BOCC upholds 751 vote despite protest petition status; Chancellor's Ridge HOA the crucible?

The problem with going out of town for two weeks with little Internet access is, you miss all the good stories. (Though handily, I was in a rural Tennessee county that was giving away H1N1 vaccine like candy canes to all adults, so at least I got something healthy out of the trip. But anyway.)

Quite a surprise to show up at Nashville's airport only to find out the drama that's been ongoing today with the 751 assemblage debate.

And now in the midst of it all sit two questions.

First, that of how a board vote that might have had some questionable validity gets challenged, something county attorney Lowell Siler says will be a matter for the courts (and about which he tells the Herald-Sun that case law is not well settled.)

Secondly -- and perhaps more interesting in light of different tacts by Siler and Planning director Steve Medlin -- the questions surrounding the Chancellor's Ridge homeowners association, and whether it was in the clear or not in signing the protest petition.

As we mentioned in passing in the Fishwrap this morning, a (properly) redacted memo released by the county last night to two citizens and the media gave a few clues -- though not many -- as to why City/County Planning initially rejected the protest petition brought by opponents of a dense development along NC 751 in southern Durham County.

Part of the redacted section appears to center on the reasons why Planning initially (and, Medlin says in the memo, apparently erroneously) ruled the petition invalid; the remaining redacted sections focus on what Planning looked at in re-evaluating the protest petition at the request of petitioners from the Haw River Assembly and Southern Environmental Law Center.

(The statues cited in the county attorney's decision to redact relate to privacy of employee personnel files and records -- presumably dealing with who worked on the petition evaluation -- as well as NCGS sections pertaining to attorney-client privilege between municipal/county government and legal counsel.)

As the Indy and N&O are reporting, the BOCC met in closed session this morning -- and at the end, had decided to stand by the earlier 3-2 vote in favor of the watershed change, even though a 4-1 vote would have been required if the protest petition had been successful.

What's really intriguing about all this is county attorney Lowell Siler's claim that even though Steve Medlin has ruled enough property owners (by percentage) signed the project opponents' protest, Siler is still saying (notably in comments to the N&O's Jim Wise) that the signature of the Chancellor's Ridge HOA president on behalf of the common areas of the subdivision is invalid.

Controversial that Siler's concern may be -- see yesterday's Indy post's comments for a debate on whether the discourse over the whole matter has become "GlennBeckian" -- it's plausible that Planning and the county attorney could be looking at two different issues. Ultimately, this could be a matter which comes down, as Medlin says in his memo, to the authority of an HOA, a matter he suggests is a question of law, not an administrative call:

The remaining signature for the Chancellors Ridge Home Owners Association needed additional research. This necessitated that the President of the Home Owners Association be contacted to obtain additional information. This information included the Home Owners Association Declaration of Covenants, Conditions and Restrictions, By-Laws, minutes from the association annual meeting and minutes from the Board of Directors meeting authorizing the signing of the protest petition.  Based on Planning staffs review of this additional information, it is believed that the signature is adequate. However the impact of the Homeowners' Association taking ownership action without member involvement may render the petition invalid as a matter of law which a court will have to address.

Certainly the question of the Chancellor's Ridge HOA's position on the 751 assemblage has not been without some dispute in the months leading up to this moment -- and that's a fact that should be familiar territory indeed to County Commissioners, though it hasn't been prominently featured in the headlines.

In September, the president of the homeowner's association -- who had, a neighbor tells BCR, been a project proponent, though the neighborhood reportedly had taken no vote or position on the matter -- was voted out of his office. Then or soon thereafter, the HOA board moved to support the protest petition.

It's by no means clear that Shane Kirk's replacement had anything to do with his support of the 751 assemblage project, BCR's source says, but Kirk took the opportunity to complain to BOCC members about the HOA's participation in the process.

From Kirk's email, and from BCR's source's reporting, a vote of the HOA's membership doesn't appear to have occurred -- though one would need to consult HOA bylaws, and probably the state statutes governing homeowners associations, to understand whether or not such was necessary.

