[Durham INC] New Zoning Threat and Proposed INC Resolution

Mon Mar 2 13:39:04 EST 2015

Ed,

If due to a third party rezoning my propoerty goes from Commerical to Residpropertyential, I have had value taken away, altho not a right to compensation??

Dick
On Mar 2, 2015, at 12:03 PM, Ed Harrison wrote:

> Zoning is a legislative, not a regulatory, matter. Any land with a zone on it can be presumed to have a set of allowed uses. (Tom can tell you all about the case law for that one, if you need to know). For the 13 years in which I've dealt with third party rezonings as an elected official, I have believed that if it is approved by the the governing board, it isn't a taking.  Under *current* protest petition law, it's quite easy for any of the property owners within an area proposed for a third party rezoning to file a protest petition. If the petition is approved, they can then present arguments against the rezoning, as can anyone in the world who knows about it. 
> 
> I would be curious to know if a prohibition on third party rezonings would then prohibit the adoption of neighborhood protection overlays. 
> 
> Ed Harrison
> 
> 
> On Mar 2, 2015, at 9:52 AM, Richard Ford wrote:
> 
>> Tom
>> 
>> Wouldn't  third party rezoning be a taking??
>> 
>> Dick
>> 
>> Sent from my iPhone
>> 
>> On Feb 27, 2015, at 6:07 PM, Tom Miller <tom-miller1 at nc.rr.com> wrote:
>> 
>>> The NC Bar Association is working on a comprehensive rewrite of city and county zoning statutes.  The draft bill is currently 160 pages long. Although it is supposed to be mostly clean up and reorganization, it contains a revolutionary provision about what it labels “third party rezonings.”  It’s about who can file for a rezoning.   Under the law as it is today and has been since the beginning in 1923, anyone can file an application to rezone any piece of property.  You do not have to own anything.  This is because zoning is an exercise of the government’s police power – the power to regulate for public health safety and welfare.  Zoning is a public right, not a property right.  Rezoning is a public legislative process.  Everyone has an equal right to participate.  If the law is changed in the way the NC Bar Association proposes, only the city and landowners would be able to file for a rezoning.  People who don’t own the land in question would not have a right to apply to have it rezoned.  They would have to ask someone who had the right to apply to do it for them – the landowner or the city.
>>>  
>>> Here is an example:  Today, I can apply to the City of Durham to rezone the RU-5(2) property on Edith Street around the corner from me to RU-5.  Even though I do not own the land, I can apply to rezone it the same way a developer would do it.  I can pay the fee, fill out the forms, and submit the maps and attachments required.  If I do this, even though I do not own any of the land, the city must send the case to the planning commission for a public hearing.  After that, the city must receive the advice of the planning commission and then the city council must hold its own hearing and then it must decide the case.  The council has no discretion to not consider the application.  If the NCBA bill passes as it is written, I will not be able to do this. To rezone the land, I would have to ask the landowner to apply to have it rezoned and, if that didn’t work, I would have to ask the city council to initiate the rezoning.  They could refuse my request.  They could even refuse to consider my request.  I would have no right to compel a public hearing or a vote.  If the city council granted my request to initiate the rezoning I requested, they could modify it without consulting me.  It would be theirs.  They could even change their minds and withdraw the rezoning case half-way through.   If they kept the case on track, the thing would then go through the hearing process as described above, but the city would be the applicant, not me.  They would not have to involve or consult me at all about how the thing was handled. 
>>>  
>>> Neighbors do not often initiate rezonings of land they do not own, but it does happen.  In the 1980s and 1990s, my neighborhood association applied to rezone huge swaths of land in Watts-Hillandale from multifamily, commercial, and office zones back to single family.  The land was developed already as single-family houses, but as the houses aged, developers had begun to buy them up and get the property rezoned to more intense uses.  The idea was to use rezoning to raise the property values for resale.  When the properties began to attract the attention of motel and office developers, the neighborhood association applied to the city to rezone the property back to single family use.  It was a huge fight and the landowners all filed protest petitions, but the neighborhood made its case and won the rezoning cases with only one dissenting council vote.  The ironic thing is that the zone changes turned a severely declining older neighborhood of small houses into one of the city’s more popular neighborhoods.  Watts-Hillandale didn’t invent the idea – Trinity Park had done the same thing a few years before us and the TPA leaders who were so helpful to us when we were organizing, suggested the idea to us.
>>>  
>>> Zoning was not created to annoy property owners by restricting development on their land.  It was created to protect the investment neighboring property owners make in their land.  The zoning on your property protects your neighbors from the crazy things you might do if there were no zoning.  The zoning on your neighbors’ property is there to protect you in similar fashion.  Neighbors are the primary stakeholders in the whole idea of zoning, not property owners.  The Bar Association bill would make zoning a cozy arrangement between developers and the city. If it passes, a landowner would still be able to compel the city to consider his rezoning request, but neighbors would only be able to ask the landowner or the city to start the process – a request would could be ignored or refused.  It would reduce neighbors to Oliver Twists asking for more gruel. It would reduce neighbors to second-class citizens.  The gruel is ours.  We shouldn’t have to ask for it.
>>> <A Resolution by the InterNeighborhood Council of Durham Concerning Legislation Limiting Equal Access to the Legislative Zoning Process.docx>
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