BOCC takes pass on 751 South vote while pondering protest petition fate...
July 27, 2010
For it or agin' it, there's bound to be a show. But no matter what words are said there and then, you can bet they won't be the last. -- Jim Wise, on last night's Board of County Commissioners meeting
Durham's senior statesman among pro-jo pundits penned these words in The Durham News last week, writing about the seemingly endless debate taking place over the 751 South development.
Sure enough, his words were prophetic, though perhaps not shockingly so. As midnight drew near, the BOCC voted to fend off a decision on the 751 South rezoning case until their August 9 meeting -- setting up an interesting night for debate, given the presence of a pro-billboards text amendment on the docket that evening, too.
The vote came after hours of public hearing commentary, largely repeating the same pro-and-con arguments that we've seen in the discourse in recent weeks. (Supporters point to the positive tax base impact, the opportunity to add population in Durham, and the creation of local jobs; opponents point to the proximity to a sensitive watershed, the refusal of the developer to voluntarily adhere to not-yet-final stormwater standards, and questions of whether the site's location is too rural and too distal from downtown and transit for dense mixed-use.)
On the one hand, the hours of public commentary seemed superfluous. After all this debate, it seems unlikely for any proponents to become opponents, or for opponents to transform into supporters all of a sudden. And that's among the segment of the public interested enough to attend or tune into last night's confab.
Among the five people on the BOCC whose opinions really count -- well, make that six and change; more on that in a moment -- it seems even less likely that anyone will be swayed to change their minds at this point.
And the added tension that the debate has brought on already-strained relations on the BOCC was evident from last night's bickering, particularly between former chair Ellen Reckhow and 751 supporter Joe Bowser. (More on that in a follow-up.)
But to not have had the debate would have cheapened the participation, the energy, the engagement of so many in favor of and opposed to the project.
In a sense, their comments seemed to come last night even in the absence of any impact as a sign of the passion and connectivity that those on both sides seem to feel for the project.
My friend Barry said over at his place last night that you could solve any worries about unchecked growth in Durham one way:
Simply require all prospective residents of Durham County to watch the video of tonight's meeting. No one will want to move here.
I'm not sure I agree. If anything, the deluge of public input and awareness and the fact you can turn dozens of people out even when the crux of the decision to be had has nothing to do with the comments points, to me, to the kind of civically-motivated, grassroots community Durham is.
Of course, one can argue that there's no benefit in having (by one count) seventy speakers talk about a project if none of the words will sway the argument. How's that civic participation, they might say?
Perhaps. But on the other hand, tell someone who's lived in Tampa or Chattanooga or the like that seventy people showed up to the umpteenth public hearing on something and spoke for hours, even though their words wouldn't have an impact, just because they believed so passionately in what they were saying.
Yeah, that's a Durham thing. And I think that someone repelled by that idea who chose a place other than Durham to live would be happier in the Apex-Cary-Holly Springs Axis of Homogeneity where strip malls and burbclaves live, than in our rough-and-tumble political world.
~ ~ ~ ~ ~
But all of this is secondary to the question: so how'd it turn out last night, and why the postponement until August 9?
That was a question, somewhat oddly perhaps, addressed at the end rather than the beginning of the meeting. BOCC chair Michael Page rebuffed attempts to get County Attorney Lowell Siler to speak to the validity of a protest petition at the meeting's beginning, waiting until the eleven o'clock hour to get that opinion.
Which of course motivated some of the public interest, since it really wasn't clear whether three votes or four votes would be needed to pass the rezoning.
As we and every other media outlet in town have recounted in recent days: the Southern Durham Development team a couple of weeks back went to NCDOT, offering an easement along 751 South's edge with the eponymous roadway -- an easement just wide enough that it would serve to exclude, it seems, some of the signatories to the protest petition from legally committing to such an instrument.
Reckhow complained at last night's meeting that the developers were aware of Planning director Steve Medlin's acceptance of the protest petition as valid, something that happened shortly after the easement was granted; the developers, Reckhow said disapprovingly, didn't mention the presence of such an easement until Friday the 23rd, the last business day before the Monday hearing.
