WHEREAS, The regulation of the use of private land in furtherance of larger public interests (including the protection of other private property) is one of the most important of all the functions of local government; and
WHEREAS, the U.S. Supreme Court (see Pennsylvania Coal v. Mahon; Hadacheck v. Sebastian) allowed non-federal units of government to regulate private land, despite the 5th amendment protection of property rights. This regulatory power, as defined and upheld in tens of thousands of subsequent court decisions, brings with it great responsibilities, both procedural and substantive; and
WHEREAS, it is quite clear that protection of a municipal water supply is a legitimate reason to regulate land use. City and county governments in both Durham and Orange counties have carefully regulated land, and expended several millions of dollars, to protect the upper New Hope watershed, including such tributaries as Mud Creek, Sandy Creek and Dry Creek; and
WHEREAS, as a result of this action, the quality of the New Hope as it flows out of our jurisdictional area is far better than it would have been absent these actions. The New Hope plan is the result of a publicly financed (by four jurisdictions) background study, more than a year of work by a diverse committee, public hearings and presentations to each governing body; and
WHEREAS, the possible adoption of a privately done land study as an input to regulation of other important water sources to Jordan Lake is shockingly inconsistent with the fair and deliberate way in which other lands have been regulated, in Durham and in other parts of the state and the nation; and
WHEREAS, it is not for the regulated entity to decide what the public interest is and how it should be protected. It is the power and duty of government, and government alone; and
WHEREAS, it is the fundamental use of fair procedures and impartial identification by government of constraints such as floodplains, slopes, and distance to water bodies that gives legal power and moral authority to the government's infringement of private property rights in the interests of the public as a whole.
THEREFORE, BE IT RESOLVED, that the Interneighborhood Council of Durham urges the Durham Board of County Commissioners and the Durham City Council to reject the developer-financed survey, and. if necessary, to conduct an impartial government-directed study of the Jordan Lake pool height, perhaps in collaboration with the several other units of government (e.g. Orange and Chatham counties) that also have regulatory responsibility for the watershed and that also protect the public interest;
AND, BE IT FURTHER RESOLVED, that a copy of this resolution will be transmitted to the members of the aforesaid bodies and to the County and City managers and attorneys and to members of the local news media.
Resolution adopted by the INC on 4/7/2009, in a special session.