Protest Petitions Revisited

It appears that my previous post (Protest Petitions Killed . . . Finally) was premature. The NC House did vote overwhelmingly to repeal G.S. 160A-385 which grants unelected citizens a unique power to control the decision-making authority of a city council engaged in routine rezonings.

However, the Senate refused to accept this amendment (called a “proposed committee substitute”) to a bill the Senate had previously approved.

In the meantime, several comments were posted (or attempted to be posted) to my blog, several comments arrived by email, some came face-to-face on the street, and others came indirectly by letters to the editor. My commentary and replies follow:

    Nobody has Responded to My Argument

    So far my central point is unchallenged by politicians, neighborhood advocates, academics and other attorneys. As I said in reply to one of the comments:

    “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 single citizen. The protest petition is a power without any precedent in any context in local, state or federal government.”

    Someone I respect a great deal took issue with my comment about majority vote being a bedrock principle of our democratic process, reminding me that we modify majority vote in certain known circumstances. He wrote: “At the federal level a simple majority is not enough to ratify a treaty, to break a filibuster, override a veto, or to propose an amendment to the Constitution. State legislatures are similarly bound for a variety of issues for which more than a simple majority is deemed prudent. At the municipal level . . . the issuance of a variance has always required a supermajority. It may or may not be a wise policy to require a supermajority in a given circumstance, but it is not unprecedented.”

    Exceptions to the rule do not disprove the rule, and my point still awaits credible challenge.

    All of the situations listed above are built into a constitutional or statutory structure and serve a system built on checks and balances. Not one of these votes is triggered by a single citizen deciding on his or her own that a duly elected governing body must decide a certain issue by a supermajority vote. That is why protest petitions are anomalous and, if used at all, constitute a misuse of unaccountable power.

    Viewing a protest petition as a citizen strong-arming a developer is myopic. It is rather a single citizen strong-arming a duly constituted political body that was elected by the will of the people through a controlled democratic process called an election. If you want to control a vote on the city council, then you need to run and get elected. But even then the only vote you get to control is your own.

    Professor David Owens

    Nobody is more important to the study and understanding of land use law in North Carolina than David Owens, professor at the UNC School of Government. David took issue with my response to groups who claimed they had no prior knowledge that the amendment to this bill would be filed. I said, in summary, that the development community had no prior knowledge that the bill to modify the statute would be filed back in 2005.

    Professor Owens corrected my broad brush description and suggested that I make it clear that the development community had ample time after the 2005 bill was filed to work with the drafters and other groups (unlike this year when the amendment appeared overnight and at the end of the session). His description of the 2005 discussion is below:

    “The development community had direct knowledge of these specific proposals over a six month period and took advantage of that to make a number of substantial contributions to improve the bill under consideration. Saying or implying otherwise is a disservice to the strong inclusive intentions of Sen. Clodfelter and Rep. Allen and to the good work of those in the development community, the planning community, and local government who worked collaboratively to produce the end result that was enacted.”

    It is fitting that I correct that point in this post, and I apologize to readers, Sen. Clodfelter and Rep. Allen, and especially to Professor Owens, for my oversimplification that skewed historical facts.

    Claims that Zoning Cases are Different

    I’ve heard the argument many times that zoning cases are different because individuals who live next to a proposed land change are directly affected.

    This argument gains no traction with me. This year our legislature passed numerous bills that directly and substantially affect citizens far more than a zoning change, including bills that suppress the constitutional right to vote; bills that impose government’s heavy hand into private decisions between a woman and her physician; bills that deny basic health care and legal representations to indigents; and bills that, essentially, shift scarce resources from public schools to private, religious schools. Each of these bills was passed by majority vote, and I have yet to hear someone advocate or argue that it is fair to grant a single citizen directly affected by one of these bills the power to sign a petition that forces our legislature to approve the bill upon a supermajority vote.

    The question, you see, 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.

    Tone of Discussion

    I write this blog to add to the intellectual discourse regarding land use and environmental issues and to offer a voice and insights that usually are not represented in public discussion. Whether you agree with my positions, I hope that I have acquitted this task professionally and with integrity.

    Some of the comments and attempted comments to the preceding post threatened the tone of discussion that I wish to protect.

    I have known for years that there is a subculture of citizens who live in developed neighborhoods, shop in developed retail centers, work in developed office complexes and play in developed recreational areas, who nonetheless despise developers and anyone connected to the development process.

    I was unprepared for the spiteful tone of “discussion” by some commentators, including a local blogger (he refuses to use his name and believes erroneously that I should know who he is) whose rants were filled with grammatical errors, poor syntax and personal invective. After posting his first comment I refused to post others in order to maintain the decorum of this blog. His were not the only ones I decided not to accept, but they were illustrative.

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Comments
One Response to “Protest Petitions Revisited”
  1. walter fields, III says:

    I agree with your main arguments about the protest petition. I have had cases both approved over and killed by a protest petition. The processes in place in most communities today are more than adequate to protect the rights of the public without the extraordinary voting requirement of the current rule. I have also see how a local staff can leverage their will by whipping up the neighbors to file a protest petition. I will not be sad to see it go. But, everyone seems to loose sight of the other, less often discussed use of the protest petition. The protest petition offers an extra level of protection to property owners who face third party rezoning, including government initiated rezoning whether it be an ‘up zoning’ or a ‘down zoning’. I wonder if you have any thoughts about how this measure of protection currently afforded by the protest rule can be preserved for those whose property rights would be affected by a rezoning that they did not initiate. And perhaps even more difficult a question would be how the subtle distinction between the two purposes of the protest petition can be easily explained to our legislators sufficient for them to drop the bad and keep the good parts of the existing law. Thanks for your thoughtful comments on this and other matters.

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