[Durham INC] Fw: Re: Bull City Rising--Update from AG

[Melissa Rooney]

Here's the NC Attorney General's letter to Siler outlining the legality of the 
NC DOT's right to revoke the easement that SDD gave them to subvert the protest 
petition against the 751 South rezoning. Of course, County Atty Siler didn't 
give a public opinion of whether or not he agrees with the state --it seems he 
needs the weekend for consultation w/ those who continue to put pressure to 
approve this rezoning at all costs... --Melissa


http://www.indyweek.com/triangulator/archives/2010/08/06/state-attorneys-letter-spells-out-dot-power-to-reject-easement-still-no-opinion-from-siler&cb=3b6f06dc95121cf1132b96a9759c6da2&sort=desc#readerComments


State attorney's letter spells out DOT power to reject easement; still no 
opinion from Siler
Posted by Samiha Khanna on Fri, Aug 6, 2010 at 4:40 PM
A lawyer from the office of the attorney general sent a letter to Durham's 
county attorney today, laying out the powers the N.C. Department of 
Transportation had when it reversed its acceptance of land from a company behind 
a controversial development planned for south Durham. The information in the 
letter could make or break that company's project, 751 South, when Durham county 
commissioners consider its scope Monday and vote on whether it should go 
forward.
The letter (PDF) is addressed to County Attorney Lowell Siler, who asked for the 
information as he considers whether the N.C. DOT was legally allowed to accept a 
3.3-acre piece of land from Southern Durham Development, then reject it days 
later. The DOT revoked its acceptance of the land on July 26 (PDF), its 
officials learned that by accepting the land, they were inadvertently  
interfering in the long and controversial rezoning battle over 167 acres of land 
slated for 751 South. The rejection was filed in court and signed by State 
Highway Administrator Terry Gibson. But Siler didn't take it on face value—he 
wanted an explanation from the attorney general's office, which is representing 
the N.C. DOT and orchestrated the rejection documents, to help inform his own 
opinion on whether the N.C. DOT even has the legal right to reverse a deed.
W. Richard Moore, an attorney with the N.C. Department of Justice, outlined his 
legal backing in the letter. He quoted state statute and administrative code 
that state, among several items, the state highway administrator is delegated to 
execute documents pertaining to the acquisition of right-of-way, and "release  
interests in land acquired for right-of-way, but not used or needed for 
right-of-way," and that duties of the secretary of transportation or the board 
may be delegated to the state highway administrator.
Siler's opinion is central to whether 751 South passes or fails. The N.C. DOT 
issue and its resolution will dictate whether the developer needs three 'yay' 
votes, or four, to gain approval for the project. The board has historically 
been divided 3-2 in favor of 751 South, so it could go either way.
Here's what Siler has  to decide: If the N.C. DOT was within its rights to give 
the land back to the developer through the process it followed, that upholds a 
protest petition filed by opponents to the project, which could include 1,300 
residences and 600,000 square feet of retail and office space. The valid 
petition would require four of the five county commissioners to support 751 
South for it to move forward.
If Siler suggests the N.C. DOT did not legally refuse the land, that means the 
N.C. DOT still possesses the right-of-way. Its possession inadvertently rules 
that citizen protest petition invalid, on a technicality. An invalid protest 
petition means that only three commissioners must approve the development for it 
to move forward.
Opponents of 751 South who filed the petition say the development is too dense 
for a rural corner of Durham County, is too far from the city's core, lacks 
public transportation and could further damage the already polluted waters of 
Jordan Lake, which is about a mile from the development site.
Siler is expected to share his opinion over the weekend with county 
commissioners. He is supposed to offer the opinion to Planning Director Steve 
Medlin, who ultimately decides whether the protest petition is valid.
At  the latest, opinions from Siler and Medlin will be publicly announced Monday 
when commissioners vote on 751 South. The meeting begins at 7 p.m. on the second 
floor of the county building at 200 E. Main St., in downtown Durham.

On Aug 6, 2010, Jackie BROWN <Jackie13Brown at msn.com> wrote:
 
>As soon as he got it, it was- press forward and  then send to K&L.
>Attachment read: Ok boys, here it is! Now tell me what to do with it before 
>Monday??
>----- Original Message -----
>>From: Carol
>>To: ncbocck at mindspring.com
>>Cc: rcyoung4 at verizon.net ; tinamotley at earthlink.net ; Jackie13Brown at msn.com ; 
>>page.mc at frontier.com ; kathryn6668 at yahoo.com ; kate at durhampa.org ; 
>>preslark at lenovo.com ; becca at cyberlily.com ; tom-miller1 at nc.rr.com ; wgw at duke.edu 
>>; milopyne at yahoo.com ; mhowlett at email.unc.edu ; mmr121570 at yahoo.com ; 
>>harrisdl2003 at yahoo.com ; daustin at mindspring.com ; d.moffitt at verizon.net ; 
>>cglenn5 at nc.rr.com ; healy at duke.edu ; geewen at nc.rr.com
>>Sent: Friday, August 06, 2010 2:43 PM
>>Subject: Re: Bull City Rising--Update from AG
>>
>>
Lowell has received the opinion from the AG. The commissioners should be 
receiving copies soon. Let's hope Byker and his trusty scissors don't get to it 
first.
>>Carol 
>>
>>
>>>>>>



      
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