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Extraterritorial Jurisdiction for Planning and Development Regulation
Extraterritorial Jurisdiction for Planning and Development Regulation
David W. Owens
Gladys Hall Coates Professor of Public Law and Government
School of Government, The University of North Carolina at Chapel Hill
© 2014
May 2014
A city may not extend its regulatory or police powers beyond the city limits without specific legislative authority. The state supreme court ruled in 1894 that the town of Washington did not have the authority to regulate the throwing of dead fish from a pier into the Pamlico River. The city limits extended only to the low-water mark of the river, so the portion of the pier over the river itself was not within the city’s regulatory jurisdiction. The court noted, however, that the city’s police power jurisdiction could, with legislative approval, be set at other than the city limits.
The Legislature unquestionably had the power to extend the jurisdiction of the town for police purposes to the middle of the river or to the opposite bank, and . . . the effect would have been to extend the boundary for the exercise of the power to prohibit nuisance delegated to the town across the adjacent bed of the river, while the territorial limits of its authority for all purposes other than the exercise of police powers would have been the low-water mark on the north bank.[2]
The court upheld such a legislative grant of extraterritorial power in 1912 in State v. Rice.[3] Special legislation had granted the city of Greensboro authority to impose sanitary regulations up to one mile beyond the city limits. The city, acting under this authority, had adopted an ordinance that prohibited keeping hogs within the city or within a quarter mile of the corporate limits. In its deliberations of a challenge to the ordinance, the court concluded that the legislature had “unquestioned authority” to grant the city extraterritorial jurisdiction.
A principal concern with granting municipalities extraterritorial power has been the lack of political representation for extraterritorial residents. The legal aspects of this concern, if not the political and policy considerations involved, were largely resolved when the U.S. Supreme Court concluded that federal constitutional guarantees of due process and equal protection are not violated when states grant municipalities extraterritorial jurisdiction without extending the right to vote in municipal elections to extraterritorial residents.[4]
In the Rice case, the North Carolina Supreme Court addressed this contention. Because the police power is a state authority that is being exercised, the court dismissed the complaint.[5] The court reached the same conclusion in 1957 for an extraterritorial zoning ordinance adopted by Raleigh pursuant to a specific grant of authority in local legislation.[6]
In the absence of a specific grant of extraterritorial authority, cities have no inherent extraterritorial power. A 1955 case, State v. Owen,[7] addressed an attempt by Winston-Salem to apply its zoning ordinance extraterritorially. The court ruled that a general grant of one-mile extraterritorial jurisdiction in the city’s 1927 charter applied only to the police force and criminal law enforcement.
Extraterritorial Land Use Regulatory Authority
As zoning and other land use regulations first came into widespread use in North Carolina, this activity was almost exclusively a municipal concern. While most cities of any size were adopting zoning, only a few counties were doing so. As the post–World War II development boom took off, a good deal of the development occurred along the urban fringe, often in unregulated areas just outside of city corporate limits, and often in what was characterized at the time as “relatively chaotic fashion.”[8] The result in North Carolina, as in many states, was to authorize city “perimeter zoning,” which is now known as municipal extraterritorial jurisdiction (often referred to as ETJ).
Authority to adopt zoning ordinances in the one-mile area surrounding the city was granted to Raleigh, Chapel Hill, Gastonia, and Tarboro in 1949.[9] In succeeding years, a number of additional cities secured local legislation authorizing extraterritorial zoning.[10]
The Municipal Government Study Commission examined the issue in 1958 and came to this conclusion:
The Commission recognizes that municipalities have a special interest in the areas immediately adjacent to their limits. These areas, in the normal course of events, will at some time be annexed to the city, bringing with them any problems growing out of chaotic and disorganized development. Even prior to that time they affect the city. Health and safety problems arising outside the city do not always respect city limits as they spread . . . . Subdividers of land outside the city commonly wish to tie to city water and sewerage systems. New industrial and commercial development may, for a variety of reasons, take place just outside the corporate limits. Visitors to the city receive their first impression from these outlying areas.[11]
The study commission recommended that all cities with populations of 2,500 and larger be granted a one-mile area of extraterritorial jurisdiction. The commission noted the concern that residents of these areas were not entitled to vote in city elections and recommended mandatory representation of extraterritorial residents on city planning boards and boards of adjustment “to meet this objection in a practical and yet legal manner.”[12] The commission went on to recommend that cities with larger populations be granted up to five miles of extraterritorial jurisdiction, provided the county agreed. The legislature adopted the bulk of the study commission’s recommendations and granted statewide authority for municipal extraterritorial land use regulation in 1959.[13]
