March 2023

[Adapted from Owens, Land Use Law in North Carolina (4th ed., 2023)]

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.^[1] 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. Because no expanded police-power jurisdiction had been granted by the legislature, the city could not enforce its ordinance outside its city limits. The court noted, however, that the city’s police-power jurisdiction could, with legislative approval, be set at other than the city limits:

[T]he 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 limit 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 concept of state-authorized municipal regulation of extraterritorial areas to protect public health and safety is widespread and has a considerable lineage.^[3] Many states extended this idea to allow extraterritorial planning and land-development regulations.

The court upheld a legislative grant of extraterritorial power in 1912 in State v. Rice.^[4] 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 in 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. This one-mile extraterritorial authority for sanitary ordinances was extended statewide in 1917 and G.S. 160A-193 now allows cities the authority to summarily abate public-health and safety nuisances within one mile of their corporate limits.

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.^[5]

In the Rice case, the state supreme court addressed this contention. Because the police power was a state authority that was being exercised, the court dismissed the complaint.^[6] 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.^[7]

Authority to Regulate Extraterritorial Land Use

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. In succeeding years, a number of additional cities secured local legislation authorizing extraterritorial zoning.^[9]

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 into 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.^[10]

The study commission recommended that all cities with populations of 2500 and larger be granted a one-mile area of ETJ. 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 “[t]o meet this objection in a practical and yet legal manner.”^[11] The legislature adopted the bulk of the study commission’s recommendations and granted statewide authority for municipal extraterritorial–land use regulation in 1959.^[12]

When a city adopts an extraterritorial-boundary ordinance, the general rule is the city acquires jurisdiction for all of its ordinances adopted under Chapter 160D, and the county loses its jurisdiction for the same range of ordinances.^[13] 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 ordinance. 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.

However, a degree of flexibility for application of county development regulations in the extraterritorial area was incorporated into the statute with the adoption of Chapter 160D. A city with an extraterritorial area may elect to extend some but not all of its development regulations in the extraterritorial area. For example, a city might apply its zoning and subdivision regulations in the ETJ area but elect to apply its housing code only within the corporate limits. This is legally permissible as there is no mandate that a city apply all of its development regulations in the extraterritorial area. In this situation both the city and county could have a housing code, but if the city elects not to apply it in the ETJ and the county has no jurisdiction to do so, property in the ETJ would be subject to neither the city nor the county housing code. G.S. 160D-202(b) addresses this by providing that if a city does not extend a particular type of development regulation to the ETJ, the county may elect to exercise that development regulation in the ETJ. The county is not mandated to do so, but the prohibition of doing so is removed, leaving the county with the flexibility to apply its regulation there if desired.

Most North Carolina cities, particularly those with populations greater than 2500, have taken advantage of the statutory authority to regulate extraterritorial land use. A 1995 North Carolina League of Municipalities survey indicated that 64.5 percent of all municipalities responding to the survey had adopted extraterritorial zoning.^[14] A 2018 survey by the School of Government indicated these rates have held steady as 66 percent of responding cities reported they exercised ETJ.^[15] High population cities are far more likely to exercise ETJ than small towns.[16]

In addition to this general authorization of ETJ, there are special provisions applicable to individual jurisdictions that have been adopted by local legislation. Notable among these are the agreement of the municipalities in Mecklenburg County to allocate extraterritorial areas based on negotiated spheres of influence for future annexation; a joint-planning area and allocation of future jurisdiction by Chapel Hill, Carrboro, and Orange County; and a substantial number of local bills affecting the geographic scope of extraterritorial areas for particular jurisdictions.

The legislature’s authority to make individual, local modifications to ETJ was challenged by the Town of Boone when it was stripped of its ETJ authorization in 2014. In Town of Boone v. State,^[17] the court held that since the state constitution granted the state authority to provide for “the organization . . . and the fixing of boundaries” of local governments,^[18] this allowed the General Assembly to set corporate limits and ETJ boundaries (if any). The court further held that the General Assembly was allowed to vary this authorization by local act on a case-by-case basis to meet the needs of different communities. While article II, section 24 of the North Carolina constitution prohibited the General Assembly from enacting local legislation that related to health and sanitation, it did not prohibit the General Assembly from setting the boundaries within which those powers could be exercised.

Geographic Area Covered

G.S. 160D-202 grants municipalities the authority to exercise ETJ and includes specific standards for delineating an ETJ’s geographic area. A single boundary must be used for all of a city’s extraterritorial–land use powers.

