I am writing to offer my views on the possibility that the Commission will accept as an
official planning document a re-measurement of the level of Jordan Lake commissioned
and paid for by a developer with a large financial interest in the outcome.
As you know, I have for many years been chair of the New Hope Creek Corridor
Advisory Committee and have also had forty years of experience as a researcher and
teacher of land use policy, most recently 23 years at the Nicholas School at Duke. I am
not writing an official communication by the Advisory Committee—our mandate is to
advise on implementation of the 1992 New Hope Plan, which ends north of I-40.
However, the views expressed below have been discussed at several meetings of the
Committee and there has been unanimity in both supporting this position and urging me
to communicate it to you.
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. More than 80 years ago, 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.
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. 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, taken over
the past 17 years in manner that has been remarkably consistent with the New Hope plan.
The possible adoption of a privately done land study as an input to regulation of other
important water sources to Jordan Lake strikes me as 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. 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. 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.
I urge you to reject the developer-financed survey, and (if you believe it 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.
Sincerely,
Robert G. Healy
Professor Emeritus of Environmental Policy
Nicholas School of the Environment
Duke University
839 Sedgefield St.
Durham, NC 27705
healy@duke.edu