[Durham INC] If you thought the BOCC were sleaze-balls, check this out

Tue Jun 29 23:57:59 EDT 2010

Tom,

No provision I saw for current cases.  

It does say it goes into effect upon passage of the bill.  I thought bills normally become effective on Oct 1 or 
Jan 1 so there is some notice to affected parties.  Seems unfair to change the rules in the middle of the game.  

That's why I wrote our legislators.  And if Pat hadn't sounded the alarm its doubtful any neighborhood association would have been aware of the change.  

So Tom does this hurt or help the protest petition in the 751 case?

Respectfully, 

Anne M. Guyton

________________________________
From: Tom Miller <tom-miller1 at nc.rr.com>
To: Anne Guyton <annemguyton at yahoo.com>; inc-list at durhaminc.org
Sent: Tue, June 29, 2010 11:37:44 PM
Subject: RE: [Durham INC] If you thought the BOCC were sleaze-balls, check this out

This law, if passed will match the county up to the city.  About three years ago, the protest petition statute for cities changed.  This meant the new UDO for the city had to change to conform to the statute.  Since there is no protest petition law in the general  statutes for counties, the old UDO rules (adopted pursuant to a local bill, I think) still applied to the county and still do today.  Under the new rule, protesters lose the advantage they had under the old law – the short side.  Because the old law contemplated(s) “sides,” it was possible for there to be a short side to a property which meant getting 20% was easy on that side.  The problem with the old law for years was  - what is a side when the property has irregular boundaries?  The new law gets rid of the side problem by just requiring the owners of 5% of the area of the 100’ deep band surrounding the property to be rezoned.  For big parcels this could be tough, but it also means
 the 5% can be picked up here and there.  It is no longer necessary to get 20% along a side.  You are golden if you can get a total of 5% everywhere.  

The other thing this new law seems to do is that it appears to eliminate the adjacency requirement that used to vex protesters.  Under the old 20% rule, the protesters had to get the owners of 20% of the area of the 100’ deep box on one side to sign AND each signer’s property had to be adjacent to the property being rezoned.  If you owned part of the 100’ deep box, but weren’t adjacent, your signature was no good.  The new rule seems to have eliminated this extra requirement.  Now it appears that on city petition, all you have to do is own part of the area of the 100’ deep band to have your signature count.  The fact that your property doesn’t touch the subject property doesn’t matter.  This helps.  It also make the old “gift-wrap” defensive ploy much harder to pull off.  I wonder if Karen Sindelar would agree with me about the adjacency requirement.

The real question is what happens to the 751 protest petition if this new law passes before the BOCC takes up the 751 case?  Anne, and those of you who have read the bill, does it contemplate its effect on a case underway?

Tom

From:inc-list-bounces at rtpnet.org [mailto:inc-list-bounces at rtpnet.org] On Behalf Of Anne Guyton
Sent: Tuesday, June 29, 2010 11:28 AM
To: inc-list at durhaminc.org
Subject: Re: [Durham INC] If you thought the BOCC were sleaze-balls, check this out

Ed,

Thanks so much for speaking with Ellen and doing this follow-up.  

It is a good goal to align the City and the County requirements.  Though my take is this bill will only do it in the short term because its creating a second, separate law.  Anytime either one of them is changed the requirements will once again be different.  I believe a simpler, more permanent, solution to maintain the same requirements for both entities would be to add Durham County to NCGS 160A-385(2) or reference it in the new bill.  

And one day it would be really nice if the scales were tipped to make it easier for neighborhoods to have a lasting impact on zoning changes.  

And of course the 751 Assemblage will certainly use this to their advantage.  My dream would be for a provision to be added exempting any zoning changes currently in process from this new law.  

Respectfully, 
Anne M. Guyton

________________________________

From:Ed Harrison <ed.harrison at mindspring.com>
To: inc listserv <inc-list at durhaminc.org>
Sent: Tue, June 29, 2010 10:36:08 AM
Subject: Re: [Durham INC] If you thought the BOCC were sleaze-balls, check this out
I just asked Commissioner Ellen Reckhow about this legislation.  The Senate version of the bill (which passed that body, 50-0,  on June 9) is currently in  hearing in the House Judiciary I Committee. Comm. Reckhow says I can pass on what she said:  (1) The purpose of the bill is to align the County's protest petition provisions with those of the City of Durham;  (2) the issue has been under discussion "for several years" by County Commissioners (suggesting as far back as she was Board Chair);  (3) It has no relationship to the 751 Assemblage application; (4) "It was confusing" for some residents to have different provisions for city and county. 

