[Durham INC] Fw: Herald Sun on PC meeting/survey

[Melissa Rooney]

So much for freedom of speech...
Melissa (Rooney)



Planning chair's recusal sought

By Ray Gronberg : The Herald-Sun
gronberg at heraldsun.com
Jun 9, 2009



DURHAM -- With a key Durham Planning Commission review today, lawyers for the would-be developer of a project along N.C. 751 next to Jordan Lake are demanding that the panel's leader give up his gavel.

The move by K&L Gates lawyers Bill Brian and Patrick Byker targets Planning Commission Chairman George Brine, who's criticized how local officials handled a mapping change to the lake's boundary's that helped the would-be developers.

The commission is scheduled today to debate a request from Durham County to change the city/county "comprehensive plan," a policy document that spells how officials should zone the county.

The plan change would clear the way for a rezoning that would allow the project, which is sponsored by the Southern Durham Development Inc.

Brian and Byker wrote County Manager Mike Ruffin on June 1 to ask that he force Brine to recuse himself from a debate that will produce an advisory opinion for the County Commissioners, the body that will ultimately decide the matter.

"Chairman Brine is anything but impartial on any of these issues," they said, adding that Ruffin should also instruct Brine "to have no communication with other Planning Commission" members about the issue.

Brian declined to elaborate on the request in an interview Monday.

"I'm not at liberty to discuss the matter," he said. "Our letter speaks for itself."

Asked for his reaction, Planning Commission Chairman Brine said he hadn't seen the letter or heard from Ruffin.

Ruffin relayed word late Monday afternoon from Assistant County Attorney Lowell Siler that Brine had "agreed to request that the Planning Commission excuse him from those portions of the meetings dealing with these issues."

The legal basis for Brian and Byker's recusal demand was unclear, at best.

Ruffin and County Attorney Chuck Kitchen said in interviews early Monday evening that Brine under the law doesn't have to recuse himself.

State law requires members of advisory groups like the Planning Commission to sit out votes on zoning issues only when "the outcome of the matter being considered is reasonably likely to have a direct, substantial and readily identifiable financial impact on the member."

The K L Gates lawyers argued that local policy requires Planning Commission members to be "impartial" on such issues.

But a professor at UNC's School of Government, David Owens, said local leaders aren't really free to go beyond state law to create their own recusal standards.

They can have additional rules only so long "as they're not inconsistent with the state statute," Owen said.

Owens also noted that zoning and comprehensive-plan debates are quite different from so-called "quasi-judicial" hearings about applications for construction permits.

Zoning debates address matters of policy that local governments in general have full discretion to decide.

They by contrast are bound by law to issue a permit if an applicant complies with the standards spelled out in local ordinances, and the state requires them to weigh the evidence of compliance using court-like procedures.

State law does require recusals for bias in quasi-judicial hearings, but not in zoning matters, Owens said.

There, "the legislature's notion is you shouldn't have people acting where there's a strong pocketbook interest, but otherwise you want people who are active and engaged in the issues," Owens said.

Brian and Byker's letter did not allege that Brine has any financial stake in the outcome of the Jordan Lake dispute.

K L Gates has previously attacked the objectivity of officials giving elected boards policy advice. Brian earlier this year lodged complaints similar to the one targeting Brine against County Attorney Chuck Kitchen and, in a different matter, a planner in the City/County Planning Department.

On another front, activists from the Haw River Assembly wrote Brine and Planning Commission Vice Chairwoman Tanya Allen to ask that they delay today's hearing.

A one-month delay would give the group time receive from a surveyor it's hired a report and maps showing that the lake's true boundary is much closer to Southern Durham Development's project site than developers have claimed, Haw Riverkeeper Elaine Chiosso said in her letter.

City/County Planning Director Steve Medlin said administrators have heard the postponement request, but the decision is one for the Planning Commission. The panel by law can delay a vote for up to 90 days, he added.



© 2009 by The Durham Herald Company. All rights reserved.


      
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