On the radio

Just a reminder that Kevin and i will be on your radio Sunday night at 7:30 pm, WXDU 88.7 FM in Durham, WXDU.org on the web.

We'll be talking with Miss Kaferine De Nerve about the upcoming Beaver Queen Pageant, among other things. I'm pretty sure i'm going to ask Kevin about the recent Dunkin' Donuts/Rachel Ray keffiyeh kerfuffle too.

I wanted to take a minute to update some comments from the inaugural radio show a couple of weeks back. We had City Councilman Eugene Brown and Planning Commissioner Don Moffitt as our guests, and i asked them for a comment about the Durham v. Graham case. Neither of them were familiar with the case, and to be frank, neither was i. I was counting on one of them to comment knowledgeably, and failed to do my own homework.

Anyway, the docket sheet, which doesn't say too much that i can understand, is here. An Indy article from April 2006 is here:

Durham businessman Lynn E. Graham has accumulated nearly six acres of construction and demolition debris, piles of fill dirt, junked cars, junked furniture and just plain junk at two illegal dump sites, one in East Durham and one near Research Triangle Park.

Cited numerous times by county regulators for an array of environmental and zoning violations since early 2003, Graham has also accumulated more than $600,000 in fines--and counting, at $2,400 a day, until he brings the properties up to standards.

It's the largest financial penalty Durham County's erosion control officer, Joe Pearce, has imposed. The enormous dollar figure signifies a long, convoluted effort by regulators to convince Graham to clean up his properties and protect the environment from pollution. Last week, a judge gave the landowner two weeks to come up with a plan for doing so.

"We want Mr. Graham to do two things: Get a revised plan for how to bring these sites into compliance with his permits; and be held accountable for doing it, not just talking about what's going to happen," Assistant County Attorney Curtis Massey told Superior Court Judge Abraham Penn Jones at a March 30 hearing.

The case has been in the court system for the past two years, and Mr. Graham recently won a judgment vacating the 6 figure fines mentioned above. The County Commissioners, after spirited debate at the April 28 regular session, agreed to accept the judgment:

County Manager Mike Ruffin stated that he seriously struggled with his recommendation to reject Judge Gray’s decision, as the decision does not address the time in violation that was not considered by the Court in the first action, and the decision in the first action did not constitute a final binding judgment under the doctrine of res judicata (which means that the case has been adjudicated and cannot be re-litigated.

Commissioner Heron’s primary concern was that the property owner did not address the
violation of the Sedimentation and Erosion Control Ordinance within a reasonable time
period. Retribution should be made for violating Durham County law. She reiterated this concern numerous times during the discussion.

Commissioner Cheek suggested that the attorneys be allowed to speak.

Chairman Reckhow agreed to give the attorneys five minutes to present their arguments.

The attorneys for each side made their presentations to the Board expressing their positions.

Sam Roberti, Attorney for Lynn Graham, made a presentation expressing his client’s
position. He submitted that the facts are not in dispute and that the case has been fully heard. Any remedy must take place in a higher court.

Marie Inserra, Assistant County Attorney, disagreed with several points made by
Mr. Roberti. Her contention was that the Board is only to consider Judge Gray’s decision of Res Judicata, which requires a final judgment on the merits. The County’s argument is that a hearing has not been held on the merits of the case during a particular time period; therefore, the first prong of Res Judicata is not satisfied.

Attorney Inserra responded to questions by Chairman Reckhow as to why the case was not
heard for the entire time span. She explained that the notice of violation and the notice of civil penalty assessment (which mimicked the statute) failed to specify a defined time period (with an end date) and a clear monetary amount. The judges had concerns about the way the notice was written, which is the law of the case because it was not pursued on appeal.

Attorney Inserra clarified for Vice-Chairman Page that Judge Hobgood and Judge Stephens ruled that the notice of violation was deficient because it failed to specify a defined time period. She stated that this case is an anomaly because most people respond to violations rather quickly as opposed to Mr. Graham’s lack of compliance. Due to the impact of this particular ruling, clear end dates are being defined. In addition, the attorney’s office is moving immediately for injunctive relief.

Attorney Inserra answered questions posed by Commissioner Cheek. She replied that the
property is no longer owned by Mr. Graham; the property is owned by U.S. Capital Partners, which was issued a violation of noncompliance in December since no plan has been filed. Action is currently taking place to make it in compliance with the UDO. However, the property is stabilized in such that no risk is posed. There is no evidence that any damage has been caused by the conditions on the property.

Attorney Robert informed the Board that Mr. Graham totally complied with Judge Jones’
preliminary injunction. The property was completely stabilized under difficult
circumstances.

. . .

Following several additional questions from Chairman Reckhow and Commissioner Heron,
Attorney Inserra stated that signed decisions must be presented by Friday unless the decision is made to adopt Judge Gray’s decision.

Attorney Inserra informed Chairman Reckhow that the County has a “good argument” that
the time period was not heard.

Vice-Chairman Page expressed that he was inclined to agree with Commissioner Cheek that this case should be brought to an end. He asked additional questions for clarity.

Commissioner Cheek stated the complexities of this specific case. “No good can come out of the County pursuing this case.”

Per a question by Vice-Chairman Page, County Manager Ruffin responded that this is the
first case since his becoming County Manager that the judge did not find in favor of the County.

Commissioner Heron moved to accept the County Manager’s recommendation and adopt Judge Gray’s decision. *

The motion died for lack of a second.

Commissioner Cheek moved, seconded by Vice-Chairman Page, to adopt Judge Gray’s decision (“simply in order to put an end to this”).

Vice-Chairman Page stated that he was supporting Commissioner Cheek’s motion because
he feels that Mr. Graham has “dearly” paid for his mistake. The Board should always deal with cases on a case-by-case basis. Too much of a risk is being taken if the County moves forward.

The motion carried with the following vote:

Ayes: Cheek, Cousin, and Page
Noes: Heron and Reckhow
Absent: None

* I believe the minutes are in error here, and that Commissioner Heron's motion should have been recorded as to reject Judge Gray's decision.

Perhaps one of my legal eagle readers can comment on this, but the way i read it, Durham put up with a couple of illegal dumps for several years, and then wasn't able to collect the fines it levied on the owner of the dumps. We got out-lawyered.

anyway, that's the case i was asking our guests about a couple of weeks back, if you were curious. It wasn't a rezoning case, but it does point out, i think some of the challenges in enforcing zoning regulations.