ETJ bill passes second House vote
by Anna Oakes
The town of Boone is poised to lose extraterritorial jurisdiction authority it has exercised for 31 years if the N.C. House agrees to final approval of Senate Bill 865 on Wednesday.
The local bill sponsored by Republican state Sen. Dan Soucek of Boone that would abolish Boone's ETJ authority seemed destined to be shelved following a House committee's failed motion to advance the bill on Monday. But the bill returned to the committee calendar on Tuesday, receiving a favorable report this time and moving swiftly to the Republican-dominated House floor, where it was approved 65-47 on second reading.
Due to an objection, the bill was not immediately considered on third reading and was placed on the calendar for a final vote when the House reconvenes at 3:30 p.m. Wednesday. If a local bill is passed by both houses of the General Assembly and is signed by the presiding officers of both chambers, it becomes law at that point. Local bills do not require the governor's signature.
An ETJ is a defined area in the county outside of city limits that is subject to a city's zoning regulations, including the type, density and location of land uses. ETJ residents cannot vote in town elections, do not pay town taxes and do not receive town services, but residents of the ETJ serve on the town's Board of Adjustment and Planning Commission.
Republican Rep. Jonathan Jordan of Jefferson spoke in support of the bill before the House and its Committee on Government Tuesday, asserting that the town is unlikely to annex ETJ areas on hillsides. Jordan told the committee the real reason for having an ETJ is for municipal expansion, for which the town has no immediate plans.
"It is too expensive to move water up a hill, so they're never going to expand," Jordan said. "The town of Boone's ruling junta is about one thing, and that's control."
Boone Mayor Andy Ball and ETJ resident Lee Stroupe, both Democrats, spoke to the House Committee on Government in Raleigh on Monday but were surprised when the matter returned to the committee agenda on Tuesday.
"We came back last night not thinking it was going to be coming up again," Ball said. In a statement, the mayor said the town is "extremely disappointed" with Tuesday's House actions.
"Sen. Soucek has yet to provide an example to justify his inflammatory comments against the town of Boone or explain his failure to notify the town of Boone before introducing it, allowing the council an opportunity to hear and address any concerns," Ball said.
Ball said the council would be forced to reconsider its water policies and whether water can continue to be provided to ETJ properties or unincorporated areas. He did not know if the town will pursue legal action over the bill.
"The council has to deliberate and decide whether we take any legal action," he said.
Rep. Paul Luebke (D-Durham) proposed an amendment to the bill stating that Boone's ETJ authority would be revoked upon the enactment of a county zoning ordinance for those areas, but Rep. Tim Moore (R-Cleveland) used a procedural maneuver to table the amendment and block it from consideration.
"The issue here in Watauga County is there is no zoning," Luebke said. "If this bill becomes law, then the people who are now in the ETJ have no protection from the examples of the super mall, the asphalt plant, etc."
Several Committee on Government members questioned why the bill returned to the committee calendar Tuesday after Monday's motion failed by a 12-15 vote, but legislative staff clarified that the bill could be considered again because the committee did not vote to give it an unfavorable report. It passed the committee Tuesday with an 18-16 vote.
Absent from Tuesday's vote were two committee members, Democratic Rep. Elmer Floyd and Republican Rep. Stephen M. Ross, who voted against the bill on Monday, as well as one member, Republican Rep. Jeffrey Elmore, who voted in favor. Republican Rep. Tim Moffitt was absent from both Monday and Tuesday's votes.
Republican Rep. John Faircloth noted that although he supports ETJ authority "if it's used correctly" that he had looked into the matter further since Monday and had concluded that "it's been improperly used" in Boone. He switched his vote to a "yes" for the bill on Tuesday after voting against the legislation Monday.
Democratic Rep. Susan Fisher of Asheville, Government Committee member, objected to what she described as "creative rulemaking" and urged representatives to vote against the bill and "give the town of Boone a chance to come to terms with this with its citizens."
Republican Rep. Edgar V. Starnes of Caldwell County, who is not a member of the Government Committee, spoke against the bill on Monday.
"Yes, as Republicans we do believe in property rights ... but Boone is a unique town with a unique situation in two regards," because it is a college town and a resort area, said Starnes, who owns a home in the Boone ETJ. Starnes said he felt the Boone Town Council, like many governmental bodies, made good and bad decisions, but "for the most part, their ordinances make sense. (The town) just tries to have orderly development so that residential neighborhoods are protected."
"I think it sets a dangerous precedent," Starnes concluded. "This would be the only time in the history of North Carolina that we have removed a town's ETJ authority."
Jeff Templeton -- an ETJ resident, owner of Templeton Tours and son of local developer Phil Templeton -- spoke to the committee in support of the bill. Templeton is an ETJ representative on the town of Boone's Planning Commission. Templeton said that most of the Boone town limits lies in the valley floor and that most of the ETJ is on hillsides.
"For that reason, Boone is not planning to do an expansion (of corporate limits); it's too expensive to push water up a hill," Templeton said. "The citizens of the ETJ are in a permanent limbo, with no hope of ever getting a right to vote or becoming part of town."
Town regulations restricting development in the town's viewshed therefore disproportionately affect ETJ residents, he added. Templeton also said the town does not fairly consider the input of ETJ residents.
"Our town council routinely ignores the recommendations of the town planning board," he said. "My vote is meaningless as an ETJ planning board member."
Soucek filed a similar bill two years ago. The bill passed the N.C. Senate but ultimately died in a House committee, with House representatives at that time arguing a bill affecting Boone's ETJ should be delayed until the broader issue of ETJ authority could be studied statewide.
Soucek cited research by University of North Carolina School of Government professor David W. Owens and argued that the original intent in authorizing ETJs was to "create a temporary status in order for annexation to occur" and not to control sprawl, viewshed and quality of life in areas where the town has no plans to expand in the near future.
"That's why it's clear abuse," Soucek said earlier this year. Asked by a committee member on Monday if the Boone Town Council opposed the bill, Soucek responded, "Of course they're going to be against you taking away their tyrannical power."
State law, however, states only that the areas to be included in ETJs must be "based upon existing or projected urban development and areas of critical concern to the city, as evidenced by officially adopted plans for its development."
"While there is no mandatory relationship between annexation and extraterritorial jurisdiction, it is common for a city to base its extraterritorial jurisdiction on anticipated future annexation of these areas," Owens wrote in May 2014. A 2005 School of Government study found that two-thirds of the N.C. municipalities with ETJs reported that these areas are likely to be annexed.