The statute on extraterritorial jurisdiction has undergone a number of amendments since its enactment. In 1961, the population required to exercise this power was reduced to 1,250.[14] A number of technical revisions were made to the statute in 1965, including allowing inter-local agreements on extraterritorial boundaries.[15] The current statutory scheme of tiered extraterritorial jurisdiction of one to three miles based on city population was adopted in 1971.[16] The original extraterritorial authorization exempted bona fide farms from zoning coverage because this exemption existed for county zoning. The farm exemption in the extraterritorial area of cities was deleted in the 1971 recodification but reinserted into the statutes in 2011.[17]
Subsequent amendments have included provision for vested rights when jurisdiction shifts,[18] allowance for annual updates to be used in determining city populations,[19] clarification of the process for assumption of authority in extraterritorial areas by a county when a city relinquishes jurisdiction,[20] and deletion of provisions allowing a separate advisory board of extraterritorial residents in lieu of expanding the planning board and board of adjustment to include extraterritorial representation.[21] In 1996, the statutes were amended to require mailed notice to affected property owners when zoning jurisdiction is being extended to an extraterritorial area. These amendments also added a requirement for proportional representation of extraterritorial residents on city planning boards and boards of adjustment.[22]
When a city adopts an extraterritorial boundary ordinance, the city acquires jurisdiction for all of its ordinances adopted under Article 19 of Chapter 160A of the General Statutes and the county loses its jurisdiction for the same range of ordinances.[23]This includes not only zoning and subdivision ordinances but also housing and building codes and regulations on historic districts and historic landmarks, open spaces, community development, erosion and sedimentation control, floodways, mountain ridges, and roadway corridors. The city does not acquire, nor does the county lose, jurisdiction for regulations adopted under the general ordinance-making power of G.S. 160A-174, such as a nuisance lot, junked car, or noise ordinances. This can lead to confusion, as some regulations could be adopted as part of a zoning ordinance or as a general ordinance. For example, if sign regulations are a section of a city zoning ordinance, they apply in the extraterritorial area; however, if they are part of a separate sign ordinance, they do not.
Most North Carolina cities, particularly those with populations greater than 2,500, have taken advantage of the statutory authority to exercise extraterritorial land use regulation. A 1995 North Carolina League of Municipalities survey indicated that 64.5 percent of all municipalities responding to the survey had adopted extraterritorial zoning.[24] A survey completed by the School of Government in 2005 indicated little change in the following decade, as 62 percent of responding municipalities had adopted extraterritorial zoning.[25] Both surveys indicate that larger cities are far more likely to exercise extraterritorial jurisdiction.
In addition to this general authorization of municipal extraterritorial jurisdiction, there are special provisions applicable to individual jurisdictions that have been adopted by local legislation. Notable among these are the agreement of the municipalities within Mecklenburg County to allocate extraterritorial areas to municipalities based upon negotiated spheres of influence for future annexation,[26] a joint planning area and allocation of future jurisdiction by Chapel Hill, Carrboro, and Orange County,[27] elimination of extraterritorial jurisdiction for Asheville,[28] and a substantial number of local bills affecting the geographic scope of extraterritorial areas for particular jurisdictions.[29]
Geographic Area Covered
The statute granting municipalities extraterritorial regulatory authority, G.S. 160A-360, defines the area within which a city may apply extraterritorial land development regulations. This statute includes specific standards for delineating the geographic area in which a city may exercise extraterritorial jurisdiction. A single boundary must be used for all of a city’s extraterritorial land use powers.[30]
The maximum size of a city’s extraterritorial area is determined by its population. G.S. 160A-360(a) provides that the extraterritorial area may extend up to one mile from the city limits for cities with populations of less than 10,000. If county approval is secured, cities with populations of between 10,000 and 25,000 may extend their jurisdiction for up to two miles; cities with populations of more than 25,000, up to three miles. In addition, a city may choose to exercise only part of its potential jurisdiction.
A 2005 survey by the School of Government indicated that most municipalities only exercise this jurisdiction within one mile of the city limits. Of 195 cities reporting use of extraterritorial land use jurisdiction, 85 percent had one mile or less of extraterritorial jurisdiction, 10 percent had up to two miles, and only 5 percent had up to three miles.[31]
G.S. 160A-360(b) provides that the area chosen must be based on “existing or projected urban development and areas of critical concern to the city, as evidenced by officially adopted plans[32] for its development.” To the extent feasible, the boundaries of an area are to be identified by “geographic features identifiable on the ground” but without extending beyond the statutory mileage maximums. Boundaries typically follow property lines but are not required to do so. Cities have the option of excluding areas in another county, areas separated from the city by barriers to growth, or areas where growth will have minimal impact on the city. Neither the boundary ordinance nor the public notice for the hearing on the boundary ordinance needs to be based on a detailed legal survey. However, the boundary must be described with sufficient precision that landowners can tell whether or not their properties are covered without hiring a surveyor.
