Panel lets Boone keep zoning powers for now

The ruling, released late Monday, stops the law from taking effect while the town's legal challenge continues.

The unanimous opinion cites Boone's "likelihood of success on the merits of its case" and says the order is "necessary for the protection of the Plaintiff’s rights during the course of this litigation."

Superior Court judges Alma Hinton, Nathaniel Poovey and Paul Ridgeway also agreed to deny the state's request to dismiss the challenge.

The case is the first to be heard under a new law that requires all constitutional challenges to North Carolina law be heard by a three-judge panel.

In the past, those challenges were heard by a single judge in Wake County. After several new laws penned by Republican legislative leaders were blocked by single judges, GOP lawmakers voted in 2014 to send future challenges to three-judge review panels instead.

The law being challenged, passed in June, would have prevented Boone from exercising any zoning or planning authority over property outside the town's boundaries.

Lawmakers granted North Carolina cities extraterritorial jurisdiction, or ETJ, in 1959 as a way to help them plan future growth. But the bill's author, Sen. Dan Soucek, R-Watauga, said the Democratic-controlled town had abused that power by banning development on some mountain slopes overlooking Boone. 

Attorneys for Boone argued the bill was pushed through the legislature without public input as a favor to politically-connected local developers who own property in the ETJ. The town says careful planning is necessary to manage erosion, runoff and utility capacity in its small mountain valley.  

Boone Mayor Andy Ball said the town is "very pleased with the court's findings that we are likely to succeed on the merits and that irreparable harm would be caused without an injunction." 

"Residents of the Boone ETJ appreciate the neighborhood protections provided by our ordinances because Watauga County does not have a county-wide zoning ordinance," Ball added.

Meantime, Soucek said he'll keep fighting.

"A week does not go by that I am not asked by a business or homeowner in Watauga County, 'When will I be free of the oppression of Boone’s ETJ?'" Soucek told WRAL News. "After the court’s decision, it will be a little longer, but I will continue to be their elected voice, since they have none in the Town of Boone."

There's no word yet on the next hearing date for the case.