This blog originally founded by Blogger who holds a theological degree and a doctorate in Counseling Psychology. Taught Psychology for 32 years and is now Professor Emeritus. Is a board-certified psychologist and was awarded the Lifetime Achievement Award in his profession. Ministered as a chaplain, and pastored Baptist and Episcopal churches. Publications cover the integration of psychology and theology. Served in the Army, the Merchant Marines and the Peace Corps.

Monday, September 12, 2011

The County, The Town, and The ETJ....PART 3

Tonight the Town Council and the County Commissioners will hold a joint meeting to discuss their differences on several issues - one of which is the town's refusal to allow the county commission to appoint the ETJ representatives to the town planning commission and the BOA.

As followers of this issue know, the county appointed representatives to these boards some of whom were not residents of the ETJ - Whether or not they are required to be residents in order to be "qualified" is no longer the issue - the county has already agreed that they would accept the town's position that their appointments must be ETJ residents - but the town is apparently insisting that they have the right to determine the pool of nominees that the county must select from.

As I said in the original post on this topic (click here).....

" seems to me that the NC STATE statute (ncgs 160a-362) specifically requires that citizens within a town's ETJ are entitled to  proportional  representation on the town planning board and BOA and further that :          " The representatives on the planning board and the board of adjustment shall be appointed by   the  board of county commissioners with jurisdiction over the area...." That is to say, when the town extends it's zoning authority via ETJ, the individuals whose property is to be regulated by that town, are represented on the town's Planning Board and BOA by representatives chosen by their county commissioners."

It is the position of the county that the county commissioners have the exclusive right to make these appointments; that the Town of Boone does not have authority to change the provisions of the statute and that the representatives for the people living within the ETJ are not determined by the town and that the town should follow the statute as written. The town seems to be taking the position that, while they don't challenge the intent of the statute, they believe that the county does not have "standing" to sue them and thus can't prevent them from violation of the statute.

David Owens, Professor of Public Law and Government, School of Government, at UNC CH is generally recognized as the state's foremost authority on ETJ and zoning issues within NC. His opinion
on the Boone/Watauga county ETJ appointments was recently sought and received by the County Commissioners. The relevant portion of Mr Owens opinion is as follows:

"In general, unless a town secures legislative approval via a charter provision or local legislation, the state statutory provisions relative to extraterritorial members of municipal planning boards and boards of adjustment are binding and may not be modified by local ordinance. This principle has been applied, for example, to hold Raleigh could not by ordinance amend the statutory 4/5 vote requirement for boards of adjustment. Eldridge v. Mangum, 216 N.C. 532, 5 S.E.2d 721 (1939). So if the statutes specify a zoning process, it is binding.

Here, G.S. 160A-362 has specific provisions and procedures for appointment of extraterritorial members to planning boards and boards of adjustment. The city makes the request for county action. The statute then explicitly provides that the extraterritorial members “shall be appointed by the board of county commissioners with jurisdiction over the area.” The statute goes on to provide that the county is to make its appointments within 90 days of receipt of the city’s request for appointments and in the event the county commissioners fail to do so, then (and only then) “the city council shall make them.” These provisions thus make a clear assignment of appointment power that cannot be altered by city or county ordinance without legislative approval."

David W. Owens
Gladys H. Coates Professor of Public Law and Government
School of Government
The University of North Carolina at Chapel Hill

Mister Owens' opinion is of course, not binding on the Boone Town Council. One would hope however that it would give them pause and encourage them to reevaluate their position on this important issue and not force the taxpayers of this county (and of the Town of Boone) to finance a lawsuit to resolve this matter!


inquiring mind said...

Thank you New Guy for this post. This is an excellent explanation and disclosure to the pubic. If only the main street media could report as well.

While Mr. Owen's opinion is not binding on the Town of Boone, his opinion weighs heavily in the courts and legislature committees. The Town of Boone so the knows that so the question is will they willfully force the County Commissioners to go to court to protect the ETJ representation through elected officials, the County Commissioners. Mr. Owen's outcome was evident from his previous writings and documented video recordings before the State legislature as was the intent of the legislature.

guy faulkes said...

Due to some medical problems, I do not know if I am going to be able to attend this meeting. I certainly will if I can. Would someone please post a report on it in case I do not make it?