On Monday, as was noted in the comments here and all over local media, NCDOT went to the unusual step of revoking the easement it granted. According to a press release, the agency says it "learned last weekend that by accepting the donation of right of way along N.C. 751 in Durham, the Department had inadvertently interfered in an active public participation process," saying it was unaware of the possible impact of its easement acceptance on a zoning case.
NCDOT issued what it called a "legally-binding action" in the form of a revocation of acceptance of said easement, something that NCDOT deputy divisional engineer told BOCC members late last night was unprecedented in his two decades with the agency.
Oh, really? asked BOCC'er Joe Bowser, the most vocal advocate for the project on the board.
The official, Joey Hopkins, told Bowser and the board that, no, there was plenty of precedent for revoking easements -- but those are temporary easements for construction purposes, which the agency accepts and revokes all the time.
And it's on this point that the 751 South debate turns, for the County at least.
County Attorney Lowell Siler, allowed to give his opinion at the end of the meeting, professed profound perplexity at the maneuvers, which had led to his emailed opinion to County leaders on Monday morning (he told the audience) that the protest petition was no longer valid thanks to the easement -- only for him to learn in the 4pm and 5pm hour, Siler said, that the NCDOT said it was revoking the easement, leaving the whole matter muddled.
Project opponents seem likely to reiterate the point Reckhow made during the discussion, namely, that NCDOT didn't just revoke the easement, but did so after what Hopkins described as an all-day affair that went all the way to the state Attorney General's office, and with a press release sent out to media outlets stating its intent hadn't been to get in the stream of the case.
Siler made the point that Bowser later picked up on in his questioning of Hopkins, though: where in the statutes does NCDOT have the power to revoke a permanent (versus a temporary) easement?
It's that point that Siler intends to research from now until August 9, when a decision will come in this case.
At last.
Well, maybe. What's that that Jim Wise said, again?
But no matter what words are said there and then, you can bet they won't be the last.
Oh, yeah.
And of course, if it doesn't go in the developers' favor, there's always another possibility -- commingling annexation and rezoning cases at the City level, though the municipality has been perceived as being less favorable to development than the County is recent years.
For it or agin' it, there's a good chance you'll still be hearin' it, and hearin' the voices of plenty of citizens, for some time to come.
More coverage: See the Herald-Sun, N&O or Indy for coverage of last night's meeting; see the Indy for a summary of the case leading into last night's hearing, and for their coverage of the NCDOT easement issue. See also the Herald-Sun's coverage on the NCDOT easement debate.
I can hear them now . . .
Developer: Lowell, buddy, you've got to delay this thing or we're going down in flames!
Lowell: How can I do that? This came from the Attorney General's office.
Developer: Just tell them you need more time for research.
Lowell: You mean like the last four times I had to evaluate a protest petition on this case? Yeah, research, that's the ticket!
Developer: Just grab one of your thick law books and pretend to be reading it throughout the whole hearing.
Lowell: Law books??
Posted by: Steve Bocckino | July 27, 2010 at 09:03 AM
"Perhaps. But on the other hand, tell someone who's lived in Tampa or Chattanooga or the like that seventy people showed up to the umpteenth public hearing on something and spoke for hours, even though their words wouldn't have an impact, just because they believed so passionately in what they were saying."
Sorry, Kev. I prefer to think of it as kabuki. You and i have discussed this at length, and i think you know that i'm not, in principle, opposed to high density development, and even high density fringe development. I proposed siting an environmental and sustainable agriculture magnet school out on the Erwin Road land that was recently rejected for a school site because i thought it could work.
But somehow i can't buy the argument that Patrick Byker and his hired experts feel passionately about the worth of this development.
As i said in previous comments, i can think of at least 3 sites within a mile and a half of my house that would be better suited for this. I guess that makes me an IMBY, despite being told by any number of 751 supporters that the opponents of the project were "Not In My Back Yard" type of folks. (For the record, although i was at the meeting last night, i chose not to speak, and left in anger when Commissioner Bowser pulled the first of his shenanigans about not needing to get the county attorney's opinion on the Conti revocation.)
I'm more in agreement with Tom Miller than anyone on this point - the merits of the development aren't really the issue any more. It's the corruption of the process. Which was nowhere more apparent than when Commissioner Bowser referred to the Conti revocation letter (which was vetted by the state Attorney General) as a "prank" and attempted to initiate a vote on the project as though it had never been received.
