Appeal of Boone ETJ Act Could Affect Land Use Regulation Statewide | Eastern North Carolina Now

    Publisher's note: The author of this post is Barry Smith, who is an associate editor for the Carolina Journal, John Hood Publisher.

Justices will decide whether General Assembly statute prohibiting Boone from regulating land without annexing it is constitutional

    RALEIGH     The state's highest court on Tuesday took up the issue of whether the N.C. General Assembly exceeded its constitutional limits when it revoked the Town of Boone's extraterritorial zoning powers in 2014.

    Lauren Clemmons of the N.C. Department of Justice and Watauga County Attorney Stacy Eggers IV urged the N.C. Supreme Court to reverse a lower court ruling invalidating the law.

    Eggers said that the law, commonly called the Boone Act, was passed to address abuses by the Boone Town Council.

    "The citizens sought a remedy of relief from a board which they cannot vote for and were simply in a situation of regulation without representation," Eggers said.

    Extraterritorial zoning allows cities and towns to apply zoning powers in limited areas outside of their city or town limits. While people who live in such ETJs don't pay taxes to the municipality, their land can be regulated by the city. They also are not allowed to vote in the municipality's elections.

    Eggers said members of the General Assembly were the only people with any authority who could help residents in the Boone ETJ.

    Jim Phillips, arguing for the Town of Boone, said that the Boone Act is unconstitutional because the N.C. Constitution prohibits local acts relating to health, sanitation, and nuisances.

    Local acts are bills passed by the General Assembly that affect 15 counties or fewer and do not apply statewide.

    Phillips said the Boone Act, if upheld, would prevent the town from enforcing safety standards in its building code.

    "The fact that the General Assembly enacts a law does not make it constitutional," Phillips said.

    Justice Paul Newby noted that the "state Constitution gives the General Assembly the authority to give such powers and duties to cities, counties, and towns that they deemed advisable."

    Newby asked Phillips if a broad reading of the prohibition on local legislation affecting health and sanitation might "eviscerate" the General Assembly's ability to move any boundaries.

    "Your honor, I don't think so," Phillips responded. He said the town is complaining about the General Assembly's action related to regulatory authority that goes to health and sanitation.

    "But every change of boundaries is going to impact it," Newby said.

    "Your honor, I would agree that the General Assembly has broad authority to set boundaries that are city limits and county lines," Phillips responded.

    Clemmons told the court that nothing prohibits the General Assembly from enacting a local bill related to cities' and towns' use of extraterritorial jurisdiction.

    "So we should be reasonably able to agree that there would be an opposite view that the Constitution does not restrict the General Assembly in removing territory in a local act, which is what the Boone Act does," Clemmons said. "It removes territory."

    Clemmons noted that Boone isn't the only North Carolina municipality that doesn't have extraterritorial zoning powers.

    The Boone Act was introduced by Sen. Dan Soucek, R-Watauga, who said that the Town of Boone was abusing its ETJ powers by regulating areas that it never intended to annex.

    Last year, a three-judge Superior Court panel ruled the Boone Act unconstitutional.

    The Supreme Court took no action. Typically, the court issues rulings within a few months of oral arguments.