Lead Opinion
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,
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).
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.
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(al).
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 territoiy 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 Article VII, Section
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,
Though not expressly stated in our first constitution, the General Assembly has long enjoyed plenary power to create political subdivisions of local government, establish their jurisdictional boundaries, and invest them with certain powers, see Quality Built Homes Inc. v. Town of Carthage, _N.C. _, _,
Local political subdivisions are “mere instrumentalities of the State for the more convenient administration of local government,” Holmes v. City of Fayetteville,
As acknowledged by the case law, this broad power of the General Assembly has remained unchanged throughout our history and is recognized in Article VII, Section 1 of our current constitution, adopted in 1971:
The General Assembly shall provide for the organization and government and the fixing of boundaries of counties, cities and towns, and other governmental subdivisions, and, except as otherwise prohibited by this Constitution, may give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable.
N.C. Const. art. VII, § 1. As such, Article VII, Section 1 “is not a delegation of power to the General Assembly” but “a general description” and “merely a recognition” of “the General Assembly’s power to provide for the organization and powers of local government,” Report of the North Carolina State Constitution Study Commission 85 (1968) [hereinafter 1968 Constitution Commission Report], as affirmed in the 1875 amendment, which “gave the General Assembly full power to revise or abolish the form and powers of county and township governments,” id. at 143.
The text of the first clause of Article VII, Section 1, “[t]he General Assembly shall provide for the organization and government and the fixing of boundaries” of local governmental entities, mandates the statutory creation, structuring, restructuring, and defining of local governmental subdivisions and their jurisdictional boundaries. We look to the plain meaning of the phrase to ascertain its intent. State v. Webb,
The General Assembly alone has the oversight responsibility and authority to define, limit, and expand the otherwise competing jurisdictions of local political subdivisions. See Hailey v. City of Winston-Salem,
The second clause of Article VII, Section 1 concerns the authority of the General Assembly to confer specific “powers and duties” on local governmental units. Unlike the first clause in Article VII, Section 1, the second clause includes an express limitation; namely, it prohibits any legislative delegation of “powers and duties” to local governmental units that is “otherwise prohibited by this Constitution.” Only under the second clause, then, is the General Assembly’s authority over local governments expressly subject to limitations imposed by other constitutional provisions, including the constraints on local acts in Article II, Section 24 first adopted in 1917. For example, under the Article II, Section 24 prohibition on certain local acts, the General Assembly cannot grant to one county the power to enact local employment legislation, see Williams v. Blue Cross Blue Shield of N.C.,
Acting under its plenary authority, the General Assembly creates municipalities.
At its essence, jurisdiction is “[a] government’s general power to exercise authority over all persons and things within its territory” or the “geographic area within which political... authority may be exercised.” Jurisdiction, Black’s Law Dictionary (10th ed. 2014). Extraterritorial jurisdiction extends the Town’s jurisdictional boundary, allowing the Town to impose certain ordinances—already applicable within its corporate limits—one mile into County territory without the County’s approval, thus superseding any County regulations on those same subjects. See N.C.G.S. § 160A-360 (2015); see also Trey Allen, Univ. of N.C. Sch. of Gov’t, General Ordinance Authority, in County and Municipal Government in North Carolina 77, 84 (Frayda S. Bluestein ed., 2d ed. 2014) (“A city may enforce zoning and other development ordinances inside its corporate limits and within its extraterritorial jurisdiction (ETJ).... When a city chooses to enforce development ordinances in its ETJ, the county’s development ordinances no longer apply there ....”). Extraterritorial jurisdiction remains extraordinary because it broadens a municipality’s jurisdictional reach beyond its corporate limits. This extension of extraterritorial jurisdictional authority deprives the residents of the extraterritorial area of meaningful representation and the right to vote for local government representatives who shape policies affecting their property interests.
The pivotal question before this Court is whether the Boone Act, which withdraws the Town’s extraterritorial jurisdiction, is an exercise of the General Assembly’s plenary authority to “provide for the organization and government and fixing of boundaries” of local government under the first clause of Article VII, Section 1. If so, our analysis ends, and there is no need to address the application of the second clause of Article VII, Section 1 and any restrictions imposed by Article II, Section 24.
Extraterritorial jurisdiction is inextricably tied to a municipality’s authority to enforce its zoning and development ordinances within certain geographic boundaries. By retracting the Town’s jurisdictional reach to its corporate limits, the Boone Act restores the local government boundaries within Watauga County as originally fixed. This local jurisdictional reorganization is precisely the type of “organization and government and fixing of boundaries” contemplated by the first clause of Article VII, Section 1 and historically approved by this Court. The Boone Act withdraws from the Town its extraterritorial jurisdiction and its governing authority to enforce certain ordinances within the one-mile perimeter and returns governance- of that territory to the County and its residents. The General Assembly is the only body politic uniquely qualified to oversee local government and set the jurisdictional lines that divide the Town and the County.
Because the state constitution authorizes the General Assembly to reduce the Town’s jurisdictional reach, the removal of extraterritorial jurisdiction falls squarely within the legislature’s general power as described in the first clause of Article VH, Section 1. For the reasons stated above, the decision of the three-judge panel finding the Act unconstitutional is reversed.
REVERSED.
Notes
. Even when a municipality wishes to exercise extraterritorial jurisdiction in an area within one mile of its corporate limits, county approval is required if the county is already enforcing zoning ordinances, subdivision regulations, and the State Building Code in that area. N.C.G.S. § 160A-360(e) (2015).