In a court of law, it is inevitable the Town will lose.

This is going to be interesting as the Town is used to fighting an individual with delays and appeals until they bankrupt him in order to win a case. These tactic will not work with the county and, in fact, may be detrimental as the county gets to decide how sales tax is distributed to the towns.

In the event that the town does not recognize the ETJ members appointed by the county, there is also the possibility that the county could obtain an injunction that would keep any boards that have ETJ members from meeting until the issue is decided. This would pretty much bring the town's enforcement of its ordinances to a halt as there can be no action by the Town on an appeal to the BOA after the appeal is filed until after the BOA makes it's decision.

NewGuy said...

Just my opinion here, but it seems to me that if the town holds firm and refused the County Commissioners appointment rights, then the county has but two choices ..Litigate or Legislate!

Litigation, if it becomes neccesary, is going to cost the taxpayers in the town of Boone AND the taxpayers of Watauga county - and likely will take years before a final decision is reached. The position of the county is "follow the law"...the position of the town seems to be "you can't make us"....if the town holds to that position, then the matter will likely have to go all the way to the state supreme court for resolution.....That's not going to be cheap!

The Legislation option might be more practical. The Republican county commission seems to have good relationships with the Republican NC House and the Republican NC Senate. There has been legislation proposed in the past that would reduce a town's ability to extend their authority via ETJ...or to put a time limit on how long an ETJ can remain in effect without the town actually annexing the territory. There has also been legislation proposed in the past that would extend town voting rights to ETJ residents who are subject to a town's regulations.

Given the favorable (to Republicans) balances in the legislature, and the overall importance of ETJ issues to towns and counties throughout the state...maybe legislation is the best option.

guy faulkes said...

New Guy, you have just repeated what I said was the delaying tactic that raises expenses for their opponents usually used by the Town. However, in this case, if could cost them millions in sales tax revenue while the case is in court.

I, personally, am in favor of doing both legislation and litigation. We cannot afford to allow the residents of the ETJ to be disenfranchised, no matter the cost.

Sometimes remaining free is expensive. At least this time the cost is not going to have to be paid in blood. as had to be done with response to the terrorists.

If we go with legislation, do you think it might be possible to eliminate the ETJ concept altogether or is the League of Municipality lobby to strong?

NewGuy said... my opinion the most likely outcome of any legislation would be a requirement that the town actually annex the territory within a specified time period after establishing an ETJ.

I don't think that an ETJ is, in all circumstances, a bad thing. Where there is an expansion of town limits that everyone involved is in favor of, then an ETJ might well be the first step preliminary to that annexation.

Under legislation passed this year (supported strongly by Jonathan Jordan and Dan Soucek)..a municipality cannot annex an area where 60% of the effected residents have signed on in opposition to it. That's a pretty good start! If you add another provision that an ETJ can't last longer than 2 or three years before an area is annexed, that might be sufficient.

guy faulkes said...

Does this new legislation still require that any properties being annexed involuntarily be given full municipal services, including water and sewer within a couple of years?

Does the 60% negate this existing provision?

NewGuy said...

I haven't read the entire bill, but I wouldn't think so Guy....

guy faulkes said...

New Guy, after thinking about your comment that the ETJ is a good thing where everyone is in favor of being taken over by the municipality, I have to wonder why not just go for voluntary annexation? You still would not need an ETJ.

The rub comes in if everyone is no in favor of being taken over. Involuntary annexation has to be done in compliance with several rules and is not a easily accomplished as you would think. There are guidelines in place that protect individuals from frivolous annexation. Some of these such as the requirement that an involuntarily annexed property be served with all the services a municipality provides are quite expensive for a municipality. If such a rule was not in place, once could be annexed and never given services such as water and sewer.

If he is not in favor of being annexed or taken into an ETJ, then should he be?

Anonymous said...

Well, as to the BOC, despite the Republican majority, they will eventually do whatever Jim Deal says. He will either talk them to death, pitch a fit, or both.

NewGuy said...

Well...the short version of tonight's joint town/county meeting is that the town has pretty much agreed to return to letting the County Commission make the ETJ appointments....The county agrees that "qualified" would require that the appointment be a resident of the etj....

