INC NEWS - Durham News" "Solution to Morreene Rd. zoning fiasco evades city "

[Will Robinson]

A Summary of the Board of Adj. hearing re: Industrial
Warehouse on Morreene Road...printed in the Durham
News (N&O) Saturday.

Solution to Morreene Rd. zoning fiasco evades city 
  
 Jim Wise, Staff Writer
 A months-long dispute among residents, city
authorities and the owner of a commercial building on
Morreene Road got a third continuance this week.

 Chances appear good that, whatever the Durham Board
of Adjustment rules when it takes up the matter again
March 25, the case will still go further.

 In the end, it could be left to the taxpayers of
Durham to make things come out right. Or it might not.

 "It's confusing enough that any kind of speculation
... is not helpful," City Attorney Karen Sindelar
said.

 All in all, the case is confusing, complicated and
unclear -- and that is one point on which attorneys
for all three sides agree.

 We'll try to summarize.

 WHAT'S IT ALL ABOUT? A 13,000-square foot building
shell at 608 Morreene Road -- former site of Mariner's
Cove and a succession of other hometown restaurants
dating back to the 1940s.

 The building's owner, SunRay Properties of Charlotte,
wants it sold. Many of its residential neighbors on
Morreene Road and Linden Terrace want it gone. The
city administration stands more or less in the middle.

 HOW DID IT HAPPEN? The heart of the matter is former
planning director Frank Duke's interpretation of
Durham's Unified Development Ordinance, which allowed
SunRay to construct its building, and his explanation
of that interpretation in an e-mail exchange with some
of the building's neighbors.

 AND THEN? Linden Terrace homeowner Janet Mittman, on
behalf of the neighbors, appealed Duke's
interpretation, and further planning department
interpretations regarding setback, buffer and surface
requirements. The appeal holds that, "Because the
building only went up as a result of the Planning
Department's errors, it should now be brought down" --
and cites a legal precedent.

 BUT ...? David L. Neal, attorney representing SunRay
Properties, asked that the appeal be dismissed when
the board of adjustment met Tuesday. He argued that
the board has no jurisdiction because the appeal is
based on an e-mail exchange rather than a binding
administrative decision; and that the appeal was filed
long after the applicable deadline.

 Meantime, he pointed out, D&L Parts has decided not
to occupy the building at all, SunRay has put it on
the market, and the building's eventual use would be
up to a future owner or tenant.

 David McKenzie and Hannah DeMerritt, attorneys
representing the neighbors, disagreed. Sindelar,
representing the city, said the neighbors' appeal was
proper under the law. The board, after 90 minutes'
discussion and with two members needing to leave
early, voted to hear the case -- and then put it off
until its next meeting.

Back story: In September 2006, SunRay Properties
bought the vacant Mariner's Cove property for
$450,000.

 In January 2007, the planning department approved a
site plan for SunRay to build a facility for D&L
Parts, a wholesale distributor of refrigeration,
heating and air-conditioning components and supplies.
SunRay's owners also own D&L.

 The building was to consist of 3,200 square feet of
retail space and 8,800 square feet of service and
storage space.

 Most of the two-acre lot is zoned for "neighborhood
commercial" use, a designation carried over from the
restaurants.

 Once nearby residents saw D&L's building taking shape
last summer, they protested that the nature of D&L's
business did not fit the ordinance definition of
"neighborhood commercial." Complicating the matter was
that two sectons of the lot were zoned for residential
use.

And then? After some communication with D&L's
management, and the exchange of e-mails with former
planning director Duke, and dismayed by what she and
some neighbors considered a detrimental eyesore rising
through error in their midst, Mittman filed an appeal
of Duke's interpretations of the zoning ordinance with
the board of adjustment.

 That was Oct. 1. By that time, Duke had accepted a
job in Virginia.

 Scheduled for hearing in October, the appeal was
continued until December, then again until this week's
(inconclusive) meeting.

So now? The board could deny the appeal altogether. It
could approve the appeal. If it approves, it could
issue an order for the building's demolition -- but,
at whose expense? SunRay built with the city's
approval, but, Sindelar said, "In the opinion of the
city, the board of adjustment could not order the city
to take it down."

What's the catch? Board of adjustment rulings may be
appealed to Superior Court.

Tell it like it is? -- Karen Sindelar, city attorney:
"The citizens who have raised the appeal ... have
raised multiple issues and the board could decide
different ways on those issues. There could be a
decision one way on something and a different way on
something else. It's very unclear what the outcome of
a ruling one way or another would be."

 David L. Neal, attorney for SunRay: "Honestly, a lot
of this is unclear to me. ... Any ruling they make is
going to be confusing."

 David McKenzie, attorney for the neighbors: "It's a
messy situation and it's just a mess all around."
jim.wise at newsobserver.com or (919) 956-2408