That's the kind of behavior that ought to make prospective residents of Durham think twice about the location of their new home.
Posted by: barry | July 27, 2010 at 09:53 AM
@Barry -- I think we are talking about different things. And maybe I am being glass-half-full on this one. But I maintain that the community activism and response on this issue from the community is something that makes me proud to be a Durhamite.
My point was not to argue the merits of the development, but to note that seventy Durhamites turned out even though their comments did not matter. In many cities, even if their comments did matter, you would not see this turn-out.
And to the points that you and others have raised on process and transparency, the participation of citizens and community-oriented media, including two daily papers and the strong work of the Indy, is shining light on the process.
Look at Ball, California, where elected officials had gotten a change to their city charter passed by voters and hiked their city manager to about $800,000 in pay (not a typo) and their city councilfolk to $100,000 in pay per year (also not a typo), and no citizens noticed until the LA Times picked up on it last week.
My point is, crap like that does not happen in Durham -- or if it does, it does not go unnoticed. And I am proud of Durham for having that level of civic engagement.
Posted by: Kevin Davis | July 27, 2010 at 10:13 AM
I saw a lot of people protecting their turf.
I also saw one of the speakers recruiting people outside who had no intention of speaking to sign up for the sole purpose of yielding their time when appropriate to supporters of the project.
Not an uncommon tactic at meetings like this, to be sure; but only one person was engaging in it.
Posted by: barry | July 27, 2010 at 10:40 AM
I watched the proceedings on local cable, and I must say that it did not play well on TV. Both Michael Paige and Joe Bowser's behavior left a lot to be desired. Both Paige's bumbling management of the proceedings and their contempt and disdain for those calling for openness and rudeness to fellow commissioners was shocking to watch.
This group would be well served to watch the tape from Don Moffitt's admonition last night: we only have to look to Patterson Place to see how pretty renderings of "mixed use" development proposals without significant committed elements are simply a smoke and mirrors trick developers use to seduce BOCC into approving projects. Once our officials have signed on the dotted line, developers scrap all the pretty pictures and give us business as usual big box malls.
Posted by: Kikki | July 27, 2010 at 10:48 AM
I am left wondering what would have happened last night if Joey Hopkins from NCDOT hadn't been able to outlast it all to speak strongly about the intent of NCDOT to remove itself from this case with the easement revocation. Thanks, Mr Hopkins, for doing your job well last night.
Barry, I am also an IMBY person. The abandoned mixed use project site at SouthPoint even already has the proper zoning for it.
Posted by: Susan | July 27, 2010 at 12:09 PM
I thought it was important for people to note that there are a lot of empty storefronts in this area and vacant houses languishing on the market.
Shocked by the behavior of some of our commissioners and surprised by the tactics of some of the speakers insinuating that they had more right to comment on the process.
Posted by: Natalie | July 27, 2010 at 12:52 PM
HELLO people..... I think these developers want 751 to set precedent for development on the lake.... there is allot of land that has never been zone commercial and this is only the beginning for them. That is why they are fighting so hard to do this there. Not because it is a great location and gift for tax benefits for the city of Durham, but because there are millions to be made in land deals if they can have commercial and high density growth around the lake.
This would be the beginning and once it starts there is NO turning back.
I just wish someone would investigate the connections between Siler, Howerton, Bowser, and Page with the developers. They are all acting like they are on the developers 'pay check' and not working for ALL of us ....the taxpayers of the county.
Posted by: Carolyn | July 27, 2010 at 01:16 PM
Great Article! There is one statement I don't understand though:
" the refusal of the developer to voluntarily adhere to not-yet-final stormwater standards"
THe Jordan Stormwater reqirements are final. Maybe Durham has not implmented their local program yet, but the standards are know and the developer could voluntarily design his site to meet them. The fact that he doesn't further weakens this proposal. I applaud the commission members and citizens who oppose this project. How serious is Durham about protecting water quality in Jordan Lake (or Falls) for that matter if they let this project be built? Answer: Not very serious at all, and it's starting to show.
Posted by: NCguy | July 27, 2010 at 04:29 PM
@Steve: Here's an alternate conversation, probably closer to the truth. Differences in yours and mine in CAPS.
BOWSER: Lowell, buddy, you've got to delay this thing or YOU're going down in flames!
Lowell: How can I do that? This came from the Attorney General's office.
BOWSER: Just tell US you need more time for research. IF NOT, YOU CAN JOIN KITCHIN AS ROAD KILL ON THE WAY TO THIS PROJECT.
Lowell: You mean like the last four times I had to evaluate a protest petition on this case? Yeah, research, that's the ticket!
BOWSER: Just grab one of your thick law books and pretend to be reading it throughout the whole hearing.
Lowell: Law books??
Posted by: Thomas | July 27, 2010 at 04:49 PM
Thomas,
From what I have heard today, your version seems to be the more accurate one, but mine has the virtue of eliminating the middleman, Joe Bowser.
Posted by: Steve Bocckino | July 27, 2010 at 07:18 PM
@Steve: Yeah, but let's not allow Bowser off the hook. He needs to be exposed for the developers' puppet (Pinocchio?) that he is.
Posted by: Thomas | July 27, 2010 at 09:58 PM
If you'd like to see some priceless quotes, check out Ray Gronberg's article "Developers look to reinstate DOT deal," just posted on the Herald-Sun website.
http://www.heraldsun.com/view/full_story/8909738/article-Developers-look-to-reinstate-DOT-deal?instance=homefirstleft
Chutzpah is not a plan, developer boys. And Mr. Bowser, you keep using that word prank. I do not think it means what you think it means.
Posted by: Steve Bocckino | July 28, 2010 at 01:54 AM
The confusion is understandable. Consider:
A platform has planks.
A pratfall has pranks.
Tom
Posted by: Tom Miller | July 28, 2010 at 11:49 PM
You guys need to give it a rest. There is no evidence here of corruption by anybody. The folks who might be accused of NIMBYism have a right to be concerned -- whether they have a right to a super majority vote is yet to be seen. The project is complex and needs to have more of the illustrated components, that folks seem to like, locked down with committed elements. Lowell has to give an informed opinon as to the DOT "give-back." However, generally in the law, if you except a gift, which the DOT did, you can't simply give it back whenever it suits you. Furhter, the DOT is governed by statute and can't simply give away property that may ultimately have a significant value without going through a fairly lengthy process. The attorney general might be the ultimate "decider" on some things but he nor his team are infalable. Remember his declaration that the lacrosse boys were "innocent" -- after a full day of under aged drinking, dialing up some "dancers", hollering racial epithets in the middle of the night -- maybe they shouldn't have been charged with rape but they certainly weren't innocent.
Let's let folks do their job without being accused of corruption, unless there is some factual basis for the claim. Let's give do respect for public officials who are tusseling with a tough decision. Let's be respectful of a developer who has made a huge investment in our town, wants to invest a lot more, and will pay dearly for any success he may have there.
If you just want to say "stuff" and blow hot air, comment on Herald articles. This space has always been an interesing read because of the thoughtful comments as much as Kevin's thought full pieces. Let's try to continue that.
Posted by: Chuck | July 29, 2010 at 09:51 AM
Lowell has to give an informed opinon as to the DOT "give-back."
Lowell Siler said Monday that he needed 48 hours to render his opinion.
Time's up.
Ray Gronberg demonstrated in his HS article yesterday that the NCDOT has statutory authority to return gifted land, as well as precedent. Alex Mitchell is quoted in today's N&O as saying that he went forward with the easement donation specifically to invalidate the protest petition, despite his attorney, Patrick Byker, being quoted as telling NCDOT his client wanted to speed up the donation to show "good faith."
I don't think pointing these things out is "saying stuff," "blowing hot air," or "accusing anyone of corruption," do you?
Posted by: barry | July 29, 2010 at 10:38 AM
Barry, I agree that those points are not "saying stuff" but "stuff" was said in these comments that was pure T "Stuff."
However, Ray may be a good reporter, or not depending on your view, but he is not a lawyer and his piece probably won't be recognized as a legal opinon. If you want to find law regarding NCDOT, look at the NCGS as interpreted by a judge, or an attorney.