Thanks to all the level heads (on both sides)....TAXPAYERS WIN!

Anonymous said...

Now, the next step is abolishing ETJ.

inquiring mind said...

Anonymous. You were right on. Deal talked them to death. He still thinks he's the Chairman. Everything was going according to the rules. Both entities called the meeting to order. The BOC Chair called for the BOC attorney to speak. Then the Town Chair called for the Town attorney to speak. And, in typical fashion Deal raised up to the table and started to speak. He was a little off key and started before the Town attorney finished. You have to hand it to the Town attorney he held his ground and asked Deal to let him finish. And, then Deal took control of the meeting and Commissioner Gable was their to say as we have heard him say so many times: "I agree with Mr. Deal." He was seated in the right spot too (Deal Futrelle and Gable). Everything went according to Deal. Then they moved to the next subject and one could only LOL when Commissioner Miller tried to get word in edge wise. It has been so laughable because it is so predictable.

Well, it was either let Deal have control and talk them to death or have him pitch a fit. If anyone has ever experienced the fit, it ain't pretty.

inquiring mind said...

Maybe the Board Attorney needs to review the parliamentary procedures before each meeting. And, then Nathan is just going to have to call Deal out of order. He may pitch a fit or 2; but, like any child, he'll finally get it if your are consistent.

We have been subject to his fits of outrage. It lasts a bit longer than one would expect. However, he will calm down. So, just be calm. Ignore it. Think of something pleasant and tune him out. When it is over just act like nothing happened. If you react to it, you only encourage the behavior. And, try not to laugh.

guy faulkes said...

If Mr. Deal is out of order, he could be removed from the meeting as easily as could anyone else. The fact he is a commissioner would not matter. However, it would take Mr. Miller having the nerve to do it.

The county had already taken the position that it would recognize ETJ members should live within the ETJ. I assume that the county will continue to use the rule of law and appoint from outside the ETJ if no resident of that area asks to be appointed. Apparently this was what originally happened in this case.

I personally think that the threat of losing sales tax revenue is the issue that caused the town to blink.

Good job, new county commissioners.

inquiring mind said...

This discussion that took place last night about water allocations takes me back to the 70's when the Town and ASU attempted to claim that there was a water shortage and get water from Meat Camp Creek. The County farmers saved the day by exposing the real reason - a recreational water park. Once the Town people found out the truth, they voted down the bond referendum. Here we are again. While the reason is not for a recreational lake, it is definitely about control of the water supply. The commissioners made a mistake when they voted to give the Town watershed control. Unfortunately, the Commissioners didn't think this through. Commissioner Miller reminded the Town that they gave them the watershed control while begging for water for the old high school. The Town isn't concerned with anything other than controlling the water supply (keeping it out of the County's hands) and therefore controlling development not only in the Town and ETJ; but, the County also through water supply. Isn't it strange that the Town didn't know beforehand that there was not a right of way on Brownwood?

Stay tuned. We are researching a new law passed by our current legislature which is promising for the bona-fide farms in the ETJ.

Anonymous said...

I want to know if the County attorney made any statements after his initial points.

Did he have an opportunity to reply to the Town attorney?

inquiring mind said...

The only Watauga County GOP leader that we saw was Tommy Adams, who was also a speaker, "Young Conservatives' Role in 2012".

We caught Tommy's speech just before we broke for lunch. We missed a few speeches while out to dining. They catered food at the event. However, the line was so long (another gauge of attendance) that we opted to dine out. However, is was an excellent setup with a dining tables outside under a beautiful canopy adorned with chandeliers.
Tommy is a Tea-Partier, proclaimed "more conservative than Republican".

For more information see this interview with Tea-Partiers David Blust and Tommy Adams.

David Blust proclaims he "I'm fed up with Republicans who have lost their way- i.e. who have ceased to be conservative."

We can't help but think about the "Jimmy Deal Republicans" when reading this statement. Commissioner Deal exposed 5 of them at his sales tax press conference. And, then JW Williamson came up with the Democrat view of the 5 with his Mount Rushmore picture depicting the 5 with their butts sticking out of the side o the mountain.

David is a work in progress. If we could just get him to take a long-term view and be more vigilant before voting with Commissioner Deal.