Pass the popcorn

N&O:

Durham County Attorney Lowell Siler may have concluded that the state Department of Transportation had no authority to un-accept a land donation from a Durham, but NCDOT is sticking by its guns, so to speak.

Even if the business goes to court, DOT spokeswoman Greer Beaty said this afternoon.

"We stand behind our actions," she said. "We took legal action we had the authority to take."

Perhaps K&L Gates, which apparently provided County Attorney Lowell "Encyclopedia Brown" Siler with the legal advice he needed to reach his conclusion, will pick up the county's court costs?

The only good thing that's going to come out of this clusterfuck is a clean slate on the Board of County Commissioners. Too bad that can't happen till 2012.

Continue reading Pass the popcorn

More on Siler

Samiha's doing her homework over at the Indy:

Before presenting his legal opinion (PDF) Monday night that the N.C. DOT didn't follow the proper procedure in abandoning a piece of land, Durham County Attorney Lowell Siler consulted five law experts on their opinions in the matter.

. . .

The input sent to Siler's office during the past two weeks was divided, and of the five lawyers and legal experts, only one was an apparently uninterested party: Charles Szypszak, a retired professor from the UNC School of Government, who provided a one-paragraph opinion stating he was "reluctant to conclude that the state's revocation was ineffective."

The others Siler consulted with included the State AG's office, an attorney representing some of the opponents to the rezoning application, and two others, including the ubiquitous Patrick Byker, who represent various members of the development team.

I'm not sure i agree with Samiha's description of the AG's office as an interested party, but that's a minor quibble. Read the whole piece.

Continue reading More on Siler

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?

Ark of the Covenant located at last!

Samiha at the Indy reports that W. Richard Moore at the NC Attorney General's office has given Boy Detective Encyclopedia Brown County Attorney Lowell Siler a letter outlining the state's authority to reject Southern Durham Development's gift of an easement along NC 751.

The easement would have invalidated a protest petition filed against a rezoning request by moving the boundary of the land more than 100 feet from a number of signatories on the petition. By rejecting the easement, the state seeks to step away from Durham's internal processes and allow the case to be decided by current law. I imagine that Siler will have a busy weekend looking for holes in the State's document.

Keystone Kops Law Firm K&L Gates attorney Patrick Byker, representing SDD has threatened to sue the state if they give the land back. That ought to be amusing.

I swear, you can't buy entertainment like this at any price.

Continue reading Ark of the Covenant located at last!

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

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