tag: North Carolina Land Use Litigator: Controversial Mixed Use Development In Durham County Takes Small Step Forward

Friday, February 18, 2011, 9:18 AM

Controversial Mixed Use Development In Durham County Takes Small Step Forward


You'll recall from prior posts here and here, the proposed 751 South development in Durham, North Carolina -- which is planned to consist of 1,300 houses, townhomes, apartments and condos plus as much as 600,000 square feet of office and retail space -- is rather divisive.

In a lawsuit filed in 2009, owners of property adjoining the 751 South site contested the Durham County Commissioners' vote to adjust a watershed boundary line, which removed the 751 South property from a development-restricted area around Jordan Lake. In the process, the Commissioners' vote also rezoned "dozens of other pieces of property within the lake's watershed," according to reports. In essence, the Commissioners' vote freed the 751 South property from yet another hurlde to its development while causing rippling land use effects, likely in an effort to circumventing any allegations of "illegal spot zoning."

This week the project took a step forward, however small. That lawsuit against the County has been "discontinued." At its core, it appears the "agreement" between the plaintiffs and the County to "discontinue" the lawsuit accepts a 2009 Superior Court Order carving out the 751 South property from the challenge, therefore allowing the commissioners' rezoning vote to stand with respect to the 751 South property while returning the other rezoned properties back to their pre-vote zoning designation. Is this tantamount to illegal spot zoning, even though it's pursuant to a court order? Does the court order render it legal spot zoning?

The development continues to plug along, legal piece by legal piece. We'll continue to update.

Mike Thelen is a lawyer in Womble Carlyle's Real Estate Litigation practice group. He regularly represents a wide variety of clients in land use and land development issues, from local governments to businesses, in both state and federal venues throughout North Carolina.

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