Spoiler alert: While the win described here is notable, the real point is the win wouldn’t have happened without a public hearing.
The pending UDO revision threatens to upzone Durham to allow greater density up to the Urban Growth Boundary (UGB). Since rezoning is the most common reason public hearings are required, an across the boards upzone will reduce the opportunities for citizens to be heard. If you don’t want your voice silenced with regard to major development projects in the city and in the county, tell Durham electeds to vote “NO” on upzoning Durham. Electeds’ email addresses below.
The Win: Doesn’t happen often, but the good guys won on August 21, 2025. The North Carolina Court of Appeals held the neighbors of a proposed 141 unit subdivision were correct in asserting the project did not meet the UDO’s criteria to be awarded “conservation subdivision” status. “Mason Farms” should not have been designated a conservation subdivision by the planning department, and its site plan should not have been approved by the planning department or the Board of County Commissioners.
In Barefoot, et al. vs Durham County the Court of Appeals held that the words of the conservation subdivision ordinance, UDO 6.4.2, meant what the words said, which was: “The conservation subdivision shall be established for the following purposes:” Twelve purposes were listed. Mason Farms didn’t qualify because, at best, it proposed to meet only six of the purposes. The UDO itself says “shall” means mandatory. The court noted it’s decision was bolstered by the fact that the conservation subdivision ordinance was amended in 2008 to expressly state that listed purposes were regulatory standards required for site approval.
You don’t have to be a lawyer to understand why the Court of Appeals ruled in the neighbors’ favor. It’s simple, the words of a law mean what the words say. Common sense says so and so does Durham’s UDO. That’s it.
The Durham Planning Department not only knew what the words of the conservation ordinance meant, the planning department authored the 2008 amendment clarifying that the purposes were regulatory standards, equal to required primary and secondary conservation areas. Nonetheless, the county admitted to the court of appeals that fifteen conservation subdivisions had been approved despite failing to meet all the required purposes.
The Important point is the importance of the public hearing. Of course, the Barefoot decision is very important to the people directly involved and their neighbors and supporters. It’s impact on future conservation subdivision applications remains to be seen; when confronted with the Barefoot group’s insistence that the conservation subdivision ordinance meant what it said, the planning department convinced both the council and the BOCC to amend the ordinance to match the planning director’s erroneous interpretation. Under the amended ordinance developers get all the benefits even if they meet none of the purposes. I will soon be writing a detailed analysis of that travesty.
For now, the lesson for all of us is that the Mason Farms neighbors learned the proposed subdivision would fail to meet the UDO’s required conservation subdivision purposes because there was a public hearing. There was a public hearing only because Mason Farms needed a special use permit to install community septic systems. Most conservation subdivisions do not require approval by city or county electeds – no public hearing, no public input, no oversight by our elected representatives. That’s how fifteen conservation subdivisions, none of which achieved all the required purposes, were approved.
The fact is, most development applications bypass council or BOCC hearings. Public hearings before a governing board are required only when a developer requests rezoning, special use permits, or annexation. Otherwise, the public and electeds are shut out.
Administrative approvals, those processed entirely within the planning department, are supposed to strictly follow the UDO without any discretionary judgments by the planning department. The Barefoot case proved the planning department, working closely with developers, does deviate from the UDO and has done so for years. For the majority of development applications that are administratively approved without public oversight, we simply don’t know whether the requirements of the UDO are being enforced on any development.
Processing of development applications is a public function and it should be open to the public. This is not to say that lawful applications for development should be denied. However, public hearings are critical to assuring the public that public policies and purposes are being served AND the law is being followed. If you (my fellow wonks) want to view this in action, you can view the Mason Farms public hearing on the county’s Youtube chanel.
https://durhamcounty.granicus.com/player/clip/1349?view_id=3&redirect=true It starts at 2 hours 37 minutes in. Across the bottom of the screen is written “Mason Farms quasi-judicial hearing.”
The foundation of the Court of Appeals decision was laid by citizens speaking at that public hearing.
MOST IMPORTANT POINT: The UDO is well into a revision. The planning department is pushing electeds to upzone the entire county. Far more dense development would be allowed beyond the future growth area up to the Urban Growth Boundary (UGB). That means developers would not need to request rezoning, one of the major triggers for public hearings. There would be even fewer public hearings than there are now – not none, but fewer.
If you don’t want your voice silenced with regard to major development projects in the city and in the county, tell Durham electeds to vote “NO” on the upzone.
City Council:
Leonardo.Williams@durhamnc.gov
mark-anthony.middleton@durhamnc.gov
Javiera.Caballero@durhamnc.gov
Board of County Commissioners:
Save Durham 