NC legislators consider curbing power to protest local developments ccampbell@newsobserver.comJuly 19, 2013 

— Legislators may scale back the power of property owners to fight developers, with a bill that would eliminate the use of the “protest petition,” a bargaining chip for the neighbors of gas stations, shopping centers and other controversial developments.

The push to end the practice comes in a package of proposed regulation reforms – and it has proven contentious. House Republicans have pushed for repeal of the practice, while Senate counterparts so far have protected it, with developers and local municipal leaders arguing on the periphery.

Protest petitions most often are filed by neighbors of controversial developments that require a change in zoning. If enough people sign the formal protest, the rezoning requires more municipal board votes to proceed.

The most common charge against the petitions is that they are unfair, overpowered and even undemocratic, because they allow a small group of people to change the rules of a local board’s vote. Supporters often respond that the petitions give residents leverage, resulting in developments that suit their surroundings.

Most states allow the petitions, which were first instituted here in 1923, according to David Owens, a professor at the University of North Carolina’s School of Government. They’re valid in each of North Carolina’s cities and towns.

To take effect, a protest petition requires the signatures of people who own at least 5 percent of a 100-foot buffer around the proposed development. Then the project requires approval of three quarters of the local board. In Cary, for example, that would be six of seven town council votes.

“In a lot of jurisdictions, the protest petition is the virtual equivalent of shutting down the project,” said Jason Barron, a land-use attorney based in Morrisville who is not involved with the legislature’s debate. The process is vulnerable to abuse, Barron said, because landowners don’t have to present valid concerns with their petition.

Even a modification of the U.S. Constitution doesn’t require a 75 percent vote, he said.

Few projects face valid petitions

But few rezoning projects are directly defeated by protest petitions, according to a study by the University of North Carolina’s School of Government.

In 2006, about 6 percent of projects faced a valid protest petition, most commonly in large cities. Of those, only four protested projects would normally have been approved but failed to get the required 75 percent supermajority, according to a survey by the School of Government. In other words, projects tend to pass or fail their vote just the same when the new rule is applied.

Still, “the informal impacts of a protest petition are typically more substantial than its formal impact on votes,” according to the report. Advocates on both sides say that protest petitions can lead to lengthy conversations and debates, or even the cancellation of a project before it reaches a vote.

“If it takes six (votes), then it requires a lot more work,” said Mayor Harold Weinbrecht of Cary, who argues that the protests give residents a needed voice. His council overrides unfounded protests, he said – “but usually that’s very rare. Usually the residents have valid concerns.”

Weinbrecht went on to describe the proposed repeal as a further attack on municipalities’ power to self-govern. The N.C. League of Municipalities has remained neutral on the topic; Paul Meyer, the league’s director of governmental affairs, said some municipalities want to do away with the protest petition, though he declined to name any.

‘Still in play’

The fate of the petitions remained uncertain late Friday. On July 10, the House’s Regulatory Reform Committee dropped the repeal into Senate Bill 112, and it survived a largely party-line vote with Republican support.

A week later, however, the Senate introduced a new version of the regulatory reform push, this time as House Bill 74. Its revision doesn’t include a repeal of protest petitions, but calls for the study of the possible replacement of some local rules by state law, possibly including protest petitions.

“It’s the end of session, so there’s a lot of things still in play,” said Lisa Martin, director of government affairs for the N.C. Home Builders Association, which favors the repeal.

As of Friday, when the Senate approved the version of the bill that didn’t address protest petitions, it appeared as though the legal maneuver might survive the session.

“The question,” Martin said, “is whether the House will concur with that.”

Kenney: 919-460-2608; Twitter: @KenneyOnCary

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