A small, but necessary, step in the right direction

From my old stomping grounds. Is this even on our Durham Board of County Commissioners' radar?

Suffolk County, on the eastern half of Long Island, moved to create the nation's first animal abuse registry this week, requiring people convicted of cruelty to animals to register or face jail time and fines.

"We know there is a very strong correlation between animal abuse and domestic violence," said Suffolk County legislator Jon Cooper, the bill's sponsor. "Almost every serial killer starts out by torturing animals, so in a strange sense we could end up protecting the lives of people."

There's no immediate benefit to Durham County coffers, so i can't see the clown show making an effort in this direction. But don't you think that improving the quality of life in the county will have more long term benefit than shitty development that may very well end up vacant in 15 years?

Suffolk county also, about 5 years ago, responded to the first known cases of rabies in the wild with an aggressive program to eradicate the disease by providing oral vaccines in salt licks in the area where the outbreak occurred. Here in Durham, where rabies is endemic in our raccoon and fox populations, the county's preferred solution is to tell you to avoid contact with wild animals, and where rubber gloves when disposing of any carcasses you find on your property.

Continue reading A small, but necessary, step in the right direction

Number one reason to live in Durham

"It may not pass the smell test, but it's legal." - County Attorney Lowell "Encyclopedia Brown" Siler, at the Durham BoCC meeting, 8/9/10.

Nice to know we've set the bar so high.

Continue reading Number one reason to live in Durham

Is that Lowell Siler I hear giving his opinion about the NCDOT revocation?

Actually, no, it's not. Two weeks after saying his office needed two days to review, and a whole weekend after receiving the state AG's decision on the validity of the easement revocation, County Attorney Lowell "Encyclopedia Brown" Siler is still silent on whether NCDOT's revocation of an easement given by Southern Durham Development is valid or not. The validity of the revocation is directly proportional to the validity of a protest petition filed against a rezoning request by SDD - if the revocation is valid, the petition is valid, and SDD looks set to come up one vote short for their rezoning request. If the revocation is invalid, then so is the petition, and SDD will probably have enough votes at the Board of County Commissioners. Add to the mix is that Planning Department Director Steve Medlin is the official who actually makes the call on the validity of the petition, and he is not obligated to follow Siler's opinion. A correspondent informs me that as of 4 pm today, Medlin had still not heard from Siler.

Gee, i wonder how this will play out?

Continue reading Is that Lowell Siler I hear giving his opinion about the NCDOT revocation?

751 decision tonight? Billboards on the agenda?

Ringling Brothers and Barnum & Bailey's Greatest Show on Earth Durham Board of County Commissioners meets tonight with two, count 'em two, pressing issues on the agenda, although one might get dropped.

First up, a continuation of the hearing begun 2 weeks ago regarding the rezoning application for the proposed 751 South development project down near Jordan Lake. Since we last checked in with the Commissioners, County Attorney Lowell "Encyclopedia Brown" Siler has received his answer from the NC Attorney General's office regarding the legal grounds the state believes it has to revoke the NCDOT's acceptance of a land easement from the developer, Southern Durham Development, Inc. The 41 foot wide strip of land was just wide enough to push the boundaries of the property far enough away from that of many of the signatories to a protest petition against the rezoning, which would have had the effect of invalidating the petition.

Of interest to note in this process is that one of SDD's attorneys, Patrick Byker of Keystone Kops law firm K&L Gates, was quoted by NCDOT officials who originally accepted the easement as saying the gift was made to "show good faith." Byker's client, Alex Mitchell, was subsequently quoted by area reporters as saying the easement was given specifically to invalidate the petition. It's precisely this action by Byker that has a number of local residents, according to some rumors we're hearing, considering filing complaints with the NC Bar Association. Stay tuned for developments on that, which i'm sure will be lots of fun if they turn out to be true.

