Durham News: Opinion

Tom Miller: Neighbor’s right under attack

The General Assembly began its 2015 session on Jan. 28, and almost immediately neighborhood leaders were put on notice to expect another bill to repeal a neighbor’s time-honored right to oppose a rezoning with an official protest petition. That bill, House Bill 201, has now cleared the House and is awaiting consideration by the N. C. Senate.

Under North Carolina law, if the owners of 5 percent of the ring of property 100 feet deep surrounding land to be rezoned file a formal protest petition, it takes a super majority of three-fourths of the members of the city council to pass the rezoning. The protest petition right in North Carolina is as old as zoning itself. It was conceived as part of model zoning legislation promulgated by the U.S. Department of Commerce in 1921 in the early years of President Warren Harding’s administration. The country was rapidly urbanizing, but without stable and reliable systems of land-use regulation, U. S. cities were unsafe for investment. Developers of hotels and new home subdivisions were reluctant to risk the money if someone could build a factory or fish market next door.

In 1923, the N.C. General Assembly adopted the model zoning legislation promulgated by the Harding administration essentially verbatim. The protest petition right was part of the law here and in nearly every state. A protest petition right protects a neighbor’s investment in his own property and his reasonable expectations in the stability of the surrounding land uses. The key to effective zoning in 1923 and now has been predictability. A landowner who invests in his land trusting in the zoning governing properties nearby becomes a major stakeholder in the regulatory scheme. The protest petition right gives him and other neighbors the ability to protect the regulatory environment by making sure that the zoning on the land next door cannot be manipulated or changed without a high level of public scrutiny and support among the members of the city council. Protest petitions often lead to more thoughtful results in zoning cases and better buffering and protections between incompatible uses.

The protest petition right also levels the playing field between ordinary citizens trying to protect their homes in a complicated system that often seems stacked against them. A developer who stands to make a considerable profit from the rezoning of his property has months to prepare before he applies for his rezoning. He can afford attorneys, engineers, lobbyists, and land planners to advance his interests. The neighboring homeowner does not have these resources. He frequently has as little as two weeks’ notice of the impending zone change. In that time he must consult with his neighbors and try to learn zoning rules and procedures from his city’s zoning code that may be as much or more than 1,000 pages in length. When he speaks at the public hearing before the council, the ordinary citizen is invariably overmatched. The protest petition, if he can organize his neighbors and get the necessary signatures, is frequently the only tool available to him to make the developer and the city council seriously consider his interests and concerns.

In North Carolina, protest petitions are actually submitted in very few cases. According to a survey by the UNC School of Government in 2006, out of the 2,167 rezonings reported, a valid protest petition was filed in only 6 percent of the cases. Even in those cases where a valid protest was filed, the supermajority vote requirement did not affect the outcome in most cases. But even the slim chance that a protest petition might cause a rezoning to be denied is intolerable to the North Carolina’s powerful development interests. During the last two sessions of the General Assembly, the N.C. Homebuilders Association and its allies have pressured legislators to repeal the protest petition right in North Carolina. Bills with provisions ending protest rights have almost passed, but at the last minute the right was restored before the final legislation was adopted. Each year, a storm of e-mail messages to legislators from ordinary citizens and neighborhood advocates across the state helped turn the tide.

This year, the time-honored right of a neighbor to protect his home from a potentially harmful zone change next door is under assault again and the forces arrayed against it are powerful. The bill’s principal sponsor and spokesman is Paul Stam, long-term member from Apex and vice-chairman of the rules committee. In committee debate, Repr. Paul Luebke from Durham put forward a compromise amendment which would have saved the protest petition, but made it much harder to obtain. Luebke’s amendment appeared to pass by voice vote, but the committee chairman ruled that it had failed. On the house floor, a similar compromise amendment submitted by Rep. Marilyn Avila of Wake County failed in a 48-63, bi-partisan vote. Rep. Graig Meyer of Orange County then asked the House to adopt an amendment providing for a minimum of 60 days’ notice before a rezoning could be acted on by a city council – the idea being that if neighbors lose their right to file a protest petition, they deserve time to figure out what’s going on and prepare. The proponents of the bill objected to 60 days’ notice, however, and ultimately, the bill was amended to provide for only a 30-day minimum notice period.

The bill will now be taken up by the Senate and if it passes there, the ordinary people of North Carolina will be stripped of the only advantage afforded them in complicated legal business of municipal zoning. The whole system of land-use regulation in North Carolina will be out of balance. Without the possibility of a protest petition, developers will have no incentive to be good neighbors. The rezoning process will become more susceptible to manipulation and arbitrary changes. To combat this, city zoning codes will have to be revised to improve buffers and other requirements necessary to protect neighborhoods. City planners and city councils across the state will have an increased responsibility to make sure that ordinary citizens’ investment in their homes will be protected.

Let us hope that wiser heads in the Senate realize the importance of the protest petition right not only for fairness among the stakeholders, but for stability in the land use regulatory environment and the overall welfare of North Carolina’s cities.

Tom Miller lives in Durham.

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