. A municipality that wishes to exercise extraterritorial jurisdiction must specify by ordinance the areas to be included, defining the boundaries “to the extent feasible, in terms of geographical features identifiable on the ground.” N.C.G.S. § 160A-360(b) (2015). These boundaries must “at all times be drawn on a map, set forth in a written description, or shown by a combination of these techniques.” Id. A copy of this delineation must be filed with the Register of Deeds and, as is true of the delineation of the municipality’s corporate boundaries, maintained in the office of the municipality’s clerk. Id. §§ 160A-22 (2015), 360(b).
To establish its extraterritorial boundary, the Town adopted Ordinance 83-2, describing the extraterritorial area by metes and bounds and topographical features, Boone, N.C. Ordinance 83-2, § 1 (Mar. 31, 1983), and amended the zoning map to include the extraterritorial area, id. § 4. The Town later expanded its reach of extraterritorial jurisdiction into other specified areas located within the one-mile perimeter. E.g., id. 83-5 (Apr. 7, 1983); id. 87-12 (Dec. 22, 1987); id. 92-03 (Sept. 3, 1992); id. 98-04 (Nov. 19, 1998); id. 99-02 (May 27, 1999). With each additional area, the Town amended its zoning map to reflect and describe the new boundaries. E.g., id. 83-2, § 4; id. 83-5; id. 87-12, § 4; id. 92-03, § 4; id. 98-04, § 4; id. 99-02, § 4. County residents living within the added territory were then notified that the political body governing zoning and development had changed. See N.C.G.S. § 160A-360(al) (2015).
. The State contends that plaintiff’s claims are barred by the doctrine of sovereign immunity, that “[p]laintiff lacks standing, as well as the capacity to sue, for the withdrawal of its extraterritorial jurisdictional powers,” that reallocation of authority over planning and development within the extraterritorial jurisdiction “constitutes a legitimate exercise of legislative authority over [the legislature’s] political subdivisions” and a non-justiciable ... political question! ] within the purview of the legislative branch of government,” and that plaintiff fails to state a claim for relief under the state constitution. Because we resolve this case based on the General Assembly’s plenary power acknowledged in the first clause of Article VII, Section 1, we do not address the other arguments.
. Residents of extraterritorial jurisdiction areas are not allowed to vote in local government municipal elections; they remain county residents for voting purposes. See Ordinance 82-11; N.C.G.S. §§ 160A-360(al), -362 (2015).
. Significantly, the text of Article VII, Section 1, recognizing the General Assembly’s historic duty to provide for local government, was adopted against the backdrop of Article II, Section 24 and the various court decisions describing its application. See 1968 Constitution Commission Report 85; see also N.C. State Bar v. DuMont,
. Instances of creating, organizing, and reorganizing political subdivisions have met this Court’s approval, both before and after the 1917 amendments that created the predecessor to Article II, Section 24. See, e.g., Bethania Town Lot Comm. v. City of Winston-Salem,
. See Piedmont Ford Truck Sale, Inc. v. City of Greensboro,
. See Bethania Town Lot Comm.,
. This approach of conducting an Article II, Section 24 analysis only when the challenged statute specifies a specific “power” or “duty” is consistent with our prior decisions. la. Piedmont Ford Truck Sale, Inc. v. City of Greensboro, the plaintiffs challenged a local act annexing certain land to the City of Greensboro.
. See Rice,
. E.g., Act of Apr. 23, 1949, ch. 1192, sec. 1, 1949 N.C. Sess. Laws 1521, 1521 (authorizing Town of Tarboro to exercise zoning powers within one mile beyond the Town’s corporate limits); Act of Mar. 31, 1949, ch. 700, sec. 3, 1949 N.C. Sess. Laws 732, 733 (same for City of Gastonia); Act of Mar. 28, 1949, ch. 629, secs. 1, 2, 1949 N.C. Sess. Laws 640, 640-41 (same for Town of Chapel Hill); Act of Mar. 26, 1949, ch. 540, secs. 1, 4, 1949 N.C. Sess. Laws 541, 541-42, 543 (same for City of Raleigh); see also Report of the Municipal Government Study Commission 18 (1958) [hereinafter Municipal Report] (“A total of 19 cities have, by special act, been given authority to zone for one mile or more beyond their limits.”).
. Whether enforcing its ordinances inside its municipal limits or extraterritorially, a town receives the authority to govern territory from the legislature. See Holmes,
. County citizens residing within the affected territory cannot vote for Town officials. Ordinance 82-11; see N.C.G.S. §§ 160A-360(al), 362. While County residents subject to the Town’s extraterritorial jurisdiction are represented on the Town’s planning board and board of adjustment, Ordinance 82-11, these extraterritorial-jurisdiction appointees may only vote on matters involving the extraterritorial area, see N.C.G.S. §§ 160A-360(al), 362; see also Municipal Report 18 (“ [Governmental action affecting the use of property should originate in a governing board elected by persons subject to such action . . . [and] residents of the area affected should be given a voice... through the naming of outside residents to local planning boards and boards of adjustment.”).
Concurrence Opinion
concurring in the result.
