On Tuesday, the Durham Planning Commission was slated to host the first in a series of public hearings about a total rewrite of the document that regulates development in Durham.

But after years of hammering out the new code, and dozens of public engagement sessions, the public hearing was cancelled by city and county leadership Friday in response to possible legal action taken by a local business owner, delaying the process indefinitely.

The planning department began working on an updated Unified Development Ordinance (UDO), after passing a new Comprehensive Plan in 2023. Durham has experienced tremendous growth since the previous Comprehensive Plan was passed in 2005. Creating a new Land Development Code (as the UDO rewrite is called) was necessary in bringing Durham’s land use laws in line with the new vision for the city’s physical environment laid out by the Comprehensive Plan.

But in 2024, Senate Bill 382, headlined by Hurricane Helene relief, included language that stripped local municipalities’ ability to downzone—reduce the allowable density or uses for a specific zoning district—without written consent from all property owners in the area. Durham’s  Planning Department attempted to create carve-outs for property owners concerned with the proposed zoning changes in the new LDC while still complying with the state provisions.

“We were always trying to write the ordinance to be in compliance with state law,” said Robin Schultze, principal planner with the Durham Planning Department. “That’s how we have to operate as a municipality. So it was definitely always a conversation.”

Then on February 13, the city and county attorneys’ offices received a letter from Robin Tatum, a lawyer from Raleigh-based firm Smith Anderson representing Marvin Lee Barnes Jr., who recently served on the UNC Board of Governors, suggesting that changes in the proposed development code “constitute unlawful downzonings” under SB 382. Barnes’ company, M.M. Fowler Inc., which owns and operates about a hundred Family Fare convenience stores statewide, would “suffer significant damages” due to a decrease in property value and loss of development potential, according to the letter.

During its February 19 work session, the Durham City Council went into a closed session, requested by city attorney Kim Rehberg, to discuss a possible liability claim against the city. The next day, the Durham Planning Department released a statement canceling the scheduled public hearing, citing potential litigation.

“Unfortunately, property owners have challenged this carve-out approach and threatened litigation within the past week,” the statement read. “Given the legal challenges raised just days before the hearing, the adoption process for the LDC has been paused to allow time to evaluate these issues and determine the best path forward.”

For now, the process is in a holding pattern until Durham and other municipalities across North Carolina can gain clarity on whether the current provisions restricting downzoning will be revised or removed. 

“I don’t know what local solutions we’ll be able to figure out here that are not incredibly messy,” Durham city councilor Nate Baker told the INDY. “What I think this is demonstrating to the entire state is that with the way that the statutes are currently written, this completely paralyzes local governments across North Carolina.”

Dozens of municipalities throughout North Carolina have already submitted legislation to reverse the downzoning limitations, with Democrat and Republican leaders expressing dissatisfaction. Last spring, the state Senate passed a bill revising the downzoning ordinance to return flexibility to local municipalities. The state House could pick up the bill as early as April when it returns to session.

In lieu of the public hearing that had been planned for Tuesday, planning department staff hosted an open house at City Hall, where over 100 residents flooded the lobby to learn more about what is in the LDC draft, how the new zoning districts impact their neighborhoods, and share feedback on the new ordinances. Staff members were peppered throughout the crowd with informational handouts and laptops to walk residents through specific zoning changes that affect their neighborhoods. The tool is also available on the Engage Durham website; residents can look up their address and see a side-by-side of the current zoning districts and the proposed new zoning.

At an open house on the UDP, staff helped residents look up current proposed new zoning for specific properties. Credit: Photo by Justin Laidlaw

The UDO process has drawn ire from all sides. Proponents of the rewrite believe that the new code, while not solving the city’s affordable housing crisis, could provide a larger menu of housing options to developers by allowing small-scale apartments, accessory dwelling units, and other structures where they were not previously permitted, adding units to Durham’s dearth of housing at more affordable prices. Skeptics fear the new code will open the floodgates, allowing development to run amok because the new code would upzone much of Durham, allowing for a larger diversity of building types by-right in a particular zoning district.

One of the groups working against it is the InterNeighborhood Council (INC), which also sent a letter to the city and county ahead of the public hearing being canceled. The February 12 letter mirrors the one submitted by Barnes and his attorneys, pointing out the potential violation of state law, though the group is not threatening to sue. Tom Miller, board member with INC representing the Watts-Hillandale neighborhood, said it was purely coincidence his friend, Barnes, sent a similar letter the next day.

INC members have been poring over the 633 page LDC looking for other inconsistencies and portions it believes would harm Durhamites, sending comments and marked up copies of the documents to the planning department.

“We were really thrilled that this all got halted, because we were sure we weren’t going to get through the whole thing,” said Mimi Kessler, president of INC who has been leading the working group. “It’s just so time consuming.”

Baker said the LDC is still a draft, and that changes will likely be made, regardless of what happens at the state level.

“We had another 6 to 8 months before adoption, so there’s obviously a lot of time in there to fix any errors and do all the quality control and change things,” Baker said.

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Justin Laidlaw is a reporter for the INDY, covering Durham. A Bull City native, he joined the staff in 2023 and previously wrote By The Horns, a blog about city council.