, with the possibility of a lawsuit from opponents against Durham County is looming.