Although I concur in the Court’s determination that the Boone Act is not facially unconstitutional, I am unable to agree with the Court’s determination to uphold the Boone Act pursuant to the first portion of the first paragraph of Article VII, Section 1 of the North Carolina Constitution, which recognizes the General Assembly’s authority to provide for the “organization and government and the fixing of boundaries of counties, cities and towns, and other governmental subdivisions” on the theory that the Boone Act effectuates a “reorganization” of the authority granted to Boone and Watauga County. N.C. Const, art. VII, § 1. Instead, I believe that a determination of the constitutionality of the Boone Act hinges upon the second part of the first paragraph of Article VII, Section 1, which recognizes the General Assembly’s authority to “give such powers and duties to counties, cities and towns, and other governmental subdivisions as [the General Assembly] may deem advisable” so long as any legislation that is enacted pursuant to this provision is not “otherwise prohibited by [the North Carolina] Constitution.” Id. For the reasons set forth below, while I believe that the General Assembly’s decision to alter the Town’s regulatory authority is subject to constitutional limitations, such as those contained in Article II, Section 24, I also believe that the Boone Act is not impermissibly connected to the subjects about which the General Assembly lacks the authority to enact local legislation. Moreover, even if the Boone Act does implicate “the organization and government and the fixing of boundaries” provision, that determination does not obviate the necessity for the Court to consider “any restrictions imposed by Article II, Section 24” given our decision in Piedmont Ford Truck Sale, Inc. v. City of Greensboro,
Although the Court believes that its decision to uphold the constitutionality of the Boone Act obviates the need to address the State’s sovereign immunity and standing arguments, I do not find that assertion convincing. Since both sovereign immunity and
In seeking relief from the order of the three-judge panel of the Superior Court, Wake County, before this Court, the State argues that the panel erred by granting summary judgment in the Town’s favor because (1) the Town’s challenge to the Boone Act is barred by the doctrine of sovereign immunity; (2) the Town lacks standing to challenge the constitutionality of the Boone Act; and (3) the Town’s challenge to the Boone Act in reliance upon Article II, Section 24 fails given that the Boone Act falls squarely within the General Assembly’s authority regarding the “fixing of boundaries” pursuant to Article VII, Section 1 of the North Carolina Constitution.
“Sovereign immunity stands for the proposition that. . . ‘the State cannot be sued except with its consent or upon its waiver of immunity.’ ” Dawes v. Nash County,
The State’s argument in reliance upon the Town’s failure to specifically plead a waiver of sovereign immunity relies exclusively upon Vest v. Easley, in which the Court of Appeals noted that “[i]t is well-established law that with no allegation of waiver [of sovereign immunity] in a plaintiff’s complaint, the plaintiff is absolutely barred from suing the state and its public officials in their official capacities in an action for negligence.”
As previously noted, the State asserts that this Court’s decisions under Article II, Section 24 have no bearing upon the sovereign immunity claim that it has advanced in this case because the constitutionality of the Boone Act is controlled by the boundary fixing provision of Article VII, Section 1, rather than Article II, Section 24. However, even when this Court has rejected constitutional claims predicated upon Article II, Section 24, those decisions rest upon substantive considerations rather than upon the doctrine of sovereign immunity, see, e.g., Town of Emerald Isle,
Aside from the fact that the Town was not required to allege or prove that a traditional cause of action exists under Article II, Section 24 in order to seek and obtain a declaration concerning the constitutionality of the Boone Act, see Town of Emerald Isle,
In support of its contention that the Town lacks standing to challenge the constitutionality of the Boone Act, the State places principal reliance upon Wood v. City of Fayetteville,
After acknowledging that this Court has allowed municipalities to assert claims against it in the past, the State claims that these cases are distinguishable. For example, the State argues that, since this case is governed by the boundary fixing provision of Article VII, Section 1 rather than the limitations upon the enactment of local legislation contained in Article II, Section 24, it is clearly distinguishable from the cases in which municipalities have been allowed to challenge the constitutionality of legislation, such as Town of Spruce Pine v. Avery County,
In response, the Town argues that Wood and In re Martin do not establish a standing rule of the breadth for which the State contends. Moreover, the Town contends that a series of decisions after In re Martin, including Town of Emerald Isle, New Bern I, and Town of Spruce Pine, fatally undermine the State’s position. In the Town’s view, these more recent decisions, especially New Bern I, demonstrate that a municipality has standing to challenge the constitutionality of legislation depriving it of the ability to exercise regulatory authority, that the General Assembly’s authority to regulate municipal corporations is not without limit, and that allowing municipalities to challenge the constitutionality of legislation pursuant to Article II, Section 24 is of critical importance given that “they are the best positioned—indeed, they are often the only parties positioned—to do so.” Finally, the Town contends that the Boone Act is primarily concerned with powers rather than with boundaries and that the Court has rejected similar boundary-related arguments in the past, as is evidenced by our decision to invalidate the legislation
As this Court has previously stated, “[t]he ‘gist of the question of standing’ is whether the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation[ ] of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ ” Stanley v. Dep’t of Conservation & Dev.,
“An action may not be maintained under the Declaratory Judgment Act... unless the action involves a present actual controversy between the parties.” Town of Emerald Isle,
The State’s reliance upon Wood and In re Martin for standing-related purposes is misplaced. In In re Martin, this Court held, in the context of an administrative appeal, that a county lacked standing to challenge the constitutionality of a statute granting tax exemptions as violative of the uniform taxation provisions of Article V, Section 2 of the North Carolina Constitution.
