Three-Judge Panel in Raleigh Grants Town Preliminary Injunction, Control of ETJ Until Further Settled in Court

Published Monday, December 29, 2014 at 5:36 pm
ETJ areas are shaded blue.

ETJ areas are shaded blue.

By Jesse Wood

Dec. 29, 2014. Come the first of the year, the Town of Boone won’t lose its authority over the extraterritorial jurisdiction (ETJ). On Monday, a three-judge panel of N.C. Superior Court judges unanimously granted the town a preliminary injunction preventing the law from taking effect until the constitutionality of the law is eventually decided in court.

“The town is very pleased with today’s decision by the court favoring the Town of Boone,” Mayor Andy Ball said in a statement. “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.”

In June, the N.C. General Assembly passed legislation abolishing the Town of Boone’s authority in the ETJ. The legislation was sponsored by N.C. Sen. Dan Soucek, who has said numerous times over the years that the town has abused its ETJ powers by regulating areas it doesn’t plan to annex.

In October, the Town of Boone filed a lawsuit against the state, challenging the legislation. Earlier this month, N.C. Superior Court Judges Alma L. Hinton, Nathaniel J. Poovey and Paul C. Ridgeway, heard arguments on the case from attorneys representing Town of Boone, the state and Watauga County, which successfully intervened to assist the state in this lawsuit.

The order granting the preliminary injunction states that the three-judge panel found 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.”

The injunction states that the law abolishing the ETJ is to be “restrained and enjoined in its entirety” until the matter is settled by the courts and noted that the “Town of Boone may continue to exercise its powers of [ETJ]” as provided in the N.C. General Statutes.

“In the opinion of the Court, the issuance of a preliminary injunction is necessary for the protection of the Plaintiff’s rights during the course of this litigation,” the order states.

In addition to granting the preliminary injunction, the three-judge panel also denied a motion by the state and Watauga County seeking a dismissal of the lawsuit.

“Upon consideration of all matters of record, and with the unanimous concurrence of the three judges of the Court, the Court finds and concludes that the Defendant’s and Intervening Defendant’s Motions must be DENIED,” reads the order denying the motion to dismiss.

When announcing the lawsuit in October, Mayor Andy Ball noted that more than 200 municipalities in the state exercise its ETJ authority under the state statute that the courts alluded to in Monday’s order granting the preliminary injunction.

“Since 1917, the North Carolina Constitution has 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. This law does not apply statewide, and it relates to the topics referenced in the Constitution. As a result, as Article II, Section 24 of the North Carolina Constitution states – this law is ‘void,’” Ball said in a statement. “We believe we have an obligation to the citizens of Boone, and to those who live in the ETJ, to challenge this law so that they can receive the same benefits and protections that citizens of other North Carolina towns and cities receive.”

In late November, attorneys representing the state authored a 60-page document supporting the dismissal of the lawsuit. Attorneys for the state wrote that the law abolishing the town’s ETJ is constitutional and claim that the law doesn’t violate articles mentioned by the town because the law “does not ‘relate’ to” health, sanitation, the abatement of nuisances, non-navigable streams and the regulation of labor, trade, mining or manufacturing.

In its conclusion, the state argued: “Plaintiff’s complaint should be dismissed based on the doctrine of sovereign immunity. The complaint is further subject to dismissal on the grounds that plaintiff lacks standing and that plaintiff fails to state a claim for relief.”

As Soucek has said in the past, attorneys representing the state also argued in its motion to dismiss the lawsuit that the “N.C. General Assembly has the authority to modify the town’s powers and to limit the geographic scope of the town’s powers.”

Soucek couldnt’ be reached late Monday for comment, but when the lawsuit was announced in October, Soucek expressed his disappointment with the town on a number of levels.

“I am disappointed that the Town of Boone is using tax payer dollars to sue the state for the authority to infringe on the property rights of citizens outside their city limits. All authority exercised by towns and municipalities are granted to them by the legislature,” Soucek said. “When those authorities are misused, abused or not it the best interest of the citizens, the legislature may alter or remove that authority.”

While it’s unclear when this lawsuit will ultimately be decided, the preliminary injunction turns the 90-day moratorium on high-impact land uses that the Watauga County Board of Commissioners approved earlier this month into a moot point – at least for now.

In the prior months, Commissioners held two public hearings and the Watauga County Planning Board held three public workshops on the ETJ to see what regulations, if any, the residents wanted. Those that attended the public workshops and spoke at the public hearings overwhelmingly favored Boone’s regulations in the ETJ.

The state is represented by Lauren Clemmons of the N.C. Attorney General’s Office; Watauga County is represented by Four Eggers; and the Town of Boone is represented by Brooks, Pierce, McLendon & Humphrey & Leonard in Greensboro.

For more information on this issue, click here for previous stories and also see court documents below.

See court documents below:

Denial of Motion To Dismiss Lawsuit (Dec. 29): Order Denying Motion to Dismiss

Granting of Preliminary Injunction (Dec. 29): Order granting Preliminary Injunction

Defendant’s Motion To Support Dismissal (Nov. 26): Supporting Motion to Dismiss

Watauga County’s Answer Supporting Dismissal: Watauga County Answer

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