Kirk complained to County Commissioners:

I am writing this email opposing a recent action taken by the 
Chancellor's Ridge Homeowners Association in which they signed the 
protest petition against plan amendment A0900004 and Zoning Map Change 
Z0900009.

Up until September 22, 2009 I was the President of the Chancellor's 
Ridge HOA and a member of the board for five years, as such I have 
intimate knowledge of our community and the information that the HOA 
has regarding our community as a whole in relation to the proposed 
development of Southern Durham Development. Up until Sept. 22, 2009 
the HOA had no formal query of the residents and still does not today, 
since none has been taken, as to the majority opinion of these actions 
and on this development.

Therefore I believe that the HOA in taking this step has violated the 
trust of the residents of Chancellor's Ridge and those members of the 
association. And I will be investigating if they have violated any 
fiduciary responsibility by taking such action without having the 
knowledge of the desires of the residents and whether taking such 
action is a power that was bestowed on them within the Chancellor's 
Ridge By-Laws (specifically they may have violated Article VI, Section 
6.2, and Article VII Powers and Duties of the Board of Directors). 
They have instead listened to a few interested parties including some 
from outside the Chancellor's Ridge community, including Melissa 
Rooney (not a member of Chancellor's Ridge), in taking this decision 
to sign the petition.

It should be known that a great number of our residents are in favor 
of the proposed development. In my talks with people over the last two 
years regarding this subject I have found some who do not know about 
the development, some who are in favor and some who oppose. Those who 
did not know about it were generally supportive of the development 
once they learned about it.

I don't know anything more about the matter than this -- but certainly it shows at the least that Chancellor's Ridge seemed geared up to try to move forward their opposition to the project.

Press reports are stating that the new HOA president signed the petition on behalf simply of the common areas, those open spaces that an HOA is responsible for maintaining. I'd expect we'll see a deeper drilling in to what activities an HOA president and board can or cannot take on a matter such as this.

Frankly, I tend to find neighborhood associations and HOAs are great volunteer organizations until a controversial matter comes along to divide the neighborhood.

Few neighborhoods have a (say) Tom Miller, who besides his neighborhood organizing skills also happens to be a real estate attorney; they're not well-versed in land use and its particulars.

Fewer still are meticulous to the nines about keeping minutes and records, if even by-laws. And that tends to go along great, until some controversy comes along -- at which time an association will find itself being hammered usually by both sides of a controversy demanding to see all kinds of process and detail, things that unpaid and untrained volunteers usually don't keep.

Not that I'm making that assumption in the Chancellor's Ridge case, mind you -- but having witnessed my own neighborhood struggle with two controversial projects (the Chancellory condo project, and less so the King's Daughters Inn), I can imagine that being the HOA president down at Chancellor's Ridge is not exactly a fun unpaid volunteer position to be in right now.

Project opponents are raising the specter of county government using tax dollars to defend itself against Durham's own citizenry if they sue the county over letting the 3-2 non-supermajority vote stand. (Melissa Rooney is calling for donations of up to $10,000 to pay initial legal fees, with a December 1 11 deadline for filing suit looming.)

And of course, the developers in the case are standing by their argument that Frank Duke was originally authorized to make the boundary change in the first place, and that this whole public hearing and vote process was invalid in the first place.

Today's vote really doesn't change either of those poles. Which is what makes the Chancellor's Ridge HOA matter so interesting.

If it turns out the HOA was authorized in making the vote to sign the protest petition, the courts would seem to be the sole course forward.

If it wasn't (and worth noting that Planning thought it was so authorized), then it sounds from Medlin's memo like the question of validity of the protest petition would continue to stand.

What more to say? Grab a Snickers bar if you're following this case. Because it's not going anywhere for a while.

Comments

[barry]

Nice scoop on the Chancellor's Ridge deal.

My experience with Neighborhood Associations, admittedly a quite different animal than a covenant based HOA, allows the BoD to take positions on any number of issues without a vote of the membership.

Would have to read the Chancellor's Ridge by-laws to determine whether or not that's the case there.

Or let the courts do it, since that's where it's going anyway.

[Steve Bocckino]

I can't remember a previous case where the County Attorney argued with a homeowner's association about their standing.

