[Adapted from Owens, Land Use Law in North Carolina (4th ed., 2023)]
From 1923 through 2015, North Carolina zoning law provided that if a sufficient number of directly affected landowners formally objected to a zoning amendment, they could trigger a requirement that the amendment receive a three-fourths supermajority of the city council in order to be enacted. That provision was repealed in 2015.[1]
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.[2] At the outset of local land use regulation, its proponents concluded that those most directly affected by zoning needed a degree of protection from unwanted changes in the land use policies they have relied on.[3] The provision for a protest petition was thus included in the state’s 1923 zoning-enabling act to provide a degree of certainty and stability in zoning while allowing the governing body sufficient flexibility to amend the ordinance to reflect changing needs and circumstances. Although infrequently used outside of large municipalities,[4] the protest petition proved controversial in application and its use was abolished in 2015.
In lieu of the protest petition, the statute now provides that citizens can present written statements on proposed zoning amendments to the city clerk, who must then provide copies to the city council.[5]
[1]. S.L. 2015-160. For a detailed review of the law on protest petitions when this statute was still in effect, see the 2011 edition of Land Use Law in North Carolina. David W. Owens, Land Use Law in North Carolina at 193-97 (2d ed., 2011).
[2]. Early land use regulatory cases dealt with neighborhood vetoes with somewhat contradictory results, although the general rule quickly emerged that making the decision subject to neighbor approval was an unlawful delegation of legislative authority. See State of Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116 (1928) (invalidating requirement of neighborhood approval for home for elderly poor); Eubank v. City of Richmond, 226 U.S. 137 (1912) (invalidating neighbor approval for setback line). But see Thomas Cusack Co. v. City of Chi., 242 U.S. 526 (1917) (allowing neighbors to waive sign restriction). For a contemporary example of incorporation of neighbor objections into a land use regulatory decision using the rationale of the Cusack Co. case, see Coffey v. County of Otoe, 274 Neb. 796, 743 N.W.2d 632 (2008). The court there upheld a county ordinance that prohibited the location of a residence within one-half mile of an animal feedlot unless the residential owner agreed to and recorded a “mutual impact easement” holding the feedlot owner harmless from odor, smoke, dust, or other impacts from the feedlot. The owner of a proposed residential lot challenged the provision as an unlawful delegation of governmental authority when an adjacent feedlot owner refused to enter into such an easement, thereby blocking construction of a residence on nearby property. The court distinguished between an ordinance allowing a neighbor to create the restriction (which would be invalid) from a provision allowing a neighbor to waive a lawfully created restriction.
The North Carolina court has specifically held that neighbors have no right to the continuation of a particular zoning restriction. McKinney v. City of High Point, 239 N.C. 232, 237, 79 S.E.2d 730, 734 (1954).
[3]. 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.” Edward M. Bassett, Zoning 38 (1940).
[4]. In a 2006 School of Government survey, two-thirds of the responding cities reported that no protest petitions had been filed in the previous year. David W. Owens, Zoning Amendments in North Carolina 11 (UNC School of Government, Special Series No. 24, 2008). However, protests were much more common in those cities with large populations—50 percent of the cities with populations between 10,000 and 25,000 reported having received a protest petition, and 71 percent of the cities with populations over 25,000 had received one or more protest petitions in the previous year. Responding municipalities reported a total of 181 protest petitions filed in the previous year. Of these, 134 (75 percent) were determined to be adequate and thereby requiring a supermajority vote for adoption of the rezoning. These same municipalities reported consideration of 2167 rezoning petitions in the previous year. Thus only 8 percent of the municipal rezoning petitions had a protest filed, and only 6 percent had a protest sufficient to require a supermajority vote for the proposed rezoning to be enacted.
[5]. G.S. 160D-603.
