[Durham INC] The land vultures want to see protest petitions go away

[Tom Miller]

Before a major rewrite of the zoning portion of the general statutes back in 2005, the protest petition was handled a little differently.  The law was that the owners of 20% of the box of land 100 feet deep on any one side of a parcel to be rezoned could file a protest petition.  The assumption was that all parcel to be rezoned were essentially rectangular and had clearly defined sides.  This always created horrible calculation problems because properties to be rezoned are hardly ever simply square or rectangular.  Even those that had clear sides often had long sides and short sides.  This made for a very uneven application of the protest petition procedure.  In 2005, the standard was changed to 5% of the 100 foot wide band surrounding the whole property.  Sides went away, but the percentage went down because the protesters now had to muster against the whole 100 ft. deep band, not just the box on one side.  I believe that the change came at the suggestion of the planners association.  The homebuilders association was aware of the change and did not object.  In fact they were among the big players in the legislative debate and were certainly the biggest winners – they got development agreements out of it allowing them to make a deal with a city to tie up the city’s regulatory power for years.

 

Whether the standard is the old 20% of a side or 5% of the whole band, the bar is actually quite high.

 

Greensboro had its own local fight about protest petitions some while back.  They abolished them for a while, but then got them back after the experiment proved unsatisfactory.  I don’t know all the ins and outs concerning this.

 

The simple fact is that most rezoning requests are granted.  According to a recent (2006) survey by the UNC School of Government, 76% of rezoning requests in the reporting period were approved.  9% were pending at the end of the period, indicating that  15% were denied.

 

That same survey shows that valid protest petitions were filed in only 6% of the total cases.  In these cases, 52% were approved with the required super majority vote.

 

It seems that the Homebuilder’s Association is not satisfied with an outcome in zoning cases that would send any minor league batter to the majors with a very fat contract.

 

Zoning is the application of the government’s police power to land use.  It is valid only if it serves to protect identified public interests.  One of those interests is the value of a neighbor’s investment in his own property.  That is why the protest petition was included as a part of the original grant of zoning power to cities in the first instance.  The protest petition is not a North Carolina phenomenon.  It is part of zoning codes across the country.

 

The argument that modern zoning codes contain other safeguards which make the protest petition unnecessary is spurious.  Most communities in NC don’t have modern zoning codes.  Those that do, like durham, have no particular safeguards for neighboring property owners that requires any sort of special scrutiny or protection which were not present in older codes.  In Durham, for example, buffers actually became dramatically smaller when we adopted our UDO.  No one who has advanced the “modern Zoning code” argument has ever actually cited any sort of real-life example where some modern provision works as an adequate substitute for a protest petition.

 

Tom

 

From: inc-list-bounces at rtpnet.org [mailto:inc-list-bounces at rtpnet.org] On Behalf Of Richard Ford
Sent: Wednesday, July 24, 2013 1:28 PM
To: inc-list at rtpnet.org
Subject: Re: [Durham INC] The land vultures want to see protest petitions go away

 

I am not familiar with the recent history of protest petition legislation. 

 

It would be great if someone commenting could respond to Terrell's points.

 

Dick

Sent from my iPhone


On Jul 24, 2013, at 11:44 AM, Pat Carstensen <pats1717 at hotmail.com> wrote:

>From Tom Terrell, who makes his dough fighting your right to control what happens in your back yard, has his say in the Greensboro paper.  Folks are encouraged to comment on it!

 

http://www.news-record.com/opinion/columns/article_62c389d2-effe-11e2-aff9-0019bb30f31a.html

 

Conclusion: There is no other circumstance in our local, state or federal systems of citizen-elected government where one unelected person can force a 75 percent majority vote on any decision, whether it relates to taxes, schools, public safety, public health, civil rights, military intervention or court appointments. None. Protest petitions for routine zonings should be no exception.

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