On November 18th the County Attorney and the Durham Board of County Commissioners decided that the petitioners who protested the rezoning will have to sue Durham County to recognize that the petition was valid and reverse their previous decision.

The Haw River Association which organized both the protest petition and the earlier survey has retained a local attorney, but now they need to raise $10,000 for a trust fund that has been set up to pay the court costs. Several thousand have been raised in just over a day, but the deadline to file this suit is approaching quickly and so donations are needed sooner rather than later.

If you are interested in supporting this movement, you may donate by writing a check (put Jordan Lake Protest Petition Suit in the memo) to “Ragsdale Liggett Trust Account” and mailing it to Ragsdale Liggett, PLLC, Post Office Box 31507, Raleigh 27622.

Donations of $100 or more will be refunded in whole or in part if Durham County is required to pay our court costs once we win this case (and with the Planning Director’s ruling of the protest petition as VALID, we have a strong case). In this case, donations under $100 will be given to the HRA (Haw River Assembly) for the future maintenance and protection of Jordan Lake.

All donations will receive a written receipt (by email or by postal mail).

Jordan Lake Watershed Boundary Rezoning:

History (2005 – Nov 18, 2009)

provided by Melissa Rooney

2005: The developer (Neal Hunter) of what would ultimately be named the “751 Assemblage” conducted a private survey of a portion of the boundary of Jordan Lake, which, if validated, would move prime development land from inside to outside the critical watershed area, thus making much more intensive development possible. (The development plans are for 1,300 dwellings and 600,000 square feet of combined office and retail space[i]). Hunter submitted the new survey to Durham planning officials, along with a request to relocate the official boundary.[ii]

January, 2006: Then Durham County Planning Director (Frank Duke) administratively “approved” the new survey, without informing the County Commissioners or sending it on to the NC State Division of Water Quality (DWQ) for state review.[iii]

2008: Two years after Duke’s changes, the County discovered the oversight – namely that a change in a watershed boundary cannot legally take place without DWQ approval. Debate ensued over UDO requirements for zoning and map changes, with two commissioners demanding the change was a ‘correction’ (and thus able to be done as an administrative, planning decision) as opposed to a ‘change’ (which requires public hearings and a BOCC vote).

Later in 2008: DWQ informed Durham County that Duke’s ruling was a gross misinterpretation of the planning director’s powers, and that by changing the maps without prior review and consent by the state/DWQ, the county “acted outside its authority.”[iv]

Nov. 10, 2008: After months of discussing in closed session Duke’s “inappropriate” action, as it was deemed by then county attorney Chuck Kitchen, County Commissioners voted in closed session to submit Hunter’s surveys to the DWQ for inspection, and instructed the city manager to get quotes for conducting an independent survey (with county oversight) of the entirety of Jordan Lake within Durham County.[v]

Nov. 24, 2008:

Page, the vice chairman—along with departing commissioners Lewis Cheek and Phillip Cousin—argued at the Nov. 24 meeting that submitting Hunter’s surveys, and answering DWQ’s questions, was sufficient for now.

Vice-Chair Page criticized current Planning Director, Steve Medlin, for changing the watershed maps back to the pre-Duke ruling configurations, despite the fact that Duke’s map changes had not yet gone through official channels for approval.  Medlin insisted that the revision reflected his obligation “to ensure that the maps do reflect what was, in fact, the legal status at that point.”

County Manager Mike Ruffin presented the quotes for an independent survey (as requested), which came to ~$90,000. Instead of voting on whether to commission an independent survey, as advised by the county attorney, county manager, county engineer, and planning director, the commissioners voted (3:2) that environmental protections for the critical water supply were not urgent, and voted to pass the problem onto the incoming board, which was seated that week.

Dec. 15, 2008: Chatham County Commissioners sent a unanimous resolution[vi] to the N.C. Division of Water Quality, requesting that, barring an independent survey, Jordan Lake’s boundaries remain unchanged, in the interest of environmental and public health. In the ensuing weeks, DWQ acknowledged receiving many letters from Triangle residents urging the same.

February 11, 2009:

An online petition gathered 1,400 signatures opposing the watershed map changes and demanding an independent survey (it is now over 2000 signatures).[vii]

State regulators ruled that the agency “accepts and approves your proposed revisions to the critical and protected area boundaries around Jordan Lake.”[viii] They qualified 1) that adopting the state-approved survey is now “in Durham’s hands;” 2) that “We put a lot of responsibility on the counties, and we also put a lot of faith in their efforts. We have an oversight role here, so we really do rely on the expertise of the local governments to enforce the regulations, through their ordinances;” 3) if Durham accepts Hunter’s survey, it will be the first time watershed maps have been changed in North Carolina based on a private developer’s partial surveying of a water supply; and 4) the division’s preference would be a survey of the entire lake.[ix]

April 13, 2009: County Commissioners held a public hearing about whether to have public hearings (on the Jordan Lake Watershed issue) and voted (3-2) that the process outlined in the UDO should be followed, such that public hearings should take place. They rejected People’s Alliance and others’ argument that it would be worthwhile to conduct an independent, objective survey of the lake boundary.

