Aug 26, 2008

How Greensboro Lost The Protest Petition by Jordan Green Yes Weekly

This article was one of the first reports on this issue in bringing back Protest Petitions to Greensboro. Yes Weekly changed web sites and some information is not there anymore. So here is the article for people to read.

DIRT: protest petition

A Rezoning Chronicle How Greensboro Lost The Protest Petition

by Jordan Green

Yes Weekly

A rezoning request heard by Greensboro City Council on Feb. 1, 1971 was so controversial that a local lawyer asked Mayor Jack Elam if the meeting could be moved to a larger room to accommodate an overflow crowd stuck outside of council chambers.
Nine residents of Quaker Acres and other neighborhoods spoke in opposition to Maralee Development Corp.’s plan to build apartments north of Friendly Avenue near Guilford College. If that line of defense were breached, opponents argued in language evocative of the 1781 stand by patriotic militias against General Lord Cornwallis, multi-family development might creep further north, overtaking Horsepen Creek and even Carlson Farms.
The neighbors had a powerful weapon at their disposal: a protest petition that, with the signatures of 5 percent of adjacent property owners, allowed them to force the council to muster a 75 percent “supermajority” to approve the rezoning. Noting at the start of the hearing that the petitions had been found sufficient, Elam explained that the seven-member board would need six affirmative votes to approve the rezoning.
An act by the NC General Assembly before the month was out would strip residents of the protest petition, amending the city charter to exempt Greensboro from a law followed to this day by all seven of the state’s largest municipalities: Charlotte, Raleigh, Durham, Winston-Salem, Fayetteville, Wilmington and Asheville.
Few in Greensboro appear to have been aware of North Carolina general statute 160A-385(a), which requires the 75 percent supermajority for approval in cases where neighbors formalize their opposition — or the fact the city was exempt by the authority of 1971 session law. That is, until Councilman Tom Phillips questioned whether the provision could apply to a controversial rezoning request heard by the zoning commission last year that would have allowed commercial development at the intersection of Lawndale Drive and Lake Jeanette Road. The request was made on behalf of three individuals employed by real estate company NAI Piedmont Triad. One of them, Robbie Perkins, was elected to city council last November. Phillips was unable to persuade his colleagues to support a repeal of the city charter amendment.
“It’s just another tool to give surrounding neighbors,” said Phillips, who has since retired from the council. “It doesn’t stop development. It just requires a supermajority. I haven’t seen a good reason not to have it. If it’s good enough for the rest of the state, it’s good enough for us.”
Talk of reinstating the protest petition arose recently during a contentious rezoning request earlier this month in which Perkins cast a tie-breaking vote to allow a politically connected developer to build three-story apartments south of West Friendly Avenue. The request was defeated by the zoning commission, and then came before the council on appeal. The 5-3 vote would not have met the 75 percent threshold required for approval had Greensboro been subject to the protest petition statute.
The reasons the council of 1970-’71 requested that the General Assembly exempt Greensboro from the protest petition remain murky. Among several players interviewed, including former NC Rep. Henry E. Frye, former Mayor Jack Elam, former Mayor Pro Tem Jim Melvin and former Planning Director Charles E. Mortimore, only one person, former City Attorney Skip Warren, indicated he was familiar with the provision.
Warren said he thought another North Carolina municipality might have previously lobbied to have the protest petition enacted as state law, and that Greensboro’s exemption had represented a return to the status quo. A 2006 treatise by David W. Owens, a professor at the Institute of Government in Chapel Hill with expertise in zoning and in city and county planning, suggests otherwise. Owens writes that the provision for a protest petition was included in New York state’s 1916 zoning ordinance, the first comprehensive law in the nation. North Carolina followed suit in 1923.
“Neither landowner nor neighbors can be given a veto over proposed zoning changes,” Owens wrote. “Yet from the outset of local land use regulation, its proponents have concluded that those most directly affected by zoning need a degree of protection from unwanted changes in the land use policies that have relied upon.”
In any case, Warren said he thought the supermajority requirement was too burdensome.
“When you’re acting in a legislative capacity, even with Congress the higher standard is two-thirds as far as [overriding a] veto is concerned,” he said. “We felt that that wasn’t really intended for Greensboro. It was intended for some other municipality.”
While acknowledging that Greensboro was not unique in 1971 in having a council comprised of seven members, Warren said the protest petition provision “gave two members of your council veto power, which could be a bad thing.” Warren said he could not recall whether the request to amend the city charter was made at the initiative of a particular council member or a staff member.
“I was responsible for drawing up the legislative program,” the former city attorney said. “We developed our legislative program based on suggestions and recommendations and other things. Back then there were some legal technicalities that needed to be clarified. Then we presented our program to city council. It would have been in a briefing that reporters could attend.”
Council approved the legislative program unanimously four days before Christmas 1970. Meeting minutes reflect no discussion.
Frye, the former House representative, said typically the city council would meet with the Guilford County delegation and give them a list of bills they wanted introduced, “and unless there was some really strong objection in the delegation, we would designate somebody to file the bills that they suggested.” He said he had no recollection of the city charter amendment enacted in the 1971 session law.
Warren said there was no particular rezoning case that propelled the city charter amendment through the General Assembly.
“The word ‘urgency’ doesn’t even apply,” he said.
While no one has owned up to a personal interest in exempting the city from the protest petition, council minutes and contemporaneous newspaper accounts suggest that Greensboro land-use politics in the late 1960s and early ’70s were a stew of political connections, alleged and real conflicts of interest, and passionate neighborhood opposition to multi-family residential development.
