The law allowed voters to pass their own ordinances, including those affecting zoning, land-use, and other development issues. Then, three years ago, the city requested the law be revised.
WILMINGTON — In the early 1980s, voters utilized a little-know piece of state statute to block a coal storage facility planned in downtown Wilmington. It was apparently the first time the law, which allowed voters to initiate new or amended ordinances, was used. Thanks to a request by the City of Wilmington which changed that law, it may have been the last.
The law itself dates back to 1917, the work of a group of progressives that wanted to allow state referendums, similar to California’s system of ballot initiatives. There was too much resistance to the idea of voters being able to push statewide changes, but the progressives were able to get a law on the books giving the power for local initiatives to nine cities – including Wilmington.
Written into the City of Wilmington’s charter, the law allowed voters to bring forward an initiative – essentially, anything city council could pass an ordinance about, voters could mimic with a referendum vote, including rezoning, new laws, and a host of other municipal issues.
The law required a petition with a certain number of signatures, equal to 25 percent of the number of voters in the most recent local (municipal) election. A successful petition would go to city council, which could either pass the ordinance as written or send it to a public vote, held either at the next general election or – if that was too far away – at a special election.
For decades, the law was apparently little more than a legal curiosity.
Voter initiative stopped unwanted development
Then, in 1980, a Kentucky-based coal company announced it wanted to use the Almont Shipping Company site – the current home of PPD, the Port City Marina, and the future Live Nation arena at the city’s North Waterfront Park – to dump around a million tons of coal annually before reshipping it through the port.
At the time, real-estate developer Gene Merritt was in charge of Downtown Area Revitalization Effort (DARE), the precursor to the current Wilmington Downtown Incorporated. Merritt, along with a coalition of residents, were hard at work bringing the downtown out of a post-industrial slump, and fighting capital flight to the newly constructed mall and other parts of the city. The coal storage facility was the antithesis of these efforts.
That’s when Merritt discovered the 1917 law.
“We knew we wanted to stop the plan, but we had limited options, and city council wasn’t working with us. So, I was up late at night, thumbing through state statute’s – which I don’t normally recommend to anyone – when I found this,” Merritt told Port City Daily.
Then, as now, local elections were held on odd years and drew just a fraction of the voters that even-year presidential and mid-term congressional elections did. Merritt did the math and realized he needed only around 600 or so votes to get a petition sent to city council – he ultimately received more than twice that. The petition proposed to change the city’s zoning laws, prohibiting coal storage, and effectively killing the proposal.
The petition went to a vote in a special election held on June 29, 1982, and Wilmington residents voted 3,304 to 1,876 in favor of blocking the coal site.
“We won handily, we kept a massive coal dump out of downtown Wilmington — I’m sure you can imagine the difference that made to development there,” Merritt said.
City of Wilmington attempted to undo the voter-initiated rezoning
An interesting aspect of the voter initiative is that a city ordinance changed by popular vote can only be changed by another popular vote – something Merritt learned a decade after the initial coal-site battle.
In the years after the voter initiative, Wilmington’s city council rezoned the site – in apparent violation of state law – to again allow coal. Then, ten years after Merritt’s victory over the Kentucky coal company, the forerunner of Progress Energy, the Carolina Power and Light Company [CPL], announced plans to bring a coal freighter to downtown Wilmington.
Merritt and his father hired a legal team.
“We actually got an injuction, holding the freighter anchored off the Cape Fear,” Merritt said. “CPL was furious, just incensed – $75,000 a day, that’s what they threatened us with if they weren’t allowed to dock downtown.”
But Merritt won his case and, again, forced city council to rezone (or, rather, re-re-rezone) the property.
The law remained on the books, and seemed largely forgotten until several years ago.
City-requested law effectively killed voter initiatives
Then, in May of 2016, matching bills were filed in the North Carolina House and Senate, making a small change to the language of the bill that radically changed the voter initiative process. House Bill 1083 and Senate Bill 860 both proposed to change the Wilmington charter from requiring 25 percent of the voters in the most recent municipal election to 25 percent of the registered voters.
The initial language read: “the petition accompanying the proposed ordinance is signed by electors of the city equal in number to twenty-five percent (25%) of the votes cast at the last preceding regular municipal election.”
The new law changed that language to read: “the petition accompanying the proposed ordinance is signed by electors of the city equal in number to twenty-five percent (25%) of the total number of registered voters residing within the City of Wilmington at the time of the last regular municipal election.”
On paper, the change looks minor, but it had a major impact.
The law’s original language gave the typically abysmal voter turnout for local elections a silver lining. Based on voter turnout in 2017, you would only need around 2,600 signatures to put an ordinance on the ballot – if the law hadn’t been changed. But the new language, substituting the total number of registered voters for the most recent election turnout, increases that number by an order of magnitude: 25 percent of Wilmington’s 85,000 registered voters is 21,250.
That’s eight times higher than under the previous version of the law, and about twice as many people as voted in the most recent local election. In short, the new language made passing a petition much more difficult.
“When they changed the law, they made it nearly impossible – really – for a petition to come through,” Merrit said of the revised law. “They didn’t like what the law let us do, and – all of the sudden – it got a lot less democratic.”
So why did the law change?
The house and senate bills were the result of a local request – that is, the City of Wilmington requested the change. According to a city spokesperson, the request was likely drafted by former City Attorney Bill Wolak.
According to Representative Ted Davis, Wilmington sent its request to his office as well as then-State Senator Michael Lee. Davis said the city’s concern was “ambiguity” in the law’s language.
“The City had a concern as to whether that language meant 25% of the votes cast in the entire election, or only the municipal portion of that election. Also, one person could vote for multiple Council candidates,” Davis said. “In order to clarify this ambiguity and ascertain an accurate number, the City requested former Senator Michael Lee and me to introduce legislation stating 25% of the total number of registered voters residing within the City at the time of the last regular municipal election.”
It’s not clear why the city or legislators chose to rewrite the law in a way that dramatically raised the threshold for passing a petition instead of simply clarifying what the city saw as ambiguous.
Both house and senate bills were sponsored by all representatives in Wilmington’s local delegation, which at the time included Susi Hamilton and Rick Catlin, as well as Lee and State Senator Bill Rabon. The house bill ultimately proceeded and was signed into law. The process took less than a month.
Send comments and tips to Benjamin Schachtman at firstname.lastname@example.org, @pcdben on Twitter, and (910) 538-2001