Developers look to reinstate DOT deal

Jul 28, 2010 — The Herald-Sun

Ray Gronberg

Jul. 28, 2010 (McClatchy-Tribune Regional News delivered by Newstex) -- DURHAM -- The would-be developers of the 751 South project said Tuesday they hope "in the near future" to reinstate the right-of-way deal with the N.C. Department of Transportation that could negate a formal protest against a rezoning of their property.

The statement, credited to Southern Durham Development Inc. President Alex Mitchell, went out as local officials awaited an opinion from County Attorney Lowell Siler on whether DOT could walk away from the donation.

Siler's request for time to research the question prevented a vote by County Commissioners late Monday night on whether to give Mitchell's company the right to build up to 1,300 homes and 600,000 square feet of commercial space on its 167-acre property.

Mitchell and his fellow developers are counting on votes from Commissioners Joe Bowser, Brenda Howerton and Michael Page. Opposition is considered certain from Commissioners Becky Heron and Ellen Reckhow.

Whether the protest petition filed by neighbors stands or falls is thus likely to determine the outcome. If it remains valid, four commissioners have to approve the rezoning. If not, three would suffice.

The added N.C. 751 right of way that the developers deeded to DOT on July 13 would under state law invalidate enough signatures on the petition to swing the decision Southern Durham Development's way.

DOT officials, however, stood by their move on Monday to abandon the donation. They said lower-ranking property agents had accepted the easement without realizing a lawyer for the developer was rushing it through to undermine the petition.

"We firmly believe in the public process," department spokeswoman Greer Beaty said. "We were not aware that our accepting the right of way would interfere with the public process, and we took steps to politely excuse ourselves from that debate."

Those steps culminated in the filing Monday afternoon of a "declaration of revocation" that said the easement's deed contained "irregularities" and covered land "not presently needed" by the department.

DOT's move drew criticism Monday night from Bowser, who complained that it changed the game just before commissioners opened hearings on the project.

"It's not fair for me to have [prepared for the meeting] and at the 11th hour somebody pulls a prank like this -- and that's all this is, a prank," he said, indicating later that he thought county officials should rely on a previous opinion from Siler that the easement had rendered the protest petition invalid.

He also questioned whether DOT had the authority to give up the easement. Siler had no immediate answer for him. The attorney said he also wasn't sure DOT's Monday filing "was a proper document that does what they want to do."

A DOT official, Deputy Division 5 Engineer Joey Hopkins, said the document, drafted with help from N.C. Attorney General Roy Cooper's staff, was modeled on instruments the agency uses to give up temporary easements.

State law, meanwhile, clearly suggests that DOT has the General Assembly's permission to walk away from a donation.

The statute establishing its power to accept one, G.S. 136-19, says that if the department "later determines that the property acquired for transportation infrastructure, including highway right of way, or a part of that property, is no longer needed," it should give "first consideration" to a repurchase offer from its former owner.

Such an offer in this case would appear superfluous because no money ever changed hands between DOT and the developer. The easement also didn't convey anything beyond usage rights to the agency.

The law also makes it clear DOT is the sole judge of its own property needs.

Mitchell, in parallel with an account Hopkins gave County Manager Mike Ruffin by e-mail on Monday, told The Herald-Sun that developers had first discussed a right-of-way donation with agency officials late in 2009.

The boundaries were "not designed with the protest petition in mind," and the easement "was required by DOT," Mitchell said.

The key issue, however, was the donation's timing.

Hopkins told Ruffin the original discussion lapsed after the first meeting, resuming only on or about July 12 -- after the window for neighbors to file a protest petition had closed. At that point, lawyer Patrick Byker contacted DOT officials to move the donation through.

Byker was "in a hurry" to complete it, and when asked why the rush, told DOT officials his clients wanted to show "good faith" by making the deal before the hearing, Hopkins said.

But such a showing was unnecessary, as the developers already had formally promised city/county planners they would give DOT an easement along the N.C. 751 frontage of the site in return for the rezoning.

The written pledge established as a deadline only that it occur "prior to the issuance of the first building permit" for construction on the property.

Local and state officials have ample power to enforce such promises, either by withholding permits or in DOT's case by denying developers permission to link up with state roads.

Newstex ID: KRTB-0052-47387577