Protest Petitions – Wrongful Power, Wrongfully Placed

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  It’s past time we repealed the statute.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.

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