Facing broad scrutiny and political pressure, Durham’s City Council voted Thursday to postpone any action on the controversial 751 South development until a pending lawsuit on the project is resolved. The lawsuit is scheduled for a November trial date, but could be heard sooner.
Property owners Southern Durham Development had asked the city to extend water and sewer services to the roughly 170-acre site so it could build an estimated 1,300 residences, plus businesses and offices. But according to city attorneys, having an agreement from the city to provide the services could allow the developer to start building, and that could give the company a legal vested interest in the property, which could skew the outcome of the related civil lawsuit.
“If the city enters into this before the litigation is resolved, I would have serious concerns about vested rights arguments and a Constitutional argument being made against the city,” said Senior Assistant City Attorney Don O’Toole. “I think if construction was allowed to proceed prior to the county case being resolved, I think it calls into question whether a property right has been created.”
More Council concerns about the impact on the case drew subsequent—and more succinct—advice from City Attorney Patrick Baker: “If we want the iron-clad guarantee that nothing we do impacts [the court case], then I believe our recommendation would be, don’t move forward.”
Council members Eugene Brown, Diane Catotti, Mike Woodard and Mayor Pro-Tem Cora Cole-McFadden heeded the warning, saying they couldn’t risk the city being dragged into a legal fray that already has cost Durham County tens of thousands of dollars and the developer even more money.
The process has also cost county officials the trust of vocal residents who oppose the project and say the county process has unfairly favored the developer. The affair has been ugly, and the city shouldn’t muddy the waters, said Catotti, who also has previously criticized the county’s handling of the issue.
“It would be a complete slap in the face to the citizens who have filed this case,” she said. “A judge just ruled on it, that the case had merit to move forward, and we’re going to disregard that? I just don’t think the city should be in that position. It’s been ugly to this point in time, and we are not the county. This is the city, and we do things differently here—and cleanly.”
Only Councilman Howard Clement expressed a desire to consider entering the utility agreement, but his sentiments weren’t supported. Councilman Farad Ali was not present at the meeting.
The path to Thursday’s vote has been long and litigious. (See a timeline)
“We’ve seen two protest petitions, we’ve seen a spite strip, we’ve seen involvement of the state government all the way up to the attorney general’s office,” Woodard said. “I’m just curious, given all the twists and turns, why the pressure point has fallen on us at this time.”
Durham County has been sued three times—once by Southern Durham Development, and twice by southern Durham residents—over the process that last summer granted Southern Durham Development the land-use rights it sought to build the project. It’s the third lawsuit, one filed by residents of the Chancellor’s Ridge neighborhood adjacent to the project site, that is still pending. The case could take as long as three years to resolve, city officials said Thursday, considering the long appeals process that could follow.
Representatives of Southern Durham Development could not immediately be reached for comment.