June, 2009 (completed on June 25, 2009): A lake boundary survey commissioned by the Haw River Assembly (HRA), using a slightly different technique, showed a critical watershed boundary line moving the land-in-question back into the critical watershed.[x] This survey concluded that Jordan Lake’s easternmost point is “approximately 6,200 feet upstream” from the drinking-water source’s present location on official County maps (and about 1 mile upstream from that on the developers’ survey). [This survey was paid for with over $10,000 worth of citizen donations specified for this purpose. It was conducted by a well-reputed, licensed surveyor and reviewed by a hydrologist. The HRA survey was virtually identical to results obtained with the high-tech LIDAR method, which is used by FEMA for flood plain determinations and flood insurance requirements.]

June 9, 2009: After hearing the evidence and public testimony, the Durham City-County Planning Commission (DCCPC) voted 12 – 0 against the Watershed Rezoning and to advise the County Commission to conduct an independent survey of the lake boundary. The DCCPC was a non-binding opinion only, however, which the CountyCommission could take or leave. [xi]

June 12, 2009: The 751 Assemblage developer (Southern Durham Development) filed suit against the County, arguing that the public hearing process is illegal.[xii]

July 10, 2009: News reports confirmed that, less than a year after declining to vote for an independent Jordan Lake Survey, (insisting it be left to the incoming 2009 commissioners), 2008 County Commissioner Lewis Cheek took a job with K&L Gates, the legal representation for the developers of the 751 Assemblage (Southern Durham Development).[xiii]

Aug, 2009: The Durham County Board of Commissioners voted 3-2 to replace former County Attorney Chuck Kitchen, who had previously announced his retirement, with Siler, the former deputy county attorney. Board of Commissioners Chair Michael Page announced that the decision was based on Kitchen being named in the developer’s lawsuit.[xiv]

Aug 22, 2009: The Haw River Assembly applied to Intervene on the county’s behalf in the developers’ lawsuit. [xv]

Aug 24, 2009: HRA member Melissa Rooney called Planning Director Steve Medlin and asked him how to file a protest petition against the rezoning, and specifically what constitutes a ‘side’ in the planning department’s (PD) definition of the signatures required for this protest petition. [The UDO says that, for the county, if 20% of landowners on one ‘side’ sign the protest petition, then the boundary change would legally require a supermajority (4 - 1) vote of the CountyCommission.] Medlin said that he could not provide her with any information regarding how to define a ‘side,’ because they are still determining where these sides lie, as the Jordan Lake/watershed boundaries are not exactly a well-defined area.

September 1, 2009: With the BOCC public hearing less than two weeks away, HRA member Carol Young again talked to Planning Director Steve Medlin (by phone), inquiring whether the PD can provide a definition for a ‘side’ as required for a protest petition. Medlin said that 1) the PD asked for guidance from the School of Government, but the response wasn’t of much help; 2) they still don’t have an answer regarding what constitutes a “side” since this is such an irregular piece of land, 3) usually the PD determines what constitutes a side and thus a valid protest petition when a petition has been submitted; and 4) the fact that ACE (Army Corps of Engineers) owns so much land complicates the issue making it more difficult to obtain 20%. Medlin suggested looking at the map to best determine a north, south, east, or west side and trying to get as many property owners as possible on one side to sign the petition.  He further informed that the lack of a defined side is NOT grounds for a deferral of the commissioners’ public hearing and vote on this matter.

September 2009: The SELC staff, including a GIS expert, scrutinized every conceivable way to define a ‘side,’ and based on their most conservative interpretation (that requiring the most signatures), determined the properties for which protest petitions signatures should be obtained. HRA members began to go door-to-door, to collect signatures that qualify.

September 11, 2009: The County Commissioners’ public hearing and vote on the Jordan Lake Watershed rezoning was deferred until Oct 12.[xvi]

September 15, 2009: The BOCC voted to oppose the HRA’s intervention in the developers’ lawsuit.[xvii]

September 18, 2009: Judge Manning granted the HRA limited intervention rights, and put the developers’ lawsuit on hold until the County Commission decided the substantive boundary issue.[xviii] [Note: He was not thrilled about this decision and clearly seemed to be leaning in favor of the developers’ 18 M investment and their complaints about the 5 year process that has delayed their development project.]
October 5, 2009: After the SELC determined that enough signatures had been acquired to meet the 20% requirement on TWO sides (utilizing their most conservative interpretation), the HRA submitted the protest petition to the County Clerk, who submitted it to the planning director. The submission was accompanied by a supporting memo showing the calculations.

