The Durham City-County Planning Commission has sent a powerful message that it doesn’t want a private developer’s survey to dictate land-use decisions in rural Durham County. On Aug. 11, the commission unanimously nixed a proposal to amend Durham’s zoning map and Comprehensive Plan based on the survey’s findings. Commissioned in 2005 by Southern Durham Development shareholder Neal Hunter, the survey would significantly re-draw a one-mile protective boundary that surrounds Jordan Lake, in order to permit a 164-acre mixed-use project proposed by the development firm.

“Why do we want to reduce protections around a polluted, impaired water?” Planning Commissioner Wendy Jacobs said. “Based on my analysis of what we’re supposed to look at for [amendments to] the Comprehensive Plan, even disregarding surveys—I don’t care if the surveys are right; it doesn’t matter what the surveys say—based on this issue alone, I don’t see any reason to change exactly where the watershed is right now.”

The Planning Commission’s recommendation, which commissioners must consider but are not beholden to, is the first step of a public hearing process required by state law and Durham’s Unified Development Ordinance. In June 2009, Southern Durham sued the county for following the process, alleging that it was an “unlawful attempt to strip Southern Durham of its rights to develop” the so-called 751 Assemblage.

Board of Commissioners Chair Michael Page, who voted against the public hearing in April 2009, told the Indy he agrees with many of Southern Durham’s allegations, and seemed to blame the lawsuit on media and his fellow commissioners who had “painted” county officials who agreed with the developer as “bad people.”

“You guys criticized us for this, and now we’re being challenged in a legal court for this,” he said in a June 2009 interview.

The Planning Commission formally recommended the city and county pay for an independent survey of Jordan Lake, and rebuked Durham County Commissioners for an earlier vote against such a survey. In November 2008, Page, along with former commissioners Phillip Cousin and Lewis Cheek, who now works for K&L Gates, the law firm representing Southern Durham, voted against an independent survey in favor of Hunter’s.

Planning Commissioner Jarrod Edens said he was voting against the proposed amendments based on Hunter’s survey, “in the hope that we’ll see some leadership from our elected officials to take this issue and run with it—to hire a surveyor, and do one survey that everyone can accept, and move on with it.”

Edens added: “It’s too an important of an issue to have all these black clouds floating around. Let’s do it correctly, one time, field survey the entire lake, and move on.”

In June 2009, the Haw River Assembly released a separate survey that shows Jordan Lake extending in the opposite direction from the Hunter survey, and more than 6,000 feet “upstream,” from county maps toward the 751 Assemblage Project site.

“Now we have two surveys, both valid, both correct, and completely different,” Durham resident Rebecca Board said at the Planning Commission meeting. “There’s something about these surveys that are exactly the same: They both told the person who paid them what they wanted to hear. We can’t just accept somebody else’s biased survey. We need to commission an independent survey.”

In February 2009, the N.C. Division of Water Quality approved Hunter’s survey on technical merits, but encouraged the County to take a more “regional systematic approach” to surveying.

Surveys such as Hunter’s “could conceivably open the door to multiple requests to revise the small parts of a watershed boundary,” Julie Ventaloro, the state watershed program coordinator at DWQ, said in a February interview. “It would just be better, and perhaps produce a better-quality product, if these boundary issues were looked at regionally, on a larger watershed basis, or even around one entire reservoir, rather than piece by piece.”

Planning Commissioners and the majority of speakers agreed with that sentiment. One notable exception was K&L Gates attorney Craigie Sanders, the only speaker signed up in favor of the plan amendments. Sanders, whose firm represents Southern Durham Development, briefly read a prepared statement before ducking out of the meeting.

“Southern Durham Development objects to the holding of this, or any other, public hearing, related to the location of the suburban tier on its property,” Sanders said. “No public hearing is necessary, and this hearing is illegitimate to the extent that it relates to the property of Southern Durham Development.”

Sanders pointed to a 2006 decision by former planning director Frank Duke, who accepted Hunter’s survey without review, as an “official interpretation” later validated by DWQ. However, in letters to Durham County, DWQ determined that Duke’s actions had violated state administrative code. Changing zoning maps and future land-use plans, Ventaloro told the Indy, was in “Durham’s hands.”

Yet, for the Planning Commissioners at least, a technically correct survey wasn’t enough to change Durham’s maps.

“We are being asked to legitimize a process that was not authorized, and I’m not going to do that,” Planning Commissioner Harry Monds said.