Dependable Erection

Tuesday, March 16, 2010

What's the difference?

So, when i was at City Council last night for the Major Special Use Permit hearing on the McDonald's parking lot expansiion, we asked, on behalf of Northgate Park NA, Colonial Village NA, Duke Park NA, Ellerbe Creek Watershed Association & duke Park Preservation Initiative, for a 60 day delay to allow these groups to review the site plan, which some of us had gotten less than 2 weeks earlier, and others not until last night, and come up with constructive dialog about any changes that we might like to see.

City Attorney Patrick Baker described the granting of such a delay in this kind of quasi-judicial hearing as "unprecedented."

If that's the case, what exactly was it that Council did back in December when they granted a 60 day delay in the Broad Street Cafe Special Use Permit hearing? Or was that, like the Supreme Court said in Bush v Gore, not to be taken as a precedent?



  • @Barry: The Broad Street Cafe hearing was Board of Adjustment. Last night was City Council. Both have quasi-judicial elements to them; I don't know if there's a difference between their approaches, but it's possible.

    By Blogger Kevin, at 5:28 PM  

  • i was told that Baker's "unprecedented" comment was simply wrong, and that the same rules applied to both procedures.

    but i don't know, so that's why i'm asking.

    By Blogger Barry, at 7:48 PM  

  • Barry, to the very best of my recollection, I do not recall a single time the City Council has deferred ruling on a quasi-judicial hearing after testimony was entered on the record. Also, it is my understanding that the deferral in the Broad Street Cafe matter was based in large part on the need to reconcile the contradictory relevant testimony of the parties entered on the record that was before the BOA. With the issue Monday night, no contradictory evidence or testimony (relevant or otherwise)was placed into the record. The deferral request as I understood it was to allow you more time to review the proposal and either support or oppose the application at a later date.
    In retrospect, had I been aware you intended to request a deferral of this matter for the reasons your stated Monday night, I would have brought that to the attention of the Council prior to the opening of the hearing. I believe it would have been more appropriate to address your request before opening the hearing. I will debrief with the administration and the Council about this situation. I have a suggestion that could help avoid this specific situation in the future but obviously would like to discuss it first with my clients before proposing it publicly.

    Patrick Baker
    City Attorney

    By Blogger Patrick, at 9:55 AM  

  • Thanks, Patrick. We were, as was apparent, completely unprepared and unaware that Monday's hearing was of the type it was. I really thought things were at the beginning of the process, rather than the end, and that asking for 60 days, or 30 days, or whatever, would be granted as a matter of course.

    With even a couple of hours of preparation, i think that a lot of the "expert" testimony presented by K&L Gates, especially the ex-cop traffic safety stuff, could have been shown up as the sham that it was.

    In the long run, whether McDondald's gets 10 extra parking spaces or not is not that big a deal. What is a big deal, to me, is first, the process by which these things get done. Obviously flawed, if people as plugged in ass Mike and i, and groups as active as our NAs and ECWA, had no idea what was going on.

    Second, if the UDO really requires more parking than is available, that document has got some problems. Twenty years from now, if we're still talking about parking issues, Durham will simply have fallen too far behind other cities with robust transportation alternatives to be a desirable place to live.

    Finally, great that McDonald's is installing some stormwater retention devices. But what is going to be done about the 20 acres or so of paved lot two hundred yards east that completely floods the creek whenever it rains? Farad Ali may not be around in 10 years, but plenty of other people will be.

    By Blogger Barry, at 10:14 AM  

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