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« From must-read to can-read | Main | Gentleman Jim »

Feb 02, 2008

Comments

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Tom Phillips

Ed, This issue came up on the Lawndale/Lake Jeanette zoning case last year. Greensboro was exempted from this law years ago. I tried to get the Council to consider changing the law so that this provision could be used but I couldn't get support.

Ed Cone

Tom, I was told that GSO claims an exemption, but the article by Owens says the law is mandatory for all cities. My (admittedly brief)Google search didn't turn up anything of use.

What is the basis of GSO's exemption? Has it been challenged in court?

Spag

It will be interesting to see how this plays out, but it was part of the zoning law clarifications in 2005. Not the protest provisions, but the standing provisions, which are now more favorable to groups wishing to protest.

The North Carolina Bar Association held a continuing legal education seminar on this provision and other zoning law changes in 2006 that I attended and found interesting. Most of the changes benefit the neighbors, not the developers which is a change from business as usual.

I have seen it at work before. The developers are getting wise, though and trying to play with those numbers beforehand to prevent anyone from having standing in some cases.

I believe more people will be using this provision, which means that more developers will have to get elected to government boards to prevent them from passing. That's just what we need, right?

Spag

I suspect the rationale for Greensboro not having to follow this is based on N.C.G.S. 160A-3, although my reading of that statute would not yield the same result as Tom Phillips mentioned because I don't believe Greensboro has a similar provision in their charter.

I'll have to check the books and get back to you on this one, Ed.

Ed Cone

Thnx, Sam. I've asked Prof Owens for comment as well.

David Owens

We do have a case law in North Carolina that says the statutory provisions on protest petitions apply regardless of whether it is mentioned in an individual city's ordinances.

HOWEVER, the General Assembly can amend the usual rules for a particular jurisdiction. In the case of the protest petition in Greensboro, the General Assembly in 1971 chose to exempt the city from the usual rule on protests. This is usually done by the legislature at the request of the city, and I would guess that was the case here as this provision was included in a bill making a number of relatively technical changes to the city charter.

The General Assembly clearly has the authority to amend the provisions of state law for individual cities and counties. That is not altogether uncommon in the planning and zoning field. For example, 50 or so cities have variations in the land area where they can extend extraterritorial jurisdiction. The Greensboro charter provision allowing a referendum to repeal a zoning (or other ordinance) amendment is a good example and the state supreme court upheld such legislatively approved local variations in the 1990 Sofran case.

As an aside, we recently collected some survey data on rezonings in NC, with the report to be published (and posted on the UNC SOG web site) soon. Cities around the state reported that with 2,167 rezonings proposed in the previous year, 181 protest petitions had been filed. Protest petitions were most commmonly used in larger cities -- Charlotte, Raleigh, and Durham accounted for about a third of all the protest petitions filed in the state.

Spag

Professor Owens, what 1971 statute exempted Greensboro? The referendum method appears to be ex post facto, whereas the protest statute is preliminary.

David Owens

The 1971 statute was a bill that amended the city charter. One section of the bill simply said 'the state protest petition statute does not apply to Greensboro.' So this was a bill that only affected the city of Greensboro.

Ed Cone

Thanks for the responses, Prof. Owens.

Maybe this tells us something important about the seemingly unchecked power of developers around here -- one of the big checks on their power was removed.

Spag

Yes, but what section is it under? I cannot find it in the NCBA Casemaker search of the statutes.

David Hoggard

Keep looking and find it Sam.

Assuming that the good Prof. has it right (and I'm confident that he does), restoring Grreensboro's citizens' right to petition back on the books is as important as anything any of us could ever hope to accomplish.

What an extraordinary revelation. My hat's off to "KB for the pointer and you, Ed, for bringing this to the fore.

Tom Phillips

David Owens has it right. The legal department showed me the law when I inquired. Until last year I had not heard of this and I can't believe our citizens don't have this tool to protect themselves. As I mentioned before I couldn't get support to even discuss changing the law. If we can't get a champion on the Council, this is a petition drive that could definitely get enough signatures.

David Wharton

If the right of petition were restored, I think that there would very little chance that neighborhoods could ever adopt a Neighborhood Conservation Overlay, which I understand the Sunset Hills and Irving Park neighborhoods are looking into.

Neighborhoods use NCO's to protect their character from unwanted or (perceived) inappropriate development, such as knockdowns in Irving Park to build out-of-scale McMansions, or new houses/apartments that just don't fit into existing neighborhoods.

I think the petition power is a two-edged sword that can either hurt or help both developers and neighborhoods.

Spag

Tom, I can't find it in the general statutes using Casemaker. I don't have access to Lexis until Monday. This exception, if it exists, is not where you would expect to find it in 160A.

Tom Phillips

David, I believe NCO's are going to be harder than you think. Also NCO's aren't going to be everywhere. This is simply a tool to require a super majority. Like most things it can be misused but I think the Council at least needs to have a public discussion of this issue an explain why Greensboro shouldn't have it when everyone else does. Spag, I couldn't find it but I will get it.

David Wharton

Tom, I already thought NCO's would be very hard; with petition power I think they'd be near impossible.

