Commissioners To Hear Public Comments on ETJ Tuesday, Judge Panel Doesn’t Hand Down Decision After Hearing

Published Monday, December 15, 2014 at 2:59 pm

ETJ

By Jesse Wood

Dec. 15, 2014. The Watauga County Board of Commissioners will hold a public hearing on Tuesday, Dec. 16, at 6 p.m. to hear from citizens regarding a proposed 90-day moratorium of high-impact land uses in the Town of Boone’s extraterritorial jurisdiction.

At the behest of the commissioners after the N.C. General Assembly abolished the town’s authority in the ETJ, the Watauga County Planning Board came up with recommendations on how to proceed with the county taking over the ETJ.

The planning board last month recommended that the county enact the 90-day moratorium.

Advocates of the ETJ were hoping for a two-year moratorium until a permanent polluting-business ordinance could be adopted. The moratorium they were hoping for also featured setbacks from neighborhoods. The 90-day moratorium proposed doesn’t address a residential buffer from polluting industries or student housing.

This morning a three judge panel, consisting of N.C. Superior Court Judges Alma L. Hinton, Nathaniel J. Poovey and Paul C. Ridgeway, heard arguments for the lawsuit between the Town of Boone and the state. The Town of Boone filed a lawsuit against the state in October to challenge the legislation sponsored by N.C. Sen. Dan Soucek.

Boone Mayor Andy Ball, who was present at the hearing, said that no decision was made on Monday.

Ball said attorney Jim Phillips of Brooks Pierce of Greenboro and his team “presented our case very well.” The town earlier filed a motion for the courts to issue a preliminary injunction, which would essentially stay the law until the matter is settled in court.

The state, which is represented by Special Deputy Attorney General Lauren M. Clemmons, earlier filed to have the motion dismissed entirely. Four Eggers is representing the county and assisting the N.C. Attorney General’s Office in the case.

With the town’s authority over the ETJ ending on Jan. 1, 2015, Ball said he would be surprised if a decision of some sort wasn’t handed down before the end of the year.

When Ball announced the lawsuit in October, he released this statement:

“Over 200 municipalities in North Carolina exercise the authority known as [ETJ], pursuant to NCGS Chapter 160A-360.

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.’

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.”

To which, Soucek responded:

“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.  When those authorities are misused, abused or not it the best interest of the citizens, the legislature may alter or remove that authority.  This has been done with ETJ around the state several times in the past few years.  When the Town of Boone was egregiously violating the property rights of my constituents, I felt duty bound to defend those citizens.”

Below is a prior article with commissioners discussing the Planning Board recommendation.

Commissioners Schedule Public Hearing To Listen To ETJ Residents, 90-Day High-Impact Use Moratorium Proposed

By Jesse Wood

Nov. 19, 2014. After receiving recommendations from the Watauga County Planning Board, the Watauga County Board of Commissioners scheduled another public hearing to listen to comments from residents in Boone’s extraterritorial jurisdiction (ETJ).

The public hearing is set for Tuesday, Dec. 16 at 6 p.m. The commissioners will also hold a public hearing on the same day to amend the county’s watershed map to include Winkler’s Creek and South Fork of the New River.

The commissioners are addressing the ETJ issue because Sen. Dan Soucek’s-sponsored legislation to abolish the Town of Boone’s authority over the ETJ passed in the N.C. General Assembly this summer. Watauga County will take over the ETJ area on Jan. 1, 2015.

After holding three public meetings across the ETJ last month, the Watauga County Planning Board recommended that commissioners enforce a 90-day moratorium in most of the ETJ on uses currently in the county’s Ordinance to Regulate High Impact Land Use – asphalt plants, electricity generating facilities, propane or gasoline bulk storage facilities, chip mills, explosive manufacturing, chemical manufacturing, chemical storage facilities, fuel oil bulk storage facilities, electric substations, cement mixing facilities and commercial/industrial development greater than a 50,000-square-foot footprint. See proposed moratorium document here.

(Because of N.C. General Statutes, counties can only zone portions of a county if those areas are greater than 640 acres and have at least 10 separate tracts of land with 10 different owners. The entire ETJ isn’t contiguous, so smaller outlying tracts in the ETJ, such as those near State Farm Road, Fieldstream Drive near the Watauga County Board of Education or along N.C. 105 near the bypass, won’t fall under the 90-day moratorium.)

Before scheduling the moratorium, the commissioners piped in about the ETJ conflict.

Outgoing Chair Nathan Miller expressed his discontent over the moratorium.

“There’s a reason why statues and the courts don’t like them. They severely limit and take away people’s rights to utilize people’s property,” Miller said, adding that eliminating the ETJ will provide “economic incentives, including jobs and revitalizing areas.”