Three North Carolina cases illustrate the degree of precision needed in defining extraterritorial boundaries. In Sellers v. City of Asheville,[33] the application of Asheville’s zoning ordinance to an extraterritorial area was held to be invalid in part because of an inadequate description of the extraterritorial area. The wording in the ordinance earmarked “the territory beyond the corporate limits for a distance of one mile in all directions,” but the map showed only sweeping curves. The purpose of the statutory mandate in G.S. 160A-360(b), the court held, is to define boundaries “to the extent feasible, so that owners of property outside the city can easily and accurately ascertain whether their property is within the area over which the city exercises its extraterritorial zoning authority.”[34] That an owner could secure a surveyor to measure one mile from the corporate boundaries was held to be insufficient to meet the statutory requirements. The use of a very general map also was held to be inadequate in Town of Lake Waccamaw v. Savage.[35] The court there found that “the sweeping curves drawn around the lake and town are in no way definable. No distances are shown on the map and the lines themselves do not coincide with any geographical feature on the ground.”[36] In re Raynor provides an example of a public notice description of an extraterritorial area that was held to be adequate.[37] That notice characterized the area as encompassing “approximately 1 mile in width ringing the present Garner [extraterritorial jurisdiction] between Jones Sausage Road east and south across U.S. 70 and White Oak Road to N.C. 50.” The notice then proceeded to “roughly describe” the boundaries using roads as references.
Regarding the annexation of areas that are not contiguous with the city (often referred to as satellite annexations), G.S. 160A-58.4 allows zoning to be applied therein as in all other parts of the city. The city may not extend extraterritorial zoning to the land adjacent to those areas, however, unless that land is within the extraterritorial area authorized for the city’s primary corporate limits.
When the extraterritorial jurisdictions of two cities overlap, the boundary of each is set at the midway point unless the cities agree otherwise.[38]
Process to Establish Extraterritorial Jurisdiction
G.S. 160A-360 also includes a detailed process that must be followed by a city in establishing extraterritorial jurisdiction.
G.S. 160A-360(b) requires that the extraterritorial area be set by an ordinance adopted by the city governing board. This boundary ordinance is subject to newspaper notice, mailed notice, and public hearing requirements.
Several cases have addressed the detail required in the notice of the hearing. In Sellers v. City of Asheville,[39] the application of the city’s zoning ordinance to an extraterritorial area was held to be invalid in part because the public notice had been inadequate. The newspaper notice had not mentioned that the proposed ordinance was the city’s initial effort to exercise its extraterritorial prerogative in the area. The court found the notice to be so vague as to give no diligent landowner reasonable cause to suspect that the ordinance affected his or her property. Similarly, in Town of Swansboro v. Odum,[40] the town’s attempt to extend its zoning to an extraterritorial area was held to be invalid on several grounds. For one, the public notice for the hearing on the extraterritorial ordinance had simply stated, “The purpose of the hearing shall be to answer questions and receive input as to extra-territorial jurisdiction as authorized by G.S. 160A-360.” For another, the required public hearing had been held in January, but the ordinance had not been adopted until the following September. The court held:
Its notice of the . . . public hearing failed to apprise defendants—or any other property owners within the affected area—of the nature and character of the proposed actions, failed to describe in any way the area in question, and failed to comport with the clear requirements of G.S. 160A-364 in that it was not published in two successive calendar weeks. Furthermore, plaintiff’s ordinance was adopted in a proceeding held over eight months subsequent to its initial hearing, and without either further public hearing or notice. Finally, plaintiff never recorded a boundary description as required by G.S. 160A-360(b).[41]
The ordinance was ruled to be void and thus ineffective against the defendant.
Mailed notice to affected property owners is required when zoning jurisdiction is being extended to an extraterritorial area.[42]G.S. 160A-360(a1) dictates that a mailing be made four weeks prior to the hearing on the boundary ordinance. That notice must specify the effect of extension of city jurisdiction, advise the owners of the hearing on the proposal and their right to participate in the hearing, and advise owners of their right to seek appointment as extraterritorial members of the city’s planning board and board of adjustment. A separate public hearing can be held but is not required when jurisdiction is actually extended and the city zoning map is amended to apply city zoning to the new territory. Prior published and mailed notice is required for the zoning amendment also, but because this notice cannot be mailed more than twenty-five days prior to the hearing,[43] two separate mailings are required even if a single hearing is held.