Although the Court of Appeals focused its attention in Wood on the first of the three factors mentioned in In re Martin,
In my opinion, the standing issue before the Court in this case is remarkably similar to the one that we resolved in favor of the municipality in New Bern I. Like the powers at issue in this case, the inspection power at issue in New Bern I and II was a component of a bundle of regulatory powers that had been granted to municipalities by the General Assembly in Article 19 of Chapter 160A. See N.C.G.S. §§ 160A-360(a), -411 to -439 (2015). Prior to the enactment of the legislation at issue in New Bern I and II, the city had the authority to conduct inspections pursuant to N.C.G.S. § 160A-411 and had, in fact, performed them. New Bern II,
The State correctly notes that the facts at issue in New Bern I and II and the facts at issue here are different in that this case involves the removal of an entire bundle of powers, rather than a single power, from the authority that the General Assembly has delegated to the Town; that the enforcement authority at issue in this case, unlike the authority at issue in the New Bern cases, involves the exercise of regulatory authority in an area located outside of the municipality's corporate limits rather than inside those limits; that the legislation at issue in New Bern I and II, unlike the Boone Act, explicitly transferred enforcement authority from the municipality to the county; and that the Town, unlike the municipality in Afew Bern I and II, was required to and did enact ordinances defining the area in which it intended to exercise extraterritorial jurisdiction as a prerequisite for exerting regulatoiy authority there. However, while these distinctions implicate facts that are relevant to a determination of the merits of the Town’s challenge to the constitutionality of the Boone Act, I am unable to see how they have any bearing on the proper resolution of the standing issue in this case. Thus, for all these reasons, I believe that the State’s challenge to the Town’s standing to maintain the present action lacks merit.
The ultimate issue before us in this case is whether the constitutionality of the Boone Act should be evaluated on the basis of the General Assembly’s authority to “provide for the organization and government and the fixing of boundaries,” N.C. Const. art. VII, § 1, or the General Assembly’s authority to “give such powers and duties” to local governments “except as otherwise prohibited by this Constitution.” As a result of the fact that Article II, Section 24 was enacted for the purpose of placing certain limits on the authority retained by the General Assembly, including at least a portion of the authority recognized in Article VII, Section 1, I believe that a proper resolution of the issue before us requires a consideration of Article VII, Section 1, Article II, Section 24, and the decisions of this Court discussing the reach of the limitations on the legislative power to enact local legislation worked by Article II, Section 24. After conducting what I believe to be the required analysis, I am unable to
Since the adoption of our first constitution in 1776, the General Assembly has enjoyed considerable authority over units of local government. See generally John L. Sanders, The Proposed Constitution of North Carolina: An Analysis, 23 Popular Gov’t 1, 9 (Feb. 1959) (noting that “North Carolina has a strong tradition of state legislative control and supervision of local government, both county and municipal,” and that, “[f]rom 1776 until 1868, the Constitution left provision for and control of local government almost entirely in the hands of the General Assembly”). Although the delegates at the 1835 convention elected to propose constitutional amendments to prohibit “private laws” addressing a number of subjects, including the granting of requests for divorce, alimony, name changes, legitimation of individuals bom out of wedlock, and restoration of citizenship rights of convicted felons, N.C. Const. of 1776, Amends, of 1835, art. I, §§ 3, 4, paras. 3-5, which were subsequently ratified by the voters, the delegates rejected a proposal that “[t]he General Assembly shall have no power to pass any private law to effect any object, that could be effected by a general law on the same subject.” Proceedings and Debates of the Convention ofNorth-Carolina [1835] 379, 382 (Raleigh, Joseph Gales & Son 1836).
The 1868 Constitution provided that “[i]t shall be the duty of the Legislature to provide for the organization of cities, towns, and incorporated villages,” N.C. Const. of 1868, art. VIII, § 4, without requiring the adoption of uniform legislation addressing that subject. Although the framers of the 1868 Constitution limited the enactment of such legislation with respect to private businesses, those limitations did not apply to municipal and public corporations. Id., art. VIII, § 1 (providing that “ [corporations may be formed under general laws, but shall not be created by special act, except for municipal purposes, and in cases where, in the judgment of the Legislature, the object of the corporations cannot be attained under general laws,” with “[a]ll general laws and special acts passed pursuant to this Section” being subject to “alteration] from time to time or repeal[ ]”). In 1875, the General Assembly’s authority over local governments was expanded, with the changes by which this policy was effectuated including the adoption of an amendment to Article VII of the Constitution of 1868 adding new language providing that “[t]he General Assembly shall have full power by statute to modify, change or abrogate any and all of the provisions of this article and substitute others in their place, except sections seven, nine and thirteen.” Id., Amends, of 1875, art. VII, § 14; see generally John V. Orth & Paul Martin Newby, The North Carolina State Constitution 25-26 (2d ed. 2013) (stating that “[t]he principal aim” of these amendments “was to restore to the General Assembly more of the power it had lost” in 1868 and that “the General Assembly regained its former power over local government” by means of Article VII, § 14). The 1875 amendments to the constitutional provisions governing the relationship between the General Assembly and local government were adopted despite concerns that they would “abridg[e] the rights of the citizens by placing the government and organization of cities, towns, and &c., under the unlimited control of the Legislature.” Journal of the Constitutional Convention of the State of North Carolina 162-63, 252 (Raleigh, Josiah Turner 1875).
The present version of the first paragraph of Article VII, Section 1 was recommended in the report of the North Carolina State Constitution Study Commission. Report of the North Carolina State Constitution Study Commission 33, 90 (1968). In support of this recommendation, the Commission noted that, given the version of Article VII adopted in 1875, the constitutional provisions governing the General Assembly’s authority over local
The General Assembly shall provide for the organization and government and the fixing of boundaries of counties, cities and towns, and other governmental subdivisions, and, except as otherwise prohibited by this Constitution, may give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable.
N.C. Const, art. VII, § 1.
Article II, Section 24 expressly precludes the General Assembly from “enact[ing] any local, private, or special act or resolution” concerning fourteen “[prohibited subjects.” Among other things, Article II, Section 24 provides that:
(1) Prohibited subjects. - The General Assembly shall not enact any local, private, or special act or resolution:
(a) Relating to health, sanitation, and the abatement of nuisances;
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(e) Relating to non-navigable steams;
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(j) Regulating labor, trade, mining, or manufacturing;
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(3) Prohibited acts void. - Any local, private, or special act or resolution enacted in violation of the provisions of this Section shall be void.
