Commentary

Mark Zimmerman: Who rules?

February 7, 2014 

Local politicians seeking to govern and property owners seeking to develop their land have more in common than one might think. They are often frustrated because their power isn’t always clear and a higher authority often ties their hands. Each can feel they don’t have the right to manage their affairs without others unduly interfering with them.

In most states, elected officials in cities, towns and counties are able to pass laws unless the state government has passed legislation specifically prohibiting them from doing so. They are free to govern as they see fit, based on what they want to accomplish. That’s a concept called Home Rule – the power to rule is invested at home.

North Carolina isn’t a Home Rule state. Our local governments have no inherent authority. They are created by the state and their powers are defined, some say dictated, by the state. That means elected officials in cities, towns and counties may not pass laws unless the state government has passed legislation allowing them to do so. If they want to do something else, they have to go to Raleigh and ask for permission. Usually, permission is granted, but if the controlling party in Raleigh doesn’t agree, it doesn’t have to give its consent.

Sometimes, even when powers are granted by statute the language isn’t very explicit and so it’s open to interpretation. A local government can assume it has the power, but later it is told that it doesn’t. In Chapel Hill, ordinances passed to regulate towing and restrict cell phone usage are in a court battle because of this problem.

It is frustrating. One would think we would be granted more freedom to act without having to go hat in hand to higher authorities and rights that are given would be very clear so there would be no confusion, but that is often not the case.

Property owners in our area experience a similar frustration. In Chapel Hill, zoning and other land use rights are severely and deliberately restricted, limiting how land can be used and what can be built on it. When someone wants to do something else, they need to ask Town Council for permission through a special use process. Without that approval, which can be uncertain, nearly all projects of any significance are prevented.

In other words, for people who own property here, there is also no Home Rule. They are largely beholden to others who define and limit their property rights. Some think that’s a good thing; that the individual’s rights need to be trumped by the greater good. But those are often the same folks who decry our local governing rights being controlled by the state.

While local government Home Rule may not be coming to North Carolina, we have the opportunity get closer to it here in an area ripe for redevelopment surrounding the corner of Ephesus Church Road and Fordham Boulevard. A proposed Small Area Plan would free developers from needing Town Council approval for projects there as long as they conform to enhanced zoning, land use and building form rules that are clearly laid out by the council from the start. No more special-use permits would be required there.

No one wants unfettered use of property, just as no one would suggest unrestricted power for our local governments. But there should be a middle ground and the Ephesus/Fordham plan is a good step forward to providing more rights to owners, while still serving the community at large. When it comes up for a vote, council should recall how frustrating it is to need the General Assembly’s permission to do something reasonable for our community. This plan would relieve the frustration of property owners who also want to do something reasonable from the similar burden of needing the council’s permission to move forward.

Mark Zimmerman lives and owns a business in Chapel Hill. He can be reached at markrzim@gmail.com or @markrzim.

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