Finally, Byker was not quotes as saying anything. DOT folks said that he said somethings. That is not a quote. That is heresay. Those DOT folks clearly felt like they had been had because they did not want to wade into these waters. So their interpretations of Byker's statments to them should be viewed differently from a quote.
Posted by: Chuck | July 29, 2010 at 11:31 AM
What about the lawyers from the AG's office and the NCDOT that said it was a legal document?
Lowell Siler did say that he needed two days. It's now almost 72 hours later...
Posted by: Marc | July 29, 2010 at 11:54 AM
Chuck - i do not think the word "hearsay" means what you think it means.
Posted by: barry | July 29, 2010 at 01:01 PM
Chuck --
Excellent points. Whichever "side" one wants to take on this issue, the claims of "corruption" or "influencing" are a lot of hogwash and innuendo.
I, for instance, am simply a resident of Durham and live in the nearby Chancellor's Ridge community. However, simply because I happen to be a lawyer and at one time worked with Mr. Sanders (a member of the developer's legal team) on completely unrelated items (not even land-use/development matters), I have had multiple people from this blog either directly or sarcastically claim my pro-development posture is merely because I'm "on the payroll" of the developer or "billing hours".
Please. It is so completely ridiculous. I haven't made a penny on this issue. I never have intended to make a penny on it. I simply have volunteered my own time to make public comments, blog, or write editorials because it is a good development plan and will be a good development if approved -- for Durham and many regular folks.
I do not plan to profit from this development or my desire to support it. Yet, just because a regular citizen such as myself or a county commissioner or attorney favors this project or is trying to do his job, suddenly there must be corruption? Give me a break!
And, frankly, whether Mr. Byker, the developer, or a member of the "opposition" makes a strategic or tactical move at a "suspicious" time, why should anyone be surprised? Both sides clearly have decided that this is no longer a friendly Saturday afternoon softball game. It's the NFL playoffs ... Superbowl even. Do the opponents in an NFL playoff game get called corrupt just because they run the statue of liberty play that turns out to be a total surprise and scores a touchdown? Of course not. It's part of the game -- the competition. If one team's lineman "holds" the pass-rusher so that his quarterback doesn't get sacked does that make that lineman corrupt? Of course not. It's a penalty. Maybe it's caught by the referee maybe it isn't. But it's all part of the game.
Both "sides" want to win this "development game". Once the people opposing the development started to play hardball, then the developer is certainly not going to back down. And vice-versa. This is the way the game of life is played when two opposing parties want to win the matter at hand. It doesn't mean CORRUPTION exists! It simply means everyone is playing their "A" game.
So, as Chuck says, it's fine to argue the issues. But this corruption stuff is a lot of cow dung.
Posted by: Mark | July 29, 2010 at 02:18 PM
The Super Bowl metaphor only works if the referees are 100% autonomous from the teams involved.
71 hours and counting!
Posted by: Marc | July 29, 2010 at 02:50 PM
And that's the close of the third complete business day without hearing from the Durham County Attorney whether the NCDOT revocation is a legal document or not
Posted by: Marc | July 29, 2010 at 05:52 PM
Alex Mitchell, one of the developers, has admitted that the easement was just a ploy to break the protest petition.
From yesterday's N&O:
"The widening is not in DOT's near-future plan, said Mitchell and DOT engineer Joey Hopkins, but Mitchell said he went ahead when he realized that donating the right of way would invalidate the protest petition.
'I have a group of opponents who wake up every day trying to think of ways to block this plan,' he said. 'I'll do everything within my power, legally, to move it forward.'
http://www.newsobserver.com/2010/07/28/600801/decision-on-751-south-is-delayed.html
Posted by: Steve Bocckino | July 29, 2010 at 06:00 PM
Four full days since the Durham County Attorney was notified about the 751 South easement revocation that both NCDOT and state's Attorney General's office maintain is legal...
Posted by: Marc | July 30, 2010 at 03:46 PM
I read in the statute that the DOT must first offer the easement/property back to the original owner, but if the original owner refuses the offer, then the DOT can offer the easement/property to others. Since it sounds like the original owner is refusing it, I suggest that the HOA across the road be given the next offer. Otherwise, I'd be happy to accept it.
Posted by: Will Wilson | July 31, 2010 at 08:34 AM