House again considering repeal of zoning protest rights

Jun. 18, 2014 @ 06:45 PM

N.C. House members once again appear likely to push for the elimination of the protest-petition rights of neighbors in zoning cases that have been on the books since 1923.

The repeal provision is embedded in a new, grab-bag “regulatory reform” bill that on Wednesday picked up endorsements from two House committees.

House leaders considered holding an evening floor vote on the bill, but wound up putting it off until another day.

The inclusion of the repeal provision makes 2014 the second year running the House has tried to do away with protest petitions. Last year’s attempt died in the N.C. Senate.

The repeal push is drawing opposition from Durham neighborhood activists. One, Tom Miller, in trying to drum up an email campaign against the move said it was “no accident” that legislators kept the provision out of the bill until the last minute.

Miller, a Watts-Hillandale resident and a former staff lawyer in the state attorney general’s office, also reiterated his belief that repeal would cost residents “their only leverage in a [zoning] process that is often stacked against them.”

The petition rule allows people with property bordering a site to request that the elected officials who pass judgment on a rezoning request assemble a supermajority.

Within the city limits of Durham, that means a formally protested rezoning needs support from six of the City Council’s seven members to pass, rather than the usual four.

Proponents like Miller contend petition rights serve as a check and balance on local-government authority, helping ensure that zoning rules remain predictable for residents who have much of their capital tied up in their homes.

They on occasion also force developers to serve up concessions to get a project approved. A notable example of this played out in Durham this year and last, as the would-be developer of a tract at the corner of N.C. 54 and Barbee Road downsized his plans to secure neighbor and City Council support.

What started out as an application for a 300-unit apartment complex with an adjoining self-storage business ended up as council approval for 185 townhouses. The change came after the council couldn’t muster a supermajority for the original plan.

Mayor Bill Bell – a neighbor of the project – and Councilwoman Cora Cole-McFadden blocked the initial application after Bell’s neighbors petitioned against it. Perhaps not coincidentally, Bell isn’t a fan of the House’s repeal effort.

“I really think it’s taking away opportunities for people to express their opinions on issues of concern to them,” Bell said on Wednesday. “I would hope they would not pass a bill such as that.”

The push for repeal is led by property rights conservatives in the House, plus an assortment of real estate and development-industry groups. The most vocal support for repeal is coming from Greensboro, where special legislation eliminated petition rights from 1971 to 2009.

A Greensboro land-use lawyer, Tom Terrell, in April told the House Committee on Property Owner Protection and Rights the petition process can give “one unelected citizen more power than the people we elect.”

He further argued that supermajority requirements should be reserved for bigger issues, such as those affecting the balance of powers between different arms of government and changes to constitutions.

Terrell represented the would-be developers of a small shopping center in Greensboro that sparked a major political dispute in that city, including a petition drive. The site was zoned for residential uses, but bordered by commercial, church and office development.

Greensboro by all accounts and measures has had a more difficult time than Durham in recovering from the recession. A group there called the Triad Real Estate and Building Industry Coalition favors repeal of petition rights on the grounds they’re a “blow to an already reeling industry.”

The N.C. League of Municipalities, a lobbying group for city and town governments, would prefer that legislators consider changing the threshold requirements for submitting a valid protest petition, said Paul Meyer, its executive director.

At present, a petition is valid if signed by the owners of 5 percent of the property bordering a project.

Meyer also noted the House in taking up the issue again is bypassing an ongoing study of the issue by the Property Owner Protection committee, which was supposed to deliver its final report next year.

“It seems like we should have that committee complete its work and have some conversation rather than just throwing it out there in the last couple weeks of the [2014 election-year] short session,” Meyer said.