Durham’s long-running effort to rewrite its land use rules just hit a legal speed bump, thanks to a threat from a familiar local business name.
City officials have paused the city’s multiyear land use code overhaul after a lawyer for convenience store operator Marvin Lee Barnes Jr. warned that parts of the draft would amount to illegal down-zoning. The legal threat arrived just days before a scheduled public hearing on Tuesday, which the city then canceled. Instead, staff shifted gears and held an open house at City Hall so attorneys could dig into the claim while residents walked through the proposal with planners.
In a Feb. 13 letter to city attorneys, Robin Tatum of the Raleigh firm Smith Anderson argued that the proposed unified development code “blatantly ignore[s]” a 2024 state law limiting down-zoning and threatened litigation if the city approved it, according to the News & Observer. The letter, sent on behalf of M.M. Fowler Inc., which operates Family Fare stores in central and eastern North Carolina, flagged several specific properties and warned the draft rules could cause “significant damages,” the paper reports.
What the 2024 law does
The key change is buried in Session Law 2024-57 (S.B. 382). The statute broadens the definition of “down-zoning” to cover reductions in density, cuts to permitted uses, or rules that create new nonconforming properties, and it bars cities and towns from adopting those changes without written consent from every affected owner, as explained by the UNC School of Government’s Coates’ Canons. The blog breaks down the statutory language and likely fallout, and the full text of Session Law 2024-57 (S.B. 382) is available from the General Assembly.
How Durham responded
According to INDY Week, city staff told residents they had tried to design the draft code to steer clear of the new state limits by carving out parcels that might be considered down-zoned. That workaround did not satisfy everyone. Property owners, including some named in the letter, pushed back on the carve-out and pressed the city to slow down, the outlet reports. The result was the canceled public hearing and an in-person open house at City Hall, where staff fielded questions and walked residents through the 633-page draft line by line.
Who raised the alarm
The letter came on behalf of Barnes, who runs M.M. Fowler Inc., the company behind the Family Fare franchises that dot Durham and operate roughly 100 convenience stores across the broader region, the News & Observer reports. Barnes has served on the UNC Board of Governors, and his family foundation has been a notable local donor, according to the paper’s reporting.
Legal stakes and what’s next
Legal analysts note that the statute’s retroactive language could put local rules on thin ice. Ordinances adopted after June 14, 2024 could be declared void if a court finds they function as down-zoning without written owner consent, a shift the UNC School of Government describes as a dramatic narrowing of municipal authority in its Coates’ Canons blog. That same analysis, along with local coverage, points out that state lawmakers are already eyeing tweaks, with the state Senate advancing a bill that would restore some discretion to cities and counties, though the House has yet to act, INDY Week reports…