In certain instances, county approval must be given for a city to exercise its extraterritorial powers. G.S. 160A-360(a) requires county approval whenever a city with a population of more than 10,000 seeks to extend its extraterritorial jurisdiction beyond the one mile originally granted. G.S. 160A-360(e) requires that county approval be secured for the extension of city extraterritorial jurisdiction into any area wherein the county is enforcing zoning, subdivision regulations, and the building code. This includes the one-mile area adjacent to cities.[44] County ordinances for all three of these regulatory functions must be in place in the affected area to trigger the approval requirement.
In most instances, the application of these statutes is clear. However, for those counties with no county zoning or only partial county zoning, the question arises as to whether some ordinance other than a traditional zoning ordinance can trigger the requirement of county approval. In Town of Green Level v. Alamance County,[45] the county, which had not adopted a general zoning ordinance, attempted to block the town’s extension of extraterritorial jurisdiction. The town in 2003 proposed to adopt an extraterritorial boundary ordinance to extend its zoning. The county contended that its 1997 water supply watershed ordinance was a “zoning ordinance” and thus required the town to secure county approval of the proposed extraterritorial jurisdiction. The town disagreed and began the process to adopt an extraterritorial boundary ordinance. The county then quickly amended the watershed ordinance on April 19, 2004, to apply a “Rural Community District” to the disputed area. The town adopted its extraterritorial boundary ordinance on April 22, 2004. The town then brought a declaratory judgment action to determine whether the town ordinance was effective. The court held that the watershed critical areas and balance of watershed areas depicted in the 1997 watershed area did not extend into the disputed area. Although that ordinance also spoke of “stream buffers,” no streams had been mapped by the county in this area and the county had not enforced any buffer requirements in the area. Thus the ordinance could not be considered county zoning of the area. The court went on to hold that the county’s 2004 amendment was arbitrary and capricious in that it was adopted to block the town jurisdiction rather than to promote a legitimate health, safety, or welfare purpose. The record indicated the county made no reference to a comprehensive plan in its adoption, contained no references to water quality protection, and allowed various industrial uses inconsistent with a rural community.
G.S. 160A-360(g) requires that county approval, as well as any other request, approval, or agreement on extraterritorial jurisdiction by a city or a county, be established by a formally adopted resolution of the governing board. The statute does not establish any standards for county approval or disapproval, so whether to allow a municipality to extend its extraterritorial area in these situations is left to the discretion of the county board of commissioners.[46] The statute is silent as well on the timing of the required county approval; it can be secured at any time before the proposed effective date of adoption or amendment of the extraterritorial ordinance.
G.S. 160A-360(b) requires that the adopted boundary map be recorded with the register of deeds for any affected county and that the map be retained permanently in the office of the city clerk.
Where there has been substantial compliance with the notice provisions regarding establishment of an extraterritorial area, and those affected have received actual notice of the hearing, technical failures in the adoption process do not invalidate the ordinance. In Potter v. City of Hamlet,[47] the plaintiff challenged the adoption of extraterritorial jurisdiction some four years earlier on the grounds that the boundary map had not been filed with the county register of deeds. The court noted that there had been proper newspaper notice of the hearing, that the plaintiff’s predecessor in title had received a mailed notice of the hearing, that several hearings were actually held, that the ordinance had a metes and bounds boundary description attached, and that a map of the area was displayed in the city clerk’s office. Thus the court found the city had substantially complied with the notice requirements and the failure to file a copy with the register of deeds did not invalidate adoption of the extraterritorial area.
Another important requirement for a city exercising extraterritorial authority is that the membership of both its planning board and its board of adjustment be expanded to include extraterritorial representation. G.S. 160A-362 requires the appointment of a proportional number of residents of the extraterritorial area to both bodies.[48] For example, if a city with a population of 5,000 has a five-member planning board, one extraterritorial member is required for each 1,000 extraterritorial residents. If the number of residents of the extraterritorial area itself is insufficient, other county residents may be appointed.[49] The statute does not specify how the population of the extraterritorial area is to be computed in making this calculation. In the absence of a specific directive, it has been held that the mechanics of how this is accomplished is left to the judgment and discretion of the city and the courts will not interfere unless the means chosen are manifestly unreasonable and oppressive.[50]
The board of county commissioners of each affected county appoints extraterritorial members to the municipal planning board and board of adjustment. Where appointments are required as a result of an expansion of an extraterritorial area (as opposed to filling a seat where a term has expired), the county board must hold a duly advertised public hearing and must make its appointments from persons who have applied at or before the public hearing. If the board of county commissioners fails to make the appointments within ninety days of receiving a resolution from the city governing board requesting that the appointments be made, the city governing board may make the appointments.
