(Editor’s Note: North Carolina’s legislature this summer tried to ban protest petitions, the right of neighbors to protest a zoning change and require a super-majority of local council votes to enact the zoning change, but then the legislature dropped the repeal. Two North Carolina land use experts explain why they oppose protest petitions)

By Lisa Martin and Tom Terrell

terrell_tom2It is easier to change the U.S. Constitution than to rezone property in North Carolina once a neighbor has filed what is known as a “protest petition”.    Dating back to the 1920’s, North Carolina’s protest petition process under General Statute 160A-385(a) provides that when a person who owns as little as five percent of the property surrounding a rezoning site signs a petition, the city council loses its ability to make a zoning decision by majority vote. On a nine member council, one person’s signature raises the vote threshold to a seven member super majority vote.  Congress can change the U.S. Constitution with a mere 2/3 vote!  North Carolina’s protest petition law is extreme, granting enormous power to one person whose decision is free from appeal or judicial review.  Because of this process, protest petition use often results in time delays, additional costs and severe limitations on individual property rights.

Protest petitions were conceived in a pre-information age era to help address the issue of properly informing the public of pending land use changes.  Planning laws and practices have changed drastically since then.  For instance, strict laws require notice of rezonings to neighbors and Lisa Martin-304the public, including signs on the property, mailings to neighbors within a certain distance, electronic notification and publication in common news outlets.   In addition, most developers meet with neighbors (often because they are either required or strongly encouraged to by the city).  Concerns are addressed, compromises made and sometimes applications are withdrawn.  Most cities and counties have made Conditional Use zonings (by far the majority of cases in North Carolina) a legislative process to allow neighboring property owners more involvement in the rezoning process.  It is impossible to quantify the extra cost of otherwise unjustifiable zoning conditions required simply to gain approval of the neighbors; yet developers have paid.

Protest petitions are a NIMBY’s dream.   Modern growth management principles promote infill, redevelopment, higher densities and mixed uses.  Protest petitions present an unnecessary and sometimes impossible hurdle for project approval, even though Conditional Use zoning and modernized land development ordinance requirements incorporate techniques to minimize and mitigate impacts to surrounding properties.  Protest petitions do not represent the citizen “David” against the developer “Goliath”.  Neighborhood  groups refuse to acknowledge the many instances when protest petitions are used to deny a rezoning that is recommended by a professional planning staff, consistent with the adopted growth plan, and even identical to the zoning on adjoining lots. Nor do they acknowledge the manifest unfairness of such an extremely low five percent threshold (usually one person) triggering a 75 percent majority vote.  They perceive protest petitions merely as creating fairness. If your question is whether a rezoning process should be fair, the answer is always “yes.” But how to implement a fair process is not the question.

The question is how we can justify allowing a single citizen, answerable and accountable to no one, to have unilateral power to commandeer a duly elected city government by allowing the citizen to control two of the government’s votes. It is a power without precedent or rationale in a democratic system based upon the bedrock principle of majority vote. And such power, of course, is patently unfair.  Council members are elected by the will of the people; the neighbor is unelected and self-appointed. Council members are required to listen to staff’s analysis; the neighbor is not. Council members are required by statute to consider the comprehensive plan, but the neighbor is not.

The argument has been made many times that zoning cases are different because individuals who live next to a proposed land use change are directly affected.  This argument has no traction.  In 2013, the North Carolina legislature, like all legislatures before it, passed numerous bills that directly affect citizens far more than a zoning change.  Examples include bills dealing with voting rights; bills that affect women’s health; bills that deal with gun ownership rights; and bills that may shift resources from public schools to private or religious schools. Each of these bills was passed by majority vote and no one advocated that it would be fair to grant a single citizen directly affected by one of these bills the power to sign a petition forcing the North Carolina legislature to approve the bill upon a supermajority vote.

The question is not whether a zoning or statutory change is good or bad or wise or unwise. The question is how much power we grant to a single person not chosen by the citizenry, who is not answerable to anybody, to control the vote threshold of the local (and duly elected) city council.  For this reason, protest petitions in North Carolina have overstayed their welcome and the statutory authority granting this enormous power to one citizen must be repealed.

(Lisa Martin is director of government affairs for the North Carolina Home Builders Association, email lmartin@nchba.org); Tom Terrell is the author of NCLegal Landscapes blog and an attorney at Smith Moore Leatherwood, email tom.terrell@smithmoorelaw.com)  

 

 

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