N.C. Sen. Dan Soucek said he is “disappointed” that the town of Boone has sued over his bill — passed by the General Assembly this year — that eliminated the town’s powers of extraterritorial jurisdiction.
Attorneys for the town filed a complaint in Watauga County Superior Court on Oct. 10, claiming the law violates the North Carolina Constitution, that the act was pursued at the request of a few individuals and that the act would cause irreparable harm.
“I am disappointed that the town of Boone is using taxpayer dollars to sue the state for the authority to infringe on the property rights of citizens outside their city limits,” Soucek said in a statement.
“All authority exercised by towns and municipalities are granted to them by the legislature. When those authorities are misused, abused or not in the best interest of the citizens, the legislature may alter or remove that authority,” he said.
Soucek said that “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,” he added.
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.
The town claims the act is unconstitutional because of a provision of the N.C. Constitution that prohibits any local law that relates to health, sanitation and the abatement of nuisances, relating to nonnavigable streams, or regulating labor, trade, mining or manufacturing.
The city of Asheville made the same argument in its suit against the state over the 2013 law that transferred its municipal water system to a regional authority. The provision was not enacted as a local bill, but included parameters that applied specifically to the city.
Wake County Superior Court Judge Howard Manning Jr. in June agreed with the town and ruled the Legislature’s act was unconstitutional, but the state has appealed to the N.C. Court of Appeals.
Boone also argues that the act violates the North Carolina Constitution’s prohibition on governmental acts that provide exclusive rights or privileges to a particular person or group of persons without benefitting the public welfare.
Boone has asked the court to issue a preliminary injunction barring the ETJ law from taking effect until the outcome of the case. The law is set to take effect Jan. 1, 2015.
Under a law passed by the General Assembly this year, any facial challenge to the validity of an act of the General Assembly shall be transferred to the Wake County Superior Court to be heard by a three-judge panel of Superior Court judges appointed by the N.C. Supreme Court chief justice.