The five acres of Durham Central Parkthe setting for the farmers market, concerts, movies, food truck rodeos, weddings and simply beingare as close to sacred as a public space can be.

Now, how we experience the parkour sense of placeis on the verge of being upended. In the works for at least a year, 539 Foster, a six-story condominium project, is not a secret; the city-county planning department has already granted several early approvals for the site. But negotiations on several key elements of the project have been held in private between the developer’s design team and the Durham Central Park board of directors.

Durham Central Park, a nonprofit, manages DCP on behalf of the city, which owns it. However, any legal agreements are between the city and the developer, not DCP.

Even City Attorney Patrick Baker seemed confused on Monday about his role. “I’m not sure who my client is on this,” Baker said, when City Council asked him for legal advice about easements on the project. “The city has been at the table, but Durham Central Park is negotiating with the developer.”

The city manager had asked the board to negotiate with BH-AG Durham Foster LLC and report back to Council. However, the board chose to hold weekly conversations with the developer in private. In fact, on the Durham Central Park board website, there are many announcements of park events, but no mention of any meetings about 539 Foster.

Since the DCP board is not publicly electedits members are appointed by the nonprofitit is not subject to open-meetings laws. Yet Morgan Haynes, a local architect and DCP board president, told the INDY that the members are “stewards” of the park who represents the public interest in decisions about the land.

In other words, the board represents the public, but is not beholden to it. (Landscape architect Dan Jewell is on the board, but recused himself from any votes on the project. Councilwoman Diane Catotti is also a board member. She could not be reached for an extensive interview by press time.)

“There is a broad spectrum of representation on the board. We’re the boots on the ground,” Haynes says. “We ultimately want to be transparent. But if we opened up every decision to the public, that would hinder our ability to run the park.”

Board member Curt Eshelman told the INDY that he and several other board members were displeased with the lack of transparency and the timing of the group’s involvement.

“Everything else [about the park] has gone through a public process,” says Eshelman, who donated money to build the park in the 1990s. “The first thing we got about this building was completed plans.”

Haynes told City Council the board had held a “charette” with the developer and its design team to negotiate improvements to the project. The board did wrestle some concessions out of the developer, including the addition of a shaded, terraced berm that provides seating for visitors while softening the impact of the building’s collision with the park. The developer will also replant several trees and construct a walkway.

Eshelman counters that charette doesn’t accurately describe the process. “A charette is when you get input from lots of people and define the stakeholders”in this case, the public.

He sees 539 Foster as “a lost opportunity.” “There could have been first-floor shops, pubs, restaurants, things the neighborhood could use.” Instead, the first floor is a parking garage obscured by a brick wall.

The city has often been criticized for allowing development interests to dictate key terms of a deal. DCP’s negotiations could poise the city to repeat that mistake. In the 539 Foster project, the city could leverage its power, either by granting easements or selling the land outright in exchange for even more concessions, including affordable housing.

Councilman Steve Schewel praised the project, but cautioned that “we need affordable housing downtown. As a city we need to think about how to negotiate with developers who want something from us.”

Although state law doesn’t allow cities to require affordable housing in zoning cases, the situation with 539 Foster is different because the developers want the use of a public asseteasements. “You’re not required to sell it,” Baker told Council. “This is a pure negotiation.”

Patrick Byker, attorney for the developer, told Council that in lieu of an affordable unit, the developer would pay $41,788 to Habitat for Humanity, which builds affordable housing. (Habitat’s homes are affordable for only 15 years and then can become market rate. Durham Community Land Trust homes remain affordable forever.)

Councilwoman Cora Cole-McFadden also seemed dissatisfied with Byker’s offer. “Why not include an affordable unit in the project? That’s where it should be.”

The easement issue is sticky because while the developer would use the land, the city would still own it and have legal liability, for example, if someone were injured on it.

A sale, on the other hand, would absolve the city of legal obligations, although it would entail a loss of land.

But even the prospect of selling the land raised critical questions of whether the city was getting short-shrifted. Council members Don Moffitt and Catotti both asked for a more accurate appraisal on the land. Such an appraisal has not been conducted, although according to deed records, the developer paid $1.65 million for the one-acre site.

What’s the deal?

539 Foster is six-story, 98-condominium project at Foster and Corporation streets abutting Durham Central Park. It is across the street from the Liberty Warehouse project.

Prices start in the mid-$200,000 range for 639 square feet and rise to more than $400,000 for 2,300 square-foot penthouse homes.

The Chapel Hill-based developer, BH-AG Durham Foster, LLC, is requesting:

  • to pay the city $41,000 to close Roney Street where it extends from Corporation Street;

  • a 15-foot fire separation easement between the southern edge of the development and northern boundary of the park;

  • another 6-foot easement beneath a rooftop overhang;

  • to move a portion of a storm culvert and a sanitary sewer off the condo property and into the park;

  • the ability to cut down eight trees, including the Sister City Grove.

    In exchange, the developer will:

  • build a greenway trail from Roney and Corporation to connect with an existing one on the west side of the park;

  • plant landscaping at Hunt and Roney streets;

  • replace the eight trees with new ones of the same species and size;

  • build a terraced berm leading from the park to the condo project where people can sit.

    The Durham City Council will discuss the project on Monday, June 15, at 7 p.m., at CityHall.