The U.S. Supreme Court’s Kelo decision subjugating private property rights to economic-development interests grabbed headlines recently, but another danger to property rights has resurfaced from another quarter: arbitrary zoning decisions.
A decision in one such case, in Fayetteville, struck City Councilman Paul Williams as unfair, and he had it reversed. Sung Ho Choi purchased and renovated a parcel on North Reilly Road that had been zoned for residential uses only, although it’s next to a business area. Choi requested that the zoning be changed to allow some commercial uses. The City Council, on the recommendation of the Zoning Commission, denied the rezoning. The reason for the denial: A comprehensive plan adopted by Fayetteville contemplated the affected property being part of a residential area.
Williams moved to reopen the case when he learned that eight out of 10 of the entrances to the neighborhood in question had businesses on them. Because of high traffic count in the area, Williams said, the best use of Choi’s property would be as a business. Williams asked the council to reconsider Choi’s petition, which was approved.
Some rezoning denials, Williams said, constitute “interfering with private investment,” and Fayetteville’s growth rate has slowed to 1 percent annually, compared to 3 percent annually in the unincorporated parts of Cumberland County. “Nobody’s ever suggesting that we [rezone] the interior of neighborhoods” to allow business uses, Williams said. What Williams opposes is the denial of residential-to-business rezoning in property on the borders of neighborhoods, whose access to traffic routes make them ideal locations for business.
Rezoning issues have also cropped up in Raleigh. Raleigh resident Dave Clemmer ran into “stern curiosity” from his neighbors when he applied to have his property rezoned from a residential-only category to allow offices. Clemmer has no immediate plans to sell his Rembert Drive property, which is on the border of the Brookhaven neighborhood near Glenwood Avenue, but he may eventually want to sell to a business, which would use the property in a “tasteful” way, Clemmer said. Clemmer said he would want any business use to be in “keeping with the standards of the neighborhood.” Clemmer’s rezoning petition was pending by this article’s deadline.
An owner’s desire to profit from selling his property to a business might not necessarily be recognized as legitimate by all participants in the zoning process. During a meeting to consider zoning petitions Jan. 17, the Raleigh City Council and Planning Commission heard from neighbors of a couple of petitioners who wanted their properties reclassified from residential to commercial.
One neighbor denounced a petitioner’s motives, in language paraphrased in the meeting’s minutes: “the zoning process is intended to advance good zoning and not provide financial win fall [sic] to property owners.” The neighbor of another petitioner summarized the sentiment of the local Citizens Advisory Board, a group of property owners living near the petitioner’s property and who opposed the petition: “. . . the majority of attendees [at the CAC meeting] believe the request is mainly to increase the value and market ability [sic] of the property,” the minutes said.
Rezoning typically takes place “near the boundaries of zoning districts,” said S. Ellis Hankins, executive director of the North Carolina League of Municipalities. Most zoning requests come from the property owner, Hankins said, and “in my experience more such requests eventually are granted than denied, after notice, public hearing and discussion by the elected governing body.” In zoning cases, Hankins said, it is the responsibility of elected officials to weigh the interest of the property owner against the public interest.
Jessie Taliaferro, of the Raleigh City Council, said many old homes in Raleigh sit along formerly quiet thoroughfares, such as Falls of the Neuse Road, Glenwood Avenue, and Six Forks Road — routes that are being broadened and turned into “major corridors.” As traffic increases, Taliaferro said, the properties become less attractive as residences.
Petitions to rezone from residential to commercial tend to come from these borderline residential areas, Taliaferro was reported as saying by The News & Observer of Raleigh.
Zoning petitions in Raleigh tend to involve properties situated between residential and commercial areas, Taliaferro said. Only two to five petitions a year would qualify as spot zoning, meaning that the owner wanted a business surrounded on all sides by residences, or vice versa, the councilwoman said. “We don’t see many of these” spot zoning petitions, because of the intensity of the opposition, she said.
Zoning petitions are affected by a law signed by Gov. Mike Easley in September, “moderniz[ing]” and “simplify[ing]” local zoning. Of particular relevance to property owners who wish to petition for a residential-to-commercial zoning change, the new law provides that local governments must decide whether a proposed rezoning would fit with the local “comprehensive plan.” Having decided whether the proposed use fits with the comprehensive plan, the local government might choose to disregard the plan, or to insist on compliance, depending on which course it finds to be in the public interest.
David Owens, a faculty member and zoning expert at UNC-Chapel Hill’s School of Government, said that the new provisions about local comprehensive plans might tend over the long term to “improve the quality of decisionmaking.” By requiring local governments to publish reasons for their zoning decisions, Owens said, the law might prevent zoning petitions from turning into “strictly ad hoc political wrestling match[es].”
In Durham, local planners responded to the new law by increasing the paper work required of at least some zoning petitioners. Frank Duke, planning director for the city and county of Durham, explains new local regulations: If a petitioner wants to rezone property in a way that conflicts with Durham’s comprehensive plan, the petitioner must not only apply for a change to the zoning map, but must simultaneously make an application to amend the comprehensive plan itself. Three-fourths of rezoning petitions are consistent with the comprehensive plan, Duke said.
Maximilian Longley is a contributing editor of Carolina Journal.