Three-Judge Panel Invalidates State's Efforts to Spay/Neuter Town's Planning and Development Regulation Powers
Thanks to my colleague Laura DeVivo (author of the incredible Keeping Up With Jones Street blog) for pointing me to the decision.
Notwithstanding any other provision of law, the Town of Boone shall not exercise any powers of extraterritorial jurisdiction as provided in Article 19 of Chapter 160A of the General Statutes.
That's it. That's the law. Ordinarily, I'd link to a law. Or, just maybe, I'd post a portion of the law. Not here. This is the entire law.
It's a so-called "local law" because it applies to a specific municipality. After all, the law is entitled, "AN ACT PROVIDING THAT THE TOWN OF BOONE SHALL NOT EXERCISE THE POWERS OF EXTRATERRITORIAL JURISDICTION". That's pretty local. It's Session Law 2014-33.
A municipality is not empowered to apply a development ordinance in the ETJ that it is not also applying within the municipal corporate limits. But municipalities are not required to apply all of their development ordinances that apply within the corporate limits. In other words, the ETJ can be development regulation light as compared to the corporate limits; but the ETJ cannot be development regulation heavy as compared to the corporate limits.
A number of North Carolina municipalities have adopted ETJs. Including Boone.
The Town sued, claiming the law violates the State Constitution's prohibition that, "The General Assembly shall not enact any local, private, or special act or resolution ... [r]elating to health, sanitation, and the abatement of nuisances." N.C. Constitution, Art. II, sec. 24(1)(c). You can read the Constitution for yourself, here.
On July 29, a three judge panel of the North Carolina courts agreed with the Town: "The Court herewith enters summary judgment declaring that the revocation of the Town of Boone's power of extraterritorial jurisdiction by Session Law 2014-33 (Senate Bill 865) is unconstitutional pursuant to the prohibition on local acts contained in Article II, Section 24 of the North Carolina Constitution and the Act is therefore enjoined."
There are procedural issues at play, but we'll leave that analysis to someone with more time. For our purposes, we're interested in the summary judgment decision.
We learned again today that what is usually thought of as a local act -- zoning -- is free from the State's efforts at a, um, "local act".
We'll see if the State appeals.