Anyway, it's up to Siler to render an opinion on whether or not NCDOT's revocation of the easement passes muster. Planning Department Director Steve Medlin can then accept Siler's reasoning or, as i understand it, issue an independent judgment on the validity of the protest petition. Either way, expect to hear from one or the other party tomorrow night that further legal action is being prepared.

Also on the agenda, maybe, is the proposed amendments to Durham's Uniform Development Ordinance to make billboards legal again, and invite new hi tech digital billboards into the county. Fresh on their stinging 7-0 rebuke at the hands of the City Council last Monday, though, Fairway Outdoor Advertising and their attorney, Patrick Byker of K&L Gates (dejá vu, anyone?) have asked for a one month delay in having the BoCC consider the billboard issue. Byker was quoted by local media as saying the request was based out of concern for the Commissioners having to deal with too many difficult issues in one night.

I give about as much credence to that as i do to his statement about "showing good faith" with NCDOT, to be honest.

The fun and games kick off at 7 pm at the County Commissioners chambers in the Old Courthouse, 200 East Main.

Or you can stay home, make a big bucket of popcorn, and watch proceedings on Time Warner Cable channel 8. Let's hope Chair Michael Page watched Mayor Bill Bell manage the billboard issue at last week's Council meeting. Another fiasco like the BoCC's meeting two weeks ago and Durham might start to develop a reputation, if you know what i mean.

Get all the background you need from Samiha Khanna at the Indy's Triangulator blog; Jim Wise at the N&O's Bull's Eye blog; Ray Gronberg at the Herald Sun; and Kevin and Rob at BCR. Search on 751 or billboards when you get to their sites.

Continue reading 751 decision tonight? Billboards on the agenda?

The dog ate my homework

The Indy and BCR are reporting that Keystone Kops Law Firm K&L Gates, attorneys for Fairway Outdoor Advertising, are requesting a postponement of Monday's scheduled public hearing and vote by the BoCC on Fairway's billboard rezoning request. The postponement request comes on the heels of Fairway's loss at the City Council on Monday night.

The Indy sez that Byker has concern's about the BoCC's ability to manage two contentious issues in one night.

The reason for the request is to relieve county commissioners of having to deal with two very contentious issues—changes to the billboard ordinance, and a rezoning case that would allow a controversial development—on the same night, he said. Both are scheduled for public hearings during Monday's meeting, which begins at 7 p.m. A meeting just about that controversial development, 751 South, pushed past midnight two weeks ago.

"I don't think it's fair to county commissioners to have to deal with both on the same night," Byker said. He indicated there was no other reason for asking for the delay, including any benefit to the firm itself, by giving it more time to prepare.

This, of course, is the same Patrick Byker who told NCDOT that his other client, SDD, Inc., was giving a 41 foot wide strip of land as an easement to the highway people to "show good faith," while his client was telling newspaper reporters that the easement was created specifically to invalidate a protest petition that could very well derail the rezoning SDD needs for the project.

Given that, we can assume that Mr. Byker probably had other concerns on his mind than the well-being of our County commissioners.

Continue reading The dog ate my homework

So many lawsuits, so little time

According to Jim Wise at the N&O, K&L Gates attorney Patrick Byker, representing Southern Durham Development, Inc., is threatening to sue the NCDOT if they don't rescind their revocation of their acceptance of the easement that Byker gave them back on July 13 of a 41 foot wide strip of land. NCDOT says that Byker claimed he was giving the easement to the state to "show good faith," but his client was later quoted as saying that the gift was intended to push the boundary of the land far enough away from the folks at the Chancellor's Ridge subdivision that their signatures could no longer be counted on the protest petition that's been filed against this rezoning request.

Reader RH writes to me to say that this very technique was used a decade and a half ago in Chapel Hill to get approval for the Hogan Farm subdivision; before my time, i think, so i'll leave it to you as an exercise in Google to see what happened in that case, and who the attorneys might have been.

