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Legislators, municipality, county wrangle over planning, zoning authority

Republican legislators Rep. Jonathan Jordan (left) and Sen. Dan Soucek (right) speak Tuesday at the state House Government Committee about an effort to change planning and zoning powers in the town of Boone. Kirk Ross/Carolina Public Press

For the second year in a row, state legislators have removed the planning and zoning authority of a mountain town over its adjacent properties.

That authority exists through the state’s laws on extraterritorial jurisdiction, also known as ETJs. The laws were first passed in 1959, the year the N.C. General Assembly also passed legislation allowing cities greater authority to annex property.

Now, like annexation rules, which were restricted by the legislature in 2011, the use of ETJs is getting a closer look. Late this week, after an initial win in a committee vote that was overturned the next day, Boone became the latest town to lose its ETJ authority.

Property rights, zoning debated

Although both Asheville and Boone are fast-growing municipalities with large state universities, there is a distinction.

Unlike Buncombe County, which last year took over planning and zoning authority of Asheville’s ETJ, Watauga County does not have a countywide zoning ordinance.

That’s the key reason state House members killed an 2012 effort by Sen. Dan Soucek, R-Watauga, to remove Boone’s ETJ. This year, after Soucek’s bill sailed through the Senate, he found a more receptive audience in the House than two years ago.

On Monday, he and Rep. Jonathan Jordan, R-Watauga, mounted a “regulation without representation” argument for removing Boone’s authority before the House Government Committee, the main gatekeeper for local bills.

Soucek called the town’s zoning regulations a “gross abuse of existing law” and framed the dispute as a violation of property rights.

“The town is against it,” Soucek said responding to a question about town’s view, “but when you have an entity oppressing its neighbors, of course they’re against you taking away their tyrannical powers.”

Soucek said he has received numerous requests from ETJ residents to take up the issue.

Boone Mayor Andy Ball

Boone Mayor Andy Ball disputed those descriptions, saying that the town’s relationship with its ETJ is similar to the roughly 200 other municipalities in the state with ETJ authority.

Ball told committee members Monday he has asked repeatedly for specifics, the last time in an early June meeting in Raleigh.

“This is a very controversial issue for a local bill,” he told the committee, “and we have not received word from Sen. Soucek and Rep. Jordan on what is different about what’s going on in Boone from the rest of the state.”

The committee also heard from Rep. Edgar Starnes, a Caldwell County Republican and a member of the House leadership.

Starnes, who owns property in Boone’s ETJ, argued against the bill, saying that removing protections could lead to large amounts of new student housing and other development spreading up the slopes around the town.

“Yes, as Republicans we do believe in property rights,” he said. “But Boone is a unique town with a unique situation.”

He said most of the housing to handle the growth of Appalachian State University is likely to happen outside of town limits and the area needs to be able to plan for growth. Taking away the ETJ authority not only negates that, Starnes said, but given the county’s lack of zoning, it leaves ETJ residents unprotected.

“Watagua County has no zoning. Period,” he said. “And so if their ETJ authority is taken away and the county commissioners don’t accept something, (ETJ residents) will have no protections.”

Starnes and Ball were able to sway enough committee members and the bill was voted down 15-12 early in the week.

But their win was short-lived.

On Tuesday, the bill was brought back up and, with more members of the House leadership in attendance, was approved 18-16.

It passed the House on a fairly close vote of 65-47 and takes effect on January 1, 2015.

What’s next for Boone

In an interview with Carolina Public Press on Thursday afternoon Ball, said the town is reviewing its legal options.

“Our main concern is what effect this is going to have on ETJ property owners,” he said. “They’re in limbo right now.”

He said the town is looking at what happens to protections between now and then what happens in January after the bill takes effect.

There’s also an early indication that water service to the area is being reconsidered.

In a statement released after the vote, Ball said there is likely to be an impact on services to the area.

“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,” the statement said. “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.”

Watauga County Commission Chair Nathan Miller also released a statement saying the majority of his board “applauded the move.”

“The people of the ETJ have now been freed from the regulation without representation imposed on them since the 1980s,” he said.

The statement said the county plans to hold a public hearing “to hear from the citizens and real property owners of the former Town of Boone ETJ about ideas concerning some, if any, restrictions the citizens and real property owners wish imposed upon them by their elected officials.”

Ball said town leaders are frustrated because they still don’t know what exactly drove the bill and why Boone is being singled out.

“We’re not getting calls from ETJ residents saying ‘we don’t want this,’” he said.

In an interview after the vote Tuesday, Soucek said he’s heard the opposite, with only one or two parts of the ETJ actually interested in it and the others in “lockstep agreement” with the bill.

In the long run, Ball said the legislature’s willingness to eliminate ETJ authority in places like Boone and Asheville could have a big impact throughout the state and especially in Western North Carolina. Eleven of the state’s 21 counties without zoning are in WNC.

“This sets a dangerous precedent for cities and towns across the state,” he said.

Click to view full-size image.

The ripple effect

The legislature wading into regional controversies, often tensions between counties and towns, is not unusual. But the last two sessions of the legislature have seen a number of high profile local battles play out, notably in Asheville where the legislature removed the town’s ETJ authority in the midst of a fight over control of the city’s water system.

The General Assembly has also flexed its muscles by changing the rules on annexation, making it almost impossible for municipalities to annex property without the owner’s consent.

Erin Wynia, legislative and regulatory issues manager with the NC League of Municipalities, said she doesn’t anticipate removing ETJ authority will become a trend.

A statewide measure, proposed last year by Asheville Republican Rep. Tim Moffitt, didn’t make it out of committee.

The arguments against ETJs, Wynia said, are an offshoot of the opposition to annexation.

In committee discussions last week, Soucek and Jordan said that one of the main reasons for ETJs was to help smooth the transition for areas that eventually would be annexed. Since the annexation law changes makes the chance of that happening in Boone unlikely, they argued, the ETJ should be eliminated.

Wynia said while annexation rules have changed, that’s no reason to eliminate an ETJ entirely.

“There are still very valid public policy reasons to retain an ETJ even in the absence of it being a tool linked to annexation,” Wynia said. “You have these areas on the fringe of town that are urbanizing, and very often they do want those protections,” Wynia said. “They do want the municipal services, they want the urban amenities.”

Kirk Ross

Based in the Triangle, Kirk Ross is the capital bureau chief for Carolina Public Press. Contact him at kross@carolinapublicpress.org.

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