Could it be that Lowell Siler is getting his direction from K & L Gates, the firm suing the County for Southern Durham Development?

The Unified Development Ordinance states clearly that the Planning Director—Steve Medlin—makes the determination on the protest petition. Medlin has ruled the petition valid. The Siler-Gates opinion is irrelevant.

[Bull City Rising]

Thanks, Barry. FWIW, I've seen a similar organization dragged into questions of process -- like whether meetings were held in accordance with NCGS statutes of advance notice, minute recording, etc., down to whether the bylaws allow such matters.

It sounds from Medlin's memo like Planning reviewed the matter and felt comfortable based on their review, but that it still is ultimately a question of law.

Hell, the HOA CC&R should be posted in the Register of Deeds. Let me look...

...and it sure is. Instrument number 98046034, book 2550, pg. 467 for the curious.

IANAL, but on first glance, it's a pretty standard HOA covenants document and silent on authority in a matter like this, save for the usual catch-all that the developer "has deemed it desirable for the efficient preservation of the values and amenities of the Property to create an agency to which shall be delegated and assigned the power and authority of owning, maintaining and administering the Common Properties... and promoting the recreation, healthy, safety, and welfare of the residents."

My bigger point was just that, these are complicated and sticky issues, and I feel bad for volunteer orgs like HOAs and neighborhood assns. when they wander into such hot water. Usually quite by accident.

[GrannieGrump]

This whole durned thing is about righting a wrong. It's burned the developer - and it's burned the citizenry.

1. Frank Duke was wrong to redefine a public watershed boundary in his office.
2. Southern Development did spend funds based on the wrong redefinition.

These are two incontrovertable facts. All of the rest of the vacillating and politicking going is based on these two facts.

Let's examine these. IF SDD, in good faith, spent funds for planning and engineering based on an administrator's(not elected official) unauthorized say-so, does SDD have a valid claim for reimbursement of some or all of the expenditures based on that wrong interpretation. What is the responsibility of the employer of said administrator(County)?

It would seem to me that the County has liability insurance that could help alleviate all or some of SDD's qualified expenses if they are determined to be legally valid.

Duke overstepped his authority. Boundary was not changed.

End of story.

Everything after that has been just a shell game.

[Myers Sugg]

Why did the County Commission feel compelled to vote at the October 12 meeting on this issue? Why couldn't it have been put off until everyone involved (regardless of the outcome of the protest petition) was confident that sufficient time and research had been done to make a thorough determination? Why cast a pall on the process? I have my opinions, but will keep them to myself. Now we will spend precious taxpayer dollars to deal with a legal issue that was easily avoidable. Thank you Commissioners Page, Bowser & Howerton for being such responsible stewards of public funds.

Myers Sugg

[Rob Gillespie]

The lawsuit filed by SDD is going to be a giant waste of taxpayer dollars. I can't wait for Southern Durham Development to start talking about how they have Durham's best interests at heart, all the while wasting the citizenry's time and money with a lawsuit. I understand that they have invested money in the land. They should've just purchased a parcel closer to the city and farther away from Jordan Lake.

I'm with Myers-- I don't know why there was a rush to vote on the zoning map change. They could've postponed the issue, just like the City postponed the closing of Maxwell St for almost a year when Duke wanted it for the Smith Warehouse renovation.

[nemontemi]

What I don't understand is why the Haw River Assembly's survey of the lake level (to which I made a modest financial contribution) used a different method, rather than just remeasuring the points found by the developer. I had assumed that some of the developer's points could not be justified, licensed surveyor or no.
If the developer was confident that a resurvey would move the old line in his favor, why not just offer to pay the county's cost for a survey, and let the county do it entirely independently?
I have a suspicion that neither the developer nor the Haw River Assembly really wanted the true lake level, but one that would most favor their position.

[GreenLantern]

Other than the fearmongering about Jordan Lake, no one has explained how the engineering would protect the watershed, or conversely, just how much the 751 Assemblage project would harm it. In the absence of any hard data against the development, countered by the engineering proposals that would alleviate any concerns, it seems this is just another attempt by no-growthers like the Haw River Association to halt progress. The area has changed and grown so much that our major bodies of water are part of the urban planning area. This isn't a rural area anymore.

