North Carolina Bill Would Halt Protest Petitions Against Development

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By Paul Mindus, The Saint Consulting Group

Protests are mounting against a proposed bill in the North Carolina House that would deny neighborhoods all over the state the right to use protest petitions in zoning cases. The bill would repeal a protest petition law that has played an active role in communities contesting zoning changes.

protest-petitionBill sponsors openly acknowledged that their intent is to reduce the bargaining power of neighborhood groups in zoning disputes, according to the Durham, NC Herald Sun.

The proposed law would repeal the right for those who own land adjacent to a project to band together in a formal protest petition and insist that a city or town council assemble a three-fourths supermajority before approving zoning changes.

The bill cleared the N.C. House on Thursday on what was effectively 83-29 vote and goes to the State Senate where a concurrence vote is expected.

Blog posts sprouted on Wednesday and Thursday against the bill. Doug Clark wrote in the News-Record: “This [protest petition] empowers the people. Developers don’t like it. They are empowered at the General Assembly (see Durham post from yesterday). Is this the kind of regulatory reform legislators promised?’

The Charlotte Observer reported that the bill would weaken neighbors’ ability to fight zoning changes.

An anti-lobbyist website called Triadwatch published a headline in bold red type: “Protest Petition for North Carolina Repeal is a Huge Mistake for Citizens and Neighborhoods All Over This State”.  The website said the House vote was “both stupid and ignorant on the part of our state representatives to do this as a slip in bill to curry favor with the TREBIC cartels around the state. TREBIC cartel is our local unofficial now this year official lobbyist for the Triad Real Estate and Building Industry Coalition.”

To quality as a protest petition, under the current law – GS160A-385 – the petition must be signed by the owners of either 20 percent or more of the area included in the proposed change or five percent of a 100-foot-wide buffer extending along the entire boundary of each discrete or separate area proposed to be rezoned. Such a petition then triggers the three-fourths vote requirement.

Private land use attorneys, quoted by the Herald Sun, were divided over the effectiveness of protest petitions. Attorney Ken Spaulding questioned whether a three-fourths supermajority is overly stringent, said petitions historically have helped ensure that projects “are compatible with existing developments and neighborhoods.”

Attorney Bill Brian said protest petitions are “somewhat of an anachronism in the zoning context” and thinks it is a good idea to get rid of them.

In practice, protest petitions “are frequently used as a tool to get greater concessions [from developers] and run up the cost” of projects, said state Rep. William Brawley, R-Mecklenburg, a commercial real estate broker. Repealing it shifts “zoning decisions back to a majority of the local city council, and they can run on their record,” he said, arguing there’s no reduction in accountability on land-use matters.

While North Carolina may soon ban protest petitions, developers in many states have taken to filing strategic lawsuits against public participation, also called SLAPP suits, that would adversely affect  legal rights to protect public participation in the development process. The Saint Report has published several posts about anti-SLAPP statutes that provide a measure of protection to people who speak up on public issues that qualify as petitioning activity under the statute.

The proposed repeal of North Carolina’s protest petition now returns to the state Senate for a concurrence vote. Sponsors appear confident of passage. Rep. Tim Moffitt, R-Buncombe, said the current draft – which emerged from committee on Wednesday, there for the first time adding the protest-petition repeal – is “a consensus bill between the House and the Senate.”

The Real Estate and Building Industry Coalition, known as REBIC, said in a blog post today that “it’s the elimination of the Protest Petition process that would have the greatest impact on property owners and developers, by removing a burdensome and costly process that effectively allows a small minority of citizens to hold a rezoning case hostage by forcing a supermajority vote.”

If SB112 becomes law “it will immediately make protest petitions a thing of the past, with the exception of those already filed,” according to REBIC.

SB112 was approved by the N.C. Senate on May 15. The legislation, which includes changes since its approval by the senate, will go back for another vote by state senators. If approved, the bill will be sent to Gov. Pat McCrory for approval.

Let us know what you think about the proposed repeal and protest petitions.

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