gronberg@heraldsun.com; 419-6648
DURHAM – A lawyer for 751 South’s would-be developers wants a judge to make opponents of the project pay his clients’ legal bills as penalty for pursuing “frivolous litigation” to slow work on the controversial real-estate development.
Attorney Cal Cunningham filed the “motion for sanctions, costs and attorney fees” on Monday, three days after opponents gave notice that they would appeal a recent court ruling that upheld zoning of the project site.
Cunningham said, however, that he’d warned opponents during a mediation attempt in November that he and his clients would seek compensation for their expenses.
“Absolutely not,” he said when asked whether the motion was retaliation for the opponents’ move on Friday to appeal Superior Court Judge Henry Hight’s recent ruling in favor of the development.
He added that as of Tuesday he had yet to receive a copy of the notice of appeal that was in the file in Durham’s county courthouse.
But opponents were quick to call the move the equivalent of a so-called SLAPP suit – SLAPP being the acronym for “strategic lawsuit against public participation.”
The phrase is used to describe legal action intended to discourage people from going to court to block rezonings or other governmental acts that have sparked controversy.
It’s “a shame the way exorbitant legal fees can be used to intimidate people from questioning and voicing concerns and doing what they believe is right,” said Melissa Rooney, a south Durham neighborhood activist allied with the project’s key opponents. “Yet another example of how special interests subvert democracy in this country.”
Cunningham’s motion faults the Chancellor’s Ridge Homeowners Association and others who sued to overturn the county’s 2010 rezoning vote for pushing on with the case on the strength of an affidavit from a former lawyer for the N.C. Department of Transportation.
The lawyer, former Special Deputy Attorney General Richard Moore, offered “false” testimony in the affidavit that among other things misrepresented the state administrative code and DOT policy, Cunningham alleged.
Moore and other DOT officials stepped a year and a half ago after learning a mid-level official at the agency had accepted a right-of-way donation from Southern Durham Development Inc. that invalidated neighbors’ formal protest against the rezoning.
To avoid embroiling themselves in a local zoning decision – the protest petition was the difference between County Commissioners’ being able to approve the 751 South’s zoning on a 3-2 vote versus a 4-1 that was likely beyond the developers’ reach – DOT officials on Moore’s advice attempted to rescind the acceptance of the right of way.
Cunningham and other lawyers for the developers have argued, however, DOT was bound by its previous decision absent a state Board of Transportation vote to give back the rights to the easement.
A visiting judge who handled the case into December, Alamance County Superior Court Judge Wayne Abernathy, discounted significant parts of Moore’s affidavit, including a section that claimed only a select group of DOT officials were authorized to accept right-of-way donations.
But Abernathy also said other parts of Moore’s affidavit supplied “competent evidence” for a judge to weigh. He further ruled there was “a genuine issue of fact” about the authority of the DOT official who’d approved the 751 South donation.
Hight’s subsequent ruling answered that point in the developers’ favor. State law says the mere fact that one side lost a case “is not in itself a sufficient reason for [a] court to award attorney’s fees” to the winners.
The same statute allows fee awards if a judge finds “there was a complete absence of a justicable issue of either law or fact.”
The mediation Cunningham alluded to occurred on Nov. 16. Former Chapel Hill Mayor Ken Broun, a UNC law professor, presided and reported later that the parties remained at an impasse.
Cunningham said he and his clients thought Broun was “somebody both sides would listen to” because he’d been mayor during part of the fight over Meadowmont, a large, mixed-use development that 751’s developers compare their project to.
Durham County Commissioners in 2010 voted to allow 751 South to have up to 1,300 homes and 600,000 square feet of commercial space on a 167-acre site. Meadowmont had a similar amount of housing on a site roughly twice the size.