N.C. Const. art. II, § 24(l)(a), (3). Although the General Assembly is prohibited from “enact[ing] any local, private, or special act” regarding any of the fourteen subjects listed in Article II, Section 24(1) “by the partial repeal of a general law,” id. § 24(2), the General Assembly “may . . . repeal local, private, or special laws enacted by it,” id., and “enact general laws regulating the matters set out” in the relevant constitutional provision, id. art. II, § 24(4).
Article II, Section 24, which was Article II, Section 29 at the time of its original adoption, was one of three constitutional amendments seeking to curtail local, private, and special legislation that were submitted for ratification by the General Assembly in 1915, were ratified by the people on 7 November 1916, and became effective on 10 January 1917. See Act of Mar. 9, 1915, ch. 99, secs. 1, 8, 1915 N.C. Pub. [Sess.] Laws 148, 148-49, 151; see also Kornegay v. City of Goldsboro,
The organic law of the State was originally drafted and promulgated by a convention which met at Halifax in December, 1776. During the ensuing 140 years, the Legislature of North Carolina possessed virtually unlimited constitutional power to enact local, private, and special statutes. This legislative power was exercised with much liberality, and produced a plethora of local, private, and special enactments. As an inevitable consequence, the law of the State was frequently one thing in one locality, and quite different things in other localities. To minimize the resultant confusion, the people of North Carolina amended their Constitution at the general election of 1916 so as to deprive their Legislature of the power to enact local, private, or special acts or resolutions relating to many of the most common subjects of legislation.
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In thus amending their organic law, the people were motivated by the desire that the General Assembly should legislate for North Carolina in respect to the subjects specified as a single united commonwealth rather than as a conglomeration of innumerable discordant communities. To prevent this laudable desire from degenerating into a mere pious hope, they decreed in emphatic and express terms that “any local, private, or special act or resolution passed in violation of the provisions of this section shall be void[.]”
Williams v. Blue Cross Blue Shield of N.C.,
It was the purpose of the amendment to free the General Assembly from the enormous amount of petty detail which had been occupying its attention, to enable it to devote more time and attention to general legislation of statewide interest and concern, to strengthen local self-government by providing for the delegation of local matters by general laws to local authorities, and to require uniform and coordinated action under general laws on matters related to the welfare of the whole State.
High Point Surplus Co. v. Pleasants,
Although the majority posits that Article VII, Section 1 is more recent in time than Article n, Section 24 and, consequently, that the provisions in Article VII, Section 1 are to be given their “full application” to the extent there is any conflict between these two constitutional provisions, I am unable to agree with this logic. As was noted above, the modifications to Article VII that led to the enactment of the first paragraph of Article VII, Section 1 were not “calculated ... to bring about any fundamental change in the power of state and local government or the distribution of that power.”
As noted earlier, the State and County argue that the exercise of extraterritorial jurisdiction constitutes the “fixing of boundaries” for purposes of Article VII, Section 1, rendering the limitations on local legislation imposed by Article II, Section 24 inapplicable to the Boone Act, a proposition with which the Court appears to agree. Although the Town acknowledges that Article VII, Section 1 gives the General Assembly plenary authority over municipal boundaries, it contends that the “boundaries” referenced in the relevant constitutional provision are the municipal boundaries that are fixed at the time of initial incorporation or by means of subsequent charter amendments or annexations rather than the area within which a municipality is authorized to exercise extraterritorial jurisdiction; that extraterritorial jurisdiction relates to regulatory power or authority rather than the establishment of municipal boundaries; that the establishment and exercise of extraterritorial jurisdiction is materially different from the initial establishment or subsequent alteration of municipal boundaries; and that any alteration in the regulatory authority that the Town is entitled to exercise is subject to constitutional limitations, such as those contained in Article II, Section 24, on the General Assembly’s authority to “give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable,” N.C. Const. art. VII, § 1. I find this interpretation of Article VII, Section 1 persuasive.
