By Ray Gronberg
gronberg@heraldsun.com; 419-6648
DURHAM -- An environmental group wants a judge to let it help argue against a lawsuit filed against Durham County by the would-be developers of a 165-acre tract off N.C. 751 next to Jordan Lake.
Filed this week, the Haw River Assembly's intervention request argues the group has interests in the case separate from the county's, and that it can't rely on the county to defend them.
Among other things, the county may choose to settle out of court with Southern Durham Development Inc., to avoid financial liability or because it assigns more weight to the interests of developers than the Haw River Assembly does, the group's lawyers said.
At stake in the dispute between the county and Southern Durham Development is the right of the public to weigh in on major zoning changes, the group contends.
The company's lawsuit jeopardizes interests the Haw assembly and its members have in seeing that boundary and zoning changes around the regional reservoir "are vetted through an appropriate public process that takes into account multiple community interests and viewpoints," the intervention request said.
Moreover, the case "runs the risk of setting a dangerous precedent for developers and local governments to exclude the public from similar future requests, based upon strained -- and erroneous -- interpretations of zoning regulations," lawyer Kay Bond and her colleagues at the Southern Environmental Law Center said on the Haw River Assembly's behalf.
Filed in June, Southern Durham Development's lawsuit asks a judge to uphold a 2006 administrative ruling by former City/County Planning Director Frank Duke.
Duke accepted a private survey commissioned by the site's former owner, Cree Inc. co-founder Neal Hunter, that had the practical effect of moving Jordan Lake's boundary far enough to the west to free the property of restrictions on dense development.
Southern Durham Development -- which paid $17.8 million for the property early in 2008 -- contends that Duke's ruling should also settle the site's zoning.
Former County Attorney Chuck Kitchen, however, argued for much of last year that Duke acted without first getting state approval of the survey, and also that no zoning change could occur without a public hearing.
County Commissioners, apparently split on the merits of the project, secured state approval of Hunter's survey and have launched an effort to rezone the property in line with its claims.
They also removed Kitchen from office last week, and have hired a private-practice lawyer, Fred Baggett, to represent them in the lawsuit.
But it's not clear how aggressively the commissioners plan to fight the case.
Though their answer to the lawsuit is due in about two weeks, the commissioners are known to have met only once with their defense team.
After Kitchen's ouster, commissioners Chairman Michael Page said the board would meet with the lawyer this past Monday "to provide some kind of direction in terms of where we're moving right now."
That meeting, however, did not happen. And the commissioners aren't scheduled to convene again until Aug. 24.
"What kind of communication [with the defense lawyer] will take place, I'm not sure of yet," said County Attorney Lowell Siler, Kitchen's replacement. "I don't know if it's going to be written, or an actual meeting. I am sure we'll be talking soon."
A Tuesday night advisory vote by the Durham Planning Commission cleared the way for the commissioners to open public hearings on the zoning change soon.
Southern Durham Development's lawyers have called the hearing process "illegitimate," in light of Duke's prior ruling, but it's not clear what they'd have left to argue about in court if the upcoming zoning decision goes their clients' way.
Bond said she and her clients have "no knowledge of what Durham's thoughts are about the case yet, other than what's been going through the public process."
She added that "some of the claims [in the lawsuit] perhaps ... would not be mooted" if commissioners rezone the property to remove limits on paving and other hard surfaces.
But she wouldn't point to one specifically that would stand. "I'd really have to think about that," Bond said. "I'd hate to speculate about how that would come out through the process. I don't think I agree they would be mooted."
