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Town Wins Latest Battle in Lawsuit Against the State Over Abolishment of ETJ

By Jesse Wood

Last week, the three judge panel residing over the extraterritorial jurisdiction (ETJ) case between the Town of Boone and the State of North Carolina ruled that the abolishment of the town’s ETJ by the N.C. General Assembly was unconstitutional.

In July, the panel – made up of Superior Court Judges Alma Hinton, Nathaniel Poovey and Paul Ridgeway – heard arguments and motions from the town and state.

Previously the panel heard arguments in December and granted the town a preliminary injunction, which allowed the town to control the ETJ until a final decision was made, and denied motions for dismissal by the state and Watauga County, which intervened on the state’s behalf.

After the decision in December, the state appealed, and oral arguments before the Supreme Court were scheduled for Sept. 2, 2015, County Attorney Four Eggers said last month.

So far it’s unclear as to how this latest ruling will affect the pending motions.

“We are pleased with the Court’s decision and we look forward to continuing to protect the Town of Boone’s extraterritorial jurisdiction for the health, safety and welfare of both our citizens and our visitors,” Mayor Pro Tempore Rennie Brantz said.

The town sued the state after the N.C. General Assembly passed N.C. Sen. Dan Soucek’s sponsored legislation abolishing the town’s ETJ. Soucek said that the town abused its ETJ powers by regulating areas it doesn’t plan to annex. The legislation targeted the Town of Boone and no other towns in the state.

The town contends that the legislation is unconstitutional and that N.C. General Statutes authorizes every municipality in the state to regulate matters such as zoning and building inspections within town limits and its ETJ. In a brief supporting the town’s motion for summary judgment, attorneys for the town, note that the N.C. Constitution prohibits local legislation directed towards 14 subjects and in this particular case, health, sanitation and the abatement of nuisances; labor, trade, mining and manufacturing; and non-navigable streams.

“By revoking the Town’s authority to apply zoning, building inspection, erosion, sedimentation control, floodway regulation and stormwater control ordinances (among many others, in the areas immediately adjacent to the town limits, the Boone Act [Soucek’s sponsored legislation] directly implicates each of those express constitutional prohibition,” a court filing on behalf of the town reads.

The state meanwhile stands on sovereign immunity, stating that it hasn’t agreed to be sued nor has it waived its immunity. Court documents filed on behalf of the state note that municipalities are the “creature of the state” and therefore the town can’t “demonstrate a continued or vested right” to exercise the ETJ.

“The town has no inherent right to exercise powers of extraterritorial jurisdiction,” the state claims.