I will say that Durham County is relatively rare in having ordinance provisions which allow non-municipal residents to file protest petitions against municipal development applications. This was put in place via a local bill in the early 2000s.  One of our Pope Road neighborhoods were able to file a protest petition in 2004 against an application to the City, which resulted in a significantly changed project. Planning Commission Chair (then) Jackie Brown strongly encouraged me to get one organized, and (when encouraged) the unincorporated neighborhood with the most frontage went gangbusters (something like 90-plus percent of the adjacent owners signed on). 

The Senate version of the bill, Senate Bill 1399, was introduced on May 25th, primary sponsor Floyd McKissick, co-sponsor Bob Atwater (so, both of Durham County's Senators).  All of Durham County's State Reps sponsored the House "companion" on the same day, House Bill 2033.  That is, every legislator in the delegation supported this legislation. 

Here is what's currently in the UDO (Section 3.5) for *County* protest petitions: 

2. County 
In particular, the petition shall be submitted on time and contain the signatures of property owners comprising of 20% of either: 
a. The area of the property under consideration; or 
b. The area within 100 feet of either side or the rear of the subject property; or 
c. The area directly across the street from the subject property and extending 100 feet from the street frontage of the properties across the street. 
.
Here's what in the City provisions, taken directly from the State Statute, at N.C.G.S 160A-365:
• Twenty percent (20%) of the land area proposed to be rezoned, or
• Five percent (5%) of a 100-foot-wide buffer extending along the entire boundary of each discrete or separate area
proposed to be rezoned. A street right-of-way shall not be considered in computing the 100-foot buffer area as long as
that street right-of-way is 100 feet wide or less. When less than an entire parcel of land is subject to the proposed
zoning map amendment, the 100-foot buffer shall be measured from the property line of that parcel. In the absence of
evidence to the contrary, the city may rely on the county tax listing to determine the ‘owners’ of potentially qualifying
areas.

Citation: 
[http://www.ncleg.net/EnactedLegislation/Statutes/HTML/ByChapter/Chapter_160A.html]

So yes, Anne, it applies to the City -- it IS the City's current set of provisions for protest petitions (and has been
for a long time). 

It looks to me as if this would actually make it less burdensome to come up with the signatures for a protest petition, based on the
reduction from 20 percent to 5 percent of the frontage distance. 

While I know that many of us are currently prone to accuse the Board of Commissioners of nefarious
deeds right now (well, not all of them), this legislation is not one of those. It would bring the unique
protest petition capability of unincorporated residents in Durham County in line with everywhere else
in North Carolina. There are plenty of reasons for us (including me)  to have problems with that Board's recent conduct.
Probably best if we stick to the ones that are justified. 

Ed Harrison

On Jun 29, 2010, at 9:53 AM, Anne Guyton wrote:

Pat,

Can you tell me if the present protest petition requirements/ordinance are part of the UDO, passed by the city and county?

Wouldn't this also apply to the city?

Thanks as always for your expertise!

Respectfully, 
Anne M. Guyton

________________________________

From: Pat Carstensen <pats1717 at hotmail.com>
To: inc listserv <inc-list at durhaminc.org>
Sent: Tue, June 29, 2010 8:23:06 AM
Subject: Re: [Durham INC] If you thought the BOCC were sleaze-balls, check this out

To spell out more clearly what this means:
1) The legislature is expected to go home in 2-3 weeks, so if this passes, it will apply to the 751 assemblage.
2) This is why they needed a postponement until July

Regards, pat

________________________________

From: pats1717 at hotmail.com
To: inc-list at durhaminc.org
Date: Tue, 29 Jun 2010 07:29:07 -0400
Subject: [Durham INC] If you thought the BOCC were sleaze-balls, check this out

I was looking at something else and found this special provision on Durham protest petitions that the legislature is considering:

http://www.ncga.state.nc.us/Sessions/2009/Bills/House/PDF/H2033v1.pdf

considered "members of the board" for calculation of the requisite supermajority.
10 To qualify as a protest under this section, the petition must be signed by the owners
11 of either (i) twenty percent (20%) or more of the area included in the proposed change or (ii)
12 five percent (5%) of a 100-foot-wide buffer extending along the entire boundary of each
13 discrete or separate area proposed to be rezoned. A street right-of-way shall not be considered
14 in computing the 100-foot buffer area as long as that street right-of-way is 100 feet wide or
15 less. When less than an entire parcel of land is subject to the proposed zoning map amendment,
16 the 100-foot buffer shall be measured from the property line of that parcel. In the absence of
17 evidence to the contrary, the county may rely on the county tax listing to determine the
18 "owners" of potentially qualifying areas.
19 The foregoing provisions concerning

it is obviously something the county commissioners has asked for since all the reps are sponsoring it.  This would make it ALMOST IMPOSSIBLE to get a protest petition in the county.  I'm not sure how to stop it, but it must be stopped.

Thanks, pat

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