Opponents and supporters of the controversial 751 South development geared up for a big day in court today, only to have the case continued to Jan. 9.
The long-pending civil lawsuit, brought by property owners in Chancellor's Ridge against Durham County was supposed to go to trial today. Opponents to the project were hoping the judge would find in their favor and reverse a county vote last summer that will allow Southern Durham Development, also a party to the lawsuit, to build a large, mixed-use development outside the city limits—one that's sure to cause traffic headaches and could also threaten environmentally sensitive Jordan Lake.
But an attorney for SDD is still waiting for the N.C. Department of Transportation to produce relevant documents, he told Superior Court Judge G. Wayne Abernathy today. Abernathy granted the continuance to Cal Cunningham so he could continue to gather evidence from N.C. DOT in the case.
The case appears to hinge upon which employees of the N.C. DOT signed documents accepting the rights to a strip of land along N.C. 751, which the state one day could widen. The acceptance of the land rights by N.C. DOT threw a technical twist into the rezoning process last summer, and essentially aided zoning approval for the developer. If a judge finds the signature was valid and legal, SDD could keep its zoning for a large mixed-use project that could include 1,300 residences and 600,000 square feet of offices and shops. If the judge finds the signature was not from a person legally designated by the state to accept the land, the developer might lose the zoning and have to go back through the process, which has been winding and torturous.
In court Monday, attorney Dhamian Blue and his father, Sen. Dan Blue of Raleigh, represented the plaintiffs. Dhamian Blue said Cunningham's request boiled down to a delay tactic to drive up legal costs for their clients, unhappy property owners across from where 751 South is supposed to be built.
In the past year, lawyers for the developers have made no secret of the fact that time is money—about $2,000 a day in carrying costs for the 167-acre property SDD purchased in 2008 for $18 million. On Monday, Cunningham cited the figure at $3,000 a day in interest, and denied any purposeful sluggishness.
"The costs are clearly being borne by my client," Cunningham told the judge. "They've got me moving fast, and I'm moving fast."
With the continuance, Cunningham expects to take sworn statements from several N.C. DOT employees in December, he said.
Meanwhile, SDD has announced that it plans to file a new application with Durham's planning department to amend three commitments it made when county commissioners approved the project in 2010.
Of the three changes, the most drastic appears to be a request from SDD to increase the amount of impervious surface in the development.
In summer 2010, SDD committed to creating impervious surfaces, such as paved roads and parking lots, on no more than 55 percent of the buildable land, which came out to about 81 acres.
According to a letter sent to community members Monday afternoon from Dan Jewell, an engineer representing SDD, the developer wants to remove that self-imposed cap. The maximum allowable amount of impervious surface in the watershed of Jordan Lake is 70 percent, a potential increase of 15 percent, or roughly another 21 acres if they're working with 147 acres of buildable land.
The change "does NOT mean that the project will go to 70 percent, only that it needs this flexibility in
negotiating with prospective retailers," Cunningham wrote in an email late Monday.
Despite the increase in stormwater runoff that this additional paved area could create, the developer will still be required to meet new, tougher restrictions on what this rainwater washes into Jordan Lake. The project will still have about 50 acres of open space and more than 40 acres of tree coverage, Cunningham wrote.
The additional runoff will make it harder to meet those restrictions, which representatives of the development company have said they would do on site by collecting rainwater in retention ponds or other systems, as well as buying nutrient credits. Nutrient trading is a way to reduce the net pollution in waterways by offsetting pollution in one area by cleaning other parts of tributary system.
Jewell, representing SDD, will host a public meeting at 6:30 p.m. Thursday to talk with community members about the proposed changes. The meeting will be held at the Hilton Garden Inn Southpoint at 7007 Fayetteville Road near the Streets at Southpoint Mall. Residents who received this notice just before the Thanksgiving holiday, said the developer chose to announce the meeting before a holiday weekend to lessen the chance for residents to show up and voice opposition.
In response to those complaints, Cunningham said Monday, Jewell scheduled a second meeting (PDF of announcement) for 4:30 p.m. on Sunday, Dec. 11, at the same hotel.
SDD plans to file its new application by Dec. 12, Cunningham said. The application will have to go through another long process of approvals through the Durham City-County Planning Commission and the Durham County Commissioners. Although the developer is making just a few changes, the entire application is fair game, said Durham Planning Director Steve Medlin.
It's unlikely, however, that support from County Commissioners has wavered, with three of five board members—Chairman Michael Page and commissioners Brenda Howerton and Joe Bowser—publicly stating their support for the project, and each elected through 2012.
If support on the board wavered, and the new SDD application were denied, the company would still be entitled to build its mixed-use development according to the plans that were approved in 2010.