In an unexpected move the NC House voted last Thursday to repeal the statute that allows citizens to file protest petitions which frustrate a city’s ability to rezone land except upon a favorable 75 percent majority vote. The decision saw little debate, and the N.C. League of Municipalities, whose members were evenly split on the issue, remained neutral.

Dating to the 1920s when conditional zoning, trained professional planning staffs, instant communication, and well-developed comprehensive plans were not the norm, protest petitions have become an anomalous and routinely abused power.

The protest petition statute provides that when a person who owns as little as 5 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.

Neighborhood groups are slow 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 of 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, an onerous margin even higher than the two-thirds vote required for Congress to amend the U.S. Constitution.

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.

A council’s decision is subject to a variety of legal challenges, but the neighbor’s decision to protest is not subject to legal review except as to whether it was filed in time and meets the five percent requirement. Neither is the neighbor, like council members, accountable at the ballot box, yet we essentially give that unelected person two votes on the city council.

There is no other power extended to a single citizen by our statutes that is greater than the power allowing one person to alter the manner in which duly elected officials can transact the public’s business and deny an entire city its right to have a decision made by majority vote.

Several groups and legislators have complained that the provision eliminating protest petitions was slipped into a reform bill last week without their knowledge or consent. However, when the protest petition statute was modified in 2005 to create the 5 percent threshold, the bill was drafted by Senator Clodfelter with assistance from the planning community. The development community had no prior input or knowledge.

When the issue was hotly debated in Greensboro in 2009, the development community offered several compromises. The Greensboro Neighborhood Congress refused to accept any of the compromises offered, including raising the threshold from five to twenty percent and implementing a two-thirds vote rather than three-fourths.

Modern rezonings follow a highly prescribed process that includes pre-zoning comprehensive planning, staff review, planning board review, public notice and public hearings. It is a process designed for open participation, deliberation, and yes, fairness. Thanks to the legislature, the protest petition can no longer be used to subvert this democratic process.

POSTSCRIPT: UNC School of Government professor David Owens, the most knowledgeable person anywhere on N.C. land Use law, emailed me this morning to correct my description of the 2005 legislation. Among other points, he reminded me that Senator Clodfelter proposed the bill to clarify the confusing language in the then-existing statute. At that time, the threshold was 20% of the owners “on any one side” of the property. However, unless the property is a perfect square (it never is), it’s difficult to determine what constitutes a “side.” And, there could be more than four sides, depending upon the tract’s shape.

The building and development communities did participate in the discussion, as Professor Owens noted, and there were some compromises made to accommodate their concerns. My point remains, however, that they had no prior knowledge that the bill would be filed, just as neighborhood groups had no prior knowledge that this amendment would appear last week in S112. And my major contention remains as well: all we were doing in 2005 was tinkering with a tremendous power that should never be placed into the hands of a single, unelected person to essentially control a democratically constituted government.

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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.