Legislative Update – Protest Petitions Killed . . . Finally

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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Comments
11 Responses to “Legislative Update – Protest Petitions Killed . . . Finally”
  1. Publius says:

    Good post – and good riddance to protest petitions. Question: What was the “reason” for the seemingly-unconstitutional law in the first place?
    Curious

    • Tom Terrell says:

      I get my history from David Owens, professor at the UNC School of Government, who said protest petitions originated in the New York City zoning ordinance of 1916 that was used as the model for NC’s original zoning legislation in 1923. At the time there were few property protection measures to keep the tract next to your neighborhood from becoming a factory. Zoning was in its infancy, zoning ordinance provisions were still in their experimental years, and the protest petition gave a type of “vesting” protection to owners who were there first. Today, with comprehensive planning, planning board reviews, professional staffs, statutory notice, rights to speak at hearings, and lots of etceteras, there is no need to use them to protect neighbors. Additionally, our state supreme court has said more than once that neighbors do not have a vested right in having nearby properties unchanged in their zoning.

  2. Triadwatch says:

    “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.”

    All the citizens wanted was to get the same treatment of having the protest petition like every other citizen had in this state but don’t worry the trebic cartel has been bitching , moaning and crying ever since 2009 and now they snuck in this repeal with no discussion at all. It looks like it is stuck back in rules committee and not killed like your post reads.

    You , king zoning stud Henry isaacson , Jim Morgan and lobbyist Marlene Sanford are pathetic.

    Let’s see if you will post this

    • Tom Terrell says:

      If all Greensboro citizens wanted was to be treated like everybody else, then repealing the statute treats them like all others. What you have failed to do is respond to my point that there is no other precedent in our democratic system for handing one unelected person the power to control two votes on a city council. The argument “but next door neighbors are affected most by a rezoning” carries no water. There are hundreds of types of decisions made by local, state and federal governmental bodies that affect certain individuals directly, personally and substantially, yet we don’t grant those private citizens control over the democratic process other than speaking through the system like everybody else. If they want to control a vote on the board they must run and be elected. That’s a core value of our American political system. Posting your comment is not in response to your dare. I post all comments that aren’t spam, and I posted your comment even though you resorted to foul language and personal attacks without having the courage to sign your name.

  3. Marty Kotis says:

    When you were representing an adjoining commercial property owner, you utilized the Protest Petition in Spring 2010. It’s interesting that you posted this other article in June 2010 – http://nclegallandscapes.wordpress.com/2010/06/18/nightmare-revisited/ just a month after using the Protest Petition to the benefit of your commercial client.

    In over 30 years, the only time my development company has ever come up against the Protest Petition is when you used it.

    • Tom Terrell says:

      That is correct, and rather than hiding from it I’ve commented upon that irony often. It was also ironic that several neighborhood advocates who had fought for the protest petition expressed consternation and displeasure that an industry would use that power against a residential developer they favored in order to protect an industrial area long used for chemical storage and 24 hour truck movements adjacent to an active railroad from residential encroachment. It was another irony that neighbors kept claiming “But Sherwin Williams had been invited to all of our local area planning meetings and chose not to come.” It was only when I investigated that claim that I learned that all “invitations” were sent to the corporate headquarters and not to local plant leadership.

  4. Marty Kotis says:

    Did you also use the Protest Petition on behalf of a prison for the criminally insane in High Point? And how was Guilford County involved?

    • Tom Terrell says:

      That was Guilford County’s protest petition that it used when the City of High Point initiated a hostile, third party rezoning of the county’s property. The property had sat on the market for a long time and a forensic hospital offered to pay close to full price. In this case, the property owner (the county) was not the one who initiated a rezoning. It was the city which initiated it to prevent the county from doing what it had all along been able to do. Thus, the county as land owner, on behalf of Geo Care, the developer, was protecting the zoning status quo, not trying to change it.

  5. “protest petitions have become an anomalous and routinely abused power.”

    Routinely abused? Do you want us to take your word for it or do you have some empirical data to back that up?

    • Tom Terrell says:

      I practice law all over the state of North Carolina and not just in Greensboro which has had protest petitions only since 2009. When you add up the few protest petitions used in most municipalities across the state each year, the total number is at least equal to and probably more than the number identified by an informal survey done by the School of Government. But number is irrelevant and my point remains, which no one has refuted: the reason we should not have them is because there is no justifiable basis for allowing an unelected and unaccountable citizen to force a super majority vote on any duly elected and constituted democratic body. While there are examples of votes requiring more than simple majority (e.g. to amend the Constitution or ratify a treaty), not one of them is triggered by the petition of a citizen. The protest petition is a power without any precedent in any context in local, state or federal government.

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