Neither the State, the County, nor the Court point to any cases holding that the exercise of extraterritorial land use regulatory authority constitutes the “fixing of boundaries” for purposes of Article VII, Section 1. The only reason that a municipality is required to define the area in which it is entitled to exercise extraterritorial jurisdiction is to specify the location or locations within which the municipality can take a limited number of actions that could not otherwise be taken there with respect to regulation of the planning, development, and use of land, including (1) the subdivision of land, N.C.G.S. §§ 160A-371 to -377 (2015); (2) zoning, id. §§ 160A-381 to -393 (2015); (3) historic districts and landmarks, id. §§ 160A-400.1 to -400.15 (2015); (4) private development agreements, id. §§ 160A-400.20 to -400.32 (2015); (5) wireless telecommunications facilities, id. §§ 160A-400.50 to -400.53 (2015); (6) the acquisition of open space, id. §§ 160A-401 to -407 (2015); (7) building inspections, id. § 160A-411 to t439 (2015); (8) minimum housing standards, id. §§ 160A-441 to -450 (2015); and (9) community appearance standards, id. §§ 160A-451 to -455 (2015), as well as certain other “[m]iscellaneous [pjowers” delineated in Part 8 of Article 19 of Chapter 160A, such as community development programs and activities, the acquisition and disposition of property for redevelopment, urban development action grants, and urban homesteading programs, id. §§ 160A-456 to -457.2 (2015); erosion and sedimentation control, id. § 160-458 (2015); floodway regulation, id. § 160A-458.1 (2015); mountain ridge protection, id. § 160A-458.2 (2015); downtown development projects, id. § 160A-458.3 (2015); designation of transportation corridor official maps, id. § 160A-458.4 (2015); storm-water control, id. § 160A-459 (2015); and programs to finance energy improvements, id. § 160A-459.1 (2015). See David W. Owens, Univ. of N.C. Sch. of Gov’t, Land Use Law in North Carolina 31 & n.47 (2d ed. 2011) (stating that, “[w]hen 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” (citing N.C.G.S. § 160A-360(a)); see also id. at 30 (discussing how concerns about “chaotic” development “along
In addition, the Court holds that the Boone Act is not subject to the limitations upon the enactment of local legislation contained in Article II, Section 24 because extraterritorial jurisdiction implicates the “organization and government” of units of local government as authorized by Article VII, Section l,
A careful review of this Court’s decisions concerning Article II, Section 24 demonstrates that we have repeatedly held that the enactment of local legislation which had the effect of shifting, reassigning, or re-delegating the authority to regulate certain activities from one unit of local government to another violated Article II, Section 24 without ever stating that the analysis required by Article II, Section 24 is limited to instances involving the exercise of “power” separate and apart from the reassignment of regulatory jurisdiction. For example, we have held that local
As support for its broad interpretation of “organization and government” as used in the first part of the first paragraph of Article VII, Section 1, the Court conducts a plain language analysis focusing upon dictionary definitions of the relevant words. However, the plain language in which the provision in question is couched suggests to me that the phrase “organization and government” refers to the creation of units of local government and the manner in which those units of local government are governed rather than the powers that those units are entitled to exercise. My interpretation is fully consistent with the numerous decisions upon which the Court relies, almost all of which relate to the establishment of municipal boundaries or the creation or abolition of units of local government, rather than to the authority that units of local government are entitled to exercise. Unlike the majority’s interpretation, this interpretation of “organization and government” also avoids overly narrowing or eviscerating the “powers and duties” language contained in the second part of the first paragraph of Article VII, Section 1, see Bd. of Educ. v. Bd. of Comm’rs,
Even if the enactment of local legislation eliminating the Town’s authority to exercise extraterritorial jurisdiction constitutes the alteration of municipal corporate boundaries and the exercise of the General Assembly’s authority over the “organization and government” of units of local government, our opinion in Piedmont Ford Truck Sale indicates that the limitations on the enactment of local legislation imposed by Article II, Section 24 remain relevant. In that case, the owners of
The first step in determining whether the Boone Act violates Article II, Section 24 would ordinarily be for us to decide whether the Boone Act “is a local act prohibited by Article II, section 24 of the Constitution” or “a general law which the General Assembly has the power to enact.” Adams,
Although the stated purpose of a local act and its substantive provisions are undoubtedly relevant to the determination of whether a local law violates Article II, Section 24(1), City of Asheville v. State, _ N.C. _, _, _S.E.2d _, _ (Dec. 21, 2016) (93A15-2), our recent precedent clearly indicates that the practical effect of the challenged legislation is pertinent to, and perhaps determinative of, the required constitutional inquiry, e.g., Williams,
As we noted in City of Asheville, this Court has not, to date, clearly indicated when a local act does and does not “relate” to a prohibited subject for purposes of Article II, Section 24. For the reasons set forth in that decision, the issue of whether a local law relates to one of the prohibited subjects enumerated in Article II, Section 24 requires us to consider whether, in light of its stated purpose and practical effect, the Boone Act has a material, but not exclusive or predominant, connection to one of those purposes. In undertaking the required analysis in a case, such as this one, which involves legislation implicating a broad range of issues rather than a single subject that has been subject to a facial, rather than an as-applied challenge, I believe that we are required to evaluate the challenged legislation as a whole and to ascertain the materiality of the relationship between the challenged legislation and the prohibited subjects delineated in Article II, Section 24 by determining whether the challenged legislation, considered in its entirety, has a material relationship to one or more of those prohibited subjects.
