By Jesse Wood
Nov. 20, 2013. The two-hour meeting on Wednesday night between the Boone Town Council and Watauga County Board of Commissioners proved productive after a bit of round-and-round discussion between attorneys, managers, staff and elected officials from both governmental bodies regarding the procedures for extraterritorial jurisdiction (ETJ) appointments to town boards.
Less than two months ago, the commissioners requested a meeting with the council members to figure out a solution that both bodies could agree upon with regards to the ETJ appointments to the town’s Board of Adjustment and Planning Commission.
The impetus for this meeting request was the denial of two ETJ appointments from the county by the town council in September because a public hearing wasn’t held prior to their appointment. The county said it wasn’t aware of the public hearing requirement, while the town says that the town decided on that procedure at a similar joint meeting on the same topic between the council and commissioners in 2011. Attorneys for both the town and county also had differing opinions onto the legality of the public hearing requirement.
Within a couple minutes of the meetings, County Attorney Four Eggers and Town Attorney Sam Furgiuele took over the meeting, “respectfully disagreeing” with each other’s legal opinion on the matter while stating their own. This stopped after Commissioner Perry Yates looked over to Furgiuele and said, “This meeting is between town council and commissioners. You are not an elected official.”
Yates described the town’s policy requiring the county to hold a public hearing for county recommended appointees while the town doesn’t have to hold a public hearing for its own recommended ETJ appointees as “discriminatory.”
Chair Nathan Miller noted that the town has ETJ positions on its boards vacant for months, yet the county isn’t notified about the vacant positions. He also said that whenever the town sent two recommendations recently to the county, the county immediately accepted them as ETJ appointees, yet the town wouldn’t accept the county’s appointments after months of collecting dust.
Yates then mentioned how it was absurd for upstanding citizens, “pillars in the community” like Dale Green or Frank Bolick, to have to go through a public hearing process.
After essentially asking if eliminating the public hearing requirement for the county would solve the problem several times, Councilman and Mayor-Elect Andy Ball finally mentioned the issue at hand was about the process – not the individuals up for appointment.
After more discussion, Eggers clarified that the county would like to see a portion of the town’s ordinance pertaining to public hearing requirements for these ETJ appointments eliminated.
After some more round-and-round discussion, Commissioner Billy Kennedy, which he would do several more times, said a solution was simple, either the town council could eliminate the public hearing requirement for the county or the council could add its own public hearing to equalize the process.
Then the meeting swung to the political spectrum with Councilwoman Lynne Mason noting that ETJs have been in place for more than 50 years. She mentioned that while she has heard of the concerns of the violation of “people’s property rights,” she said the ETJ preserves property values of residents on the edge of town by ensuring that only compatible developments are built nearby.
After listening to Mason’s view on ETJs, Commissioner Miller said, “I couldn’t disagree with you more.”
Miller noted that the county commissioners are the only elected, local representatives of ETJ residents. Residents of the ETJ are subject to zoning regulations, however they are not allowed to vote in town elections. While they don’t receive town services, they don’t pay town taxes either. Residents of the ETJ are allowed to serve on the town’s Board of Adjustment and Planning Commission.
Miller then echoed County Attorney Eggers and said he would like to see the section pertaining to public hearings removed or else the lawyers with differing opinions would have to go before a judge to have the matter settled.
Then members of the commission and council described its application processes and discussed the 2011 meeting where both bodies now disagree on what happened. While the council says that the public hearing requirement was decided at that time, the commissioners note that they don’t recall that occurring and also that it wasn’t mentioned in either the minutes produced by town and county staff.
Town Attorney Sam Furgiuele said that the reason the public hearing was decided upon was because the commissioners at the time noted that it was difficult to find people from the ETJ to serve on the boards. The advertising of the public hearing was just another way to advertise the openings on the board.
Commissioner Kennedy then spoke up and said if it’s simply a matter of advertising the position, then perhaps both bodies could agree upon a procedure “to get the word out.”
“It seems like we are beating a dead horse,” Kennedy said.
