Courts & the Law, Education, Environment

Lawsuit tries to muzzle opponents of Durham charter school in environmentally sensitive watershed

Discovery Charter School would be built on 58 acres over three parcels: 501, 505 and 717 Orange Factory Road. Many neighbors oppose the siting because of the school’s proximity to the Little River, a drinking water source for Durham.

Note: This is one of two legal cases involving the siting of Discovery Charter School. A summary of the second case will be posted tomorrow.

A major developer of charter schools, Steve Hubrich claims he’s only trying to protect his reputation. But the president of Hubrich Contracting has filed what appears to be a SLAPP suit against opponents of one of his projects, Discovery Charter School, in northern Durham County.

SLAPP suits, short for Strategic Lawsuit Against Public Participation, are often used by companies and government agencies to silence their critics under the guise of defamation claims. The plaintiffs don’t want to win a judgment; their claims are often flimsy. Instead, plaintiffs want to intimidate their opponents and rack up their attorney’s fees, with the goal of making the critics and their criticisms go away.

Hubrich’s claims, according to court records, match the characteristics of these intimidatory tactics. The allegations could be refuted — and are, according to court records. Yet with a $25,000 judgment on the line — and a request for a jury trial, which would likely require the defense to hire an attorney — Hubrich could effectively muzzle his opponents.

Anti-SLAPP suit attorneys Peter Kurdock and Mark Goldowitz of the Public Participation Project wrote on their website that SLAPPs aren’t just random meritless lawsuits. They are lawsuits that directly attack First Amendment rights.”

Making matters worse, North Carolina does not have an anti-SLAPP law. About half of the states do.

With an estimated 500 students, Discovery Charter School is scheduled to open as a middle school next fall and would be built in an environmentally sensitive watershed near the Little River in northern Durham County. To build the school in this rural and agricultural area, Hubrich was required to get a minor Special Use Permit from the county’s Board of Adjustment, a quasi-judicial body.

For more than a year, several neighbors along rural Orange Factory Road have fought the project and spoken against it at public hearings. They say the school, whose property would consume nearly 58 acres, would fracture wildlife habitats, jeopardize the quality of the Little River — a drinking water source for Durham — plus add onerous traffic of an extra 500 trips a day to a two-lane, officially designated NC Scenic Byway.

“The purpose of the website was to rally public opposition to the application for a minor Special Use Permit and called for people to attend a county Board of Adjustment hearing,” Hubrich complained, according to court documents.

Yet Hubrich’s main allegation was that someone had posted a false statement on the website insinuating that he planned to move several graves on the property, including “a baby’s” from a “slave cemetery” into one common grave.

The website text in question (upper right) from a court filing in the defamation suit.

Hubrich said in court documents that his contracting agent had found several depressions on the property believed to be unmarked grave sites. The agent then contacted the state Department of Archeology as required, Hubrich said, and the site had not been disturbed. Hubrich did say that state law allows him to combine these graves into one common site.

Hubrich, who has been in business for 24 years, claimed the opponents’ statements “harmed his reputation” as he was building “relationships with educators.” That relationship, though, seems to be on firm ground: Hubrich’s firm has built at least 11 charter schools, including Voyager Academy in Durham, and a Duke University call center.

Project opponents allegedly knew their statement was false, Hubrich contended, and had “malicious intent to injure the plaintiff’s reputation and business and to shift public sentiment against the project.”

But a strict reading of the web page in question, included in the court file, shows Hubrich’s account is a stretch. It doesn’t state a grave was moved, but rather, that the stones were moved. Nor does it say Hubrich moved the stones. The only mention of Hubrich is that he “acknowledged [the graves] and that it would be within its right to place them within one grave with a marker.” Then the word: “Disgusting.”

Initially in June, Hubrich and his attorneys with the Morningstar Law Group filed the defamation suit against “John Doe.” Then in July, Hubrich named his alleged antagonist — Marie Mahoney, of 817 Orange Factory Road. He then petitioned the court to take a deposition from her husband, Patrick, whose photo appeared on the website (he was holding a baby deer who reportedly had tried to cross the road) to try to prove it.

Marie Mahoney could not be reached for comment. However, Patrick Mahoney sent a letter to the court asking not to be deposed because Hubrich’s allegations were false. Durham County Superior Court Judge Orlando Hudson denied Mahoney’s request. As of Aug. 28, Hubrich’s attorneys can depose Patrick Mahoney “and other non parties … for the purpose of investigating the defendant’s identity.”

Meanwhile, Hubrich has started his own counter-website: orangefactoryroad.com.

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