Boone’s ETJ To Be Abolished Jan. 1, 2015 After Bill Passes House in a 66 to 46 Vote Wednesday

Published Wednesday, June 25, 2014 at 4:56 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 submitted by Planning & Inspections Director Bill Bailey

By Jesse Wood

June 25, 2014. Senate Bill 865 became law on Wednesday afternoon after the N.C. House voted – in a third and final reading – 66 to 46 in favor of eliminating the Town of Boone’s extraterritorial jurisdiction (ETJ).

The bill, which was filed by Sen. Dan Soucek, went through the Senate earlier in the month and doesn’t require Gov. Pat McCrory’s signature because it is a local bill. The bill, which only affects the Town of Boone, is the first of its kind to abolish a municipality’s ETJ authority in the state of North Carolina, Boone Mayor Andy Ball said.

The bill is effective Jan. 1, 2015.

On Tuesday night after the bill passed its second reading in the House, Boone Mayor Andy Ball anticipated the bill becoming law and expressed his disappointment in a statement.

“Council will now be forced to immediately reconsider all water policies in light of this bill becoming law, and consider whether water can continue to be provided to Boone ETJ properties or any unincorporated areas of the county. We are awaiting a detailed legal opinion on this bill’s impact on residents of the Boone ETJ, and will continue to work to protect these property owners as we are able,” Ball said.

(Last fall, the town’s Water Use Committee, which includes members of the Boone Town Council, voted – in a non-binding straw poll – to oppose supplying water from the proposed water intake into “unregulated growth areas.” See that article here.)

This piece of legislation was active for the past two days. It initially failed in a committee vote on Monday but was resurrected on Tuesday afternoon by the same committee. The second time around the bill was reported favorably and moved its way to the House floor, where it passed its second reading later that Tuesday afternoon.

At the first committee meeting, Soucek reiterated his “regulation without representation” mantra. People who reside in the ETJ can’t vote in town elections. While the ETJ falls under the town’s regulatory policies, people who have property in the ETJ don’t have to pay taxes and don’t receive town services.

Speaking earlier this month, Soucek said that the town has “grossly abused” and is “overstepping” the original intent of state law regarding ETJs.

When Soucek filed the bill in May, Ball wondered why Boone was being targeted and asked how is Boone “different from the 540 other towns and cities” across the state that have the opportunity to exercise its ETJ rights?

“All have the ability and a lot of them do it. So we are unsure why we are different from everyone else and why our powers should be different,” Ball said at the time.

Ball said the ETJ preserves neighborhoods by providing a buffer between organized development in town and less regulation outside of town. He said that the town wouldn’t have any authority to investigate and regulate high-impact businesses that disturb neighborhoods without the ETJ.

Ball also disagreed with Soucek’s assessment that residents don’t need the ETJ because of policies and ordinances currently existing within the county.

The county doesn’t have countywide land-use controls established. Basically, the zoning we have out there is not something that can be replaced by the county,” Ball said. “If the county had zoning countywide it would be a different story, but we don’t have that situation.”

The county has an Ordinance to Regulate High Impacts Land Uses, such as asphalt plants, cement mixing facilities, chemical storage facilities and so forth.

However, the county only zones two areas – Valle Crucis and Foscoe/Grandfather.

See Mayor Andy Ball’s response to Tuesday night’s vote here.

See prior articles on this issue below.

Boone’s ETJ To Be Abolished Jan. 1, 2015 After Bill Passes House in a 66 to 46 Vote Wednesday

Update 5:20 p.m. Tuesday: SB 865 passed its second reading in the House on Tuesday afternoon in a 65 to 47 vote. Because of an objection, a third reading wasn’t conducted immediately after the second reading vote. It has been calendared for the Wednesday session, which convenes at 3:30 p.m.

Before the vote passing the bill on second reading, Rep. Paul Luebke (D-Durham) attempted to add a friendly amendment that would require Watauga County to establish zoning ordinances within the ETJ area before abolishing it. That amendment was tabled in a 60 to 50 vote.

By Jesse Wood

June 24, 2014. That didn’t take long.

“Less than 24 hours after it was voted down in the House Government Committee, a bill to strip the town of Boone of its powers of extraterritorial jurisdiction was resurrected and approved by the same committee,” WRAL reported Tuesday afternoon.

Senate Billl 865, sponsored by Sen. Dan Soucek, would go into effect in 2015. The local bill, which doesn’t require the governor’s signature to become law, has already passed the Senate, and is now moving its way to the floor of the House on Tuesday.

In the N.C. House Government Committee on Monday evening, the bill received an unfavorable report in a roll call vote of 12 to 15 and appeared to have stalled in committee. On Tuesday, the bill resurfaced in the same committee and received an 18 to 16 vote, according to WRAL, which reported that absent committee members on Monday “were rounded up” for a second vote.

From the WRAL report:

“In general practice, a bill that loses a committee vote is considered dead. Rep. Winkie Wilkins, D-Person, asked committee Chairman Rep. Mike Stone, R-Lee, how the bill had resurfaced.

“It did not get a favorable report, but it did not get an unfavorable report,” Stone said. “He would like an opportunity to have his bill heard again because there were members who were not here who wanted to vote for it.”

“Explain what consequences the 12-15 vote had yesterday if the bill just suddenly appears on the calendar again,” Wilkins countered.

Senate special counsel Gerry Cohen said the bill wasn’t actually dead after Monday’s vote – just in parliamentary limbo.”

One Representative in particular changed his mind overnight. WRAL quoted Rep. John Faircloth, R-Guilford saying that the town has abused its ETJ authority – something that Sen. Dan Soucek has said many times over in the past few years.

“I don’t think this is the right venue to settle this. It should be settled in Boone or in that county,” Faircloth added. “But it’s not being settled there, and so it’s here.”

Mayor Andy Ball has taken to Twitter on Tuesday afternoon, pleading to members of the N.C. House for a “Nay vote on S865 [which] sets a bad precedent” for the state as it would abolish a municipalities ETJ for the first time in history.

House Committee Votes Down ETJ Bill

By Jesse Wood

June 24, 2014. After passing the N.C. Senate and first reading in the N.C. House, the bill to eliminate Boone’s extraterritorial jurisdiction (ETJ) has stalled in the N.C. House Committee on Government.

Senate Bill 865 was filed in the N.C. Senate by Sen. Dan Soucek on May 28. The bill was sent to the N.C. House on June 17 and passed its first reading a day later. On Tuesday night, the committee didn’t report favorably on the bill in a 12 to 15 roll call vote.

WRAL reported that all Democrats voted against a favorable report on the bill, while Republicans were split:

“A roll call vote found 12 votes for the measure, mostly from far-right Republicans who favor tea party principles. But 15 lawmakers voted against it, including all Democrats on the committee and several establishment Republicans, including Reps. Mitch Setzer, R-Catawba, Steve Ross, R-Alamance, and John Faircloth, R-Guilford.”

While not a member of the N.C. House Committee on Government, Rep. Edgar Starnes, a Republican out of Caldwell, spoke against the bill at the meeting.

“This would be the only time in the history of North Carolina that we have removed a town’s ETJ authority,” Starnes was quoted by WRAL. “I think it sets a dangerous precedent.”

On Tuesday morning, Mayor Andy Ball said that Starnes, who owns a second home/investment property in Boone’s ETJ, gave an “eloquent talk” on the importance of the ETJ in a tourism and college town.

“We weren’t aware he would be coming and speaking,” Ball said. “It was a pleasant surprise.”

At the committee meeting, Soucek reiterated his “regulation without representation” mantra. People who reside in the ETJ can’t vote in town elections. While the ETJ falls under the town’s regulatory policies, people who have property in the ETJ don’t have to pay taxes and don’t receive town services.

“We have people being ruled over by people [they] can’t elect,” Soucek said at the committee meeting.

WRAL reported that with the bill failing in committee, “legislative rules say it’s dead for the remainder of the session.”

Ball, however, said that the rules can be changed and that Rep. Jonathan Jordan made it known that he is going to continue to push this bill over the next few days. 

This legislative session is expected to end July 1. That date, though, isn’t set in stone.

Read more about this issue here.

Mayor Ball and Council Members To Meet With Sen. Soucek in Raleigh Wednesday To Discuss ETJ Bill
By Jesse Wood

June 4, 2014. Mayor Andy Ball and fellow town council members will meet with Sen. Dan Soucek in Raleigh on Wednesday afternoon at 3:30 p.m. to discuss a bill that Soucek filed last week. Ball and the others are traveling to Raleigh for the annual Town Hall Day, and Ball said he reached out to Soucek to meet and talk about Senate Bill 865 while in town.

The bill would strip the Town of Boone’s ETJ (extraterritorial jurisdiction) rights if it were to pass in the N.C. General Assembly. The bill only pertains to Boone and would go into effect Jan. 1, 2015.

(In 2012, a similar bill filed by Soucek died in the House while the focus of the legislature turned its attention to the budget in the final hours of the short session, and last year, a bill striving to eliminate ETJs across the state stalled in the House.)

Soucek said the bill was an “effort to protect property owners” and was filed in response to one of the dozen resolutions adopted by the Watauga County Republican Party at its annual convention in March. The resolution stated that the local GOP would support Soucek and State Rep. Jonathan Jordan’s efforts to “provide a legislative solution to this injustice.”

