By Ellliot Engstrom
It is Tuesday, August 18. Members of the Wake County Taxpayers Association (WCTA) sit across from Ken Bowers, Raleigh’s chief planner, and Dan Becker, the city’s long range planning manager. The two groups have met at Millbrook Exchange Park in North Raleigh to discuss the city’s rezoning and long-term planning initiatives. To the planners’ credit, they are here to listen to the concerns of the conservative-leaning citizens’ group – but it’s clear that the two groups are talking past each another. WCTA Secretary Pam Stevens quotes the Fifth Amendment to the U.S. Constitution, and Bowers seems both unmoved and confused. Chief Planner Bowers cites the United Nations’ definition of sustainability as appropriate for use in city planning, and Stevens gapes.
This kind of tension between these two groups has not only stalled the planning process, but also has left citizens wondering if they will have to resort to litigation to safeguard their way of life against a future full of high-rises, increased density, and urbanization.
In 2013, Raleigh adopted the Unified Development Ordinance (UDO). From the city’s point of view, the plan is a way to accommodate the growth of the metropolitan area. According to the city, public hearings have been widely advertised, property owners who will be affected have been notified, and legal notices have been posted in the newspapers.
But from the perspective of long-term Raleigh property owners, the process is not quite as simple or transparent as the city claims. Some property owners fear that the city is sacrificing the wealth, safety, and comfort of current property owners in order to pave the way for a future full of high-rises, mixed-use developments, and structures that put conformity with the United Nations’ sustainability standards above the United States’ commitment to private property rights.
The UDO is one part of Raleigh’s 2030 Comprehensive Plan. The plan calls for increased density in order to account for continuing population growth. This includes a number of “mixed use” zoning districts. These districts in some ways act as buffers between commercial and residential areas. Except there’s one problem – people already live in these districts, and are mostly happy with what they have.
In keeping with its plans, Raleigh officials set a public hearing for early July 2015. The city clearly was not prepared for the community’s response. The crowd that arrived packed council chambers to capacity and spilled over into overflow areas to voice their concerns. Since then, several other public hearings have been held, and the City Council has adopted piecemeal portions of the rezoning plan.
Concern on the Right, Left
Zoning is supposed to be performed at the municipal level, subject to state laws. But some Raleigh residents are concerned that the city’s planning initiative is largely driven by federal and international guidelines.
The City of Raleigh’s 2012-2013 annual grant report lists of a number of federal grants that push top-down ideas of how municipalities should plan for the future. Wonderful as the money may seem, federal largesse does not come without strings attached.
Moreover, the WCTA is concerned that the UDO is part of a larger push for international control. “The cornerstone of the vision for these plans is sustainability,” the WCTA said. “Sustainability entails a green infrastructure that is costly, is an international plan, and is not part of our American form of government.”
Such standards, combined with the American Planning Association’s commitment to “social justice,” have put conservatives on alert that control of their lives is more and more based on high-level, top-down initiatives rather than local needs.
Liberal groups are also worried because impoverished people in Raleigh may see property values in their neighborhoods go up as a result of the changes in mixed-use districts. That will bring higher property taxes, which can push residents out.
The Legal Outlook
Unfortunately, North Carolina’s current law on zoning does not provide property owners with much recourse if a zoning decision devalues their property. A claim that zoning has devalued one’s property is framed as a “regulatory taking.” Basically, the plaintiff in such a case is asking a court to declare that what the government is doing via zoning basically is the same as if the government were taking the plaintiff’s property via eminent domain, and therefore the city should have to pay just compensation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution.
This is easier said than done. North Carolina’s appellate courts follow the general rule on regulatory takings established by the United States Supreme Court in Lucas v. So. Carolina Coastal Council, 505 U.S. 1003 (1992). In that case, the Court held that a property owner must show that a regulation (like zoning) deprives the owner of all economically beneficial or productive use of the land for the regulation to constitute a taking. That’s a high bar, and it is unlikely that any particular parcel of land in Raleigh will be deprived of all “economically beneficial” value as a result of the UDO.
That leaves us with a great irony. There’s no doubt property in mixed-use districts of the city will be a hot commodity in the future. So, the home that has stood for 50 years in a quiet neighborhood and that may soon adjoin a high-rise mixed-used development may be of greater value to the real estate market than ever before, but may not benefit the actual people who have lived there for decades. Homeowners may not be able to afford the higher taxes, and higher taxes may raise rents for renters. In either case, people may be forced to move.
It might be that creative lawyers will present the courts with a way to redefine its zoning precedent without overturning settled law. Until then, expect to see more tense meetings as zoning planners and worried residents battle over Raleigh’s future.