Commercial Zoning

751 South Stipulation Moves Protest Petition Issue Away from Durham County Board of Adjustment and Into State Courts

Have you heard about Durham’s 751 south? Well, we’ve blogged briefly about it in the past.

In a nutshell, 751 South is a controversial mixed-use project by which a Raleigh developer — Southern Durham Development Corp. (SDDC) — plans to develop 167 acres of land near the Chatham County line, off of N.C. State Road 751, into 1,300 houses, townhomes, apartments and condos plus as much as 600,000 square feet of office and retail space.

The planning began years ago but the rubber hit the road in 2008. Then, SDDC petitioned Durham County to rezone the 167 acres to accomodate the planned development. Enter: the opposition. According to news outlets, a group of nearby residents as well as environmental, political and community groups have joined the growing list of challengers. In fact, it’s been reported that the Chatham County Board of Commissioners, the county where most of nearby and point of concern Jordan Lake is located, has even urged Durham County’s leaders to deny development.

In the past year, neighboring residents have on two separate occasions filed protest petitions in opposition to the rezoning, the effect of which requires a 4/5 vote (as opposed to the ordinary 3/5 vote) for approval. This added voting threshhold has been viewed as “a make-or-break issue for the rezoning request, as two commissioners [of the five] … are considered likely to vote against [the rezoning petition].” However, an administrative ruling this past summer by the County’s Planning Director threw out the protest petitions on the grounds that SDDC’s grant of a 3.3 acre easement along N.C. State Road 751 to the N.C. Department of Transportation (NCDOT) separated enough of the protesting landowners from the proposed development. Indeed, strict procedural rules govern the protest process, and this move was quite savvy.

In response, protestors sought an appeal of the Planning Director’s August 9 decision before the County’s Board of Adjustment, contending, inter alia, that SDDC did not actually convey any property interest by the easement such as would dilute the landowners and that the Planning Director applied a new state statute, as opposed to the proper old statute statute, in adjudging the distance standards applicable for ascertaining “neighboring landowners.” (NCDOT, it should be noted, attempted to walk away from the granted easement once it learned acceptance could affect the zoning outcome as to the 751 South development; lawyers for SDDC, however, effectively argued NCDOT cannot abandon road rights-of-way).

Based on an agreement reached the other week between the developer and the protesting parties, the Superior Court — rather than the Durham County Board of Adjustment — will decide the propriety of the proetst petition. According to the stipulation, the parties concur that “the appropriate vanue for consideration is actually through Superior Court.” The move takes the case away from the laypeople constituting the County Board of Adjustment, and, in effect, places the rezoning decision in the hands of the State Court insofar as all five County Commissioners have staked themselves on the 751 South rezoning petition (3-2 in favor of rezoning).

We will continue to follow.

Mike Thelen is a lawyer in Womble Carlyle’s Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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