Abernathy said he needed time to study the cases attorneys had cited in their arguments over a motion for summary judgment filed by attorneys for Durham County and Southern Durham Development Inc. A group of southern-Durham property owners brought the suit against the county in 2010 over a ruling that invalidated their petition opposing Southern Durham's town-sized 751 South project.
The plaintiffs' attorneys oppose the summary-judgment motion, by which the defendants acknowledge that they do not contest facts and request it be decideed as a matter of law.
Before adjourning this morning, Abernathy quoted a legal proverb: "Bad facts make bad cases."
"This case is replete with bad facts," he said. "I'd better leave it at that."
A ruling in the defendants' favor could end the lawsuit or not, depending on exactly what Abernathy rules. A ruling in the plaintiffs' favor leaves the suit on schedule for trial in November.
Attorneys for both sides spent more than four hours Thursday and this morning presenting their arguments.
The suit had been scheduled for trial in November, but the county and Southern Durham are seeking a quicker decision in a controversy that has gone on since early 2008, delaying any work on the project site.
The suit names only Durham County as defendant, but Southern Durham intervened "to add our voice to the suit," said Cal Cunningham, an attorney representing the firm.
As the arguments have developed, the case comes down to whether a state Department of Transportation employee had authority to accept a right-of-way easement from Southern Durham Development. The plaintiffs contend he did not, the defendants that he did.
The plaintiffs filed a protest petition in advance of a county commissioners’ vote on a rezoning request for 751 South. City-County Planning Director Steve Medlin at first ruled it valid, but then, after learning of the easement's donation, ruled the petition invalidated because the donation moved Southern Durham’s property line beyond the area in which the petitioners in eligible to protest.
A valid petition would have required a 4-1 vote to approve the rezoning. After Medlin’s second ruling, it passed 3-2.
Before the vote, DOT revoked its acceptance of the easement. County Attorney Lowell Siler maintained that DOT had no authority to do so, although several legal authorities, including the state Attorney General's office, advised otherwise.
If completed, 751 South could include up to 1,300 residences, 300,000 square feet each of office and retail space and 150,000 square feet of "civic floor area" on N.C. 751 near the Chatham County line.
The project has been an object of fierce contention for three years, over its possible environmental effects and the process by which it has been maneuvered through planning, review and approval processes.
