Durham City Council won’t act on 751 South until pending lawsuits end

The Durham City Council decided early this afternoon to defer a possible utility extension to the controversial proposed 751 South development. 

The council voted to wait until current lawsuits about the Southern Durham project come to a close, which staff estimated could take anywhere from 18 months to three years. The council was motivated at least in part by fear of becoming entangled in litigation itself. 

“It’s clear to me that moving ahead now before the litigation is resolved does raise expectations and anxiety,” council member Mike Woodard said at a special meeting on the subject that was held today.

“I think there’s just way too many questions about this with confusing and uncertain answers about constitutional issues,” he added. “That’s always a red flag for me.” 

“I just don’t understand why we would move forward,” council member Diane Catotti said. “I don’t see the advantage to the city.” 

The decision against extending utilities makes it unclear when Southern Durham Development might be able to start building 751 South, a high-density project that could include 200 residential units, 125,000 square feet of shops and 25,000 square feet of offices by the three-year mark. The project can’t be built to that scale without water and sewer service, and the city of Durham is the entity most likely to provide it. 

A group of Durham residents have sued the county over its controversial decision to rezone the 751 South property. The new zoning permits dense development. 

Opponents of the project say that the property is so close to Jordan Lake that its high-density facilities will harm water quality thanks to unfiltered stormwater runoff. 

Southern Durham Development and its allies, however, assert that the project can be built in such a way that the lake is protected. They also tout the development as being a potential source of 3,000 new jobs. 

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One major concern for the City Council today was whether an agreement to extend water and sewer services to the mixed-use development, which lies outside city limits, could be crafted without granting the developer “vested rights.” Such rights might help Southern Durham Development proceed with its construction plans even if it suffered a setback in court. 

The city manager, Tom Bonfield, said that an agreement could be made with enough safeguard provisions that the city would be kept in the clear. But city attorney, Patrick Baker, and especially one of his assistants, Don O’Toole, didn’t seem to fully share Bonfield’s confidence in that assertion. 

“If [utility] construction was allowed to begin, I would have serious concerns about vested rights arguments and constitutional arguments being raised against the city,” O’Toole said. 

“Constitutionality,” Mayor Pro Tem Cora Cole-McFadden said later in the meeting. “I’m struggling.” 

Council member Howard Clement III backed Bonfield and moved to proceed with a utility extension negotiation. But the motion died for lack of a second. 

When Woodard moved that the city not act on a utility extension until current litigation ends, Catotti and fellow council member Gene Brown both seconded. There were no nay votes cast, so Woodard’s motion passed unanimously. 

“There is a God,” a smiling 751 South opponent said to an ally as the special council meeting adjourned. 

Lewis Cheek, an attorney for Southern Durham Development, said they would not have any immediate comment on the council’s decision. 

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Bonfield had also recommended that the city act to annex the 751 South acreage, to require the developer to pay for a portion of the NC-751 road widening that the project would necessitate and to require the developer to pay for additional fire service. But the council took no actions on those matters. 

The meeting ran just over two hours and included a careful examination of several impacts that 751 South might have. Robin Bibby of the budget office said that the project could start to generate net revenue for the city as soon as 2015 or 2017, depending on how many tenants move in. 

And Martha Zeigler, a city utility finance manager, informed the council that 751 South would help the city either lower water rates or offset increases as soon as the project started using municipal water and sewer. 

Bruce Pagan, the city’s fire chief, warned that fire department response times in Southern Durham could suffer due to 751 South, even if the project was not annexed. That’s because under a mutual aid agreement, the normal first responder for the part of the county, the Parkwood department, could call for city aid if it was unable to handle an emergency in the development. 

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Perhaps the most council scrutiny was devoted to transportation questions. City staff found that two currently approved developments near 751 South, the Jordan at Southpoint residential project and the Westpoint 751 mixed-use project, could add 1,010 daily vehicle trips. By the time 751 South itself finished three years of construction, potentially around 2014, its 3,950 daily auto trips would push NC-751 north of Stagecoach Road past its designated capacity of 16,400 vehicles per day. 

Wesley Parham, the city’s assistant transportation director, told the council that fast-track road construction typically takes at least five years from beginning to end. That meant, as Catotti noted, that the proposed development would put NC-751 over capacity before any widening could start. 

Council members also had questions about possible bus service to the proposed development. Administrators foresee launching such service no sooner than 2017, at an initial cost of $580,000 for a new 40-foot-long hybrid bus and $550,000 for annual service. Fares could cut the annual operating costs by some $150,000. 

Both Catotti and Brown expressed chagrin over the lack of city transit. The former asked how, without bus service, workers would be able to get to the jobs at 751 South that Southern Durham Development has promoted as a benefit of the project. 

The nearest current bus stop to the project site is at Renaissance Park and NC-751, a significant distance on foot. 

Comments

[Steve Bocckino]

One of the most important issues is runoff. The 751 S developers have pledged to meet the limits on nitrogen and phosphorus mandated by the Jordan Lake rules.

But when Councilwoman Diane Catotti asked whether the developers could meet those limits on site, the city staff told her no, they couldn't. They'd have to buy credits offsite.

That means they could still dump their pollutants into Jordan Lake, the drinking water supply for half a million Carolinians. Along with the nitrogen and phosphorus, asphalt runoff contains carcinogens, like polyaromatic hydrocarbons. Those pollutants can kill us. Maybe it's not such a good idea to build a city on the banks of our reservoir.

[Tar Heelz]

Would "buying credits" meet the zoning condition of meeting the limits of the new Jordan Lake Rules?

Seems that the wording of the profferred commitment will matter.

[Sean Hamel]

If I am not mistaken 404 permitting rules state that the nutrient offset credits that would be purchased still have to be purchased within the same water basin, in this case the Jordan Lake basin. So while indeed mitigation would not be done onsite, the net impact to Jordan Lake would theoretically be zero.

[Steve Bocckino]

It's very hard for me to believe that N and P offsets on land miles away from Jordan Lake can balance massive release at the lake's border, even if they are in the same basin.

And the Jordan Lake rules don't address non-nutrient pollutants form asphalt runoff, etc.

That is the whole rationale for restricting development in areas close to our reservoirs.

[clif]

thanks for all your hard work and attention over the years Mr. B---.

[Khalid]

Broken system...broken rules...(nothing against attorneys) but lawyers should be involved when all other options are exhausted...not EVERY zoning case.

[Steve Bocckino]

EVERY zoning case? Hardly!

It's very, very rare that a rezoning results in a lawsuit. The fact that this development has been the subject of three lawsuits should tell you something about the litany of irregularities involved: the radical change to the Comprehensive Plan; the acceptance of a survey paid for by the developer; the unilateral (hence improper) decision to change the Jordan Lake boundary by Planning Director Frank Duke; and the disregard of not one, but two, valid protest petitions.

This case will be written up in land planning textbooks as a model of how NOT to do things.

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