Oct 9, 2009: One working day before the Commissioners’ public hearing, the Durham Planning Department, in consultation with acting County Attorney Siler, held a press release announcing their ruling that the protest petition was invalid on the basis that the 20% threshold had not been met. At this time, HRA/SELC was informed of the decision and the method used by the planning department to determine valid signatures, but they were not given any data involved in the calculations.

Oct 12, 2009: After a lengthy public hearing with citizen attendance at standing-room-only capacity, the County Commission voted, 3-2, to approve the critical watershed boundary change.[xix]

Oct 14, 2009: Planning Department calculations and data (used in their protest petition determination) were provided to the HRA and SELC. Rather than defining continuous N, S, E and W sides of the rezoning, the planning department used ‘cardinal ordinates’ that gave each and every parcel a contribution to the N, S, E and W ‘sides’ required for the protest petition.

Oct 14-23, 2009: SELC staff, including the SELC-GIS analyst, analyzed the Planning Department’s data and determine errors with their calculations. After ~2 weeks of analysis, SELC staff found that the county had miscounted the land parcels used to determine the validity of the protest petition (see Jordan Lake buffer petition map). Furthermore, even with the PD’s ‘cardinal ordinate’ calculations, when these errors are corrected, the protest petition still had signatures accounting for 20.9% of the Western ‘side,’ thereby meeting the protest petition requirements.

Oct 23, 2009: The SELC tried to arrange a meeting to discuss the errors with the Planning Department and County Attorney, but were told this could not be arranged until the following Tuesday.

Oct 27, 2009: County Attorney Siler arranged a conference call with the SELC and Planning Director Medlin on Oct 27. Siler and Medlin ended the phone call soon after the SELC informed them of the errors, indicating that they’d call back with their conclusions. The SELC contacted them to get an answer and when their call was not returned, the SELC called again, the morning of their Oct 29 press release, to inform the county of their intention to release their findings to the press (who were requesting information).

Oct 29, 2009: The HRA/SELC publicly contested Durham’s planning director’s ruling that the protest petition is invalid.[xx] HRA has asked that the petition be considered valid, and is asserting that the October 12 motion failed since there were not the necessary 4-1 votes needed.

October 30 through November 5, 2009: County Attorney Siler insisted that the petition was actually invalid because some signatures were not valid (but without naming the specific errors),[xxi] and both Siler and County Manager Mike Ruffin stated that further appeal of the decision would have to be presented in a lawsuit.[xxii] During this time, HRA member Melissa Rooney talked to Steve Medlin by phone, who verified that there was a problem with ONE signature (it appeared that one person signed for all three property owners), but he assured her that if this signature is deemed invalid, it would have no effect on the validity of the rest of the protest petition (any other signature), nor the 20% threshold. This was the last communication the HRA or their members have had with Planning Director Steve Medlin.

November 3, 2009: Email correspondence from Mike Ruffin to Melissa Rooney:

“The Official Zoning Map has already been changed based upon the vote the Board took on October 26 at the conclusion of the public hearing.  Any change to the map by the Board can only be made by following the process that it outlined in the Unified Development Ordinance.  Of course, an appeal of the Board’s action could be made to Superior Court and any order by the Court, unless appealed, would be honored by the Board.

Your email asked that we follow the process, which I have outlined above and have directed staff to do.  Perhaps you can explain to me how changing the map outside of the adopted process, the same thing Frank Duke was alleged to have done, is the honorable action to take?”

Nov 16, 2009: It was reported that, late Friday, Nov 14, the Planning Department reversed its decision, and determined that the protest petition WAS valid. The County Attorney and County Commission attempted to keep this decision confidential until they could discuss it in closed session on Thursday, Nov 19.[xxiii]^,[xxiv] While we don’t know the legalities of reversing a County Commission decision, it would seem that the 3-2 vote approving the boundary change was insufficient to meet the 4-1 supermajority requirement, and that the boundary change proposal should be declared defeated.

November 18, 2009: After 5 PM, the county finally released a redacted copy of Medlin’s memo indicating his ruling that the protest petition IS VALID. The memo is curiously dated November 18, 2009, when we know the memo to have been initially sent on Friday, November 13.[xxv]

November 19, 2009: Durham County Commission will hold a closed session meeting addressing the Jordan Lake Boundary issue this Thursday (11/19) at 10:00 AM. Commissioner Heron has informed that an open/public meeting will follow the closed one.

