Boone zoning dispute first case heard by three-judge panel

Posted December 15, 2014

— State lawmakers' decision last summer to strip the town of Boone of its ability to control development outside its borders on Monday became the first challenge to legislative action to be heard by a three-judge panel.

After a spate of rulings against the state in recent years, lawmakers inserted a provision in the 2014-15 state budget that calls for legal actions questioning the constitutionality of state laws to be heard by panels of three Superior Court judges rather than a single judge.

Judges Paul Ridgeway of Wake County, Alma Hinton of Halifax County and Nathaniel Poovey of Catawba County were appointed to hear Boone's case. No decision was announced Monday.

Lawmakers in June eliminated Boone's extraterritorial jurisdiction, or ETJ, preventing the town from exercising any planning or zoning authority over land adjoining the city limits, as of Jan. 1, 2015.

Supporters of the move argued that the town had abused its power, which lawmakers granted to cities in 1959. Bill author Sen. Dan Soucek, R-Watauga, said Boone had declared some land on mountain slopes outside the town off-limits for development, hurting people's property values.

Critics said the legislation was pushed through the General Assembly without any input from Boone or people who live in the ETJ, and they warned that it would lead to increased urban sprawl and problems with stormwater runoff.

Boone officials said the law is the first time North Carolina has ever taken zoning authority from a municipality, and attorney Jim Phillips told the judicial panel Monday that regulations within the ETJ is a right and that the town will face "irreparable harm" if that is taken away.

"This case is about power, not about political boundaries," Phillips said, calling the legislation "striking in its breadth."

Watauga County doesn't have zoning in the area, a minimum housing code or limits on high-impact uses, he said, so unregulated development could occur that would hurt the town and even residents in the ETJ.

Assistant Attorney General Lauren Clemmons and Watauga County Attorney Stacy Eggers IV argued, however, that the county could enforce applicable laws to protect the health and welfare of people in the ETJ.

"We don't think there's anything to show the state can't do what it's done," Clemmons told the judges.


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  • lewiskr45 Dec 16, 2014

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    And considering the county does not have zoning like the town does, it makes that argument even more valid.

  • Paul Maxwell Dec 15, 2014
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    It appears that the motivations of Mssrs. Soucek et.al. are based more on visions of un-re$tricted property development than with than any sense of indignation at the actions of the town of Boone. (The town already looks almost as tacky as Gatlinburg does.) Follow the money...

  • miseem Dec 15, 2014

    "Assistant Attorney General Lauren Clemmons and Watauga County Attorney Stacy Eggers IV argued, however, that the county could enforce applicable laws to protect the health and welfare of people in the ETJ"

    Right. They could. But they won't. And pigs could fly. If they could afford an airplane ticket. All you need to look at is the last name of the county attorney and the initial beside the legislator that brought up the bill to know that any enforcement actions concerning health and welfare problems from unregulated development will be slow if ever in coming. And relying on correcting a problem with pollution, inadequate infrastructure, and inadequate permitting and inspection after the fact does not make a lot of sense. If you want to file a suit that the town is making the ETJ overly restrictive, go ahead. But do not take total control of adjoining land away from the town that gives that land it's value. Otherwise, the value of the entire county goes downhill.