Judge: 2006 ruling on parcel by Jordan Lake was last word

By Ray Gronberg

gronberg@heraldsun.com; 419-6648

DURHAM -- A judge ruled Wednesday that a three-year-old, disputed decision by Durham's former city/county planning director to remove watershed-buffer restrictions from a 165-acre parcel next to Jordan Lake has to stand.

Superior Court Judge Howard Manning also held that any actions "hereafter that may have been done by the county may not affect" the buffer's removal from the property of Southern Durham Development Inc.

The practical effect of that wording was to negate the possibility that opponents of Southern Durham Development's plans for the site can block them by attacking the validity of an Oct. 12, 3-2 rezoning vote by County Commissioners.

Manning in effect said former Planning Director Frank Duke's 2006 ruling changing the buffer -- disputed by critics who contend it was a zoning change by administrative fiat -- was the final word on a matter that shouldn't have figured in the commissioners' October deliberations.

The judge thought the county's handling of the matter had undermined the predictability of land-use decisions.

He opened Wednesday's hearing saying, "This thing was botched by the Planning Department, botched all the way through, botched from start to finish."

Manning said Duke "didn't do it right" because he failed to clear the boundary change with state water-quality regulators. But "the usual creeping politics" later intruded and compounded the original error, he said.

"My sympathies lie with the developer, not with the county, when you bureaucratically botched something as bad as you all botched it this time, and then they're sitting out there choking on a $12 million loan while the politicians are trying to undo it or redo it or do something," Manning said.

Southern Durham Development bought the tract early last year from a company controlled by the man who had secured the 2006 ruling from Duke, Cree Inc. co-founder Neal Hunter. The company paid $17.8 million, borrowing $7.9 million from a bank and giving Hunter's company a promissory note for $9.8 million.

Manning's ruling addressed a lawsuit filed by Southern Durham Development's lawyers contending either that Duke's ruling had settled the matter or, if it hadn't, county officials had acted negligently.

The judge dismissed the negligence claim, which had included a demand for monetary damages. County lawyers Lowell Siler and Brad Risinger, said they were happy to see the exposure to financial liability eliminated.

Manning led lawyers from both sides and an environmental group that had intervened in the case -- the Haw River Assembly -- through the contradictory demands of state and local law in the case.

Risinger and the Haw River Assembly's lawyer, D.J. Gerken, maintained state law required a public hearing and rezoning vote before officials could remove buffer restrictions.

But Bill Brian, Southern Durham Development's lawyer, maintained that officials had in drafting Durham's Unified Development Ordinance given the planning director authority to adjust buffer boundaries in keeping with the location of Jordan Lake's "normal pool."

Brian maintained that Duke's ruling should stand because no one appealed it within the proper time limit to Durham's Board of Adjustment, the panel that has the sole right to overturn the planning director's interpretations of the ordinance.

Manning said the state-law demand for a zoning hearing was "very compelling." But he noted that in combination with the buffer rules, it puts elected officials in the position of having to make a political decision on a purely technical issue, one on which the local ordinance allows them no discretion.

Taking the lake-level surveys Hunter commissioned as accurate, "there's really nothing to vote on," he said. "Unless you've got engineers who come in using the Martian GPS system or the Lithuanian GPS system, it should be a no-brainer."

The only way out of that contradiction, Brian said, was for Manning to void the relevant part of the development ordinance. "If there's nothing to vote on, there's no need for a hearing," he added.

Neither Risinger nor Gerken argued in court Wednesday that the judge should void the ordinance, though the Haw River Assembly's lawyers in written briefs had said the local law had to line up with the state's. Manning let the ordinance stand.