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[i] See http://www.indyweek.com/gyrobase/Content?oid=oid%3A271898 for link to zoning map change application. Direct Link: http://www.indyweek.com/pdf/120308/ZoningMapChangeApp.pdf

[ii] ibid., for link to Hunter’s request to relocate the Jordan Lake watershed boundary.

Direct Link: http://www.indyweek.com/pdf/120308/RequestToRelocate.pdf

[iii] ibid., for link to Frank Duke’s reasoning/communication in this regard (in a letter to Hunter)

Direct Link: http://www.indyweek.com/pdf/120308/LuckLetterToHunter.pdf

[iv] ibid., for link to developer Neal Hunter’s correspondence with Julie Ventaloro at DWQ, in which he questions the agency’s authority to review local government’s changes to the protected watershed areas.

Direct Link: http://www.indyweek.com/pdf/120308/HunterLetterToVentaloro.pdf

[v] ibid., for link to current Planning Director Steve Medlin’s correspondence with Julie Ventaloro at DWQ. Direct Link: http://www.indyweek.com/pdf/120308/MedlinLetterToVentaloro.pdf

[vi] http://www.indyweek.com/pdf/121708/Ventaloro.pdf

[vii] http://www.petitiononline.com/jrdnsrvy/petition.html

[viii] http://www.indyweekblogs.com/triangulator/wp-content/uploads/2009/02/feb_durhamboundaryresponse.pdf

[ix] http://www.indyweek.com/gyrobase/Content?oid=oid%3A284622

[x] http://www.indyweekblogs.com/triangulator/wp-content/uploads/2009/06/new-hope-creek-report.pdf; see also the news article at: http://www.indyweekblogs.com/triangulator/2009/06/29/haw-river-assembly-survey-says-jordan-lake-is-6200-feet-upstream/

[xi] http://www.indyweekblogs.com/triangulator/2009/06/09/planning-commission-protests-would-be-jordan-lake-developers-chilling-effect-on-durham/

[xii] http://www.indyweekblogs.com/triangulator/2009/06/17/jordan-lake-developers-sue-durham-county-over-751-assemblage/ ; and http://www.indyweekblogs.com/triangulator/2009/06/26/jordan-lake-developers-cover-all-the-bases-in-lawsuit-against-durham-county/

[xiii] http://wbx.me/l/?p=1&u=http%3A%2F%2Fwww.indyweekblogs.com%2Ftriangulator%2F2009%2F07%2F10%2Flewis-cheek-joins-law-firm-suing-durham-county%2F

[xiv] http://www.indyweekblogs.com/triangulator/2009/08/11/environmental-group-seeks-to-intervene-in-jordan-lake-lawsuit-dwq-gives-mixed-messages/

and http://www.newsobserver.com/news/story/1633104.html

[xv] http://www.indyweekblogs.com/triangulator/2009/08/11/environmental-group-seeks-to-intervene-in-jordan-lake-lawsuit-dwq-gives-mixed-messages/

and http://www.heraldsun.net/pages/full_story/push?article-Haw+River+group+files+court+papers%20&id=3172254

[xvi] http://heraldsun.com/bookmark/3537861

[xvii] http://heraldsun.com/pages/full_story_news_durham/push?article-Commissioners+want+group+off+case%20&id=3599209-Commissioners+want+group+off+case&instance=main_article2

[xviii] http://www.newsobserver.com/news/local_state/story/81250.html

[xix] http://www.indyweekblogs.com/triangulator/2009/10/13/commissioners-move-jordan-lake-protection-boundaries/

[xx] http://www.indyweekblogs.com/triangulator/2009/10/29/haw-river-assembly-contests-ruling-on-petition/

[xxi] http://www.indyweekblogs.com/triangulator/2009/11/05/durham-county-defends-finding-that-petition-is-invalid/

[xxii] http://www.indyweekblogs.com/triangulator/2009/10/30/update-on-jordan-lake-protest-petition/

[xxiii] http://www.indyweekblogs.com/triangulator/2009/11/16/commissioners-to-meet-on-protest-petition-thursday-morning/

[xxiv] http://blogs.newsobserver.com/bullseye/commissioners-meeting-thursday-on-jordan-petition-lawsuit

[xxv] http://wbx.me/l/?p=1&u=http%3A%2F%2Fwww.indyweekblogs.com%2Ftriangulator%2F2009%2F11%2F18%2Fmemo-medlin-finds-jordan-lake-protest-petition-valid%2F

and http://www.indyweekblogs.com/triangulator/wp-content/uploads/2009/11/redacted-protest-petition-memo.pdf