Extraterritorial members act only on matters affecting the extra-territorial area unless the city ordinance specifically grants them equal authority on matters within the city. The overwhelming majority of cities in North Carolina with extraterritorial jurisdiction—over 90 percent—allow extraterritorial members to vote on all matters coming before the boards.[51]
It is important to note that there are two steps in the process of establishing extraterritorial zoning and that they can be accomplished concurrently or separately. The first step is the establishment of the extraterritorial jurisdiction as discussed above. The second step is the actual zoning of the extraterritorial area. This must be accomplished by amendment of the city’s zoning map to include the extraterritorial jurisdiction. G.S. 160A-360(f) provides for a sixty-day transition period, during which prior county zoning remains in place and enforceable.
Similarly, amendments to other land development ordinances being applied in an extraterritorial area need to be made to assure that their provisions regarding the geographic area covered include the extraterritorial area. In a 2005 survey by the School of Government, 99 percent of the North Carolina municipalities exercising extraterritorial authority reported applying zoning to this area. Other frequently applied land development ordinances included subdivision regulation (92 percent), manufactured home park regulation (88 percent), sign regulation (87 percent), telecommunication tower regulation (74 percent), floodplain zoning (69 percent), adult entertainment location regulation (69 percent), junkyard regulations (54 percent), watershed protection regulations (50 percent), stormwater management regulations (45 percent), sediment and erosion control regulations (37 percent), and historic district regulations (17 percent). Fifty-nine percent also reported that the city administers the building code in the extraterritorial area (and 32 percent applied their housing codes in this area).[52]
Also see these blog posts in Coates Canons:
David Owens, Which City and County Ordinances Apply in the ETJ? (Jan. 2013)
For additional legal analysis, see:
David W. Owens, Land Use Law in North Carolina (2ed. 2011)
[1] State v. Eason, 114 N.C. 787, 19 S.E. 88 (1894).
[2] Id. at 792–93, 19 S.E. at 89.
[3] 158 N.C. 635, 74 S.E. 582 (1912). This one-mile extraterritorial authority for sanitary ordinances was extended statewide in the 1917 comprehensive revision of municipal law. 1917 N.C. Sess. Laws ch. 136. G.S. 160A-193 now allows cities authority to summarily abate public health and safety nuisances within the city and within one mile of its corporate limits.
[4] Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 70–75 (1978).
[5] “There is nothing in our Constitution which restricts the Legislature in the exercise of its police power from conferring upon the municipal authorities of Greensboro such [extraterritorial] power.” Rice, 158 N.C. at 638, 74 S.E. at 583.
[6] City of Raleigh v. Morand, 247 N.C. 363, 100 S.E.2d 870 (1957), appeal dismissed, 357 U.S. 343 (1958).
[7] 242 N.C. 525, 88 S.E.2d 832 (1955).
[8] Philip P. Green, Jr., The Zoning of Areas Outside City Limits, Popular Gov’t, Oct. 1953, at 7. A 1929 statute provided that land within a mile of cities could not be subdivided until the city governing board approved a map of the subdivision and its proposed street and sidewalk layout. 1929 N.C Sess. Laws ch. 186.
[9] 1949 N.C. Sess. Laws ch. 540 (Raleigh), ch. 629 (Chapel Hill), ch. 700 (Gastonia), ch. 1192 (Tarboro).
[10] For example, in 1951, this authority was extended to Statesville, Farmville, Mooresville, and Kinston. 1951 N.C. Sess. Laws ch. 238 (Statesville), ch. 441 (Farmville), ch. 336 (Mooresville), ch. 273 (Chapel Hill), ch. 876 (Kinston). In 1953, Winston-Salem was given a three-mile extraterritorial jurisdiction. 1953 N. C. Sess. Laws ch. 777. By 1958, nineteen municipalities had secured local legislation authorizing extraterritorial zoning (Carrboro, Chapel Hill, Charlotte, Elizabeth City, Farmville, Gastonia, Goldsboro, Greensboro, High Point, Jacksonville, Kinston, Mooresville, Raleigh, Salisbury, Snow Hill, Spencer, Statesville, Tarboro, and Winston-Salem).
