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NC Supreme Court upholds free expression in zoning hearing

By Mitch Kokai, Carolina Journal News Service, Published: June 14, 2021

RALEIGH — The N.C. Supreme Court has thrown out a lawsuit against owners of an Orange County quarry. Chief Justice Paul Newby’s opinion in the case focuses attention on the fundamental importance of the right to petition government.

The quarry owners had been sued because of comments their representatives made during a public local zoning hearing.

“Expressing one’s views to government officials is foundational to our political system,” Newby wrote for the unanimous court. “This fundamental right to petition the government is protected by both the United States and North Carolina Constitutions.”

“Lawsuits that seek to impose liability based on petitioning activity inevitably chill the exercise of this fundamental right,” Newby added. “Here defendants exercised their constitutional right to petition the government when speaking at the public zoning hearings, a political process. We hold that the First Amendment of the United States Constitution and Article I, Section 12 of the North Carolina Constitution explicitly protect petitioning activity, including defendants’ speech in this case.”

Back in 2013, a land investment company was working on a deal to sell 45 acres in Hillsborough to a developer. Plans for 118 townhomes would require rezoning from the town.

Five-and-a-half acres of the property sat next to an active open-quarry mine. During a public hearing on the proposed rezoning, representatives of the quarry owners argued that their future neighbors “could be endangered by fly rock, excessive air blasts, and excessive ground vibrations from the blasting operations,” according to the court record.

Supporters of the rezoning objected, saying the quarry representatives had “maliciously, intentionally, and without justification misrepresented” the facts. When questioned, the quarry owners admitted that they had not reported any violations of their mining permit. They admitted that they could avoid future violations by taking additional safety precautions.

Town officials ignored the quarry owners’ objections. Hillsborough granted necessary permits for the new development.

Nonetheless, the developer excluded property near the quarry from the deal. The land investment company sued the quarry owners, claiming their public hearing comments “interfered with the Plaintiff’s prospective economic advantage.”

A trial judge sided with the quarry owners, but the N.C. Court of Appeals reversed that ruling. Appellate judges would have allowed the lawsuit to proceed.

Now the case is over. “The right to petition the government, protected by both the First Amendment to the United States Constitution and Article I, Section 12 of the North Carolina Constitution, prevents a person from being subjected to a lawsuit based on that person’s petitioning activity,” Newby wrote for the Supreme Court. “Here plaintiff’s suit is based on defendants’ presentation at the rezoning hearings, which is protected petitioning activity. We hold that defendants’ petitioning is protected by the First Amendment and Article I, Section 12.”

The right to petition government has a long history. “The Magna Carta of 1215, ‘the fundamental source of Anglo-American liberties,’ states that if the king’s officials were ‘at fault toward anyone,’ then the barons could ‘lay the transgression before [the king], [and] petition to have the transgression redressed without delay,'” Newby wrote.

North Carolina’s constitution has protected the right to petition since 1776, “predating the federal Bill of Rights.”

“The right to petition protects petitioning activity ‘regardless of intent or purpose’ because whether ‘a private party’s political motives are selfish is irrelevant,'” Newby wrote. “In a political process meant to address public concerns, a commitment to ‘free and open debate’ means other parties are free to counter selfish or misleading speech with speech of their own.”

The chief justice highlights the potential negative impact of lawsuits challenging such a fundamental right. “Protecting the right to petition requires early dismissal of lawsuits that impermissibly seek to infringe on the right and thus chill petitioning activity occurring in these political contexts,” Newby wrote.