3-D technology in movies – and now TV – certainly enhances the visual experience, especially in cinematic phenomena like Avatar.  But is there a 3-D element to a rezoning protest petition?  I don’t think there is, and you’re thinking “what’s he talking about??”

             Let me explain.

             North Carolina allows property owners within a rezoning tract’s surrounding buffer to sign a protest petition.  Sufficient signatures on the petition will elevate the city council vote requirement to three-fourths before the rezoning ordinance adoption is allowed. 

             But condominiums – a common form of property ownership – pose some troubling questions, and 3-D protests are only one of them.  For example, 1) how should we consider common area property when all of the common area owners have not signed the petition? 2) must the condos themselves to which the common area is attached be within the 100 foot buffer? 3) when a condo (or any property) is owned by multiple owners, can one owner sign for his or her spouse or co-owner, and 4) what is the effect of signatures from above-ground property owners, as would be the case with multi-story condominiums?

 The Statute

 Let’s look first at what the N.C.G.S. 160A-385(a) says and then explore these issues. 

 (a) Qualified Protests.
(1)  . . . In case, however, of a qualified protest against a zoning map amendment, that amendment shall not become effective except by favorable vote of three-fourths of all the members of the city council. . .

(2) To qualify as a protest under this section, the petition must be signed by the owners of either (i) twenty percent (20%) or more of the area included in the proposed change or (ii) five percent (5%) of a 100-foot-wide buffer extending along the entire boundary of each discrete or separate area proposed to be rezoned. A street right-of-way shall not be considered in computing the 100-foot buffer area as long as that street right-of-way is 100 feet wide or less. When less than an entire parcel of land is subject to the proposed zoning map amendment, the 100-foot buffer shall be measured from the property line of that parcel.

 Nightmare on (Jamestown’s) Main Street

             Jamestown, N.C. planner Matthew Johnson recently faced all of these issues in a rezoning where the property owners signing a rezoning protest petition lived in three-story condos that extended into the rezoning tract’s buffer, but all of which were not in the buffer themselves.  Rather, the buffer was comprised primarily of the HOA’s common area.  The HOA itself did not sign a protest petition, and some of the spousal signatures were (to me) written by one and the very same person.

             It was a planner’s nightmare: lots of angry neighbors, a divided council, a respected citizen as the applicant, general statutes that were essentially silent on all of the key issues, and a land use attorney (me) ready to challenge the town if he made the wrong call about the validity of the protest petition. But under the circumstances, Matthew handled it conscientiously and with grace, relying on counsel from the UNC School of Government, and a readiness for the chips to fall where they fell. (The request was denied, so the issue never had to be – or got to be – litigated).

             In consultation with the School of Government, Matthew was advised to take each condo owner’s percentage share of the common elements and to total those percentages to see if they reached the necessary threshold.  Whether the condo itself was within the common area and whether the HOA itself had signed a petition weren’t part of the equation.  But there were several things wrong with the advice he was given. [To be fair though, faculty at the SOG typically bat in the .900 range, which is more than twice the combined lifetime averages of Ty Cobb (.366) and Rogers Hornsby (.358) who are the #1 and #2 holders of the lifetime batting average record]  But back to the misplaced advice.

             Cities and towns only have the authority granted by the General Assembly.  And when the adopted statute painstakingly delineates a certain process – in this case actual ownership of the buffer you can place your feet on – cities are not free to ad lib. When the School of Government suggested that Jamestown use a percentage-of-ownership calculation, ignoring that some of the condos were outside the buffer and that only the HOA had the authority to pledge or alienate the common elements, it left the realm of legal counsel and entered the world of rule-making.  What it should have done was to advise Jamestown that the statute was clear on what the town could do, was silent on these issues, and therefore the only safe conclusion was that the protest petition was invalid.

             Some things should be clear.  For purposes of validating a protest petition, if the condo itself lies outside the buffer, it is a huge stretch to include a percentage of the common area within the buffer yet owned by someone whose deed is for real estate outside the buffer.  This is especially obvious when that distant owner could not – without the HOA’s participation – take any action affecting his or her ownership percentage other than perhaps to sell the unit.

             With respect to property with multiple owners, I’ll just go out on a little limb here and proclaim that it was not the General Assembly’s intent for co-owners of land within a buffer to make assumptions and start signing all of their fellow owners’ signatures, whether it is your spouse of 50 years or your identical twin brother.  But this issue has never been litigated.

             Finally, what about protesting in 3-D?  Here’s the rub.  The statute quoted above creates a buffer measured entirely in two-dimensions along the geometric plane that you and I call “the ground.”  There is no three-dimensional element to this buffer.  Period.  So what would one do if owners in a condominium building covering a mere 2% of the two-dimensional buffer could aggregate their air rights above the ground to create more than 5% of the 100 buffer?  Hypothetically, one could aggregate air space units and, if the building were tall enough, cover less than 5% of the buffer yet acquire signatures for more than 100% of the buffer as a two dimensionally measured space.  As written, the statute doesn’t work that way.  The statute is an attempted balancing act between two perceived interests.  Allowing 3-D aggregation of air space above the buffer creates an unintended (and statutorily unmentioned) advantage to neighbors.

 And the biggest issue of all? 

             The biggest issue of all is that there is no power granted to citizens in this state that is greater than the power bestowed by the protest petition.  No power.  Anywhere.

             That’s not a hyperbolic statement.  There is no greater power.  A twenty dollar bill to the first person who can name one. (And I’m excluding powers vested in an office but exercised by an individual, such as the power vested in a judge to sentence someone to life in prison).

             With a protest petition, one person who owns 5% of a buffer surrounding a tract of land – one person – can take away an entire city’s right to have a certain decision decided by majority vote.  Now that’s power.

             And when the club that one citizen has been handed can be abused to the detriment of the rights of others, then any liberal, expansive reading of the statute granting that power is more than contrary to the canons of statutory construction.  It is wrong. 

             NCGS 160A-385 should be amended to deal with three dimensional protests within a two dimensional buffer, how common areas within a buffer must be treated, whether condo owners with outside-the-buffer units can use common area ownership, and whether the actual owner – and all owners of a tract – must sign a protest petition before that tract can be counted.

 WRITER’S NOTE:  Thanks to many of my readers for being patient with me while I took several weeks off from this blog to write a chapter in a forthcoming book on telecommunications law from the municipal perspective.  I’m sure you’ll rush out to read this chapter that will appear in an Aspatore Books series.

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Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at https://www.foxrothschild.com/thomas-e-terrell-jr/.

Mr. Terrell can be contacted at mailto:tterrell@foxrothschild.com.