Show us how this project is any different than Amberly in western Wake. Is it that much closer to Jordan Lake's high water mark? Are the runoff designs any more or less effective than all the others out there? Growth around lakes is going to happen because people want to live around water. This area is already growing fast due to its location in southern Durham near RTP and Southpoint. If you don't like it, then move back to Michigan or California, and take those jobs back with you.

If this project doesn't go ahead, are all of you going to oppose everything else that's not a million dollar home on 20 acres? Jordan Lake is not a rural lake in some national park. It's an urban water source not just for drinking, but for recreation and residential development. All of these interests need to be balanced and people who already live nearby don't just get to move in today, then close the doors for everyone else who wants the same thing.
If you live around Jordan Lake, and you oppose this development, then you yourself should be prepared to pick up and leave for downtown right now. Otherwise, work with the developer and the planning boards to make sure the engineering is done right to protect the watersource before the bulldozers start moving. It's going to go forward.

[Durham Blues]

It is interesting Shane Kirk claims stuff like this cannot be done without a membership vote, especially since when he was the HOA president he said major issues (like thirty thousand dollars for a new shrubs and landscaping)were up to the board. He argued that the membership had elected the board to make decisions affecting the HOA and that not everything could be put to a vote.

It is also worth noting that Shane Kirk has been a outspoken proponent of this project. He met with the developers privately before the initial meeting was held at the CR clubhouse to discuss/publicize the development. At that same meeting, he was upset at the vocal criticism of the project coming from residents and folks from the community. Repeatedly, he has spoken out in various forums and interviews in favor of the development. He has attacked the vice-president of the HOA for writing a letter to the BoCC opposed to the project.

It should also be noted that his being voted out of office had something (I would say a lot) to do with this project. Additionally, the person who replaced him on the board is an opponent of the project and someone who is greatly concerned with the environmental impact of this project.

If this has been anyone else on the board raising the issue of validity, I would take it a lot more seriously. Since it is Shane Kirk, I just dismiss it as continued efforts to move the project forward and to assist the development team in any way possible.

[barry]

"Show us how this project is any different than Amberly in western Wake."

One of the things i learned today, if i'm not confusing all the info i took in, is that if SDD's map holds, then Amberly will find itself within the new CWA.

Won't that make for an interesting amicus curiae brief?

(Happy to be corrected if i'm wrong.)

[barry]

" Are the runoff designs any more or less effective than all the others out there?"

I'd point out that nobody know this yet since the final site plan is not yet required.

[GreenLantern]

The concern by one of the members of the Chancellors Ridge subdivision that many of his neighbors support the 751 Assemblage brings up another interesting point. Are the majority of people opposed to the development living far away from it, and is there a quorom of very nearby residents in favor of it? Last time I checked, the Haw River is upstream and to the west of Jordan Lake. Are there many Haw River Association members living on the northern and eastern section of the lake? Who are the relevant parties when it comes to determining what's going in next door, and what impact it has on the existing neighborhoods? Could most people already living there be in favor of more growth, and not as some people assume, that they are opposed because they were there first?

The watershed boundary controversy seems like a red herring, despite all the noise. Both sides are just using the legal system to shut down the other, never mind the technical details as to whether the engineering is sound for a development so close the lake. All of south Durham is in the Jordan lake watershed, not just the modern developments on city water/sewer, but most of the older homes on failing septic systems. Rather than trying to beat a master at the game of development by spending taxpayer money on a futile legal challenge, offer to prove how much you care about water quality by supporting tax credits or property tax set-offs to fix old septic systems, or support local government efforts to help provide water and sewer hookups to many of the poor long-time homeowners who are polluting the lake. I know for a fact that is the main reason many of the beaches at Falls Lake are closed more often in the summer.

I'll bet a few of the HRA members live alongside the river or lake, and are no where near city septic!

[barry]

Last comment for now.

" It's burned the developer - and it's burned the citizenry.

1. Frank Duke was wrong to redefine a public watershed boundary in his office.
2. Southern Development did spend funds based on the wrong redefinition.

