By MICHAEL LOWREY
December 16, 2005
RALEIGH — North Carolina law allows property owners to protest against the proposed rezoning of nearby properties. If sufficient property owners protest, a supermajority vote by municipal council is required to approve the rezoning. A recent Hillsborough court case shows why this apparent protection might be worth less in practice than it seems on paper.
The rights of the landowner seeking the rezoning have precedence while objecting neighbors must rely upon municipal officials to file a valid protest. If town officials err, the supermajority-voting requirement might not apply even if objecting property owners follow the procedures outlined for them.
In 2002, EYC Companies announced plans to build a retirement community on 40 acres of land just outside Hillsborough. It soon filled a rezoning petition with the town, as the land fell within Hillsborough’s extraterritorial zoning jurisdiction.
The town, in turn, sent out cards to nearby property owners about a public hearing Oct. 22, 2002 on the proposed rezoning. The cards described the project EYC was proposing — 70 single-family homes, 35 townhomes, 144 apartments, and 72 assisted-care units — and told residents to contact the town for more information about how to protest the rezoning. Not included was any mention of a deadline for filing protests.
Zoning protests are more than a mere formality or courtesy to neighbors. North Carolina law requires that at least 75 percent of a municipality’s council vote in favor of a rezoning request for it to be approved if at least 20 percent of those owning land within 100 feet of the proposed rezoning file valid protests. If less than 20 percent of neighboring landowner protest, a proposed rezoning is approved by a simple majority vote of a town’s council.
Hillsborough Planning Director Margaret Hauth determined that a valid protest existed. At the public hearing, EYC presented its rezoning proposal. Several neighbors also spoke against EYC’s proposal. Concerns expressed include increased traffic, inadequate buffers, density of the development, and the height of some of the buildings.
As a result of community opposition, EYC significantly scaled down the size of its planned retirement community, though this was not enough to end opposition to its proposal.
On Oct. 13, 2003, the Hillsborough Town Board voted 3-2 in favor of EYC’s revised rezoning request. While ordinarily the rezoning would have passed, because of the protest, the rezoning needed four votes, not three, to be approved.
The board’s vote was not the end of the matter, though. EYC challenged the decision in court, contending the town had improperly determined that a valid protest existed. A superior judge and, more important, the N.C. Court of Appeals agreed.
“Zoning regulation is in derogation of common law property rights and therefore must be strictly construed to limit such derogation to that intended by the regulation,” Judge Barbara Jackson wrote for the appeals court.
The courts found that Hillsborough had failed to follow the proper procedure in establishing that a valid protest existed. The town set an improper deadline for receiving protests and did not adequately validate at the time the protests it did receive.
“The evidence before the trial court… also showed that, at the time of the first hearing, Hauth lacked any documentation of the calculations she made to determine whether the protest petitions met the twenty percent (20%) threshold and that she failed to investigate the validity of petitions signed by only one owner of co-owned properties,” Jackson wrote.
“Accordingly, the Town did not show that it had satisfied its affirmative duty to determine the sufficiency of the protest petitions that it received. Without a showing that the Town made an adequate determination that the protest petitions were valid, the legitimacy of the Town’s actions regarding the re-zoning issue cannot be presumed.”
The Court of Appeals also rejected as irrelevant an affidavit by Hauth showing that the protest petitions filed were valid and amounted to at least 20 percent of adjacent property. Hauth’s determinations, the court noted, were made after the public hearing and in response to EYC’s lawsuit.
“The requirement that petitions must be filed in such time as to allow the municipality at least two normal work days prior to the date of the hearing to allow the municipality to determine the sufficiency and accuracy of the petitions clearly indicates that such determinations must be made prior to such a hearing.”
Hillsborough set an improper deadline for protests. North Carolina law specifies that zoning protest petitions are valid only if “received by the city clerk in sufficient time to allow the city at least two normal work days, excluding Saturdays, Sundays and legal holidays, before the date established for a public hearing on the proposed change or amendment to determine the sufficiency and accuracy of the petition.”
The original rezoning hearing was on Tuesday, Oct. 22. Allowing for the two working days to research before the date of hearing meant the filing deadline should have been Thursday, Oct. 17. Hauth misunderstood the law and set the deadline for Friday, Oct .18. She did not log protests as they were received.
Hillsborough argued that since the filing deadline was to give municipalities time to review protests, it could waive the requirement. The appeals court rejected this argument.
“Further, to allow a governing body the discretion to waive the two working day requirement could create a situation in which there is unequal treatment under the law. This cannot be allowed and therefore the Town lacked the authority to consider any petitions that were not timely filed within the mandatory parameters.”
N.C. Court of Appeals rulings are controlling interpretations of North Carolina law unless overruled by the N.C. Supreme Court.
The case is Coleman v. Town of Hillsborough (04-1274). It is available on line at www.aoc.state.nc.us/www/public/coa/opinions/2005/041274-1.htm
Michael Lowrey is associate editor of Carolina Journal.