N.C. Supreme Court Rules Targeted Bill Abolishing Boone’s ETJ is Constitutional

Published Wednesday, December 21, 2016 at 1:15 pm
Boone's ETJ areas (click to view larger). Map submitted by Planning & Inspections Director Bill Bailey

Boone’s ETJ areas (click to view larger). Map courtesy Town of Boone

By Jesse Wood

In an opinion dated Dec. 21, the N.C. Supreme Court ruled that the 2014 legislation enacted by the N.C. General Assembly abolishing the Town of Boone’s extraterritorial jurisdiction is constitutional.

“Because the legislative act withdrawing the Town’s extraterritorial jurisdiction falls squarely within this plenary power, we hold that the act is constitutional, and we reverse the decision of the trial court,” a paragraph of page 2 of an 81-page opinion reads.

Another section of the opinion on page 7 reads, “An act of the General Assembly will be declared unconstitutional only when ‘it [is] plainly and clearly the case’ … Though not expressly stated in our first constitution, the General Assembly has long enjoyed plenary power to create political subdivisions of local government, establish their jurisdictional boundaries, and invest them with certain powers … which ‘may be enlarged, abridged or modified at the will of the legislature’ …”

Being the state’s highest court, N.C. Supreme Court rulings can’t be appealed, according to the N.C.  Court System website: “Parties have no further appeal from its decisions on matters of state law.”  

Plenary authority pertains to a governing body’s ability to exercise power (or not) in a particular area.

After former N.C. Sen. Dan Soucek, a Republican, sponsored legislation, passed in the summer of 2014, abolishing the town’s ETJ, which extends 1 to 2 miles outside town limits, the Town of Boone sued.

The town argued that the state constitution “prohibited any local law relating to health, sanitation and the abatement of nuisances, relating to non-navigable streams, or regulating labor, trade, mining, or manufacturing.” Soucek’s law, the town claimed, was void because it wasn’t enforced statewide; it only affected Boone – and not the 200-plus other municipalities exercising ETJ authority.

At the time the bill was being bounced around in the legislature in 2014, Soucek told High Country Press that the town had “grossly abused” and was” overstepping” the original intent of state law regarding ETJs. He also repeated the mantra of “regulation without representation” when speaking of the ETJ because residents of the ETJ can’t vote in town elections.

Former Boone Mayor Andy Ball wondered at the time why Boone was being targeted and said the ETJ preserves neighborhoods by providing a buffer between the town’s zoning and the lack of zoning in Watauga County.  

After the Boone-targeted bill passed in the summer of 2014, ETJ citizens went to the Watauga County Board of Commissioners to voice their concerns. Of the nearly 30 people who spoke before the commissioners in August 2014, the vast majority were against the elimination of Boone’s ETJ.

The commissioners listened to their constituents and directed the Watauga County Planning Board to come up with some recommendations and pass them on to the commissioners.

The planning board held three community meetings in different edges of the town. A vast majority of those attending those meetings were pro ETJ. But only about 125 of the estimated 2,750 to 3,500 ETJ residents showed up.

The passage of this law – in addition to Maymead’s proposed asphalt plant, which became known to the public later in April 2015, in Deep Gap – set off a chain of discussions between the public, planning members and commissioners regarding the county’s High Impact Land Ordinance, which regulated asphalt plants and other polluting industries.

Based on recommendations from the planning board, the Watauga County Board of Commissioners, then a GOP majority, enacted a 750-foot buffer between residential property lines and asphalt plants, cement mixing facilities and rock quarries (known as Category 1 uses in the ordinance) and a 1,500-foot buffer between a scenic byway and Category 1 uses. (With a proposed asphalt plant on the stretch of U.S. 421 known as the Doc and Merle Watson Scenic Byway, the latter buffer was an attempt to stop Maymead from building its plant.)

Commissioners also enacted a law requiring neighboring landowners to be notified of permit applications for high-impact land uses, which previously wasn’t required and is why a 2011 permit for an asphalt plant transferred to Maymead didn’t come to light until 2015. 

asphalt-plant-map

High Country W.A.T.C.H. map depicting a two-mile impact radius of current and proposed asphalt plants in Watauga County.

Previously, the county had a 1,500-foot buffer for educational facilities, nursing homes, religious facilities and childcare facilities – but no residential buffer. This was a major concern of citizens. The planning board recommended a 500-foot buffer between residential dwellings (not residential property lines) and Category 1 uses – but this was before it was announced that two companies were proposing asphalt plants in the county.

Citizens were asking for a two-year moratorium on polluting industries operating in the ETJ and at least a 1,000-foot buffer between polluting industries and residential dwellings. High Country W.A.T.C.H., a group formed in opposition to the asphalt plant, noted the toxic chemicals released in the air from asphalt plants and created a map depicting the two-mile impact radius of the current and proposed asphalt plants in Watauga County. Maymead owner Wiley Roark told the High Country Press that the health and environmental concerns from the public were “ridiculous.” 

The proposed asphalt plant off of Rainbow Trail Road ended up being denied by the Watauga County Planning and Inspections office, and an appeal to the Watauga County Board of Adjustment was denied as well.  

The other asphalt plant proposal has turned out differently so far. Though it was initially denied by the Watauga County Planning and Inspections office, the Watauga County Board of Adjustment, citing vested rights, reversed Planning Director Joe Furman’s decision to revoke a transferred permit to Maymead.  

After a resident closest to the the Maymead site off of U.S. 421 in Deep Gap appealed to Superior Court, a Superior Court judge recently upheld the Watauga County Board of Adjustment’s ruling to overturn the Watauga County Planning Department’s decision to revoke an asphalt plant permit.

As for the state law targeting the Town of Boone, in the summer of 2015, a panel made up of N.C. Superior Court Judges Alma Hinton, Nathaniel Poovey and Paul Ridgeway ruled that the abolishment of the town’s ETJ by the N.C. General Assembly was unconstitutional. 

The state and Watauga County, which had a GOP majority at the time and intervened in the case on behalf of the state, then appealed to the N.C. Supreme Court, which heard arguments from both the town and the state and county in March.

Justices Sam Ervin IV and Robin Hudson concurred with Justice Paul Newby, the writer of the main opinion, while Justice Cheri Beasley dissented.

Town Manager John Ward didn’t immediately respond to a request for comment.

See the entire opinion here. 

For more background and previous stories, click here for ETJ stories and here for stories on high-impact land uses, including asphalt plants

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