The first agreement that came to be was the elimination of town procedure whereby town recommendations are sent in pairs. The elected officials present all agreed that it’s hard enough to find one candidate for the board openings, let alone two at the same time.
This became an issue two months ago whenever the county appointed its recommend people to the boards because it hadn’t received any appointments from the town. Those appointments were denied by the town, and Planning Director Bill Bailey said the reason the town hadn’t given the county any other recommendations is because it only had one applicant – not the required two.
With that issue out the way, the two governmental bodies started chipping away on the public hearing requirement. Councilman Ball then said that if both sides agreed to eliminating the public hearing, then staff could be directed to modify the language in the ordinance to eliminate that procedure. Nobody objected.
Then somebody asked about the communication between County Manager Deron Geouque and Town Manager Greg Young. Geouque piped up, “We get along fine.”
He added, “We both have the same problem. Nobody wants to serve on the ETJ board.”
With the public hearing portion settled, both sides were ready to shake hands and go about their evening until Commissioner John Welch asked if there were any other “issues that we can see lying in the weeds” that should be taken care of so a future joint meeting doesn’t have to take place on this topic.
Councilwoman Jamie Leigh mentioned that she was concerned the process to appoint ETJ members could occur too quickly. Her reasoning was that the county could immediately appoint somebody to the board before the town had a chance to send in a recommendation of its own.
Commissioner Kennedy suggested that each body begin notifying of a soon-to-be vacant seat 90 days before the term is set to expire. No one would be appointed before that vacancy was officially advertised as vacant, Kennedy suggested. That way each person would have 90 days to find applicants before the position would actually be vacant.
Commissioner Miller noted that the town would have at least one month after the 90-day period before the vacancy occurs to submit its applicants because the county requires two readings on separate meetings if an applicant isn’t unanimously approved by the commission. Essentially, the town would have four months to find its own applicant before the county could outright fill the post.
“If there is an insufficient number of qualified residents of the area to meet membership requirements, the board of county commissioners may appoint as many other residents of the county as necessary to make up the requisite number…If a board of county commissioners fails to make these appointments within 90 days after receiving a resolution from the city council requesting that they be made, the city council may make them,” according to N.C. General Statutes.
Just as the meeting looked as if it was going to end an hour and half into it, the lawyers began talking again, and Commissioner David Blust joked, “This is where we started.”
The topic of discussion then turned to what happens if someone resigns before their term was set to expire. After sometime, Mayor Loretta Clawson joked, “Once your on, you can’t get off,” and everyone laughed.
Planning Director Bill Bailey said that the town would need at least 60 days minimum to recommend an appointment because the town council would have to decide on someone at a council meeting and then advertise the position. If the vacancy were to occur just after a scheduled meeting, then the council wouldn’t meet until a month later to discuss the vacancy.
Both boards took an informal vote on the 60-day wait after an unforeseen resignation before appointing anyone. Yates and Miller voted no to compromise on 60 days with Blust, Welch and Kennedy saying they would agree to 60 days. Yates said he was willing to vote for 45 days as suggested earlier in the meeting by Ball, who then changed his mind after hearing Bailey
Council Members Allan Scherlen, Ball and Mason agreed with 60 days while Leigh wanted 90 days. Councilman Rennie Brantz was absent.
In all, this what was agreed upon:
– The Town of Boone waived the public hearing requirement
– The Town of Boone may send one recommendation to the county at a time. Before the Town of Boone, on its own accord, was required to send two people.
– Whenever a vacancy is scheduled to occur, the Town of Boone will notify the county within 90 days and both governmental bodies will advertise the opening 90 days before the vacancy and perhaps have a rolling advertisement.
– In the event of an unforeseen resignation or vacancy, the county will wait 60 days before appointing someone, so the town has a chance to advertise the opening and recommend its own applicant.
The Boone Town Council will still need to change its Unified Development Ordinance regarding the public hearing before this becomes official.
As for Dale Green, Frank Bolick and Jon Tate, three county ETJ appointments that were stalled by the town, County Manager Deron Geouque alerted the county commissioners Wednesday afternoon that they were sworn into their respective boards and were ready to participate in meetings.
For more background, check out these prior articles on the matter: