Town of Boone v. State, 93A15-2

Citation369 N.C. 126, 794 S.E.2d 710
Case DateDecember 21, 2016
CourtUnited States State Supreme Court of North Carolina

369 N.C. 126
794 S.E.2d 710

TOWN OF BOONE, Plaintiff
STATE of North Carolina, Defendant,

County of Watauga, Intervenor-Defendant

No. 93A15-2

Supreme Court of North Carolina.

Filed December 21, 2016

Brooks, Pierce, McLendon, Humphrey & Leonard, L.L.P., by Daniel F.E. Smith, Jim W. Phillips, Jr., Greensboro, and Julia C. Ambrose, Raleigh, for plaintiff-appellee.

Roy Cooper, Attorney General, by Lauren M. Clemmons, Special Deputy Attorney General, for defendant-appellant.

794 S.E.2d 712

Eggers, Eggers, Eggers & Eggers, Boone, by Stacy C. Eggers, IV, for intervenor-defendant-appellant.

NEWBY, Justice.

369 N.C. 127

In this case we consider whether the General Assembly may withdraw the previous extension of a town's jurisdiction beyond its corporate limits and return governance to the county. The first clause of Article VII, Section 1 of our state constitution recognizes the historic plenary authority of the General Assembly to provide for the "organization and government and the fixing of boundaries of counties, cities and towns, and other governmental subdivisions." This language acknowledges the legislative power to organize local government and fix the jurisdictional boundaries. Extraterritorial jurisdiction affects the organization of local governmental subdivisions by extending a town's jurisdiction into the county, thus shifting the political authority over certain subjects from one local government to another. Here, by withdrawing the Town of Boone's extraterritorial jurisdiction, the legislature restored the local jurisdictional boundaries as originally fixed, returning the governance of territory located outside of the Town limits to Watauga County. The limitations imposed by Article II, Section 24 do not apply to an action by the General Assembly establishing or modifying the jurisdictional boundaries of local governmental units. Because the legislative act withdrawing the Town's extraterritorial jurisdiction falls squarely within this plenary power, we hold that the act is constitutional, and we reverse the decision of the trial court.

Historically, the General Assembly established the governmental jurisdiction of a municipality by fixing the municipality's corporate limits. See State v. Eason , 114 N.C. 787, 795, 19 S.E. 88, 90 (1894) ("[T]he jurisdiction of a municipality does not extend beyond [its boundary], in the absence of some other language in the charter...."). Beginning in the late 1800s, the General Assembly began to extend the jurisdiction of select municipalities beyond their corporate limits with regard to designated governmental functions. See id. at 792, 19 S.E. at 89 ("[T]he

369 N.C. 128

legislature unquestionably ha[s] the power to extend the jurisdiction of the town, for police purposes...."); see also, e.g. , Act of Jan. 17, 1911, ch. 2, sec. 27, 1911 N.C. Priv. [Sess.] Laws 3, 17 (extending the City of Greensboro's jurisdiction for sanitation and the protection of city property for one mile "outside of said city limits"). Each grant of extraterritorial authority was by local act on a city-by-city basis. Despite the growing usage of extraterritorial jurisdiction, the General Assembly precluded municipalities in Watauga County from governing extraterritorially. E.g. , Act of May 26, 1955, ch. 1334, 1955 N.C. Sess. Laws 1387 (authorizing municipalities to regulate the subdivision of land within one mile of the corporate limits but excluding Watauga County and fifty-two other counties); see also Act of June 19, 1959, ch. 1204, sec. 1, 1959 N.C. Sess. Laws 1354, 1354 (expressly precluding towns located within Watauga County from governing extraterritorially). In 1961 the General Assembly granted extraterritorial jurisdictional authority to certain municipalities located within Watauga County, including the Town of Boone, over territory not more than one mile beyond their corporate limits. Act of May 30, 1961, ch. 548, sec. 1¾, 1961 N.C. Sess. Laws 748, 748. Article 19 of Chapter 160A of the General Statutes includes the current codification of extraterritorial jurisdiction.

