751 South urban growth area boundary up for review at City Council meeting tonight
BCR's Daily Fishwrap Report for January 4, 2010

Durham City Council supports urban growth area move by 5-2 vote in preview of 751 South debates to come

Tonight's City Council meeting wasn't a vote on the 751 South project. By some folks' arguments, it shouldn't have even been a vote about the Urban Growth Area (UGA) boundary on the project's merits at all, between a 2006 controversial Frank Duke memo and a 2007 vote by Council supporting low density development on the site.

Still, it offered one of the better proxies on where Council members may be inclined to stand (or not) on the matter.

Mike Woodard and Diane Catotti, longstanding critics of the 751S process to date, showed the skepticism we've seen from them throughout the project. Howard Clement seemed as supportive as he's been reported to be in recent public discussions; Eugene Brown's comments, meanwhile, were neutral on the surface yet seemed sympathetic at times to the development team's arguments.

Farad Ali and Cora Cole-McFadden? Both asked questions, but neither seemed willing to show their cards at this point.

Same with Mayor Bell, who seemed in his brief comments to narrow the question just to the UGA, regardless of future water and sewer extension opportunities. (Planning director Steve Medlin did say that he recommended moving the UGA, based just on the factors surrounding the urban growth boundary.)

Saying that the merits or demerits of the project were best left for another day, Bell called for supporting that narrow staff recommendation. "At this point in time, what's before this Council ... it's [staff's] recommendation that we change the Urban Growth Boundary... that'd be my vote on this particular issue."

Making tonight's 5-2 vote just about the UGA. Except, of course, that it's never only about the UGA.

Settle in, folks. There's lots more hearings like this one to come.

~ ~ ~ ~ ~

Much of the discussion tonight turned on the legal morass long surrounding the project, including a controversial memo from Durham's former planning director.

Lewis Cheek -- a former County Commissioner who left office just as the 751 South matter was coming to a head in fall 2008, and who then joined the law firm representing the 751S project team -- argued to Council members that the rulings by former planning director Frank Duke had already established the property as being within the Urban Growth Area (UGA) boundary, and that as planning is a city and county joint function, the die was already veritably cast.

The question of whether Duke's action in January 2006 affected the UGA and not simply the watershed area raised a curious eye from City Councilman Mike Woodard, who asked city attorney Patrick Baker to clarify whether the urban growth area was impacted.

Baker noted that Duke's administrative memo did state that the boundary would move as a result of a developer-provided survey, but Woodard asked whether Duke had the authority to change boundaries like the UGA. Duke successor Steve Medlin said that a number of tier and boundary decisions did sit in the planning director's hands administratively, rattling off a list that included just about everything -- well, everything but the UGA.

"But I didn't hear UGA?" Woodard asked? "You did not," Medlin noted, with a wry smile. Baker added that the city attorney's office didn't believe that Duke had the authority to move the UGA line -- though he added that in some cases, some of the tiers for which the planning director has authority to change are considered essentially 'upstream' of the UGA, making it a seemingly fuzzy area.

"The lines, as I understand it, tend to mirror each other" but there's no requirement they be the same, Baker noted.

Still, the Judge Manning decision does call Frank Duke's memo accurate and binding "in all respect" on the county, with Baker saying that a literal reading of Manning's finding would include the UGA extension being binding on the county as of that 2006 document.

Regardless, Baker noted, it would be somewhat "problematic" for the city in terms of consistency if a 2007 decision by Council that the area was within the UGA for a low-density development was now transformed into a vote that the area was not within the growth area -- adding that decisions on how dense the zoning should be and whether utilities should be extended are and should be separate questions, Baker counseled. 

"Even if it's within the UGA, there's no requirement that you extend water and sewer to the project," Baker noted.

Baker also said that it might be up to a court to decide whether the Frank Duke decision was really binding on the city or simply the county.

After Woodard's back-and-forth with Medlin and Baker, Mayor Bell called a five-minute limit on further Council questioning, which served in large part to give Council members a chance to signal where they stand on the 751 South matter.

Diane Catotti expressed her wish to see the item deferred, noting she was "not happy" with Duke's action on administratively changing the boundary and wishing to see further improvements to the UDO -- then using more of her time to ask Melissa Rooney to share additional photos of what she described as persistent flooding along Stagecoach Rd. and other areas bounding the manmade Jordan Lake.

(Catotti invited Council colleagues to walk trails with her near the lake to see the subject area for themselves.)

Eugene Brown had his own didactic back-and-forth questions to City staff on the project, on matters from Frank Duke's actions to infrastructure cost responsibilities.

And just as Woodard's questions were facially-neutral-yet-subtly-critical in their nature, Brown's questions -- including additional seeming friendly questions asked by Brown of site design consultant Dan Jewell -- seemed to suggest Brown may be favorable on proponents' arguments.

Howard Clement, meanwhile, noted explicitly that he "supports" the boundaries moved, "so that we can really get to the real issues that impact this community -- jobs, and increased tax revenue."

Cora Cole-McFadden, meanwhile, asked only one question on a detailed point she thought one opponent made in a PowerPoint, alluding in the process to whether the City might face a lawsuit over the case -- then quickly backed away from the question, noting she'd review the matter sent her in email.

