'Uncharted territory': With petition now valid, margin on zoning fell short

BY MATTHEW E. MILLIKEN

mmilliken@heraldsun.com; 419-6684

DURHAM -- A lawsuit must be filed to undo a 3-2 vote that changed a watershed protection boundary near Jordan Lake, County Attorney Lowell Siler told the Durham County Board of Commissioners Thursday.

Little precedent exists for changing the outcome of a board vote, Siler said, but experts at the UNC School of Government indicate that any alteration will require action in Superior Court.

"We are pretty much in uncharted territory," Siler said. "Not a lot of case law on this."

The suit will be required even though Steve Medlin, the city-county planning director, concluded this week that a protest petition filed in the case should have been deemed valid. Under the county zoning ordinance, a valid petition requires a supermajority of at least 4-1 to enact the change under consideration.

Medlin's staff initially ruled that petitioners had not obtained signatures from owners of the mandatory 20 percent of properties in the area affected by the boundary change. The Haw River Assembly, an environmental group that circulated the petition, urged the Planning Department to re-evaluate the document.

There was no discussion by county officials Thursday of what went wrong with the petition assessment. Haw River Assembly director Elaine Chiosso maintained, as was asserted late last month, that a handful of properties were overlooked by the Planning Department.

A 3-2 vote Oct. 12 altered the critical watershed boundary -- a one-mile buffer zone around Jordan Lake -- and enabled a 165-acre mixed-use project developed by Southern Durham Development to move ahead. The old boundary would have required a much lower construction density than the Raleigh-based company is planning for its so-called 751 Assemblage.

There is no legal way for the county government to undo its own decision, Siler said. He cited a city-county development ordinance clause that prevents a decided case from being reopened before one year has passed.

"It's mandated that it go to Superior Court, and we'll defend that [Oct. 12] action," Siler said.

The matter was briefly discussed in public before and after an hour-long closed session.

Chiosso said that her group will consider suing or persuading signers of the protest petition to sue. She believes that the cutoff for a Superior Court appeal is mid-December and that petition signers would probably have the best standing to file suit.

But everyone else in Durham should be concerned with how the matter has been handled, Chiosso stated.

"This is really an affront to democracy," she said of the situation. "This is not the way local government should be conducted."

Commissioner Joe Bowser, who voted for the boundary change, said that government had confused the public about the situation. But he was essentially satisfied with Siler's conclusion.

"I feel that the decision should stand and that any diversion from that decision should be done through the appropriate authority using the appeals process," he said after the meeting.

Commissioner Becky Heron, an opponent of the boundary change, was less sanguine.

"There were some mistakes made that we're suffering for right now, and the public, the public is suffering," she said.

Heron and fellow Commissioner Ellen Reckhow both lamented the action by then-Planning Director Frank Duke that first got the county involved in the 751 Assemblage.

"It's just been a sequence of mistakes and it started with a mistaken decision in '06," she said.

The legality of Duke's 2006 decision to move the Jordan watershed boundary to allow greater density at what the proposed 751 Assemblage site was called into question last year. The Oct. 12 vote essentially formalized Duke's change.

Reckhow and Heron both declined to answer questions about how well they thought Siler and Medlin -- whose staff was responsible for assessing the petition -- had handled their jobs. Bowser said he felt both had done their jobs to the best of their abilities in trying circumstances.

Thursday's proceedings introduced a new wrinkle into the question of the validity of the protest petition: whether the signature by the president of the Chancellor's Ridge Home Owners Association should be counted. The Planning Department concluded that it was valid, citing minutes from an association directors' meeting, but Siler indicated that that matter might have to be litigated.

Chancellor's Ridge is a residential development located directly across N.C. 751 from the proposed Southern Durham Development project.