“I am just not willing to do a moratorium. I don’t see why the ETJ should be treated any more special than the rest of the county,” Miller said. “… What’s good for the goose is good for the gander.”

Miller also added that the re-election of Soucek, who won Watauga County, and N.C. Rep. Jonathan Jordan, who lost in Watauga by 91 votes, was a referendum on the N.C. General Assembly’s decision to abolish the Town of Boone’s ETJ.

Commissioner Billy Kennedy noted that the difference with the ETJ is that “their status has changed” and the majority of the people who spoke at a previous public hearing on the issue advocated for protections.

Kennedy added that the he didn’t foresee “big projects” happening overnight and that the 90-day moratorium wouldn’t kill any proposed projects for those areas. He said the moratorium would provide some time to plan and hear what the majority of people in the ETJ want.

Kennedy and Commissioner John Welch disagreed with Miller’s statement that election of Jordan and Soucek was a referendum on abolishing the ETJ. Welch asked Watauga County Planning Director Joe Furman what was the percentage of people who attended the three public hearings and favored the ETJ.

Furman responded that of the 125 people or so who attended the meetings about 80 percent were in favor of the ETJ.

Commissioner Perry Yates expressed his disappointment that only 125 people showed up to the meetings when there is an estimated population of 2,750 to 3,500 in the ETJ. Yates then motioned to hold a public hearing to listen to only people from the ETJ.

Welch seconded the motion and then responded that a low turnout at the meetings that favored the ETJ protections was just as much of a referendum on the ETJ issue as Miller said of the results of the low-turnout midterm elections.

“Frankly at the beginning of this, there was no public input,” Welch said, referring to the fact that Soucek and Jordan didn’t talk to residents of the ETJ before the passage of the bill that abolished it. “The more [public input] we get, the better we’re off.”

A group advocating for more stringent regulation in line with what the Town of Boone imposed in the ETJ called for a two-year moratorium earlier this year.

While the Ordinance to Regulate High Impact Land Use states that asphalt plants, chemical and explosive manufacturing facilities, electricity generating facilities and chemical storage facilities can’t be within 1,500 feet of a school, daycare facility or nursing home facility, homeowners are concerned that this measure doesn’t include residential dwellings or neighborhoods.

This moratorium also won’t impact a developer who wants to build student housing near a neighborhood in the ETJ.

“And it doesn’t address steep slopes and it doesn’t really address a lot of the protections that are important to businesses and neighborhoods outside of the high impact land use ordinance,” said Annette Reeves, a resident in the ETJ who has been working with the Blue Ridge Environmental Defense League to advocate for a two-year moratorium on high impact land uses and to advocate for a polluting industries ordinances that includes 1,500-foot buffer zones around residential areas. (Miller said nothing will be able to be built if the buffer zone is that big.)

“I do think those setbacks will be very important in protecting individual’s rights and I do believe individuals have the right to do what they want to do with their land…. But I do think it’s important that you consider your neighbors,” Reeves said on Wednesday morning.

Reeves took the time to thank the planning board and commissioners for looking into this issue and listening to what the residents of the ETJ have to say.

Reeves said that while the 90-day moratorium is “better than nothing,” she said that the three-month period is plenty of time for the planning board and commissioners to “beef” up the high impact land ordinance.

Lee Stroupe, a resident of the ETJ in the Seven Oaks area off of Roby Greene Road, said that he will try to rally the troops for the public hearing in December. Stroupe said his neighborhood has had to fight an asphalt plant from moving into the area in the ‘90s and a concrete plant that the Town of Boone recently shut down.

When asked about the lack of people turning out to previous public hearings and workshop meetings on the topic, Stroupe said, “I think what people don’t understand about the ETJ issue is it’s not something that most people think about until you have an issue to deal with.”

Stroup said he would prefer to see a moratorium for all permitting in the ETJ and he wants the planning board to look into developing community councils for areas in the ETJ, similar to what happened when Valle Crucis and Grandfather-Foscoe areas were zoned.

The commissioners will hold the public hearing on Dec. 16, and they said they will more than likely vote on the issue immediately after the public hearing that Tuesday – in order to have something in place by the time the first of the year rolls around.

The Town of Boone is currently involved in a lawsuit it filed against the state because the N.C. General Assembly abolished the ETJ. A hearing has been set for mid December in Wake County for a three-judge panel to hear. Ric Mattar, a planning board member who presented to the commissioners on Tuesday night, said, “Throughout the whole process, we felt like we had to continue on regardless of the lawsuit.”

For more stories on the ETJ, click here.

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