These are two incontrovertable facts. All of the rest of the vacillating and politicking going is based on these two facts."

Again, if i'm not mistaken, the developer conducted their survey, and presented it to Frank Duke. They initiated the process. Should they have known, with their high priced legal advice, that Duke was not empowered to approve their new boundaries?

Well? Should they?

[GreenLantern]

Barry: I'll accept that your facts are true, but for me the bigger picture is lakefront/watershed development and density in general. I work in a scientific environment, and many times trying to explain the pros and cons of technical issues to higher-ups who are not that technically versed uses a lot of my time. Elected officials can either be educated or manipulated by both sides when a lot of technical jargon is thrown at them in a hearing. At what point does growth and the type of development create a significant water quality problem? What levels and types of contaminants are really an issue, rather than just saying something bad in larger quantities is automatically bad in smaller quantities from each and every contribution that follows.

We're facing the same kinds of controversies over here in eastern Durham county, and more often than not, it's the outsiders who don't live over here that oppose everything because it might harm Falls Lake, when the real problem is the runoff from Ellerbe creek, the proximity of the county landfill to it, and failing septic systems.

I've seen some very elaborate runoff mediation both in large residential developments, and small office parks in RTP. Until these details get hashed out, I think it would be best to withhold judgement until the relevant boards and commissions see the final plan. Having outside organizations start legal proceedings against the city/county based on whether or not Frank Duke overstepped his authority is counterproductive if in the final anaylsis, where the lines were re-drawn or not doesn't make a big difference for water quality.

This won't be the last development in the Jordan or Falls Lake watershed, and as the technology and design elements evolve, won't be the greenest proposal to come along. As long as people want to move here and work or retire, we have to make room, but with the realization that quality, green growth is going to cost more as the available land dwindles.

[GreenLantern]

Barry: If a subdivision the size of Amberly really does find itself in the new watershed boundary, that would provide opponents a control to establish water quality effects from development. If, as I suspect, the water quality tests are part of public record, they could obtain them and see some real data over the past few years how much pollutants the development has contributed to Jordan Lake in the form of runoff, and what types.

If it is concluded that another Amberly is something to be avoided because of poor runoff design or low density, it could be used to force any new development around the lake to engineer substantially better runoff controls before being approved. If the developer is not prepared to match or improve upon like developments in the watershed, then they should be shown the door, based on data and on science.

[NoThanks]

Durham Blues> It is interesting Shane Kirk claims stuff like this cannot be done without a membership vote, especially since when he was the HOA president he said major issues (like thirty thousand dollars for a new shrubs and landscaping)were up to the board.

Me> Actually, landscaping is wholly within an HOA's known rules... it's not like shrubbery suddenly pops up and the HOA doesn't know how to deal with it.

Landscaping decisions would normally be in an HOAs bylaws, and I doubt they require any decision beyond the BoD. I doubt (though it is possible) that the bylaws include rules on how the HOA's BoD can act on petitions.

If it aint a typical thing, I really would be surprised if the bylaws cover it. If it does, then the lawyer who drafted the bylaws has atypical foresight.

[Todd P]

Amberly is not in Durham County, so it would not be effected by this change either way, right? I think the one-mile critical area is a Durham County regulation, vs. the state-mandated one-half mile critical area adopted by Wake County. Having Wake County push Durham so hard on cleaning up Falls Lake is ironic given that Durham already imposes twice the critical area that Wake does.

GL - The Ellerbe Creek water quality issues are impacted greatly by the large part of northern Durham / I-85 corridor it drains - a part of Durham largely developed prior to the implementation of stormwater controls. Building those stormwater controls for long-developed areas from Braggtown to Walltown and beyond will be an expensive but effective way to improve water quality of Ellerbe Creek.

[Steve Bocckino]

Having a city across the street would surely affect Chancellor's Ridge residents far more than a few shrubs.

The vast majority of CR residents that I've talked to about this are vehemently against the proposed development. One notable exception is the disgruntled FORMER HOA president, who loves him some south Durham mini-city.