Farad Ali, for his part, noted he was "weighing this environmentally and economically," suggesting that he at least may not have his mind made up yet. He asked for clarification on Rooney's reports of flooding on Stagecoach Rd., and got a response from City staff that any such flooding appeared to be entirely on Army Corps of Engineers land, not impacting the development or sitting on the UGA addition area.

Before the vote, Woodard made one more plea to hold the line on the UGA, saying that he wanted to see the outcome of the BOCC's lawsuit (which could, he noted, lead to a much smaller project -- and adding that he wanted to understand the full cost/benefit analysis of annexation and utility extension before taking a vote.

"There are too many unknowns at this juncture to move forward," Woodard warned, though his perspective matched only his and Diane Catotti's perspectives.

~ ~ ~ ~ ~

The Council vote came after a long line of speakers presenting arguments for and against the project.

And legal arguments aside, project proponents largely attempted to turn the environmental worries on their ear, arguing instead that the dense community would be greener than undeveloped land due to on-site nutrient mitigation; they also stressed the economic impact of the project.

Craigie Sanders, another attorney for the applicant, stressed that 100,000 new residents would be moving to Durham County in the next two decades according to state data, and claimed that the project would be a way to provide housing and employment sites for some of that number. Meanwhile, Durham activists like Thelma White and Mel Whitley argued that the jobs and tax revenue created by the project would stem the impact of unemployment.

Project consultant Dan Jewell stressed the project's agreement to meet new stormwater quality standards for Jordan Lake, which he noted were measured in pounds of runoff per year and which made no adjustment for density -- meaning, he argued, that a dense development would have to do much more aggressive work to meet these targets than would low-density residential.

"Anyone who disturbs more than a half or an acre, depending on the use, must abide by these rules. Nothing previously developed in southern Durham meets these new requirements. The assumption by the state is that all prior development-related runoff is contributing to the degradation of Jordan Lake; therefore, this project, and every project in the city's jurisdiction from this point forward, will at a minimum be nutrient neutral relative to water and runoff quality," Jewell said.

He added that the three local wastewater treatment plants discharging into the Upper New Hope presented more than 600,000 pounds of nitrogen to the lake, while the 751 South development as a whole would be limited to less than 370 pounds of nitrogen off-flow at full build-out; he claimed that if used as agricultural land, the site would set forth more nutrients than it would if it was developed as proposed.

Meanwhile, downtown-area developer Bob Chapman, whose works include the Trinity Heights residences and actions around the Geer/Foster district downtown, praised 751 South as a model for successful new urbanist communities. 

Opponents of the project focused on water quality and the location of a very dense project in stating their concerns over any UGA extension.

"Increasingly we're drinking the water that comes off paved surfaces," said Duke assistant professor of biology Will Wilson. "With those paved surfaces come pollutants," he added, warning about the impact of adding additional population on water quality. 

Wilson went on to draw an analogy to the riparian buffers debate, claiming that the science and arguments on that recent decision in Durham -- which impacted the distance that development has to keep away from streams -- was an example of bad science guiding public policy decisions. 

Longtime 751S opponent Melissa Rooney reminded the Council that the Chancellor's Ridge neighborhood adjacent to the project is appealing the county's rejection of a protest petition over the vote, a petition negated after the site owners transferred a strip of the project site to NCDOT for a road widening in a controversial maneuver before the August 2010 BOCC vote.

Rooney added her own scientific doubts over the data presented by project proponents, and reminded Mayor Bill Bell and Council members of Bell's decade-old statement arguing that he wanted south Durham to maintain its rural character.

Rebecca Board argued that dense development at the edge of Jordan Lake -- "as far south of the city center as you can get without leaving Durham County" -- didn't match with transit corridor and growth area planning, and "flies in the face of the wise growth we've been enjoying."

Board also noted her concern that the development would seem to be most attractive to new residents living in other areas, over the needs and past wishes of long-term residents for less-dense development at the suburban tier versus redevelopment and density near downtown. 

Tina Motley-Pearson added her concerns that the survey methodology used by a private surveyors to re-measure the edge of Jordan Lake didn't match best practices or the findings of the Haw River Association's own private survey by a different method, and warned that "it is not appropriate to make this area suburban," saying the site is simply too close to the lake to make the development appropriate.

And Motley-Pearson turned the concept of "activists" on its head, saying that term better fitted developers who were themselves, as she put it, working to change the established community zoning for an area.



Yeah I've read that before. I think most will agree that since the UDO has been out there for 5 years or so it is time for an update. It is defintitely better than the previous City and County Zoning Codes.

The design of the UDO suffered from many instances of ideological wranglings over stream buffers, density and incentives. I really don't think the incentives part took in to consideration whether it was worth the hassle and/ or additional cost to developers to pursue the incentives. Have you seen developers jumping over themselves to take advantage of these "incentives"??? Nope.

Plus the conservation subdivision creates neighbors with detached houses that are 1 foot apart. Is that our real intent of this section? If houses are going to be that close, make them townhomes. For the most part it looks like somebody threw a bunch of houses on a street. There should be a bigger focus on design rather than control.

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