Developer threatens legal action against state; N.C. DOT bracing for lawsuit

Aug. 05, 2010

3:30 p.m.

The N.C. Department of Transportation has until tomorrow to respond to a letter (PDF) from a Durham developer asking it to rescind on action it took last week, rejecting rights to a piece of the developer’s land. This is according to a letter filed by Patrick Byker, attorney from firm K&L Gates, representing Southern Durham Development.

The firm is threatening to sue N.C. DOT if it doesn't accept Southern Durham Development's donation of an easement along N.C. 751. The letter insinuates the transportation department is to blame if Southern Durham Development doesn't get approval of its monumental and controversial development, 751 South.

Byker said he sent the letter July 30. Greer Beaty, spokeswoman for the N.C. DOT confirmed the department received the letter this week, and said Gibson was out of the office this week, and that the department would not be responding to the letter.

"We're not going to comment on an alleged, impending lawsuit," Beaty said late Thursday. "When a lawsuit is filed, the attorney general's office would be the ones to respond to that. But our position has not changed. We believe that politely removing ourselves from a local zoning discussion was the right thing to do."

The controversy is the latest twist in the ongoing debate over whether the county should allow developers to build 751 South, a complex of as many as 1,300 residences, a shopping center and offices for a 167-acre swath of southwestern Durham County. The land is mostly rural, and staunch opponents of the project say it will create traffic nightmares and that runoff from roadways and the development itself will further pollute the already contaminated Jordan Lake, which is a mile away.

Commissioners are scheduled to vote on the development at a meeting that begins 7 p.m. Monday, Aug. 9. The meeting had been continued from July 26 due specifically to disagreement over this land easement, which Southern Durham Development gave to the N.C. DOT on July 13.

After the N.C. DOT accepted 3.3. acres from Southern Durham Development, it learned that by doing so it inadvertently negated the efforts of dozens of neighbors of the proposed project, who had filed a legal “protest petition” on the rezoning. The petition, if valid, requires four of five county commissioners to approve the development, instead of a simple majority of three commissioners.

As soon as the N.C. DOT became aware of the ramifications of its actions, it attempted to reject the gift, saying it didn’t want to get involved in a local zoning dispute. But their rejection came on July 26, the day when Durham County Commissioners were voting on whether to approve the rezoning of 751 South.

Because of the rush of last minute maneuvers, Durham County Attorney Lowell Siler asked commissioners for more time to consider whether the N.C. DOT could even accept land and then reject it.

But Byker’s letter responds to that question, from the perspective of his law firm and Southern Durham Development.

There is a process by which a deed can be rejected, Byker said, and the N.C. DOT didn’t follow it.

Administrator Terry Gibson was not authorized to reject the deed, Byker said, according to administrative code. Further, Byker said, only the N.C. DOT Board of Transportation can make changes to the state highway system, and that requires a formal process in which the owners of adjacent properties must have 60 days notice to file their objections.

As Byker also argues, the N.C. DOT cannot reasonably say it does not require rights to the easement because rights to that land are necessary for the department to fulfill its long-range plans to expand N.C. 751.

The letter asks the N.C. DOT to rescind its action to reject the easement, or legal action could be necessary. But there is no timeline in which K&L Gates has threatened to file suit, Byker said.

“As you know, N.C. DOT’s subsequent attempt to revoke its acceptance of the easement dedication has seriously jeopardized Southern Durham’s ability to obtain a rezoning needed to move forward with its project,” Byker’s letter says. “If the proposed rezoning fails as a result of N.C. DOT’s action, Southern Durham will suffer substantial damages.”

The legal validity of the N.C. DOT’s rejection is key to the 751 South rezoning process. If, indeed, the N.C. DOT successfully, and legally, cut ties to the piece of land with the legal statements it filed that day, then a requirement that four of five county commissioners approve the development is still in place.

But if the legal papers the N.C. DOT filed are not legally binding, then only three of five commissioners must approve the rezoning that would allow 751 South to move forward.

It’s in Southern Durham Development’s interest to prove the legal papers N.C. DOT filed are not valid. In that case, it must secure the support of just three of the five county commissioners, a feat that seems much more achievable since three commissioners—Michael Page, Joe Bowser and Brenda Howerton—have historically voted in favor of the developers. The remaining two commissioners, Becky Heron and Ellen Reckhow, have historically voted against dense development in the area where 751 South could be built.