Superior Court ruling sides with developer on 751 Assemblage's entitlement

A decision by Superior Court Judge Howard Manning on Wednesday essentially nullified most of the turmoil that's been in the public eye for the past 18 months on the 751 Assemblage.

During that time, the administrative decision by former Planning director Frank Duke to move a critical watershed boundary impacting the use of a 165-acre site near Jordan Lake was revealed; sent to the state Division of Water Quality; brought de facto under a public hearing process; received a thumbs-down from the advisory-only Planning Commission; won a narrow 3-2 vote in support of the watershed change; and faced pressure over whether a protest petition that would have required a 4-1 supermajority was valid or not.

After all that, only the first of those items -- the administrative decision by Frank Duke to adjust the normal pool definition for Jordan Lake based on newly submitted survey points -- turns out to have mattered.

The summary judgement -- covered in full detail in good reporting by the N&O, Herald-Sun, and Indy -- essentially says Duke had the last word on the watershed boundary change impacting the applicant, though the fall public hearing's impact on the remaining acreage affected by the change will still need to play out.

The protest petition fight going on in court likely will be of no consequence to the case as a result, and that Duke's moves to change the critical boundary area, and to bring them within the Suburban tier and urban growth area, will stand. (And an att

The big question now is, what comes next?

The property is now in the Suburban tier, officially, but classified under PDR (Planned Development Residential) .220 -- and is listed on the County's Future Land Use Map as being zoned for very low density residential, two dwelling units per acre or less.

The proposed 1,300 homes plus commercial uses on the 165 acre site would exceed significantly that level of development, meaning that further entitlement and application is likely necessary.

We've also wondered about the likelihood of water/sewer extension to the site, although the Southern Durham Development lawsuit against the county notes that the City of Durham approved a Utility Extension Agreement with Neal Hunter for the "Seven Five One" project back in January 2007.

Whether that's the last word on that element or not is certain to be an interesting question in the months to come. It's not clear that the developer (which won) or the County (which avoided penalties for negligence) will want to appeal this; the Haw River Assembly won the right to intervene in the case back in September, but no word whether this gives any appeal right in the matter.

At present, though, it seems that for all practical purposes the question of the 751 Assemblage project seems to have moved once and for out of the realm of "can something be built here?"

And squarely into the realm of "what will be built here?"

That question promises to be every bit as interesting, and controversial, as what's come before.

Comments

[Will Wilson]

Something could always be built there at the zoned density. SDD's desire has been to get that density as high as possible with as much impervious surface as possible, increasing the environmental degradation in a sensitive area. There remains a struggle to keep that density low. I'm not clear on one point: Has the city already agreed to service the site with sewer/water?

[Rob Gillespie]

I'm naive on this one, but I have a question regarding extension of the sewers.

It is my understanding that the city/county will have to pay to extend sewer and water to the "front door" of the development, and from that point the developers will pay to run the lines to the individual lots. Is this true? If so, what will be the cost to the city to run the sewer and water, and what is the projected property tax income for the first 10 years of the development?

[Todd P]

@Will,
It seems like the density of the project is less important than the impervious surface allowed. Parking decks and multi-story buildings create far less runoff than the typical big box stores surrounded by acres of parking lots. It's the size of the footprint that is key.

Even if a higher density project is apparently now going to be allowed, the project should still be required to adhere to smart growth principles, concentrating the density as far from the lake as possible and retaining as much undisturbed land as can be done. If blocking the project is no longer possible, it is worth the effort to push the developer to make the project transit-friendly and with the least possible environmental impact.

They still need approval of the rezoning and water/sewer. They may be willing to agree to a lot of positive changes in order to get them. The question is whether the BOCC and City Council will demand those positive changes.

[GreenLantern]

I don't see how this project could get to square one without city water/sewer, especially if it contains high-density residential. Failing septic on land that doesn't perc well is number two behind agricultural runoff for pollution in Falls and Jordan Lakes--and that's for lower density housing where there's room for spray fields and natural abatement. Unless the city and developer have agreed to extend service to these new homes, there's no reason to proceed any further.