State should end protest petitions; they distort the public good

The N.C. House in March passed a bill to do away with the use of protest petitions in rezonings statewide, and neighborhood groups in Charlotte and other fast-growing communities fear they will lose their voice in shaping development. They are mistaken.

The majority of rezonings in Charlotte do not generate valid protest petitions from neighboring residents. But they still provide ample opportunity for public input, through community meetings, public hearings, emails and phone calls to members of a city council or town board. None of that will change if the protest petition statute – a state law nearly as old as zoning itself – is repealed.

What will change, however, is that a small handful of neighboring property owners (or in many cases, a single neighboring property owner) will no longer be able to force changes to – or completely defeat – a proposed development project that is supported by, and in the best interest of, the larger community.

Under current law, if as few as 5 percent of the neighbors within 100 feet of the property proposed for rezoning sign and submit a valid protest petition to the local planning department, the rezoning then requires a supermajority vote to be approved – three-fourths of the city council members. That provision means the protesters can force financial or design concessions from the property owner or developer that would otherwise be difficult, if just a simple majority vote were required.

In Charlotte, for instance, this means that when a valid protest petition is filed, even a development proposal fully supported by planning staff, backed by neighborhood groups and in full compliance with the adopted land use plan now requires nine of 11 City Council members – instead of the usual six – to vote to approve it. So, for example, a proposed rezoning that could mean the much-anticipated redevelopment of a blighted shopping center, bringing hundreds of jobs and millions in new tax revenue to a community, could be derailed by a single neighbor with enough adjacent property to meet the legal threshold.

City councils and town boards can do almost anything with a simple majority: raise property taxes, adopt land use plans and ordinances, even offer millions of dollars in incentives to an economic development prospect. Only the filing of a rezoning protest petition increases the threshold to a supermajority vote of council members present and voting – giving neighbors unreasonable leverage over a property owner seeking to exercise a constitutional right to sell.

And in the worst examples of protest petition abuse, that leverage is used to extract valuable concessions from a developer – anything from personal property improvements to a cash payout – in exchange for withdrawing the petition. In effect, an unscrupulous neighbor can control a handful of critical City Council votes until their demands are met — regardless of whether they actually oppose the proposed development.

Supporters point to the fact that a majority of rezonings with a protest petition are ultimately approved, particularly in Charlotte. What they don’t see are the significant additional time and costs the developer must invest to meet the demands of what is often a small minority of neighbors. That additional cost and the heightened risk that accompanies it translate to higher rents for commercial tenants and higher housing costs for residents. In a city that struggles to provide affordable housing for teachers, police officers and firefighters, the protest petition only exacerbates the problem.

Everyone wants neighbors to have a voice in the rezoning process. Charlotte and other fast-growing municipalities require developers to meet with property owners in the vicinity of a project to present their proposal and solicit feedback. Many of the concerns raised in these meetings are incorporated into the site plan, resulting in a better project for the community.

But the protest petition process is just one more reason an increasing number of developers are taking their projects across the state line, where they can potentially save months of approval time and thousands of dollars on the cost of a project. And because they disproportionately impact infill projects more than greenfield sites, protest petitions jeopardize the ability of a community to redevelop and revitalize older neighborhoods.

Charlotteans will always have a say in how our community grows through participation in the small area planning process, community meetings, rezoning public hearings and dialogue with elected officials. Repealing the protest petition won’t change this, but it will create a better environment for economic development, job creation and the revitalization of blighted neighborhoods.

It’s time for the process to change.

Joe Padilla is executive director of the Real Estate and Building Industry Coalition.

Opinions expressed here are those of the author and not necessarily those of the UNC Charlotte Urban Institute or the University of North Carolina at Charlotte.