Unlike the situation with respect to the legislation at issue in City of Asheville, the Boone Act lacks a statement of the purpose that motivated the General Assembly’s decision to eliminate the Town’s ability to exercise extraterritorial jurisdiction. However, the clear effect of the General Assembly’s
In seeking to persuade this Court that the Boone Act relates to health, sanitation, and the abatement of nuisances, the Town relies upon a number of statutory provisions, including N.C.G.S. § 160A-381 (granting zoning authority to municipalities “[f]or the purpose of promoting health, safety, morals, or the general welfare of the community” and authorizing municipalities to regulate and restrict the height, number of stories, and size of buildings and other structures; the percentage of lots that may be occupied; the size of yards, courts, and other open spaces; population densities; and the location and use of buildings, structures and land); id. § 160A-383 (providing that “[z]oning regulations shall be designed to promote the public health, safety, and general welfare” and may address issues such as the provision of “adequate light and air”; the prevention of “overcrowding of land”; avoiding undue population concentration; lessening street congestion; seeming “safety from fire, panic, and dangers”; and facilitating the “provision of transportation, water, sewerage, schools, parks, and other public requirements”); id. § 160A-383.4 (authorizing regulations seeking to reduce the amount of energy consumption through the use of measures like density bonuses and similar incentives); id. § 160A-412(a) (providing for the enforcement of state laws and local ordinances relating to the “construction of buildings and other structures”; the installation of facilities such as plumbing, electrical, and air-conditioning systems; the “safe, sanitary, and healthful” “maintenance of buildings and other structures”; and other issues specified by the city council); id. § 160A-424(a) (providing that “[t]he inspection department may make periodic inspections, subject to the council’s directions, for unsafe, unsanitary, or otherwise hazardous and unlawful conditions in buildings or structures within its territorial jurisdiction”); id. § 160A-426(b) (providing that “an inspector may declare a nonresidential building or structure within a community development target area to be unsafe if’ it “appears ... to be vacant or abandoned” and “appears ... to be in such dilapidated condition as to cause or contribute to blight, disease, vagrancy, fire or safety hazard, to be a danger to children, or to tend to attract
As an initial matter, many of the statutory provisions to which the Town has directed our attention essentially amount to assertions that the statute in question has been enacted pursuant to the State’s police power. City of Raleigh v. Norfolk S. Ry. Co.,
Although the Town has not made any effort to define a “non-navigable stream” for purposes of Article II, Section 24(l)(e), the obverse of the term in question is well established for purposes of our State’s common law regarding riparian rights, in which it is typically understood to refer to streams that are passable by watercraft. Gwathmey v. State,
In seeking to persuade this Court that the Boone Act constitutes an impermissible local law relating to non-navigable streams, the Town points to N.C.G.S. §§ 160A-458, 160A-458.1, and 160A-459(a). Section 160A-458 provides that “[a]ny city may enact and enforce erosion and sedimentation control ordinances as authorized by Article 4 of Chapter 113A of the General Statutes, and in such enactment and enforcement shall comply with all applicable provisions of Article 4.” N.C.G.S. § 160A-458. In addition, we note that N.C.G.S. § 113A-51, which serves as the “Preamble” to Article 4 of Chapter 113A, provides that “[t]he sedimentation of streams, lakes and other waters of this State constitutes a major pollution problem,” that “[c]ontrol of erosion and sedimentation is deemed vital to the public interest and necessary to the public health and welfare,” and that “the purpose of’ Article 4 is “to provide for the creation, administration, and enforcement of a program and for the adoption of minimal mandatory standards which will permit development of this State to continue with the least detrimental effects from pollution by sedimentation.” Id. § 113A-51 (2015). Similarly, section 160A-458.1 provides that “[a]ny city may enact and enforce floodway regulation ordinances as authorized” and in compliance with “Part 6 of Article 21 of Chapter 143 of the General Statutes,” id. § 160A-458.1, with the purposes of floodplain regulation being to “[mjinimize the extent of floods by preventing obstructions that inhibit water flow and increase flood height and damage,” “[pjrevent and minimize loss of life, injuries, property damage, and other losses in flood hazard areas,” and “[pjromote the public health, safety, and welfare of citizens of North Carolina in flood hazard areas,” id. § 143-215.51 (2015). Finally, section 160A-459 provides that “[a] city may adopt and enforce a stormwater control ordinance to protect water quality and control water quantity.” Id. § 160A-459. Once again, while the bundle of powers that a municipality has the authority to exercise in its extraterritorial jurisdiction includes authority that is relevant to issues relating to non-navigable streams, along with other water-related subjects, I am unable to say, when the Boone Act is considered in its entirety, that the apparent purpose or practical effect of the withdrawal of the Town’s authority to exercise extraterritorial jurisdiction upon non-navigable streams is a material one.
Finally, the Town has failed to make a detailed argument to the effect that the Boone Act impermissibly regulates trade. As we have previously held, “trade,” for purposes of Article II, Section 24(1)(j), consists of “a business venture for profit and includes any employment or business embarked in for gain or profit.” Cheape,
As a result, for all these reasons, while I believe that the Town has standing to challenge the constitutionality of the Boone Act as violative of Article II, Section 24, and that the Town’s claim is not barred by sovereign immunity considerations, I am unable, in light of the presumption of constitutionality and the breadth of the issues addressed in the Boone Act, to conclude that the challenged legislation constitutes local legislation relating to one of the prohibited subjects listed in Article II, Section 24. Although I agree with the result that the Court deems appropriate, I am unable to agree that the Boone Act implicates the General Assembly’s powers over the organization, government, and boundaries of local governments and that the limitations on the enactment of local legislation set out in Article II, Section 24 have no bearing on the proper resolution of this case. As a result, I concur in the result reached by the Court without concurring in its opinion.
. The County echoes the State’s substantive argument.
. Even if the Town was required to plead a waiver of sovereign immunity, I believe that it complaint satisfies this requirement given that a waiver of sovereign immunity is inherent in the very constitutional challenge that the Town asserted in its complaint.
. Although Town of Spruce Pine does not specifically state that the County’s challenge to the constitutionality of the Water Supply Watershed Protection Act took the form of a declaratory judgment action, the Court of Appeals’ decision clearly establishes that it did.
. The Court of Appeals has never cited Wood in any subsequent decision.
. Although Wood does not mention the “acceptance of a benefit” theory, Fayetteville was challenging the constitutionality of certain limitations that the General Assembly had placed upon the exercise of authority contained in the same statute upon which Fayetteville predicated its claim to have a right to annex the affected area. As a result, the outcome reached in Wood is consistent with that compelled by the “acceptance of benefits” theory.
. Article VUI, Sections 1 and 4 provided, after the adoption of the 1916 amendments, that:
Section 1. No corporation shall be created nor shall its charter be extended, altered, or amended by special act, except corporations, for charitable, educational, penal, or reformatory purposes that are to be and remain under the patronage and control of the State; but the General Assembly shall provide by general laws for the chartering and organization of all corporations, and for amending, extending, and forfeiture of all charters, except those above permitted by special act. All such general laws and special acts may be altered from time to time or repealed; and the General Assembly may at any time by special act repeal the charter of any corporation.
