Please join the Greensboro Neighborhood Congress, the League of Women Voters and the Coalition of Concerned Citizens of the Triad at the City Council on Wednesday, January 21 to support the reinstatement of the right of Protest Petition to the citizens of Greensboro. Why is Greensboro the only major city in the state without the right of Protest Petition? The answer is because the Council in 1971, without any public discourse, voted to ask the state to take that right from our citizens.
Below is detailed information about Protest Petitions written by Professor David Owens of the UNC School of Government in Chapel Hill. Professor Owens gave a wonderful and informative presentation on January 13 at a gathering sponsored by the League of Women Voters. We are grateful to Willie Taylor of the League of Women Voters for bringing Professor Owens to Greensboro.
Protest Petitions
David Owens
School of Government
The University of North Carolina at Chapel Hill
1. Legal Issues
Background
While landowners and neighbors are significantly affected by zoning, the choice to change zoning regulations is a discretionary policy choice of elected officials. Neither landowners nor neighbors can be given a veto over proposed zoning changes.
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. The protest petition was included in the nation’s first comprehensive zoning ordinance, New York’s 1916 ordinance. The legal architect of the New York ordinance noted that the provision for a protest petition was “a device for the protection of the property owner” and that its purpose was “to prevent easy or careless changes in the zoning regulations. . . . The 20 percent protest will often prevent impulsive or improper map changes.”
This same provision for a protest petition was included in North Carolina’s 1923 zoning enabling act to provide a degree of certainty and stability of zoning while allowing the governing body sufficient flexibility to amend the ordinance to reflect changing needs and circumstances.
Statute
The provision in North Carolina zoning law -- G.S. 160A-385(a) -- for a protest petition is mandatory for cities. The protest petition is available whether or not it is mentioned in an individual zoning ordinance. There is no statutory authorization for the protest petition in the county zoning enabling legislation so counties do not have the authority to use the protest petition. The exception to this general rule is where the General Assembly has modified the generally applicable law as it applies to a particular city or county. For example, local legislation adopted in 1971 removed the protest petition for Greensboro, while local legislation adopted in 2003 extended the protest petition to Durham County.
The protest petition only applies to zoning map amendments. It arises either when neighbors object to the rezoning of a parcel or when the owner objects to a rezoning proposed by the government or the neighbors.
Applicability
If a sufficient number of those most immediately affected by a zoning change object to a proposed zoning map amendment, the amendment may be adopted only if approved by three-fourths of all the members of the governing board. This requirement applies to repeal as well as to amendment of a zoning ordinance.
It does not apply to the initial zoning of an area being added to the territorial coverage of an ordinance, whether by annexation or by an extraterritorial ordinance. Amendments to special or conditional use districts and conditional zoning districts are also exempt from the protest petition, provided that the type of use is not changed, the density of residential use allowed is not increased, the size of nonresidential development is not increased, and any buffers or screening is not reduced. Amendments to individual conditional or special use permits are quasi-judicial rather than legislative zoning decisions and therefore are not affected by a protest petition.
Supermajority vote computation
When a valid protest petition has been filed, G.S. 160A-385(a) provides that adoption of the proposed amendment requires the favorable vote of three-fourths of “all the members of the city council.” A member who is absent is counted as a member of the board for this computation. When a city council member is present but does not vote (without being excused from voting by the board), the member is counted as having cast an affirmative vote. G.S. 160A-385(a)(1) provides that for purposes of the protest petition, vacant positions on the board and members who are excused from voting are not to be considered as “members of the board” in computing the requisite supermajority.
Qualifying area
The qualifying areas for a protest petition include either the property being rezoned itself or some portion of the 100-foot-wide strip immediately adjacent to or across the street from it. A qualifying area is just that—an area, not 20 percent of the frontage of the area being rezoned nor five percent of the landowners in the qualifying area. Because a property’s adjacent status triggers the protest eligibility, courts in other states have held that the qualifying area need not be within the zoning jurisdiction of the local government making the zoning amendment. G.S. 160A-385(a)(2) provides that the 100-foot buffer qualifying area is measured from the property line of any parcel subject to a proposed rezoning.