[barry]

As i said, i could be mistaken about Amberly. Among the many items i reviewed yesterday was a map showing the effects on the eastern side of the lake should the western point be moved in accordance with the boundary that Durham County is prepared to accept. One of the consequences of that shift was that a development formerly not in the CWA would now be in the redrawn area.

Alas, i'm not a professional journalist, so my notes don't indicate which development that was. I'll have to relisten to all 2 1/2 hours of audio i recorded yesterday and see if it's in there.

re: "no-growthers like the Haw River Association". In my conversation with the Haw River Assembly's executive director yesterday, she indicated that HRA would not be opposed to development in SDD's property that is consistent with its current zoning.

As i've said on several occasions, i'm pretty much agnostic about this. In general, i support compact, dense development over suburban sprawl. But given the approach we seem to take to moving people around in the Triangle (more cars, bigger roads) i'm not sure how this development maximizes the benefits of density by its siting so far from other urban centers.

One thing is clear, though, and that's that Durham County has screwed the pooch big time with the way it's handled this case.

[GrannieGrump]

"Are the majority of people opposed to the development living far away from it, and is there a quorom of very nearby residents in favor of it? Last time I checked, the Haw River is upstream and to the west of Jordan Lake. Are there many Haw River Association members living on the northern and eastern section of the lake? Who are the relevant parties when it comes to determining what's going in next door, and what impact it has on the existing neighborhoods? Could most people already living there be in favor of more growth, and not as some people assume, that they are opposed because they were there first?"

I belong to the Haw River Assembly. I am a member of the Chancellor's Ridge Homeowners Association (CRHOA). This development would be across 751 from where I live.

I hand-delivered surveys on the 751 project to every homeowner in Chancellor's Ridge, urging them to contact the County Commissioners directly with their "pro" or "con" opinion because the CRHOA would not do so. I did not see the results of the survey, but the many many people that I talked to in Chancellor's Ridge while distributing the survey said they were vehemently opposed to the project.

During the public meeting held by SDD at the CRHOA clubhouse, it was clear that there were two vocal supporters of the project: One was the president of the association. Of the nearly 100 people who attended, I only know of 2 in support.

It is interesting to note that at the CRHOA annual meeting, the then president (Kirk) noted that decisions were entrusted to the board of directors on major items - yet when the 751 project (which WILL have a definite impact on Chancellor's Ridge) was brought up, he flipped, deciding that (apparently) the elected board of directors were NOT entrusted to make decisions.

At the CRHOA annual meeting, new board members were chosen. Shane Kirk lost the election and was booted off the board BECAUSE of his vocal support of the development, misleading county officials into thinking that he was speaking on behalf of the community. This audacious and misleading act had the membership of CRHOA in a fury. He couldn't win a "pro-vote" from the CRHOA for the 751 development, so he stonewalled ANY action by the board.

Just minutes after he was deposed, the new board was actively talking about signing the petition.

I do not believe that a development of the size proposed by SDD is suitable for placement near our drinking water source.

I believe that we are entrusted by our progeny to be good and proper stewards of the environment they will inherit from us, in this case, Jordan Lake.

I believe that sound engineering and planning have gone into the 751 project in order to help make it a sustainable development, BUT, that the area proposed for development is very environmentally sensitive and cannot tolerate additional degradation from development at its rim.

Remember ... we are already on the hook for about $350 million to UNDO the pollutant damage caused by development (largly from southwest Durham development) already. The lake simply cannot sustain more pollution. Durham County taxpayers cannot sustain additional costs for pollution clean-up efforts.

I am very much pro-development - and resent being grouped into a "NIMBY" classification. But I don't believe in development in any-ol' place and at any ol' cost (environmental, in this case).

This whole convoluted mess has made me feel that a number of our local elected officials tend to react to issues (and projects) by "shooting from the hip" rather than using the rules and regulations and boards and commissions and staff support they've been given.

Remember, the Planning Commission voted this project DOWN by 12-0. (Why bother having a Planning Commission, if the administration only plans to ignore it?)

This is not the first time politicos have used "the bully pulpit". (Holding the city budget hostage until the mayor's $6 swimming pool could be added to it certainly comes to mind.) I would hope, however, that the lesson to be learned from this is that a clean, clear process needs to be developed -and followed - by our elected officials, and that "favorite" projects and/or policies should no longer be pushed down the throats of "we the people".

