Panel lets Boone keep zoning powers for now

Posted December 30, 2014


— A three-judge panel has blocked a new state law that would have stripped the town of Boone of its powers of extraterritorial jurisdiction as of Thursday.

The ruling, released late Monday, stops the law from taking effect while the town's legal challenge continues.

The unanimous opinion cites Boone's "likelihood of success on the merits of its case" and says the order is "necessary for the protection of the Plaintiff’s rights during the course of this litigation."

Superior Court judges Alma Hinton, Nathaniel Poovey and Paul Ridgeway also agreed to deny the state's request to dismiss the challenge.

The case is the first to be heard under a new law that requires all constitutional challenges to North Carolina law be heard by a three-judge panel.

In the past, those challenges were heard by a single judge in Wake County. After several new laws penned by Republican legislative leaders were blocked by single judges, GOP lawmakers voted in 2014 to send future challenges to three-judge review panels instead.

The law being challenged, passed in June, would have prevented Boone from exercising any zoning or planning authority over property outside the town's boundaries.

Lawmakers granted North Carolina cities extraterritorial jurisdiction, or ETJ, in 1959 as a way to help them plan future growth. But the bill's author, Sen. Dan Soucek, R-Watauga, said the Democratic-controlled town had abused that power by banning development on some mountain slopes overlooking Boone. 

Attorneys for Boone argued the bill was pushed through the legislature without public input as a favor to politically-connected local developers who own property in the ETJ. The town says careful planning is necessary to manage erosion, runoff and utility capacity in its small mountain valley.  

Boone Mayor Andy Ball said the town is "very pleased with the court's findings that we are likely to succeed on the merits and that irreparable harm would be caused without an injunction." 

"Residents of the Boone ETJ appreciate the neighborhood protections provided by our ordinances because Watauga County does not have a county-wide zoning ordinance," Ball added.

Meantime, Soucek said he'll keep fighting.

"A week does not go by that I am not asked by a business or homeowner in Watauga County, 'When will I be free of the oppression of Boone’s ETJ?'" Soucek told WRAL News. "After the court’s decision, it will be a little longer, but I will continue to be their elected voice, since they have none in the Town of Boone."

There's no word yet on the next hearing date for the case.


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  • Matt Wood Jan 5, 2015
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    More likely they'll try to change it so that the judges are appointed by Raleigh politicians, rather than elected.

  • miseem Jan 2, 2015

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    Well, may I repeat a statement from the right wing. Don't like it, move.

    And I'm sure that the same business owner or homeowner would be the first to complain if someone did something on adjoining property that they perceived to reduce their property value. I can just see the Christian bookstore sitting by and allowing a bar to open next door. I've found that often, the people who scream loudest about their rights are the first to try to take away someone else's.

  • flashlight Jan 2, 2015

    Oh no. A few less cheaply built student apartment complexes to grace the surrounding landscape. The town (and those next to it that benefit from it's economic activity without contributing to it's infrastructure) will be just fine.

    "'A week does not go by that I am not asked by a business or homeowner in Watauga County, 'When will I be free of the oppression of Boone’s ETJ?'" Soucek told WRAL News."

  • Mike Watson Jan 2, 2015
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    So the Republicans didn't like it that 1 judge could ruin their plans, so they went to a 3 panel judges system, that ruined their plans. so what is next, do they begin to become smarter and not pass stupid laws that benefit their political or business friends (not going to happen), or do they pass a law that makes it a 5 or 7 judge panel?

  • Thomas Fenske Jan 2, 2015
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    This sounds like the "law" was a misuse of state power to me. Why doesn't the county have any zoning power? I'm a small city planning board member serving an ETJ that extends into an adjacent county. That county has its own planning board and zoning and we all work together. What's broken here is the county government, not the ETJ or state. I'd hate to have been the author of a bill that eventually resulted in a landslide or other environmental catastrophe due to lack of proper protections.

  • John McCray Dec 31, 2014
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    You seem to have a very limited understanding of the socioeconomic political games that take place in Watauga County. And in actuality, Boone municipal water supply does currently service areas outside of the city limits and within the ETJ.

  • rand321 Dec 31, 2014

    Elected officials in Raleigh know more about local affairs than the people locally. Just like a politician to try to obtain more power.

  • Pensive01 Dec 31, 2014

    Looks like the three judge panel isn't working for the republicans any better than the one judge panel did, at least on this first go around.

  • Mike Jones Dec 31, 2014
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    Tell him what he's won Jonny.

  • miseem Dec 30, 2014

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    And I'm sure that you would not object to a strip club, a strip mall, a high rise condo or a pig farm locating next to your house, right? You would not worry about devaluation of your property, would you? ETJ allows cities to control areas adjoining their boundaries on the assumption that they will eventually be in the city limits, and even before that time, the adjoining areas will benefit from the proximity to the city. Otherwise, why would these developers want to be right next to Boone, where land prices are high. Why not move 20 miles back into the hills? They want the benefits of location next to Boone, but none of the restrictions that make the location valuable.