But what's Byker going to sue on? He's claiming the revocation is "unlawful." If it is, then i'm sure that Boy Detective Encyclopedia Brown County Attorney Lowell Siler will figure that out in the nick of time before Monday's BoCC meeting, and rule the petition invalid, at least long enough for the commissioners to vote 3-2 in favor of the developer. If Siler can't find the grounds to invalidate the revocation, and lord knows he's spent enough time looking, then Byker's just blowing smoke, and he knows it, and so does NCDOT. A lot of folks i talk to believe that Siler will come up with something around 6:00 pm on Monday night to make the determination that the protest petition is invalid.

That, though, will almost certainly invite a second lawsuit against the county, since, as yoiu may recall, Siler similarly ruled a protest petition invalid last fall, allowing a 3-2 vote to be recorded accepting the new watershed boundary, only later to determine that the petition was in fact valid, but that no new vote needed to be taken.

Will recent history repeat itself Monday night?

My money says yes, but i'm just a cynical old fart with no faith in the goodness of humanity.

Continue reading So many lawsuits, so little time

Rewarding incompetence

Good thing i spent a relaxing day at the beach yesterday, cause something like this could really get my blood pressure up.

Southern Durham Development admittedly attempted to foil a second petition that included Chancellor’s Ridge homeowners last week, by donating land rights to part of its property to the North Carolina Department of Transportation. When the N.C. DOT realized its acceptance of that land would nullify the citizens’ petition on a technicality, the department attempted to revoke its acceptance.

The last-minute maneuver also pushed back, yet again, county commissioners’ attempt to vote on 751 South, an event that has been scheduled and rescheduled since last spring.

On July 26, when commissioners were on the verge of voting, Durham County Attorney Lowell Siler asked them for more time to consider whether the N.C. DOT’s revocation, which was written by lawyers at the attorney general’s office and filed in court, is legally binding.

Siler’s decision is expected Aug. 9, when commissioners meet at 7 p.m. to vote on whether to allow 751 South to go forward—a move that could put the issue to rest, at least for the time being.

Jumping Jesus on a pogo stick, Lowell. You said you needed 48 hours last Monday to make a determination as to whether NCDOT's revocation of the easement passed muster. Indiana Jones found the Ark of the Covenant in less time than it's taken you to try to find a hole in NCDOT's revocation. I mean, what the fuck else could you possibly be looking for, since the attorneys at NCDOT and the state AG's office have vetted this document as valid? Are you sure you're being objective here, or is your office actually being used to try to sway the outcome of these hearings?

If you do find a way to declare that NCDOT's actions don't count, and as a result the opponents' protest petition is invalid, and the rezoning application has enough support on the County Commission to pass, you do realize that your name will be forever linked with shady and dishonest dealings in Durham County lore, right?

But i suppose that, like former County Commissioner Lewis Cheek, there's probably an office with your naming waiting over at K&L Gates.

Continue reading Rewarding incompetence

96 hours

96 hours or so ago, Durham County was notified by the NCDOT that Southern Durham Development's attempted gift of 41 feet of right of way along NC 751 was being rejected. The gift, as SDD pres Alex Mitchell was quoted as saying, was an explicit attempt to invalidate a protest petition against a rezoning application that SDD has pending before the Board of County Commissioners. AT Monday night's BoCC hearing on the rezoning app, County Attorney Lowell Siler stated that he would need 48 hours to determine whether or not the rejection was valid.

That was 96 hours ago.

Unless he meant 48 working hours.

Who knows?

Maybe Siler can go to work for Priceline.com when he decides to leave the sphere of public service.

Continue reading 96 hours

Paging Lowell Siler

Now approaching 86 hours since County Attorney Lowell Siler said his office needed 48 hours to review NCDOT's rejection of the Southern Durham Development's easement.

Yesterday, SDD president Alex Mithcell was quoted in the N&O as saying that the reason he went ahead with the easement was to disenfranchise opponents of his project by invalidating their protest petition.

NCDOT and the state Attorney General's office continue to maintain that the revocation is legally binding.

What could County Attorney Siler possibly be looking for that is taking so long to find?