They may no longer smoke cigars in the back room, but it appears that the same mindset is being nurtured in some of our local government offices. The pandemonium of this project is just another lesson in bad government

Commissioners Reckhow and Heron, thank you for your continued and knowledgeable support.

[Will Wilson]

Water quality suffers a death of a thousand cuts. This region has poor soils for intense development, meaning we shouldn't expect the same high densities as communities on sandy soils without each "cut" being more severe. In essence, as a county, we need to determine what level of impervious surface we want? 10%? 50%? 90%? In many ways we had decided this level through the prior zoning boundaries and critical watershed rules. But this developer, in conjunction with Frank Duke, did an end-run around those rules through a biased survey of a public resource -- Jordan Lake. It's that snub that really steams me. Then the developer got their BOCC majority installed to shove it through, rules or not.

Are there BOCC recall provisions?

[GrannieGrump]

NOTE: Chancellor's Ridge Bylaws, etc. are at: http://www.chancellorsridge.com/acc.html

[Steve Bocckino]

GL,

You ask "Are the majority of people opposed to the development living far away from it, and is there a quorom of very nearby residents in favor of it?"

I think the short answer is "Hell, no."

[Rob Gillespie]

So, I'll admit, I live far away from the proposed development. That may mean that I don't have much standing in this matter, but, I'll share my opinion regardless.

The problem in this whole mess is that we haven't seen SDD's proposed runoff management methods. At this stage of the game, the county is expected to make a decision on the critical watershed boundary without knowing how SDD plans on keeping the spilled motor oil, runoff fertilizer, and construction waste segregated and out of Jordan Lake. That means that the whole argument can't really take place.

I know that the full engineering plans will cost $1 million or so, but if SDD is confident about their ability to handle runoff, why don't they make the plans and then have them audited by an independent engineering firm?

[GrannieGrump]

Oh, I am just sooo confused ...

Searching through the UDO, I find apparent conflicts between what the state law vs. the city law (code) says and what the UDO says. As for the county ... I'm not finding the code online. Hmmmmm....?

It appears that the county commissioners have final say-so (according to State law NCGS 153 A. No - wait - strike that. The UDO says that the final say-so rests with the Board of Adjustment (have you ever heard of them? - they meet the 4th Tuesday of each month at 8:30 a.m. in the Committee Room/2nd Floor/City Hall. BUT, appeal of their action may be taken by filing a petition for certiorari with the Durham County Superior Court.) Oops, looking at the City Code, it appears that the Development Review Board is the decision-maker. (I don't think they had "that" Development Review Board in mind.) City Code Section 97 (3).

The plan commission was formed in 1988 under the Interlocal Cooperation Agreement on City-County Planning (which decided to not make itself known to me...) Indeed, Article 9 of the City Code barely addresses the joint planning issue.

The UDO notes (2.9.3) that the Planning Director is responsible for any final actions by staff. (Sorry, Mr. Medlin, apparently not according to all of the above...) The UDO seems to conflict with itself, however, since it notes in 2.4.4 A 1 c, that the Board of Adjustment is responsible for appeals of administrative decisions.

City Code (94.4), however, notes that rights of appeal on zoning decisions rest with the City Council (and, I suppose County Commmissioners, too?)

What about the Planning Commission? Well, according to the UDO, all they are supposed to do is "review" and "recommend". Sounds like a little too much R&R and too few teeth to me.

... and what about the claims of SDD regarding their investment in the property's development ...? Well, I did find this nagging little section of state statute that addresses "vesting" (NCGS 153A-344.1). Basically, it says that a developer is on his/her/its own dime until "the valid approval, or conditional approval, of a site specific development plan or a phased
development plan, following notice and public hearing by the county with jurisdiction over the property." (I'm sure their attorney knows about this, but chose not to bring it up...) AND according to (d)(3) of the same section, the document triggering "vesting" needs to be noted at the time of approval. Indeed, this is addressed in the UDO at 2.9.4. b 11.

Perhaps we need to rewrite some of this legislation?