This statute provides that the petition must be signed by the owners of either:
(i) twenty percent or more of the area included in the proposed change, or
(ii) five percent 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 is not considered in computing the 100-foot buffer area as long as that street right-of-way is 100 feet wide or less. This is illustrated in the chart below.
Procedures
G.S. 160A-386 establishes several procedural requirements for protest petitions. The petition must be written. It must be signed by property owners. The petition must specifically state that it protests the proposed zoning change. The petition must be presented to the city clerk two working days (excluding weekends and holidays) before the day of the hearing to allow the clerk time to determine its sufficiency and accuracy. Cities may require that the petition be on a form provided by the city and that it contain “any reasonable information” necessary to allow the city to verify the petition. In the absence of evidence to the contrary, the city may rely on the county tax listing to determine the ownership of qualifying areas.
A person may withdraw his or her name from the petition at any time prior to the vote on the proposed zoning amendment. Only those rezonings that have a sufficient number of qualifying protests at the time of the vote trigger the three-fourths vote requirement.
2. Experience with Use.
Even though the protest petition has a long history in zoning, it is not frequently a factor in North Carolina rezonings. Overall, two-thirds of the responding cities in a 2006 SOG survey reported no protest petitions had been filed in the previous year. However, there are distinct differences in the responses based on the population of the reporting jurisdiction. Only 12 percent of the cities with populations under 10,000 reported receiving any protest petitions in the previous year. By contrast 50 percent of the cities with populations between 10,000 and 25,000 received a protest petition and 71 percent of the cities with populations over 25,000 received one or more protest petitions. In fact, three municipalities—Charlotte, Raleigh, and Durham—accounted for nearly a third (31 percent) of all the reported valid protest petitions in the state.
Frequency filed
The overwhelming majority of rezoning petitions are not subjected to a protest petition. Responding municipalities reported a total of 134 protest petitions filed in the previous year that were determined to be adequate and thereby required a supermajority vote for adoption of the rezoning. These same municipalities reported consideration of 2,167 rezoning petitions in the previous year. Thus only 6% of the municipal rezoning petitions had a sufficient protest so as to subject the proposed rezoning to the supermajority vote requirement.
Effect on decisions
Even when a valid protest petition is filed, it rarely has a direct effect on the outcome of the proposed rezoning. Only four of the 2,167 rezoning petitions considered in the past year had a different outcome as a direct result of a protest petition. Survey respondents reported the final outcomes of 88 of the 134 rezoning petitions that had triggered valid protest petitions. Of these 88 rezonings, 43% did not receive a simple majority vote in favor of the rezoning and thus would have failed even if no protest petition had been filed. 52% were adopted by a governing board majority of three-fourths or more, thus passing despite the protest petition. Only 5% -- four cases -- of the rezonings subject to a valid protest petition received a majority favorable vote but less than a three-fourths majority, thus failing to be adopted as a direct result of the protest petition.
A valid protest petition can, however, affect the zoning process in an indirect but significant manner. The approval rate for projects subject to a protest petition was reported to be 52 percent, compared to a 76 percent approval rate for rezoning petitions overall. This lower approval rate indicates that the depth of opposition reflected by a protest petition frequently convinces a majority of the city council to oppose a rezoning. In addition, an actual or threatened protest petition may encourage the landowner, the neighbors, and the city to negotiate prior to a vote on the rezoning, which can in turn lead to project revisions. So the informal impacts of a protest petition are typically more substantial than its formal impact.
David W. Owens Gladys H. Coates Professor of Public Law and Government School of Government CB 3330, Knapp-Sanders Building University of North Carolina at Chapel Hill Chapel Hill, N.C. 27599-3330 919-966-4208 (voice) 919-962-0654 (fax) owens@sog.unc.edu
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