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Final Decision on ETJ Lawsuit Still Some Time Away, Next Hearing Set for Early July

ETJ areas are shaded blue.
ETJ areas are shaded blue.

By Jesse Wood

With the Mayor Andy Ball on vacation this week, the Boone Town Council will hold a special meeting via email on Wednesday, June 3, beginning no sooner than 1 p.m. to discuss the lawsuit regarding the abolishment of the town’s extraterritorial jurisdiction.

Town Clerk Christine Pope sent out the announcement on Monday morning.

The purpose of the closed-session meeting, according to the notice, is “to consult with the Town Attorney in order to preserve the attorney-client privilege between the attorney and the Town Council and consider and give instructions to the attorney concerning the claim involving the Town of Boone and the State of North Carolina.”

Ball confirmed the meeting was about the lawsuit that the town filed against the State of North Carolina in October and which Watauga County later successfully intervened on behalf of the state.

Prior to the filing of the lawsuit, N.C. Sen. Dan Soucek sponsored legislation that would abolish the town’s ETJ because he said the town has abused its ETJ powers by regulating areas it doesn’t plan to annex.

In June, the N.C. General Assembly passed legislation that would have abolished the ETJ at the beginning of this year – if a three-panel judge hadn’t granted a preliminary injunction preventing the law from taking effect.

In December, days before the law was about to go into effect, N.C. Superior Court Judges Alma L. Hinton, Nathaniel J. Poovey and Paul C. Ridgeway, heard arguments from attorneys representing the Town of Boone, the State of North Carolina and Watauga County.

In its order, the panel of judges stated that the “Town of Boone has shown a likelihood of success on the merits of its case” and that the Town of Boone is “likely to sustain irreparable loss unless a preliminary injunction is issued.”

In addition to allowing the Town of Boone to exercise its ETJ powers until handing down a final decision, the judges also denied a motion by the State of North Carolina and Watauga County seeking the dismissal of the lawsuit.

Following those actions from the three-judge panel, Mayor Andy Ball said that he was pleased with the court’s decision.

“Residents of the extraterritorial jurisdiction have been granted continued protections past the first of the year, with the court acknowledging the town is likely to succeed on the merits in this matter. The Town will continue to pursue a favorable outcome for ETJ residents to assure they continue to enjoy the protections of our land use ordinances,” Ball said last December.

Watauga County Planning Director Joe Furman, who is currently keeping tabs on the lawsuit because the ETJ area would revert to the county’s jurisdiction, said on Monday that he hasn’t heard of a ruling date.

“I don’t think they are in a hurry to rule,” Furman said.

After the N.C. General Assembly passed this legislation, concerned residents in the ETJ went before the Watauga County Board of Commissioners seeking county regulations in their neighborhoods that would be similar to those imposed by the Town of Boone.

The commissioners sent the matter to the Watauga County Planning Board, directing the board members to review the ordinance regulating high impact land uses.

While some residents were asking for a two-year moratorium on polluting industries and at least a 1,000-foot buffer between polluting industries and residential areas, the Watauga County Planning Board initially recommended a 90-day moratorium and a 500-foot buffer between a residence and asphalt plants, cement mixing facilities and quarries/stone crushers.

The 90-day moratorium – of which the deadline has passed – proved to be a moot point once the three-judge panel ordered the preliminary injunction.

On Tuesday, June 16, the Watauga County Board of Commissioners will hold a hearing to listen to comments from the public regarding the potential amendments to the Ordinance to Regulate High Impact Land Uses.

As for when the lawsuit will conclude?

Ball said that the court has set the next hearing on current motions for early July.

“They won’t rule ‘til weeks after that,” Ball said.