One other possible downside of petition power is that it might make good infill development very difficult. Neighbors almost always oppose zonings to higher densities, even if the development is good.

So one downside of petition power might be the pushing of new growth out to areas where there are no neighbors to protest. That is, more sprawl.

Billy The Blogging Poet

Tom said, "Like most things it can be misused but I think the Council at least needs to have a public discussion of this issue an explain why Greensboro shouldn't have it when everyone else does."

I agree, but I don't believe an explanation is enough. Greensboro residents have long suffered at the hands of shady developers as they are contaminating EVERY aspect of city government. Their entire focus is zoning and development, and they make no time to deal with quality of life issues or basic rights like safety, corruption and financial oversight. Myself, I'm ready, willing and able to do anything necessary to bring our current city council and their puppet masters to their knees.

Enough is enough and this recent finding is yet more evidence that everything I've said is wrong with this city is truth.

It might be legal but it is no less corrupt that our city residents don't have the same rights as every other city in North Carolina.

Tom Phillips

David, I believe other cities in NC have NCO's and also have petition power. If it truly is good infill then seven councilmembers should vote for it.

Ed Cone

DW, you make a good point about two-edged swords and some possible downsides of petition power. These are complicated issues with multiple variables. That's why these conversations have to take place in, and help shape, a larger context.

Maybe these petitions aren't right for GSO. Maybe they weren't right in 1971, when the charter was amended, but are now. I'd like to have a full and frank public discussion of the topic, which would include DW's insights.

This seems like an issue that could emerge from the neighborhood groups and the web to help define a new attitude toward development around here.

There are some smart and interested folks on this thread. There is a lot of energy around these issues, and including Anne Hummel and her Kirkwood group are already at work on a related project.

Who will take the lead?

Ed Cone

And here, courtesy of Mr. Phillips, is the 1971 bill amending GSO's charter.

keith brown

Sec. 11. The City of Greensboro is hereby exempted from those provisions of G.S. 160-176 and G.S. 160-176.1 specifically relating to petitions of protest on zoning matters (as the same may be recodified under Chapter 160 of the General Statutes of North Carolina) and said provisions are hereby no longer applicable to the City of Greensboro; provided, however, the remainder of the provisions of G.S. 160-176 shall remain applicable to the City of Greensboro. It is a shame to see the citizens of Greensboro get screwed on this exemption. I think 37 years is enough on this protest petition exemption. Either by referendum, talking to state representatives or either by court. Something needs to be done about this. Why do other cities have this process and Greensboro has the TREBIC CARTEL working even in the early 70's. There is another aspect of this protest petition that might need to get explored is that our neoghbor to the west, Winston Salem has a county planning process but it goes to each cities city council quess what they don't either a protest petition. I would like to see them explain themselves too on why they don't have a protest petition too. Lets not let this issue fade away. Keith Brown and yes i do live in High Point and yes we have used the Protest Petition for our benefit against the developer Blue Ridge, if anyone would like to talk to me about the petition process please let me know we have done it twice. E mail is tarheez3@yahoo.com

keith brown

update on the protest petition, this whole weekend was spent writing our local state representatives. I got responses back from Pricey Harrison, Laura Wiley and talked to John Blust. They are aware of the Protest petition and i am sure are going to do their homework to make the city of Greensboro comply with the rest of the state. I also have a bill that I drafted this weekend and it looks like this

North Carolina General Assembly
Chapter
Senate Bill


An act Amending the Greensboro City Charter with respect to ZONING PROTEST PETITIONS

Section 1. The charter of the City of Greensboro being chapter 29 house bill 127 section 11 of the 1971 Law Session as amended, is amended by adding the following . The City of Greensboro is hereby NOT exempted from those provisions of G.S.160a-385 and G.S.160a-386 specifically relating to Protest Petitions on zoning matters.

Section 2. If a rezoning protest petition is filed under the authority of the North Carolina General Statute160a-385 and 160-386 in opposition to a rezoning request, the Greensboro City Council cannot approve the request unless it does so by a vote of three-fourths of all Council members being a super majority. A simple majority can approve all other requests. To file a rezoning protest, the petition must:
1. Be signed by the owner(s) (including both husband and wife if there is joint ownership) of 20% or more of the area of the lots included in the proposed change or
2. Be signed by the owner(s) of property which represents five percent 5% or more of a 100 foot wide buffer extending along the entire boundary of the property to be rezoned. A street right of way shall not be considered in computing the 100 foot buffer area as long as that street right of way is 100 foot wide or less
3. The protest petition must be delivered by 5:00 pm no less than 2 full working days before the hearing date, not including the actual day of the hearing and not including any holidays, Saturdays or Sundays.
4. When less than an entire parcel of land is being rezoned, the 100 foot buffer shall be measured from the property line of the entire parcel.

Section 3. This act applies to the City of Greensboro to conform with all aspects of North General Statute 160A-385 and 386.

Section 4This act is effective when it becomes law.

Mr. Hails better get ready and brush up on how a Protest Petition works

keith brown

Protest Petition in Greensboro editorial in the Greensboro News and Record in the following days days. Please let me know how it sounded.

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