The zoning protest petition is the greatest unchecked power ever placed in the hands of an unelected citizen in North Carolina.  It’s past time we repealed the statute.

North Carolina’s protest petition statute (N.C. Gen. Stat. § 160A-385) grants an anomalous and unjustifiable power to a citizen who owns a mere 5% of a 100 foot buffer surrounding land considered for rezoning.  Upon the filing of a short petition of protest, a single citizen, elected by and answerable to no one, alters the decision-making authority of a duly constituted and elected government. It’s a decision exempt from judicial review.

In short, the petition prevents the city from approving the rezoning except upon a 75% vote, a threshold higher than the 2/3 vote necessary to amend the U.S. Constitution.

In the American system of government, individual citizens are granted rights and freedoms, but not powers.  Rights and freedoms are actions which cannot be prohibited or controlled by a government.  In most instances, they are either (1) limitations on a government’s ability to control what we say and do or to interfere with our lives, or (2) protections of our ability to participate in democratic processes.

Powers, on the other hand, are granted only to individuals who are elected or appointed to office through controlled processes and who swear an oath to uphold the law and use their powers to serve others.  Those powers can be legislative or executive, and they are always subject to judicial review.

Such powers include the ability to pass laws, enforce laws and interpret laws.

Protest petitions run afoul of the American system of government because they aren’t rights or freedoms.  Rather, the protest petition statute grants, to an unelected citizen, the power to manipulate the decision-making authority of a duly-elected legislative body for the citizen’s personal benefit.

The citizen’s reason for protesting is not subject to judicial review, even if his or her reasons were admittedly for racist, sexist or other reasons that would be unconstitutional if proclaimed by someone in office. And the protesting property owner could live in Texas, Oregon or China and be unaffected by the intended use.

Under modern zoning statutes, adjoining neighbors have a right to be notified of the proposed change, to attend all public meetings, to have access to every document filed, to write or call council members, to hire experts and legal counsel, and to speak at public hearings.

But no unelected person – even someone whose property adjoins the rezoning site – should be granted the unbridled power to control the vote threshold required for the elected body to act.

It’s worth repeating.  Such a power in the hands of an unelected citizen is without precedent, it is contrary to our system of checks and balances on governmental power, it has no justification, and it is wrong.

N.C. Gen. Stat. § 160A-385 should be repealed.

            Please feel free to share on Facebook or forward to others who may be interested. Click on topics of interest in the drop down menu for other posts.

Print:
EmailTweetLikeLinkedIn
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.