N.C. Legislature stripping citizens of protest petition power | Wake County | Indy Week

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N.C. Legislature stripping citizens of protest petition power

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They thought they'd won.

In January, under community pressure, Publix gave up on its plan to build a grocery store at the intersection of Falls of Neuse and Dunn roads in North Raleigh, a plan that engendered considerable acrimony from residents who worried about the prospect of nightmarish traffic, strip-mall-esque eyesores and adverse environmental impacts. And then in May, under more community pressure, plans for a smaller organic food store at the site were scrapped, too, and the City Council voted unanimously against rezoning that land.

The residents thought that settled it. As it turns out, maybe not.

On July 7, the Council will vote on a massive plan to rezone 35,000 parcels throughout the city, a remapping undertaken under the auspices of the Unified Development Ordinance passed in 2013. Among those parcels is this intersection, which the city's Planning Commission voted to make a commercial district—zoning that would permit a grocery store.

In response, 45 homeowners filed a protest petition last week. If approved, that petition will force the City Council to achieve a super-majority—six votes out of eight—to rezone that property.

Such petitions are often citizens' last resort in battling unwanted developments. But in the General Assembly, that tool is now on the block.

House Bill 201, co-sponsored by two Wake County lawmakers, threatens to eliminate protest petitions at the behest of the state's real estate development community. On Tuesday morning it cleared the Senate Commerce Committee.

"We created zoning protests petitions because zoning is supposed to be difficult to change, otherwise it's not trustworthy," says Tom Miller, a longtime neighborhoods advocate who serves on Durham's Planning Commission. "The idea has always been to create a regulatory environment to promote stability and safety in development."

Protest petitions have existed in North Carolina since 1923, part of a national model of urban development championed by then-Commerce secretary Herbert Hoover. Miller says the regulatory environment that guides development has changed dramatically since then, but the essential principles remain the same.

"Land-use regulation has become increasingly sophisticated, competitive and subject to expert-only interpretation, alienating ordinary people," he says. "Most landowners in North Carolina are ordinary citizens whose interest is in their own home. We have to have something in the balance for people who can't afford to provide experts."

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Despite their longevity, research suggests protest petitions are rarely the deciding factors in rezoning cases. A UNC-Chapel Hill School of Government survey found that in 2005, two-thirds of municipalities reported that no protest petitions had been filed. The municipalities that did receive petitions only saw 134 valid petitions out of 2,167 rezoning cases.

Of those protested rezonings, 43 percent did not get a simple majority, meaning they would have failed regardless. Fifty-two percent, meanwhile, achieved a super-majority. Only 5 percent received a simple majority but not a super-majority.

"The informal impacts of a protest petition are typically more substantial than its formal impact," David W. Owens, a professor of public law and government at UNC and author of the study, wrote on a UNC local government law blog in 2013. "An actual or threatened protest petition encourages the landowner, the neighbors, and the city to negotiate prior to a vote on rezoning."

In Raleigh, according to data compiled by resident Jeff Gordon, between January 2000 and June 2014, 797 rezoning cases went before the City Council. Only 17 percent had certified protest petitions. Of cases without a protest petition, 67 percent passed. Of those with petitions, 64 percent passed—not a big difference.

"The claims of abuse of protest petitions are laughable from a sheer numbers perspective," Gordon says. "Protest petitions are designed to protect the little guy. It's a coin flip that at least gives a person the appearance that they have been able to participate in the process, rather than just being trampled by financial interests much greater than their own."

Yet opponents argue that protest petitions are unfair to developers.

"My opposition to protest petitions goes to my core beliefs in democracy," wrote state Rep. Darren Jackson, D-Wake, a cosponsor of H.B. 201, in a newsletter to constituents in April. "To require a 75 percent supermajority is about as anti-democratic as I can imagine."

North Raleigh residents expect their protest petition to stymie rezoning for the Publix property, but question why the city hasn't informed residents of their right to file protests elsewhere. The remapping that goes before City Council next week, after all, will significantly change the character of several parts of the city, including downtown.

"Raleigh is poised for a once-in-a-lifetime rezoning of tens of thousands of properties, opening the door to development of unprecedented size and intensity within and directly adjacent to neighborhoods," says a post on the North Raleigh Coalition of Homeowners' Association's website. "The filing of a valid statutory protest petition will, hopefully, protect one corner of the city. Regrettably, many other corners and neighborhoods will remain at significant risk."

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