Open letter to Durham City Council, BOCC, Board of Adjustment, and Planning Commission
Electeds, Stop turning your authority over to the planning department.
You owe it to the residents of Durham to keep development decisions transparent. Public hearings are the only effective tool the public has to expose malfeasance in the processing of development applications. Public hearings are your only chance to exercise oversight of critical development decisions. Stop letting yourselves be played by the staff that is supposed to serve you and the public. Don’t think it happens? See Mason Farms and Discovery Charter School discussions below.
You may believe the planning department will never deviate from what is legally prescribed. Let’s do a reality check:
MASON FARMS. Y’all should have listened to the citizens. Looking at you, Commissioners.
Be skeptical of advice from the planning department: Good chance it’s wrong.
Every elected official, planning commissioner, and Board of Adjustment member needs to read and pay close attention to the recent case of Barefoot vs Durham County. The opinion is attached.
The opinion is easy to understand. Here’s the thumbnail:
a) laws mean what the words say,
b) neither courts nor bureaucrats (planning directors) are free to “interpret” unambiguous language of an ordinance,
c) UDO 6.4.2 A. unambiguously stated, “The conservation subdivision shall be established for the following purposes,” with twelve purposes listed,
d) “Shall” means mandatory,
e) the county commissioners violated the law when they approved, arbitrarily and capriciously, the Mason Farms site plan which failed to meet half of the required twelve purposes,
f) the planning director was 100% wrong when she advised the commissioners the purposes were not “regulatory,” and need not be met,
g) the planning director was 100% wrong when she told the commissioners they were required to approve the site plan.
h) the planning department’s admission that it has administratively approved 15 other subdivisions that don’t meet the twelve purposes only proves the planning department has broken the law fifteen times.
I recommend watching the November 28, 2022 BOCC quasi-judicial hearing on Mason Farms. BOCC meeting. It’s like watching a trainwreck in slow motion. Although this was the second attempt at Mason Farms quasi-judicial hearing (the first was invalidated because notice was not posted), the commissioners were still intimidated by the process. Commissioners were fatally dependent on the planning director’s report.
At the hearing, Robin Barefoot established through examination of the project engineer that Mason Farm’s site plan met only six of the twelve required purposes. In my three minutes I explained the meaning of “shall,” and the other cues in the UDO as to why UDO 6.2.4 A meant exactly what it said. The planning director, Sara Young, pulled the commissioners by their noses to her wrong understanding of the ordinance. Her ignorance led the BOCC to violate the law and pushed the county into the losing side of an expensive lawsuit. To see how much the director’s wrong advice has already cost the county, review the invoices from Fox Rothschild, the private law firm the county hired to handle the Barefoot case. In another forum I will critique Fox Rothschild’s representation. Bottom line, the county might as well have burned those tax dollars.
Embarrassingly, the court deemed the Mason Farms approval “arbitrary and capricious” the worst kind of decision making. But it gets worse.
Treachery: A year after the Mason Farms approval director Young and deputy county attorney, Curtis Massey, connived to change the conservation subdivision ordinance to mirror the director’s entirely wrong interpretation and forever deny Durham the intended environmental purposes of the law. The timing was odd because a Durham superior court judge had recently ruled in the county’s favor. Not a surprise as local judges are generally inclined to align with local government. As long as the local judge’s decision stood the planning department could safely continue to ignore the words of 6.2.4 A and approve conservation subdivisions meeting none of the purposes.
What triggered the director to take the extreme action of pursuing an official evisceration of the conservation subdivision ordinance was Ms Barefoot’s decision to appeal the local judge’s ruling on the summary judgment motions. Young and Massey probably anticipated that the Court of Appeals in Raleigh, a more deliberative body, was likely to understand statutory construction and view the approval of Mason Farms very differently than the Durham judge.
In an effort to avoid an appellate reversal, Young and Massey concocted a narrative that the ordinance must be changed to protect the county from lawsuits. In reality, in the year since approval of Mason Farms there had been no new applications for conservation subdivisions and no hint of additional lawsuits. Nonetheless, the director and Massey insisted the director’s “amendment” must be expedited to forestall imaginary lawsuits. The real reason was to cut short opponents’ time to organize and to limit time for critical thought by the electeds.
By changing the ordinance the planning director hoped to derail Ms Barefoot’s appeal. The director stated in her report to the county manager dated November 6, 2023.
Executive Summary Staff requests that an expedited hearing be granted due to ongoing litigation which challenges the interpretation and application of paragraph 6.2.4 of the Unified Development Ordinance (UDO) concerning the requirements for conservation subdivision. … The litigation concerns the interpretation of language in paragraph 6.2.4. Relatively minor amendments to that paragraph will resolve the matter and permit the existing interpretation and application of that paragraph to continue.
Resolve the matter? So wrong. Minor adjustments? Straight out lie. UDO 6.2.4 A was not amended, it was not “clarified,” it was effectively abolished. Instead of all twelve purposes being mandatory, the director’s new version reduced the purposes to ignorable suggestions. Conservation subdivision applications would be approved if they met none of the purposes.