For twenty years, the Town did not attempt to govern within the extraterritorial area. In 1981 the Town "initiate[d] the steps necessary to extend extraterritorial [jurisdiction] to [the] one mile perimeter" surrounding the Town and also sought "permission from the Watauga County Board of Commissioners to extend this radius to two miles." See N.C.G.S. § 160A-360(a) (2015) (requiring approval from the county to extend jurisdiction beyond the one-mile perimeter).1 When the County denied the Town's request to exercise jurisdiction beyond the one-mile extraterritorial area, the Town adopted Ordinance

794 S.E.2d 713

82-11 to exercise "[e]xtraterritorial zoning jurisdiction pursuant to [N.C.G.S. §] 160A-360" for five specified areas located within the permitted one-mile perimeter outside the Town limits. Boone, N.C., Ordinance 82-11 (Aug. 26, 1982).2

369 N.C. 129

In 2014 the General Assembly withdrew extraterritorial jurisdiction from the Town and returned governance of the areas to the County. Act of June 26, 2014, ch. 33, sec. 1, 2013 N.C. Sess. Laws (Reg. Sess. 2014) 139, 140 (the Boone Act) ("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."). The Boone Act effectively reorganized the specified local governmental jurisdictions within Watauga County by confining the Town's jurisdictional reach to its corporate limits and restoring governance of the extraterritorial area to the County. See N.C.G.S. §§ 160A-360(a) - (b) (2015).

The Town filed its complaint, challenging the Boone Act as a facially unconstitutional local act prohibited by Article II, Section 24 of the North Carolina Constitution. The State unsuccessfully moved to dismiss the complaint and, in its answer, denied the Town's allegations regarding the applicability of Article II, Section 24.3 The County intervened, asserting its "special interest" in the action as a "property owner" and "the duly elected governing body for the citizens and residents residing within the former extraterritorial jurisdiction."4

369 N.C. 130

A three-judge panel heard oral arguments and granted summary judgment in favor of the Town, concluding "that the revocation of the Town of Boone's power of extraterritorial jurisdiction by [the Boone Act] is unconstitutional pursuant to the prohibition on local acts contained in Article II, Section 24" and enjoining its implementation. The State and the County appealed that decision under N.C.G.S. § 7A-27(a1).

The State and the County argue that, under Article VII, Section 1 of the constitution, the legislature delegates to municipalities the authority to govern a particular territory and retains plenary power to modify the governance of that geographic territory. To hold otherwise would allow Article II, Section 24 to impermissibly restrict the General Assembly's broad authority over municipalities as acknowledged by

794 S.E.2d 714

Article VII, Section 1. The Town responds that the Boone Act is a prohibited local act because it removes the authority of the Town to enforce its ordinances, some of which may "[r]elat[e] to health, sanitation, and the abatement of nuisances," N.C. Const. art. II, § 24 (1)(a), or "[r]egulat[e] labor, trade, mining, or manufacturing," id. art. II, § 24(1)(j), and that the Act otherwise partially repeals N.C.G.S. § 160A-360, a general law, see id. art II, § 24(2).

The analytical framework for reviewing a facial constitutional challenge is well-established. Our "State Constitution is in no matter a grant of power," Lassiter v. Northampton Cty. Bd. of Elections , 248 N.C. 102, 112, 102 S.E.2d 853, 861 (1958), aff'd , 360 U.S. 45, 79 S.Ct. 985, 3 L.Ed.2d 1072 (1959), and as such, "[a]ll power which is not limited by the Constitution inheres in the people, and an act of a State legislature is legal when the Constitution contains no prohibition against it," id. at 112, 102 S.E.2d at 861 (citation omitted). See also State ex rel. Ewart v. Jones , 116 N.C. 570, 570, 21 S.E. 787, 787 (1895) ("[P]ower resides with the people and is exercised by their representatives in the General Assembly."). "We seldom uphold facial challenges because it is the role of the legislature, rather than this Court, to balance disparate interests and find a workable compromise among them." Beaufort Cty. Bd. of Educ. v. Beaufort Cty. Bd. of Comm'rs , 363 N.C. 500, 502, 681 S.E.2d 278, 280 (2009) (citation omitted). An act of the General Assembly will be declared unconstitutional only when "it [is] plainly and clearly the case," State ex rel. Martin v. Preston, 325 N.C. 438, 449, 385 S.E.2d 473, 478 (1989) (quoting Glenn v. Bd. of Educ., 210 N.C. 525, 529–30, 187 S.E. 781, 784 (1936) ), and its unconstitutionality must be demonstrated beyond reasonable doubt, Baker v. Martin, 330 N.C. 331, 334–35, 410 S.E.2d 887, 889 (1991) (citations omitted).

369 N.C. 131

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