[11] Report of the Municipal Government Study Commission of the North Carolina General Assembly 18 (Nov. 1958).
[12] Id. at 19. The commission report went on to note that such an arrangement would provide “outside residents an appropriate and essential role in both the legislative process [given the planning board role in recommending regulations] and the admininistration of the ordinance [given the board of adjustment role with variances].”
[13] 1959 N.C. Sess. Laws ch. 1204. General enabling authority for county zoning had been adopted earlier in the 1959 legislative session. 1959 N.C. Sess. Laws ch. 1006. Nineteen counties were exempted from the coverage of the law authorizing extraterritorial zoning. City charters or local legislation can restrict use of extraterritorial jurisdiction for particular cities. See, e.g., S.L. 2007-334 (restoring the power to exercise extraterritorial jurisdiciton to River Bend).
[14] 1961 N.C. Sess. Laws ch. 548. This law also added a provision granting cities authority to appoint the extraterritorial members of the planning board and the board of adjustment if the county failed to make such appointments.
[15] 1965 N.C. Sess. Laws ch. 864. Other changes included provisions that initial zoning of extraterritorial areas was not subject to protest petitions, that extraterritorial members of boards might vote on matters within the city, and that extraterritorial members might reside outside the area being zoned if necessary to secure the requisite number of members.
[16] 1971 N.C. Sess. Laws ch. 698. Also see S.L. 2006-246, which uses a one-to-three-mile “municipal sphere of influence” in allocating responsibility for city and county stormwater management regulatory programs.
[17] S.L. 2011-363. This law created G.S. 160A-360(k) to provide that property being actively used for bona fide farm purposes is exempt from a municipality’s extraterritorial jurisdiction. Land used for farm purposes can be included within the geographic area of a city’s extraterritorial boundary. That land is then exempt from city jurisdiction while in active farm use but becomes subject to city jurisdiction upon the cessation of that use. This law also provides that property in active farm use may not be annexed into a city without the written consent of the property owner. See Chapter 22 for a discussion of the definition of “bona fide farm use.”
[18] 1973 N.C. Sess. Laws ch. 525.
[19] 1977 N.C. Sess. Laws ch. 882.
[20] Id. ch. 912.
[21] 1983 N.C. Sess. Laws ch. 584. The deleted provisions allowed for a separate advisory board to review text and map amendments for development ordinances and to make recommendations on subdivision plats, special and conditional use permits, and variances proposed for properties within the extraterritorial area. G.S. 160A-362 continues to provide, however, that any such advisory board created prior to July 1, 1983, constitutes compliance with the requirement of providing extraterritorial input into city decision making until that advisory board is abolished.
[22] 1996 N.C. Sess. Laws ch. 746.
[23] G.S. 160A-360(a).
[24] Ngoc Nguyen & Lee M. Mandell, Results of the 1995 Municipal Ordinance Survey (June 1995) (based on a survey of 327 of the state’s 524 cities).
[25] David W. Owens, The North Carolina Experience with Municipal Extraterritorial Jurisdiction 9 (School of Government, Special Series No. 20, 2006). While some jurisdictions have exercised extraterritorial jurisdiction for some time, two-thirds of the cities reported initial adoption of extraterritorial jurisdiction after 1980. Id. at 10.
[26] Local provisions on municipal extraterritorial jurisdiction in Mecklenburg County have evolved over the years. In 1955, Charlotte was granted extraterritorial jurisdiction for a specified area for both its zoning and subdivision regulations. 1955 N.C. Sess. Laws chs. 123, 124. In 1959, these specified areas were revised to include additional territory. 1959 N.C. Sess. Laws chs. 113, 114. The statewide authorization of extraterritorial jurisdiction in 1959 extended authority for extraterritorial jurisdiction to the other municipalities within the county. In 1971, however, the General Assembly removed extraterritorial jurisdiction from all municipalities in Mecklenburg County. 1971 N.C. Sess. Laws ch. 860, §§ 12–14. The provisions of this bill stripping Charlotte and the other municipalities of extraterritorial jurisdiction was a last minute addition to a bill on Charlotte’s Firemen’s Retirement System. The bill had passed the House of Representatives, and these provisions were added as a floor amendment as the Senate considered the bill in the waning days of the 1971 session of the General Assembly. This act did retain a municipal advisory role in the extraterritorial area, as the county was required to refer all proposed zoning amendments and special or conditional use permit applications to municipalities for a recommendation for actions arising within their respective former extraterritorial areas. There was a gradual reinstatement of extraterritorial jurisdiction in the county in the following years. In 1977, a one-mile extraterritorial area was restored for Cornelius, Davidson, and Huntersville. 1977 N.C. Sess. Laws ch. 393 (also see 1983 N.C. Sess. Laws ch. 966 for Huntersville).