Electeds were played. There were public hearings on the director’s revision. Robin Barefoot and I brought truth and common sense. There were no pending conservation subdivision applications. Not one other lawsuit threatened. We asked the BOCC and the council to please wait a few months for the Court of Appeals to rule on the correct interpretation of the conservation subdivision ordinance. But no, as lemmings to the sea, all but one Durham elected followed the director and forever desecrated the original good intentions of Durham’s conservation subdivision.
The disingenuity continues: When asking for approval of her revision of the ordinance, the planning director told all electeds that her “amendment” to the conservation subdivision ordinance was just a “clarification.” She said it would simply make clear what the existing ordinance really meant.
The Court of Appeals swatted away the “clarification” claim as “circular reasoning.”
Despite the County’s past practice or repeated assertions as to what Section 6.2.4A was supposed to do, the plain language in Section 6.2.4A—that a conservation subdivision “shall be established” for twelve enumerated purposes joined with “and”—unambiguously required a conservation subdivision to meet all twelve purposes. Because the site plan for Mason Farms did not, the Board’s approval was erroneous.
Just one month later the council was hearing another conservation subdivision application, Morgan Farms. During the April 20, 2026, hearing, despite the court’s strong admonition regarding “clarification,” when council member Carl Rist directly asked the planning director about the “court case” and whether the revised conservation subdivision ordinance changed the relevant law, Young prevaricated. Even pressed by Mr. Rist, the planning director baldly asserted the revision was only a “clarification”of the previous ordinance, implying the twelve purposes were never regulatory when she was aware the Court of Appeals had just held the opposite. Mr. Rist deserved a straight answer from the director and he didn’t get it. I urge all of you to watch the 4/20/26 Morgan Farms Public Hearing starting at 6 hours 31 minutes. The exchange between Mr. Rist and the director is revelatory.
Regarding a remedy for the questionable representations made by the planning director and Massey to change the conservation subdivision to their liking, I’ve attached some AI generated suggestions. AI can never be the last word but it’s often not a bad starting place.
DISCOVERY CHARTER SCHOOL: What the planning department does when no one is looking.
Controversial from its inception as a destructive intrusion into a sensitive watershed in rural north Durham, Discovery Charter School has expanded its physical plant and added grades through a series of special use permits (SUP), each of which required hearings before the Board of Adjustments (BOA). The SUP granted in 2023 allowed the school to admit students up to grade ten. That SUP did not allow grades eleven and twelve. In 2026 Discovery filed an application to allow admission of students for grades eleven and twelve and to build a new parking lot adding 108 spaces to accommodate older, driving age, students.
Discovery’s violation of its SUP. The BOA hearing on the Discovery’s new SUP was held on May 26, 2026. (https://www.spreaker.com/episode/board-of-adjustment-may-2026–72190016). Much of the hearing focused on the new parking lot and its impervious surface. However, during the hearing it came to light that the school had been admitting students in grades eleven and twelve for two years. In fact, almost immediately after receiving the SUP in 2023, which limited enrollment to grades six through ten, the school started admitting eleventh graders for the 2024-25 school year. The following school year, 2025-26, the school admitted eleventh and twelfth graders.
The school’s 2026 application for a new SUP did NOT mention that it was already teaching grades eleven and twelve in violation of the existing SUP. The written planning staff report to the BOA (attached) did not mention the school had been admitting the older students for two years. The planning staff member who presented orally at the BOA meeting did not mention the school’s ongoing violation of the existing SUP.
Did the planning department know Discovery operated for two years in violation of its SUP? Yes, it did. Assistant county attorney, Curtis Massey, told the board that the school had been operating in violation of the previous SUP. Massey urged the board to put the violation aside and focus on the fact the school was now seeking to correct the situation with a new SUP. Massey further advised the BOA that the school had been admitting eleventh and twelfth graders with the knowledge and approval of the planning department. The head of school testified that two years ago, when the school was about to admit students for grade eleven in violation of the existing SUP, she had a phone conversation with a planning staff member. The head of school was told by the staff member that the school may admit the upper grade students despite the prohibition in the SUP. The head of school was told not to worry about a new SUP until they needed to expand the parking lot.
Inescapable conclusion: The planning department “authorized” Discovery Charter School to admit grade eleven and twelve students in 2024 and 2025 in clear violation of the school’s SUP in effect through May 26, 2026. The planning department is not empowered to authorize violations of an SUP. Furthermore, the planning department did not inform the Board of Adjustment of its complicity in the school’s violation of the 2023 SUP.
LESSON: The best predictor of future behavior is past behavior.
Keep this in mind as you consider relinquishing even more of your power to make development decisions to the planning department. Public hearings may be onerous, but they are the bedrock of participatory government. If you want the residents of Durham city and county to support growth, don’t lock us out of the process.
The planning department’s repeated violation of the conservation subdivision ordinance would not have been exposed without a public hearing. The planning department’s condoning of Discovery Charter School’s blatant violations of its SUP would not have been discovered without a public hearing.
The truth is none of us, public or elected, knows how often the planning department is deviating from the rules when it makes administrative decisions. We do know that when there are no public hearings the only constant outside influencers are the developers and their attorneys. Developers always have the ears of planning staff who consider the development community their “customers.” What could go wrong?
Please keep democracy alive in Durham. Keep the sun shining on development decisions.
Sincerely,
Katie Ross