[Durham INC] "a chilling effect" on citizen participation in local government (today's Herald-Sun)

[bwatu at yahoo.com]

"a chilling effect" on citizen participation in local government...
--Don Moffitt, planning commissioner 

Jordan Lake zoning dispute put on hold; chairman recuses self
By Ray Gronberg, Herald-Sun, 11 June 2009 

The Durham Planning Commission this week postponed for two months the opening of its debate on the Jordan Lake zoning dispute, to give activists from the Haw River Assembly time to submit the results of another survey of the lake's boundaries. 

Commission members also voted to allow the panel's chairman, George Brine, to recuse himself from the upcoming debate, now scheduled to begin in August. 

The vote to delay came at the request of the Haw River group, which is trying to counter moves by the Southern Durham Development Corp. to secure zoning that would allow a massive mixed-use development along N.C. 751 next to the lake. 

Planning Commission members noted that they often delay controversial applications to buy time to study information or for developers to negotiate with neighborhood groups. 

"The increased information and communication always [contributes] to a better result," member Don Moffitt said. 

Brine's recusal, on the other hand, was hardly routine. It came after lawyers from K&L Gates, a Research Triangle Park law firm that's representing Southern Durham Development, wrote County Manager Mike Ruffin to demand that the chairman step aside because he's publicly opposed their client's proposal. 

Ruffin, County Attorney Chuck Kitchen and an expert from UNC's School of Government all agreed Monday that there was no legal basis for the K&L Gates demand, as state law requires advisory board members to step aside in zoning cases only when they have a direct financial stake in the outcome. 

But Brine said Assistant County Attorney Lowell Siler had "recommended" that he recuse himself, advice the chairman urged his reluctant colleagues to accept. 

In an interview after the meeting, Brine added that Kitchen had "delegated" the matter to Siler. He couldn't explain why Kitchen would do so, but K&L Gates partner Bill Brian earlier this spring criticized the county attorney's handling of the zoning dispute. 

Brian and K&L Gates associate Patrick Byker filed the recusal demand targeting Brine last week. 

The other members of the board made it clear they weren't happy. They said the dispute could have what Moffitt termed "a chilling effect" on citizen participation in local government. 

"There is truly no basis for a recusal," said member Deborah Giles, who is stepping down from the board because her term is over. "It is very clear what constitutes a conflict of interest. Nothing evidentiary has been brought forth to indicate that Chairman Brine has violated that." 

"The discussions on this case will suffer due to the lack of Chairman Brine's involvement," added member Ben Greene. 

Members returned to the matter after wrapping up the rest of the evening's business. Two members, Linda Smith and Ted Womack, said they worry the recusal will set a bad precedent. 

Another member, Jackie Brown, said the focus on Brine was misplaced. "We've got some folks in here who have more conflicts than George," she said. 

She did not elaborate, but commission member Jarvis Martin is a real-estate appraiser who in the past year has testified on behalf of K&L Gates clients in proceedings before the City Council and the Durham Board of Adjustment. He has not been involved in the Jordan Lake dispute. 

The recusal debate on Tuesday was beginning to draw attention from neighborhood activists elsewhere in the county. One, Duke Park's Barry Ragin, took to his blog to voice his disapproval of K&L Gates' move. 

"Current [Inter-Neighborhood Council] President Craigie Sanders also works for K&L Gates, and has had to recuse himself from almost every vote the INC has taken during his term since he's got a financial interest in the outcome," Ragin said. "That's what a real conflict of interest is." 

Tuesday's Planning Commission discussion unfolded on the same day that a N.C. Senate committee gave a favorable recommendation to a bill that's already passed the state House that would tighten anti-pollution rules for new and existing developments in the Jordan watershed.