The maximum size of an ETJ is determined by its population. G.S. 160D-202(a) provides that the extraterritorial area may extend up to one mile from the city’s primary corporate limits for cities with populations of less than 10,000. If county approval is secured, a city with a population of 10,000–25,000 may extend its jurisdiction for up to two miles; a city with a population 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 exercised this jurisdiction within one mile of the city limits. Of the 195 cities reporting use of ETJ, 85 percent had one mile or less of ETJ, 10 percent had one to two miles, and only 5 percent had two to three miles.^[19]

G.S. 160D-202(e) 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 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,^[20]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. 160D-202(e), the court held, was 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.”^[21] 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 was also held to be inadequateinTown of Lake Waccamaw v. Savage.^[22] 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.”^[23]

In re Raynor^[24] provides an example of a public-notice description of an extraterritorial area that was held to be adequate. That notice characterized the area as encompassing “approximately 1 mile in width ringing the present Garner [ETJ] between Jones Sausage Road east and south across U.S. 70 and White Oak Road to N.C. 50.” The notice proceeded to “roughly describe” the boundaries, using roads as references.^[25]

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 ETJ to the land adjacent to those areas, however, unless that land is within the extraterritorial area authorized for the city’s primary corporate limits.^[26]

When the ETJs of two cities overlap, the boundary of each is set at the midway point unless the cities agree otherwise.^[27]

Process to Establish Extraterritorial-Planning Jurisdiction

G.S. 160D-202 also includes a detailed process that must be followed by a city in establishing ETJ.

G.S. 160D-202(e) 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, 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 too vague to give any diligent landowners reasonable cause to suspect that the ordinance affected their properties. Similarly, inTown of Swansboro v. Odum,^[28] 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).^[29]

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. G.S. 160D-202(d) dictates that a mailing be made thirty days prior to the date of the hearing on the boundary ordinance. That notice must specify the effect of the jurisdiction’s extension, 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. Published and mailed notice is also required for the zoning amendment. G.S. 160D-602(a) allows, but does not require, a single hearing to be held on the ETJ-boundary amendment and the zoning amendment. If a combined hearing and notice is used, the notice is to be mailed at least thirty days prior to the date of the hearing.

In certain instances, county approval must be given for a city to exercise its extraterritorial powers. G.S. 160D-202(a) requires county approval whenever a city with a population of more than 10,000 seeks to extend its ETJ beyond one mile. G.S. 160D-202(c) requires that county approval be secured for the extension of a city’s ETJ into any area where the county is enforcing zoning and subdivision regulations. This includes the one-mile area adjacent to the city. County ordinances for both 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 whether some ordinance other than a traditional zoning ordinance can trigger the requirement of county approval. In Town of Green Level v. Alamance County,^[30] the county, which had not adopted a general zoning ordinance, attempted to block the town’s extension of ETJ. The county contended that its water-supply-watershed ordinance was a “zoning ordinance” and thus required the town to secure county approval of the proposed ETJ. The town disagreed and began the process to adopt an extraterritorial-boundary ordinance. The county then quickly amended the watershed ordinance to apply a “Rural Community District” to the disputed area. The town adopted its extraterritorial-boundary ordinance and 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 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 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 that 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. 160D-202(h) requires that county approval, as well as any other request, approval, or agreement on ETJ 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. 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. 160D-202(e) 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,^[31]the plaintiff challenged the adoption of ETJ 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.^[32]

Another important requirement for a city exercising extraterritorial authority is that the membership of its planning board, its board of adjustment, and any board exercising its functions in the extraterritorial area be expanded to include extraterritorial representation. G.S. 160D-307 requires the appointment of a proportional number of residents of the extraterritorial area to both bodies. For example, if a city with a population of 5000 has a five-member planning board, one extraterritorial member is required for each 1000 extraterritorial residents. If the number of residents of the extraterritorial area itself is insufficient, other county residents may be appointed. The statute does not specify how the population of the extraterritorial area is to be computed to make this calculation, but it must be updated after eacn census. 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.^[33]

The board of county commissioners of each affected county appoints extraterritorial members to the municipal planning board and board of adjustment. 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 extraterritorial area unless the city ordinance specifically grants them equal authority on matters within the city.^[34] The overwhelming majority of cities in North Carolina with ETJ—over 90 percent—allow extraterritorial members to vote on all matters coming before the boards.^[35]

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 ETJ 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 ETJ. G.S. 160D-202(g) 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 ensure 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 regulation (54 percent), watershed-protection regulation (50 percent), stormwater-management regulation (45 percent), sediment-and-erosion-control regulation (37 percent), and historic-district regulation (17 percent). Fifty-nine percent also reported that the city administers the State Building Code in the extraterritorial area (and 32 percent applied their housing codes in this area).

Related Blog Post:

Which City and County Ordinances Apply in the ETJ? (Jan. 2013)