In 1983 the General Assembly authorized use of binding annexation agreements among the municipalities in Mecklenburg County. 1983 N.C. Sess. Laws ch. 953. Use of annexation agreements was later extended to three additional counties and then extended statewide in 1989. G.S. 160A-58.21 to -58.28. These annexation agreements then became the foundation for allocation of extraterritorial jurisdiction in Mecklenburg County. The concept used is similar to the “spheres of influence” used in California local government law (where each county has a Local Agency Formation Commission that sets “spheres of influence”—areas of future municipal jurisdiction to be used in mandatory land use plans, service areas, annexations, and municipal “prezoning” of unincorporated areas). In 1991, Charlotte and the municipalities in the southern portion of the county (Matthews, Mint Hill, and Pineville) were given authority to exercise extraterritorial jurisdiction for areas that were both within one mile of the respective corporate limits and within areas proposed to be annexed by the municipalities as depicted as their “sphere of influence” in annexation agreements entered into by the municipalities. 1991 N.C. Sess. Laws ch. 161. The same authority was then in 1992 provided to Cornelius and Davidson (1992 N.C. Sess. Laws ch. 884), revised in 1994 for Mint Hill (1994 N.C. Sess. Laws ch. 590), revised for Cornelius and Davidson, and extended to Huntersville in 1997 (1997 N.C. Sess. Laws ch. 106), and in 2001 updated for Charlotte’s annexation agreements with municipalities in the northern portion of the county (Cornelius, Davidson, and Huntersville) (S.L. 2001-228).
[27] 1987 N.C. Sess. Laws ch. 233. The agreement is described in Richard D. Ducker, The Orange County Joint Planning Agreement, Popular Gov’t, Winter 1988, at 47.
[28] 2013 N.C. Sess. Laws ch. 30.
[29] A number of local governments have secured local legislation to modify the area of potential extraterritorial jurisdiction. The most common amendment has been to allow towns with populations under 10,000 to add a second mile of extraterritorial jurisdiction. Local variations enacted since 1973, with year of adoption indicated parenthetically, include: Apex (1993), Archdale (2005), Belmont (1991), Blowing Rock (1985), Burgaw (2009), Canton (1983), Caswell Beach (1983), Chadbourn (2004), Charlotte (2001, 1991), Chocowinity (2006, 1999), Cornelius (1997, 1992, 1977), Davidson (1997, 1992, 1977), Dunn (1998), Faison (2009, 1991), Farmville (1999), Grifton (1993), Huntersville (1997, 1984, 1977), Kings Mountain (1999), Knightdale (1985), Lake Waccamaw (1973), Landis (2006), Maggie Valley (1996), Magnolia (2007), Marshville (2006), Matthews (1999, 1991), Minnesott Beach (2001), Mint Hill (1994, 1991), Mocksville (1990), Mooresville (1997, 1991), Montreat (1991), Morehead City (1997), Mount Airy (2001), Mount Holly (1991), Nashville (1985), Newport (1997), Oak Ridge (2009), Pilot Mountain (1990), Pinebluff (1999), Pinehurst (1992), Pineville (1991), Pittsboro (1989), River Bend (1997), Roanoke Rapids (2005), Rockingham (2001), Siler City (1989), Smithfield (1977), Stanley (1991), Wake Forest (1985), Wallace (1996), Warsaw (1990), Washington (1981), Wendell (2009), Whiteville (2000), Williamston (1997); Wingate (2006), all municipalities in Johnston County (1986), Moore County (1985), and Pamlico County (1977). G.S. 160A-360(h) provides that the general statute does not repeal or modify any extraterritorial boundaries that have been set by more precise local legislation.
[30] The same extraterritorial boundary is used for all of the city’s land use–related police powers that are being applied outside the city limits. Also, G.S. 160A-176 provides that city ordinances may be applied to city-owned property outside city limits.
[31] David W. Owens, The North Carolina Experience with Municipal Extraterritorial Jurisdiction 10 (School of Government, Special Series No. 20, 2006).
