City officials aren't so sure they want the county encroaching into their territory to help move the 751 South project along, according to a county report (PDF) sent to Durham County Commissioners Friday.
Commissioners requested the research on Sept. 6, when a representative from Southern Durham Development asked them to consider providing sewer services to the 167-acre project site near Jordan Lake. The developers had tried asking the City Council for water and sewer service, but council members said they wouldn't consider doing so until after a pending civil lawsuit related to the 751 South development was resolved.
In lieu of any hope of city services in the near future, Southern Durham Development reps indicated they would try to make the large, mixed-use community work with community wells and sewer service from the county. But just as Durham County Manager Mike Ruffin told the Indy earlier this week, the question commissioners have to consider is not whether offering the sewer services would be feasible. According to the report, the county's sewage treatment plant essentially has the capacity to serve the development.
The question is whether the county officials should agree to provide sewage treatment when the 751 South project is actually located outside the area the county agreed to serve with its sewer treatment plant.
Moving out of bounds means the county would obtrude on territory that the city is supposed to serve, as outlined in a 1972 agreement between the two governments. And going against that agreement is not something city officials would take lightly, as noted by Deputy City Manager Ted Voorhees, whose memo to the county was included in the Friday report:
The City has made plans and invested tens of millions of dollars based on the build-out potential of the South Durham Water Reclamation Facility. In practice, both the City and the County have respected this established service boundary as binding on both governments. Violating the 'natural service area of the City of Durham' is not a mere technicality. On the contrary, it is a significant interlocal policy and operational decision that would upset four decades of mutual understanding.
Voorhees goes on further to ask whether the county would make an exception for just this project, or whether it is hoping to permanently discard the agreed-upon service boundaries. And how would the county feel if the city came and poached customers from the county's service area, he asks, in different and more technical words:
Would the County permit the City of Durham to begin encroaching into the Northeast Creek Basin service area to provide service to City customers through the North Durham or South Durham Water Reclamation Facilities either permanently or on a project by project basis?
Having only two weeks since commissioners asked for the city's feedback, the city needs more information and subsequently, more time, Voorhees said. Several additional questions need answering, he wrote, including how the developers will meet the demand for water with a relatively small, dense development with groundwater—including enough water for firefighters to use in emergencies.
According to the report, several developments in North Carolina have used community well water, but community wells in our geographic area of the Triassic Basin yield relatively low amounts of water, so it might take many more wells to accommodate 751 South.
Community wells might also negatively impact the private wells of nearby homeowners, like those of residents of Norwood Oaks in Wake County, whose wells went dry last year due to the nearby Bayleaf community pumping all the groundwater to residents in that development. Wake County had to establish regulations on well interference, the Durham County report says. Durham doesn't have similar regulations in place, but might need to consider establishing such rules if 751 South moves forward.
It's unclear whether the commissioners will vote on the matter Monday, given the outstanding questions.
But a judge Monday is also expected to consider a restraining order or injunction against the county from taking such action. A lawyer for a group of property owners opposed to 751 South are still in the middle of their lawsuit against the county, saying county commissioners didn't legally approve zoning changes for 751 South in the first place. Superior Court Judge G. Wayne Abernathy is supposed to hear the motion for a restraining order at 2:30 p.m. Monday, just hours before the commissioners are scheduled to meet at 7 p.m. (The court time and date are subject to change.)
Among the concerns listed in the motion for a temporary restraining order (PDF to come) is that commissioners' agreement to provide the services to Southern Durham Development would allow the developer to argue that it has vested rights to the project. The county report appears to argue that solely the agreement to provide services would NOT result in vested rights for the developer (see p. 2 of county report, under "Legal Evaluation).