In a release, Soucek noted North Carolina adopted statewide laws in 1959 to allow municipalities to regulate areas of up to two miles to compensate for the rapid growth of cities and mentioned that the Town of Boone has controlled ETJs for decades “with no efforts toward annexation.”

“This has created a system that allows for what I call regulation without representation, where the Town of Boone is regulating county residents who are not permitted to vote to hold the town officials accountable,” Soucek said in the release.

Speaking by phone, Soucek said that the town has “grossly abused” and is “overstepping” the original intent of state law regarding ETJs. He also mentioned the town’s “unreasonable” regulations. When asked for local officials or individuals that contacted Soucek in support of this bill, Soucek said he wouldn’t name any names for fear of personal “attacks” on those individuals.

Mayor Ball said he doesn’t know who in the town is behind this bill. Although, he mentioned that Nathan Miller, a town lawyer who has represented clients in the ETJ and chair of the Watauga County Board of Commissioners, and the Templeton Family have been the most vocal critics of the ETJ around Boone.

Ball mentioned that he was still waiting to hear from Soucek on why Boone is being targeted and what makes Boone “different from the 540 other towns and cities” across the state that have the opportunity to exercise its ETJ rights.

“All have the ability and a lot of them do it. So we are unsure why we are different from everyone else and why our powers should be different,” Ball said, adding that Soucek has not been in contact with town officials or town staff regarding this bill.

Ball said the ETJ preserves neighborhoods by providing a buffer between organized development in town and less regulation outside of town. He said that the town wouldn’t have any authority to investigate and regulate high-impact businesses that disturb neighborhoods without the ETJ.

Ball also disagreed with Soucek’s assessment that residents don’t need the ETJ because of policies and ordinances currently existing within the county.

“The county doesn’t have countywide land-use controls established. Basically, the zoning we have out there is not something that can be replaced by the county,” Ball said. “If the county had zoning countywide it would be a different story, but we don’t have that situation.”

Watauga County Planning Director Joe Furman said the county wasn’t the “Wild West” and pointed to the Ordinance to Regulate High Impacts Land Uses, such as asphalt plants, cement mixing facilities, chemical storage facilities and so forth.

“It’s simply not true that the county has no ordinances and doesn’t regulate development in any way,” Furman said, adding, however, that the county only zones a couple areas – Valle Crucis and Foscoe-Grandfather communities.

Boone Planning Director Bill Bailey mentioned that the town has open investigations related to concerns from citizens in the ETJ about high-impact businesses operating near their neighborhoods. Bailey mentioned that his office and town council has heard from folks in the Sunny Knoll Acres and Seven Oaks communities regularly about two particular businesses.

Radford Quarries off of Bamboo Road is in the Sunny Knoll Acres vicinity. Bailey said that Radford Quarries has expanded beyond their permit and has obliterated the buffer between the neighborhood and quarry. Bailey said he has contacted the state about violations.

Bailey also referenced the town’s investigation and citizens’ concerns about the Boone Ready-Mix concrete plant that used to operate on Seven Oaks Road. The town shut the plant down after it was ruled to have lost its grandfathered status for nonconforming usage in the community zoned single-family residential.

Without the ETJ, Bailey said those citizens in the ETJ would have had “no recourse.”

“They could complain to the county, but with no countywide zoning, there is really no enforcement they could handle. I guess they could try to send a letter to the offending property owner and try to smooth the situation out. But no legal recourse, unless some state law is being broken,” Bailey said.

While residents of Seven Oaks and Sunny Knoll Acres communities consider, in the words of Soucek, the ETJ has their “greatest concern,” others like David Risk, a property owner in the ETJ, are frustrated with the town regulations.

Risk lives in the Deerfield area at the end of the Boone Golf Club course. He owns 10 acres of “almost perfectly flat” land. The property – “as good as you’ll ever see” – was purchased in the late ‘80s, and he built himself a house.

Now, Risk, who is a contractor, wants to build up-to-three more houses and parcel off his acreage to folks that want to have a house built and live on that property. He says the town’s regulations curb his ability to do that.

The property is in a watershed, and Risk said the town’s ordinances will only allow him develop 10 percent of the property, while the county would allow 29 percent usage. Risk mentioned that if you have 44,000 square feet of property and you can only develop 10 percent of the property, “you can’t build a house” because that 10 percent must also include the driveway.

“I know there are some factors that I would consider that you shouldn’t build on. I know and understand that,” Risk said.

“You know, the regulations that the town has opposed to the county’s are just a lot tougher and more bureaucracy,” Risk said.

Risk mentioned that he’s met with town planning officials in the past and could have done some of the things he wanted to do with his land.

“There were just so many rules I would have had to abide by that it wasn’t feasible for me to do it, but with the county, I could have readily done it,” Risk said.

 

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