NC Planning

Protest Petitions

David W. Owens, Professor,
Institute of Government,
The University of North Carolina at Chapel Hill,
CB# 3330, Knapp Building, UNC-CH, Chapel Hill, N.C. 27599-3330
March 2006

The provision in North Carolina zoning law for a protest petition, G.S. 160A-385(a), is mandatory for cities. The protest petition is available in all cities, whether or not an individual zoning ordinance includes provisions for it. A city may not reduce the required supermajority vote required by local ordinance. Eldridge v. Mangum, 216 N.C. 532, 5 S.E.2d 721 (1939).

There is no specific statutory authorization for the protest petition in the county zoning enabling legislation and therefore absent authorization through local legislation, counties likely do not have the authority to use the protest petition.. The lack of express authority for a protest petition in the county statute, when the parallel city statute has it, is one indication that counties lack the authority to allow for the protest petition. G.S. 153A-4 provides that the grant of statutory powers to counties, including the zoning power, "shall be broadly construed," and G.S. 153A-343 gives the county board of commissioners authority to provide for the manner in which zoning regulations are amended. The protest petition could be one manner chosen. However, G.S. 153A-45, the statute governing county adoption of ordinances, specifically provides for adoption by majority vote on ordinances for which a public hearing must be held. While counties have some flexibility under G.S. 153A-4, that flexibility does not extend to authorizing a procedure that is contrary to the express terms of the statutes.

While landowners and neighbors are significantly affected by zoning, the choice to change zoning restrictions 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 percent protest petition was included in the nation's first comprehensive zoning ordinance, New York's 1916 ordinance. The provision for a protest petition was similarly included in the state'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.

If a sufficient number of those most immediately affected by a zoning change-the owners of 20 percent of the land included within the rezoning or the owners of five percent of a 100-foot wide buffer around the property being rezoned-object to a proposed zoning 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.

The protest petition only applies to zoning map amendments. It most often arises when neighbors object to the typical rezoning of a parcel, but it also applies to creation and application of new overlay zoning districts. Unruh v. City of Asheville, 97 N.C. App. 287, 388 S.E.2d 235, review denied, 326 N.C. 487, 391 S.E.2d 813 (1990). Prior to 2006 the statute also applied to text amendments. G.S. 160A-385(a)(1) was amended in 2005 to explicitly provided that the protest is applicable only to a zoning map change.

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." This raises the question of how the supermajority should be calculated. There are at least four different contexts in which less than the full compliment of a board's membership is voting on a particular matter and there may be different legal consequences depending on which of these contexts is involved. First a member may be absent. Second, a member may be present but voluntarily not voting. Third, a member may be present but legally required to abstain (as when a rezoning would have a direct, substantial financial impact on the member). Fourth, a seat may be vacant.

In the first situation, a member who is absent is counted as a member of the board for this computation. In the second situation, G.S. 160A-75 specifically provides that where 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. Amendments to the statute in 2005 resolved the third and fourth situations. 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.

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. In Heaton v. City of Charlotte, 277 N.C. 506, 178 S.E.2d 352 (1971), the court confirmed that the statute creates an area extending 100 feet from the boundary of the area being rezoned. 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. Prior to 2006, the qualifying area was measured from the zoning district boundary rather than from the property line.

A key question in interpretation of the protest petition statute is determining how to precisely define the qualifying area. For many years the North Carolina statutes used the formulation set by the original standard state zoning enabling act. Prior to amendment in 2005, the qualifying area for a protest was defined to include a protest signed by "the owners of twenty percent (20%) or more either of the area of the lots included in a proposed change, or of those immediately adjacent thereto either in the rear thereof or on either side thereof, extending 100 feet therefrom, or of those directly opposite thereto extending 100 feet from the street frontage of the opposite lots." This formulation generated considerable confusion as to how it should be interpreted. Some local governments interpreted the statute to say that there were only two qualifying areas-the property being rezoned and a single 100-foot strip along the sides and the rear of the area being rezoned. Most local governments read it to say that there are five qualifying areas-the property being rezoned, the front, the rear, and two sides. Still others read it to allow for an indefinite number of additional qualifying areas, as if there is an irregularly shaped parcel with many jogs in the zoning district boundary and each jog creates another qualifying "side." The situation was further confused if there were streets adjoining the rezoned area on more than one side or if there was no clear "front" and "rear" to the affected area.

G.S. 160A-385(a)(2) was created in 2005 to resolve the confusion. It provides that the petition must be signed by the owners of either:

A street right-of-way is not be considered in computing the 100-foot buffer area as long as that street right-of-way is 100 feet wide or less.

Another question with regard to protest petitions is whether they may be withdrawn once filed. Although the statute was originally silent on this point, the general practice was to allow withdrawal prior to a vote on the matter. A number of ordinances specified the deadline for withdrawal of a protest petition. As with the qualifying area, 2005 amendments to the statute resolved this question.

G.S. 160A-386 now provides that 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. G.S. 160A-386, enacted in 1963, establishes several procedural requirements for protest petitions. The petition must be written. The property owners must sign it; signatures by tenants, other nonlandowner occupants of the property, or interested citizens are not considered. The petition must specifically state that it protests the proposed zoning change. The petition must be presented to the city clerk in time to allow the clerk two working days before the date of the hearing (excluding weekends and holidays) to determine its sufficiency and accuracy. For example, if a hearing on the rezoning is set for a Tuesday, the protest petition must be submitted by the close of business on the previous Thursday, so as to allow the city staff time on Friday and Monday to determine whether it qualifies. This mandatory filing deadline can not be waived by the city, even if the city could determine sufficiency in less time. Coleman v. Town of Hillsborough, ___ N.C. App. ___, 619 S.E.2d 555 (2005). 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, G.S. 160A-385(a)(3) provides that the city may rely on the county tax listing to determine the ownership of qualifying areas.

The protest petition statute establishes an affirmative duty on the part of the city to determine the sufficiency and timeliness of the protests. Morris Communications Corp. v. City of Asheville, 356 N.C. 103, 111-12, 565 S.E.2d 70, 75 -76 (2002); Coleman v. Town of Hillsborough, ___ N.C. App. ___, 619 S.E.2d 555 (2005); Unruh v. City of Asheville, 97 N.C. App. 287, 388 S.E.2d 235, review denied, 326 N.C. 487, 391 S.E.2d 813 (1990).

 

For more detailed information, see;

David W. Owens, Land Use Law in North Carolina (2006) (Chapter 11)