Author

Zoning protest petitions allow landowners representing a percentage of the land
neighboring an area proposed to be rezoned to force the local government to have to
vote by supermajority to approve the rezoning. Only landowners are entitled to file
these petitions, and their “vote” toward the percentage of neighboring land necessary
to trigger the supermajority is allocated according to the proportion of neighboring
land they own. This Note examines the history, statutory construction, and current use
of protest petition laws, which are now on the books in twenty states. It illustrates that
they formed part of the justificatory architecture of racist and classist exclusionary
zoning and Not in My Backyard-ism (NIMBYism), contributing to legal doctrine and
informal political norms that treat an entitlement to block locally unwanted activities
as a “property right” akin to a right against nuisances. Although protest petitions have
historically been rarely used, the political and legal norms of exclusionary zoning
and local control are changing. While governments work to alleviate a nationwide
housing shortage, the political climate is also characterized by the routine use of
procedural hardball in all areas of policy. There are now warning signs that protest
petitions will be increasingly used by NIMBY neighbors to “filibuster” rezonings that
would allow for the construction of needed housing. To head off this increasingly
likely possibility, this Note probes some legal avenues in federal law that might be
explored by housing affordability advocates to invalidate, weaken, or induce the
repeal of protest petition laws in all states that still have them. It explores due process
and One Person, One Vote theories, as well as the idea of using the “affirmatively
furthering” mandate of the Fair Housing Act to induce protest petition laws’ repeal.