Both the city’s daily newspapers, the ***Greensboro Daily News*** and the ***Greensboro Record*** carried stories in the first week of January 1971about an announcement by Mayor Elam that he had found no impropriety on the part of any city official in a 1969 rezoning case that allowed Urban Systems Development Corp. to move forward with plans to build single and multi-family housing in northeast Greensboro. Neighbors had fought the rezoning, the ***Record*** noted; its morning competitor reported that an allegation of a council member holding ownership of the subject property surfaced in a lawsuit involving the developer.
Elam himself abstained from a vote taken on Feb. 1, 1971 request by an unnamed applicant to rezone property at the southeast intersection of Yanceyville Street and Cone Boulevard for public housing because of “a personal interest.” That request also met opposition from neighbors whose protest petitions were found to be sufficient. The request went down in defeat by a vote of 5 to 1.
In another case, involvement by an elected official in a rezoning matter was more direct, although not legally a conflict of interest. Rep. W. Marcus Short, Frye’s colleague in the House, appealed a decision by the zoning commission to deny his request to rezone property at the southwest corner of Cornwallis Drive and Battleground Avenue. Again, protest petitions by neighborhood opponents were found to be sufficient and the 75 percent supermajority came into play. Short requested a continuance and the request was defeated unanimously two weeks later.
No rezoning battle raised the social temperature higher in the first two months of 1971 than the request by the Maralee Development Corp. to rezone property purchased from the Coble and Ballenger families north of Friendly Avenue between King George Drive and Stage Coach Trail. Although a protest petition had been found sufficient, Elam would say 37 years later that he had no recollection of the tool being used by opponents. Warren, the former city attorney, would say that to his knowledge the case had no influence on the city’s successful efforts to do away with the protest petition.
And yet Elam’s comments at the outset of the hearing revealed a tension in city land-use politics: Both commercial pressures on individual members’ decisions and opposition by neighbors appeared to bear an impact on the council’s land-use decisions.
“The mayor further stated that the council is far from satisfied with the zoning process itself; that the council often finds itself in the position of having pressure applied by people who are in a position to make money simply because of rezoning, and at the same time, facing the ire of people who have moved into areas expecting the zoning to remain the same and finding that there is a movement afoot to rezone; that some members of the council feel that this matter can be better handled by zoning well in advance of development so that anyone moving into the area will know just what the zoning will be,” the meeting minutes read. “The mayor stated that no conclusion has been reached with regard to this matter but that he wanted those present to know that the council was concerned.”
Whether or not the protest petition was part of the council’s dissatisfaction with the zoning process, the provision would be eliminated in Greensboro in a little over three weeks by an act of the General Assembly.
Minutes reflect that John Russell, the development company’s president, told the council that “the land was not purchased with this project in mind, but that after study it was determined that there was a need for quality multi-family housing and that this would be the highest and best use of the land.”
The rezoning request was doomed; council voted unanimously to defeat it on Feb. 1. When Russell asked that council reconsider the request on March 1, it failed by a 4-3 vote, with Elam joining the nay column.
Today, the councilmember most familiar with the protest petition is Robbie Perkins, who said he has encountered it in other North Carolina municipalities in his role as a real estate developer. He said he planned to consult with Warren to learn more about the reasons for Greensboro’s exemption.
“I think this is something that deserves debate,” he said. “The outcome of the debate is pending. I’m interested in doing my research before I take a position.”
Perkins pointed to several potential downsides of restoring the protest petition, including that it could discourage infill development.
“We’ve got to look at this closely before we go ahead and put a protest petition in place,” he said. “It may have some negative consequences as well. We have enough problems attracting investment. Do we want to make it that much harder? You’ve got big picture stuff…. We’ve got hit pretty good by job loss and loss of tax revenue. We need to think from a strategic point of view. How much leverage do you want to give that individual who lives next door?”
Mayor Yvonne Johnson said she was interested in learning why the city was exempted, but currently does not hold an opinion about whether Greensboro’s unique arrangement is preferable to the ground rules followed by other cities across the state.
Planning Director Dick Hails recently wrote to Keith Brown, a High Point man campaigning to restore the protest petition in Greensboro, that the idea had been proposed several times by council members in the past few years. “In each case,” he said, “there was not a sense that the majority of council wanted to pursue the matter, and there was not any follow up on the issue.”
Three other sitting council members — Sandra Anderson Groat, Dianne Bellamy-Small and Goldie Wells — indicated they would be hesitant to tinker with the current practice of approving controversial rezoning requests by a simple-majority vote.
At least one current member of the Guilford County legislative delegation has indicated sympathy with those who wish to restore the protest petition in Greensboro.
“I did not know about the protest petition exemption, but I see no merit in it if the rest of the state has similar relief,” Rep. Pricey Harrison wrote in a recent e-mail. She said she agreed with Phillips, the former Greensboro councilman “that if the infill proposal is a good one, it will win approval of the necessary majority. It is imperative, particularly in what is quickly becoming a carbon-constrained environment, that we adopt better land use management plans and stick to them.”
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