Answering a request by Durham County Attorney Lowell Siler, the state
Attorney General's staff appears to affirm that the state DOT acted legally
in revoking its own acceptance of property from the 751 South developers.
Special Deputy Attorney General Richard Moore sent his response to Siler
this afternoon. (See link below.) Siler could not be reached for comment.
Siler had asked, in a July 28 letter to Moore, for an opinion "clarifying
the legal authority for NCDOT to execute the Declaration of Revocation,
Rejection and Termination" returning the property to Southern Durham
Moore's letter cites state law to the effect that the state Board of
Transportation has authority to "change, alter, add to, or abandon" parts of
the state highway system, that the board and specific employees of DOT have
power to delegate authority and that such authority includes "release of
interests in land acquired for right-of-way, but not used nor needed for
However, Moore adds, "This letter has not been reviewed as would be required
for a formal Attorney General's Opinion."
If DOT's recision stands, it re-validates a protest petition that requires
four of the five county commissioners to vote in favor for the developers to
win a rezoning critical to building their project.
In July, prior to the county commissioners' hearing on the rezoning,
Southern Durham Development, donated a strip of land along N.C. 751 to DOT
for right-of-way if the road is widened. DOT accepted the land, though it
has no plan to widen the road in the near future.
After DOT authorities learned that, by accepting the land, they had
invalidated a petition against the 751 rezoning, the department revoked its
acceptance to avoid affecting a local zoning matter. That happened on the
afternoon of July 26, just prior to the commissioners' rezoning hearing.
During the hearing, Siler said he was not certain that DOT had authority to
revoke its acceptance and asked for time to research it, and its effect on
the protest petition's validity.
The commissioners' hearing resumes during their meeting Monday night.