[32] The statute does not define officially adopted plan. See the discussion of the comprehensive plan requirement in Chapter 22. This provision likely requires some formal study, and adoption by resolution of the governing board, of a document setting forth the city’s development concerns. Also, while there is no mandatory relationship between annexation and extraterritorial jurisdiction, it is common for a city to base its extraterritorial jurisdiction on anticipated future annexation of these areas. In a 2005 survey by the School of Government (published in 2006), two-thirds of the municipalities with extraterritorial jurisdiction reported that these areas are likely to be annexed (9 percent reported plans to annex the areas within ten years, while 57 percent reported that they were likely to be annexed but that no definite timetable had been set for annexation). Owens, The North Carolina Experience with Municipal Extraterritorial Jurisdiction.
[33] 33 N.C. App. 544, 236 S.E.2d 283 (1977).
[34] Id. at 550, 236 S.E.2d at 287.
[35] 86 N.C. App. 211, 356 S.E.2d 810, review denied, 320 N.C. 797, 361 S.E.2d 89 (1987).
[36] Id. at 215, 356 S.E.2d at 812. In the town’s action seeking a mandatory injunction to compel removal of a sign that violated its sign ordinance, the court upheld summary judgment for the landowner.
[37] 94 N.C. App. 91, 379 S.E.2d 880, review denied, 325 N.C. 707, 388 S.E.2d 458 (1989).
[38] G.S. 160A-360(c).
[39] 33 N.C. App. 544, 236 S.E.2d 283 (1977).
[40] 96 N.C. App. 115, 384 S.E.2d 302 (1989). The town had brought a suit to enforce a zoning restriction that prevented placement of a mobile home on the defendant’s property, which was within the extraterritorial jurisdiction claimed by the town.
[41] Id. at 117, 384 S.E.2d at 304.
[42] 1996 N.C. Sess. Laws ch. 746.
[43] G.S. 160A-384(a).
[44] Before the 1971 revisions to extraterritorial zoning authority, no county approval for city extraterritorial jurisdiction was required. G.S. 160A-360(e), requiring county approval for areas covered by county zoning, subdivision, and building code enforcement, applies to extensions of extraterritorial areas occurring after 1971.
[45] 184 N.C. App. 665, 646 S.E.2d 851, review denied, 361 N.C. 704, 655 S.E.2d 402 (2007). The county in August 2006 adopted a “High Impact Land Uses/Polluting Industries Ordinance” under its general ordinance and zoning ordinance authority. That ordinance, which was not a factor in this litigation since it was adopted subsequent to the extraterritorial dispute, is applicable in all unincorporated areas and does not create zones but does set development standards and permit requirements for thirteen specified land uses.
[46] A county may establish policies it will follow in reviewing municipal requests for approval of extraterritorial jurisdiction. Wake County, for example, requires cities to present a plan to extend services to the proposed area and to annex the area within ten years of securing jurisdiction.
[47] 141 N.C. App. 714, 541 S.E.2d 233, review denied, 353 N.C. 379, 547 S.E.2d 814 (2001). The court also found the action barred by the statute of limitations, so its comments regarding substantial compliance are dicta. For a brief period state law also required that all planning and development ordinances be recorded. That requirement was added to G.S. 160A-364 in 1971 but was repealed by 1973 N.C. Sess. Laws ch. 425, sec. 58.
[48] Originally the number of extraterritorial members had to equal the number of non-extraterritorial members. 1959 N.C. Sess. Laws ch. 1204. The requirement of a specific number of extraterritorial members was deleted in the 1971 comprehensive revision of the municipal statutes. 1971 N.C. Sess. Laws ch. 698. However, the statute was again amended in 1996 to require proportional representation. 1996 N.C. Sess. Laws ch. 746.
[49] A 2005 School of Government survey indicated that in the decade since adoption of the proportional representation requirement, the state’s cities had generally, but not uniformly, complied. Where the representation is not proportional, however, it is far more common to have over-representation of extraterritorial residents than to have under-representation. For planning boards, 59 percent of the cities reported over-representation and 24 percent reported under-representation. For boards of adjustment, 53 percent reported over-representation and 28 percent under-representation. David W. Owens, The North Carolina Experience with Municipal Extraterritorial Jurisdiction 12 (School of Government, Special Series No. 20, 2006).
[50] Macon County v. Town of Highlands, 187 N.C. App. 752, 758, 654 S.E.2d 17, 21 (2007).
[51] David Owens & Adam Bruggemann, A Survey of Experience with Zoning Variances 10 (School of Government, Special Series No. 18, 2004).
[52] Owens, The North Carolina Experience with Municipal Extraterritorial Jurisdiction.
