The Argument For Protest PetitionsArticle Date: Tuesday, December 10, 2013
Written By: Ben KuhnWhen a rezoning application is filed, nearby residents are often faced with potential development adjacent to their community that is in conflict with their expectations based on what has always been there and what previously could have been developed under the existing zoning. The rub ordinarily arises in situations where a rezoning proposed on an adjacent property will mark a stark contrast from the zoning and/or character of development of the property already existing next door. The impacts of such a rezoning on the neighboring properties can be significant. The results of such developments can and do affect neighboring property values. This can harm property owners and the community in general.
The developer, their lawyer, architect, land planner, traffic engineer, and others pursuing a significant rezoning case usually have regular professional interaction with staff and elected officials in a number of ways. They lobby and speak directly with planning staff and elected officials. They attend and network at Chamber of Commerce meetings, receptions, downtown booster events, holiday functions, professional development seminars, fund-raisers, UDO “charrettes,” etc. There they meet, discuss matters, spend time to gain trust, and achieve some level of familiarity with and among staff and elected officials. These same officials then make decisions on matters such as rezoning cases brought by developers which often affect people living next door more than anyone else. These interactions happen day in and day out all year, every year, and in this manner developers are able to address issues and respond to questions about specific rezoning cases much more deftly and directly than the ordinary citizen. This level of familiarity takes time and money — neither of which ordinary citizens possess in large measure. This is how the gears of local power often grind. I am not here to say that is bad, or there is anything wrong with developers and others seeking out such relationships and building influence in this manner. That’s the way the world turns and how one can legally influence how power is exercised.
However, no ordinary citizen can reasonably counter-balance such input and influence with just one vote for one town council member in a particular municipal district once every four years. The ballot box is not much refuge for these impacted citizens when the issues before the larger electorate have little, if anything, to do with the major impact arising from one rezoning application voted on three years ago which has already resulted in a “monstrous” development being built next to their “little slice of heaven.” Realistically, few persons affected can vote in any particular election cycle for the elected official that represents their district (and perhaps for one or two at-large members on the ballot). Let’s be honest: That’s not much. Without the balance-shifting power of the statutory protest petition, there is little that one or a few neighbors can do to register their objection or opposition to a particular rezoning in a manner that can influence elected officials and protect their interests.
Our Legislature has therefore concluded that there must be a mechanism that gives residents a tool to balance such substantial influence and power as exercised by local elected officials at the behest and request of developers. At its core, the protest petition is a reasonable moderating influence to ensure that neighboring properties are zoned and developed in a cohesive and complimentary manner for the benefit of everyone in the community. It is designed to provide one power and advantage to the ordinary citizen, which if it did not exist, could result in those most impacted having little in their quiver to combat overwhelming development interests and municipal authority.
The protest petition and its 75 percent super-majority vote requirement reasonably readjust the scales when a developer requests elected officials to exercise their power to approve a zoning change. This is similar to what happens in the context of a variance application requiring a four-fifths vote to be approved.
A variance application basically requests that a city or town overlook technical compliance with an ordinance where strict compliance would present unnecessary hardship, and where the variance requested is consistent with the spirit and intent of the ordinance and is in the public interest. When an elected body is tasked with voting on a rezoning application in the face of a protest petition much the same forces are at play. The developer wants something different than what is then the written law of the land — i.e., the changed zoning status of the property in question. When asked to change a zoning classification in the face of opposition from those most directly affected, decision-makers should reasonably come to near consensus that the proposed rezoning serves the public interest and should be approved despite the serious impacts upon immediate neighbors arising from the decision.
Some suggest that fairness and balance exist due to public notice requirements, staff and planning board involvement, and public records laws. However, this ignores the fact that developers and their team of professionals are experienced in navigating these waters and have crucial input and influence at every stage of the process. The family at 742 Evergreen Terrace does not. They likely have never sat down and met with, or even spoken to, a town staffer, planning board or town council member — ever — about anything. The process is usually so foreign to ordinary citizens that they do not understand that even a decision as to when to file the rezoning petition has major implications.
There are numerous moving pieces to the decision-making process involving a rezoning. When a developer comes to town council with a proposed change that will alter the nature and character of an existing zoned property, that developer should be expected to bring their “A” game. Developers should (and some do) anticipate the reasonable concerns of neighbors such that the proposed changes will be welcomed by and benefit those affected. If this were done in every case, of course, the protest petition as a “citizen weapon” would rarely be pulled out of the bag.
However, until we arrive at a day when the developer, staff, planning board, town council, and affected neighbors can all be expected to waltz through rezoning proceedings “happily-ever-after” with everyone welcoming changes brought by someone who often has no connection to the impacted neighborhood other than a desire to reap benefit from its location and development potential, the protest petition is a tool that must remain in the bag to protect nearby property owners. As a realist, and perhaps jaded a bit by some of the rezoning and other land use disputes in which I have represented those who oppose a major zoning change, we are just not there . . . and probably never will be. Until then, the Legislature must continue to ensure that the protest petition is a tool available to protect the interests of North Carolina citizens.
Ben Kuhn is the owner of the The Kuhn Law Firm, PLLC and practices law in Raleigh. He can be reached at firstname.lastname@example.org