Continue reading Paging Lowell Siler

Truth outs

Herald Sun, yesterday:

Hopkins told Ruffin the original discussion lapsed after the first meeting, resuming only on or about July 12 -- after the window for neighbors to file a protest petition had closed. At that point, lawyer Patrick Byker contacted DOT officials to move the donation through.

Byker was "in a hurry" to complete it, and when asked why the rush, told DOT officials his clients wanted to show "good faith" by making the deal before the hearing, Hopkins said.

But such a showing was unnecessary, as the developers already had formally promised city/county planners they would give DOT an easement along the N.C. 751 frontage of the site in return for the rezoning.

N&O, today:

The widening is not in DOT's near-future plan, said (Southern Durham President Alex) Mitchell and DOT engineer Joey Hopkins, but Mitchell said he went ahead when he realized that donating the right of way would invalidate the protest petition.

"I have a group of opponents who wake up every day trying to think of ways to block this plan," he said. "I'll do everything within my power, legally, to move it forward."

So, Patrick Byker lied to state officials in his capacity as the attorney representing Southern Durham Development, Inc.

And people wonder why opponents of this plan don't trust the developers to make good on their promises.

Continue reading Truth outs

Paging Lowell Siler

It's been over 48 hours since the NCDOT filed its papers rejecting Southern Durham Development's gift of 41 feet of right of way along highway 751, a gift which coincidentally happened to disenfranchise a good chunk of citizens who had added their names to a protest petition against rezoning that company's land.

Herald Sun reporter Ray Gronberg has managed to suss this out:

A DOT official, Deputy Division 5 Engineer Joey Hopkins, said the document, drafted with help from N.C. Attorney General Roy Cooper's staff, was modeled on instruments the agency uses to give up temporary easements.

State law, meanwhile, clearly suggests that DOT has the General Assembly's permission to walk away from a donation.

The statute establishing its power to accept one, G.S. 136-19, says that if the department "later determines that the property acquired for transportation infrastructure, including highway right of way, or a part of that property, is no longer needed," it should give "first consideration" to a repurchase offer from its former owner.

Such an offer in this case would appear superfluous because no money ever changed hands between DOT and the developer. The easement also didn't convey anything beyond usage rights to the agency.

The law also makes it clear DOT is the sole judge of its own property needs.

Siler's inability to come to a conclusion in this case leads one to wonder, can he find his ass with both hands, or does he need a map and a flashlight?

Continue reading Paging Lowell Siler

Well played, Byker

In all the hubbub last night about Transportation Secretary Conti's apparent revocation of a deed of easement given by SDD to the state i neglected to pay my compliments to Patrick Byker, from K&L Gates, attorney for the developers.

Gotta admit, the idea of disenfranchising a whole group of homeowners from participating in the rezoning process by giving away a 41 foot strip of land and thereby pushing them out of the 100 foot proximity zone in which petitioners must own property was genius. Topping that off by waiting 10 days, until the close of business on the Friday afternoon just prior to the big vote on the project was the sour cherry on top of a very large sundae.

This is the kind of legal maneuvering that keeps people who write lawyer jokes for a living employed, and given today's economy, any job kept is a good one, right?

So keep it up, Mr. Byker. I'm sure that County Attorney Lowell Siler will also be appreciative of your assistance as he searches desperately for a way to find that Secretary Conti's action yesterday is somehow not legally binding. If anyone can do that, it's you.

Continue reading Well played, Byker

A victory for common sense

Email just received from NCDOT revoking the easement from Southern Durham Development. This means the protest petition is still valid, and the developers will need 4 votes to get their rezoning request approved.

Good luck with that.

NCDOT ISSUES "REVOCATION OF ACCEPTANCE" REGARDING DONATION OF RIGHT OF WAY

ALONG N.C. 751 IN DURHAM COUNTY

RALEIGH — The N.C. Department of Transportation (NCDOT) learned last weekend that by accepting the donation of right of way along N.C. 751 in Durham, the Department had inadvertently interfered in an active public participation process.

In order to rectify this and restore the public voice in a local zoning issue, NCDOT has issued an immediate “Revocation of Acceptance.” This legally-binding action restores the local public process to its original state.

NCDOT accepted the Right-of-Way in good faith, having not been notified of the “100-foot rule” in Durham County or how accepting this donation would impact the public process. Had NCDOT staff known in advance that this would interfere in that process, we would not have accepted the donation at that time.

Copies of this statement and the “Revocation of Acceptance” are being faxed to the Durham County manager’s office and the attorney for the property owner at this time.

i just need to add that this is the first time in a very long time that i feel as though my contact with a public official has resulted in some sort of positive change. Thanks to everyone who emailed Transportation Secretary Conti today to make this request. And thanks to the Secretary for recognizing the importance of the local process, and the nature of the game that SSD and K&L Gates attempted to play with the process.

Continue reading A victory for common sense

Closed session - UPDATED

The Durham County Board of Commissioners will meet in a Closed Session at
10:00 a.m., Thursday, November 19, 2009, in the Commissioners’ Conference Room (second floor of the Durham County Administrative Complex, 200 East Main Street) to consult with an attorney, to preserve the attorney-client privilege, and to discuss Southern Durham Development, Inc. v. Durham County; Filed in Durham County Superior Court (File No. 09 CVS 004125) pursuant to N.C.G.S. § 143-318.11(a)(3).

As one of my commenters suggested:

The subtext to Thursday's closed session of the BOCC goes something like this:

"The county is going to be sued by whichever party we rule against. One of the primary determinants of the cost of defending a lawsuit is the amount of money and time the plaintiff is willing/able to spend on the lawsuit. Southern Durham Development has already filed suit, and their client has millions of dollars in property development value riding on it. The Haw River Assembly and Southern Environmental Law Center haven't demonstrated that they can or will bring the same firepower to the courtroom. So, the best way to save the county a bunch of money is to deny the protest petition and hunker down."

Just so.

UPDATE: County Commissioners emerged from closed session about 45 minutes ago, and County Attorney Lowell Siler stated that the Board's action on October 12th, in which a 3-2 majority approved moving the critical watershed boundary around Jordan Lake, would be upheld, despite the Planning Department's opinion that a protest petition filed against the move was valid. The County Attorney's office will argue that one of the signatures on the petition, belonging to the president of a homeowners association, is not valid due to the lack of standing of that person to sign on behalf of the property owned in common by the HOA. He further stated that the matter could only be decided in Superior Court, inviting additional lawsuits against the county from private citizens and other groups that have been opposing the redrawing of the watershed boundary. Commissioner Becky Heron indicated that the board was not unanimous in supporting that position, although no vote was taken during the closed session.

I'll have a full report on this development tonight on Shooting the Bull, 7:30 pm, on WXDU, 88.7 FM.

Jim Wise at the N&O, Samiha Khanna at the Indy, and Matt Milliken at the Herald-Sun also have reports on today's developments.

Continue reading Closed session - UPDATED

Yikes! Jordan Lake case gets ugly

Pass the popcorn:

If valid, the petition would have required a 4-1 "super majority" vote to approve the rezoning and amendment. However, the planning department ruled it invalid because the signatories represented less than the necessary 20 percent of affected acreage, and the changes passed 3-2.

After the vote, the SELC reviewed ownership records and claimed the planning department had been mistaken and that the changes failed to win approval.

In an email this morning to County Manager Mike Ruffin, Durham resident Steve Bocckino said Medlin's report "deemed valid" the petition.

"Now that the long-overdue verdict is widely known (and it is!), it is the appropriate time to formally announce the previous error," Bocckino said.

This comedy of errors would be funny if it didn't affect, you know, the entire future of development in Durham County.

How long will it be before Commissioner Bowser tries to fire Steve Medlin?

Continue reading Yikes! Jordan Lake case gets ugly

More about rabies

From my old hometown:

1/16/2009



The Suffolk County Department of Health Services reported that terrestrial animal rabies has been confirmed in a raccoon found in Huntington, Suffolk County. The raccoon was found dead on Dewey St. on January 8, 2009. The Suffolk County Department of Health Services submitted the specimen to the New York State Department of Health Rabies Laboratory, where the rabies virus was confirmed. There was no known human contact with the raccoon.

This is Suffolk County's nineteenth case of terrestrial animal rabies since March of 2006 when the first case was found. All cases have been from the Huntington/Lloyd Harbor area.

. . .

Suffolk County has been actively distributing oral rabies vaccine to wildlife since September 2006. This has been complemented by similar efforts in Nassau County. The goal of this program is to vaccinate terrestrial wildlife against rabies in order to prevent further spread on Long Island.

In this map of Long Island, Suffolk County essentially extends from "Melville" on the west all the way to Montauk and Orient Points on the east.

And this closeup shows the area where all of the rabies cases have been found.

Suffolk's got about 6 times the population of Durham County, but only about double the population density. Huntington Township, the area where all of Suffolk's rabies incidents have occurred, has a population nearly that of Durham's (just under 200000 in 2000) in about 1/8 the area. Compare Huntington to the City of Durham, however, and things are much more alike, with both municipalities covering an area a little under 100 square miles, and densities around 200 people per square mile.

19 rabies cases in 3 years averages a little over one every two months. In Durham, we've had 4 in about 6 months.

Do we even have a response from the County Health Department, or is all of this being placed on our already overworked Animal Control Department to manage?

Continue reading More about rabies

Rabies

Herald-Sun:

A gray fox Tuesday emerged from the woods near Westminster School for Young Children and bit a student, a little girl, on the leg.

The animal ran into the woods but was captured.

"Eight animal-control officers responded -- promptly," said the Old Chapel Hill Road school's director, Kathy Stickley.

The fox was killed, and a sample has been sent to a lab for rabies testing, Durham County Animal Control Director Cindy Bailey said. Results are expected today.

Stickley sent home a note explaining that the children were on the playground when the fox slipped in and attacked the child.

After the fox attacked, a staff member called 911, and then called the little girl's mother. Emergency personnel showed up and treated the child.

The little girl's classmates were intrigued by the fox.

"They're very interested in it," said Stickley, who praised her staff for keeping the kids calm and otherwise handling the situation.

Bailey recommended that the children stay off the playground for a while. The dead fox was a juvenile, so there could be a litter of young foxes lurking in the nearby woods, Bailey said.

Bailey's officers have set traps to apprehend any foxes that might venture outside of the woods.

Same story, reported by the N&O:

A young fox climbed into a fenced play yard at a Durham day care Tuesday morning and bit a 4-year-old girl.

. . .


George Strader, a state wildlife biologist, said fox attacks are uncommon and typically indicate rabies.

"These are actually the first I've heard of this year," he said.

Animal control personnel in both counties blamed the attacks on rabies.

"He looked like Marty Feldman," Hess said of the gray fox he caught after the Chapel Hill attacks. "That's a furious form of rabies."

Both foxes were sent to the N.C. State Laboratory for Public Health for rabies tests. The victims will need vaccines.

"All the indicators ... would say yes," Durham animal control administrator Cindy Bailey said of the likelihood of rabid foxes. "Those are not actions that a healthy fox would take. They would retreat from a child and go back in the woods."

The first attack occurred about 10 a.m. Tuesday on the playground at Westminster School for Young Children in Durham. The fox chased some children and bit one girl on the back of the leg before escaping.


Responding to a 911 call, eight Durham Animal Control officers were able to trap the animal in a large trash can.

"It angrily pulled everything that was in the trash can out," Bailey said. "I had my entire field staff out there. ... They were using the trash can to shield their bodies from the fox."

Thumbs up to the N&O for getting the significance of the story out there. Next time you get a chance, ask the Durham County Commissioners just how many pets in the county are actually registered and up-to-date on their rabies vaccines.

Continue reading Rabies