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[Section 4.] It shall be the duty of the Legislature to provide by general laws for the organization of cities, towns, and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessment and in contracting debts by such municipal corporations.
Ch. 99, sec. 1, 1915 N.C. Pub. [Sess.] Laws at 149. This Court held, in a sharply divided opinion, that Article VM, Section 1 only applied to “private or business corporations, and does not refer to public or gwasi-public corporations acting as governmental agencies,” Komegay,
. Neither the State nor the Town argued that the Boone Act involves the “organization and government” of local governments as provided for in Article VII, Section 1.
. The language quoted by the Court from Piedmont Ford Truck Sale does not appear in that portion of our opinion addressing the property owners’ claim in reliance upon Article II, Section 24.
. The parties have made conflicting assertions about the origin of the Town’s authority to exercise extraterritorial jurisdiction. In 1959, the General Assembly authorized municipalities with populations of “2,500 or more” in eighty-one counties to “adopt[ ] zoning regulations” “extending for a distance of one mile beyond [their corporate] limits in all directions.” Act of June 19, 1959, ch. 1204, sec. 1,1959 N.C. Sess. Laws 1354, 1354-55 (codified at N.C.G.S. § 160-181.2 (1959)). However, municipalities located in eighteen counties, including Watauga, were specifically excluded from the coverage of this legislation. Id., sec. 1, at 1355. In 1961, the General Assembly authorized municipalities with a population of 1,250 or more to exercise extraterritorial jurisdiction and eliminated the exclusion for municipalities located in Watauga County. Act of May 30, 1961, ch. 548, secs. 1, 1%, 1961 N.C. Sess. Laws 748 (amending N.C.G.S. § 160A-181.2 (1959)). In view of the fact that an act “eliminating a county from a list of [counties] excepted” and “making the provisions of’ a general law applicable to that county is “tantamount to a re-enactment of the general law making it applicable” to the county in question rather than a local law, State v. Ballenger,
. The applicability of the analytical approach that I deem appropriate in this case hinges upon the fact that the General Assembly has treated the range of issues about which a municipality would ordinarily be entitled to exercise regulatory authority as a unified whole. In other words, the applicable legislation authorizes a municipality, in the exercise of its discretion, to do a number of different things in regulating land use in its extraterritorial jurisdiction without in any way indicating that the availability of these different types of regulatory authority should be treated as severable. A subject-by-subject approach would, of course, be perfectly permissible in the event that the challenged legislation addressed a number of discrete issues that the General Assembly has not linked together.
. The statement from State ex rel. Camngex discussed in the text constituted mere dicta given our holding that the trial court should have dismissed the plaintiffs action based upon his failure to establish standing to challenge the constitutionality of the legislation in question.
. More specifically, the Town’s goals of “[p]rotect[ing] water quality,” “ [p]rotect[ing] designated water supply watersheds,” and “[s]upport[ing] public health through provision of convenient exercise opportunities” appear to have a material relationship to health, sanitation, and the abatement of nuisances, while “presenting] and protecting] areas and landmarks of historic significance,” “[preventing degradation of natural drainage areas,” “[m]inimiz[ing] public and private losses due to flood conditions,” “[m]inimiz[mg] public and private losses due to slope failure caused by land disturbance of steep and very steep slopes,” “[p]reserv[ing] and protectpng] the scenic beauty and natural environment of the Town’s hillside areas,” “[p]reserv[ing] and protectpng] the overall quality of life for residents and visitors,” “[p]reserv[ing] and protecting] the character of established residential neighborhoods,” “[m]aintain[ing] economically vibrant as well as attractive business and commercial areas,” “[e]ncourag[ing] signage that maintains, enhances, and is compatible with the beauty and unique character of the Town,” “[f]aci]itat[ing] the creation of an attractive environment,” “[r]etain[ing] and expandpng] the Town’s employment base,” “[f]acilitat[ing] safe and efficient movement of motorists, pedestrians and cyclists,” “[e]ncourag[ing] public transit,” “[e]ncourag[ing] walkability and bikeability,” “[m]aintain[ing] orderly and compatible land-use and development patterns,” “[e]ncourag[ing] environmentally responsible development practices,” “[p]romot[ing] reha-bilitationandreuseofolderbuildings,”“[m]aintain[ing]arangeofhousingchoicesand options,” “[e]stablishingclearandefficientdevelopmentreviewandapprovalprocedures,”“[p]rotect[ing] community property values,” “[p]rotect[ing] and balancpng] private property rights,” and “[b]ring[ing] about [the] eventual improvement or elimination of non-conformities” do not. Id.
Dissenting Opinion
dissenting.
Because I disagree with the majority’s holding that the Boone Act does not violate Article II, Section 24,1 would affirm the decision of the three-judge panel of the Superior Court, Wake County, that the revocation of the extraterritorial jurisdiction powers of the Town of Boone (Town) violated “the prohibition on local acts contained in Article II, Section 24 of the North Carolina Constitution.” Therefore, I respectfully dissent.
The first issue before us is to determine whether the facial challenge passes constitutional muster. The party bringing forth a facial challenge “must show that there are no circumstances under which the statute might be constitutional.” Beaufort Cty. Bd. of Educ. v. Beaufort Cty. Bd. of Comm’rs,
The General Assembly has broad powers; however, it was never the intent of the drafters of the constitution that the General Assembly be granted unbridled powers. Hence, Article II, Section 24 of the North Carolina Constitution (the Local Act Prohibition) provides instances in which the General Assembly is prohibited from enacting statutes that directly impact the welfare and services of local governments. Under the Local Act Prohibition, the North Carolina Constitution bars the General Assembly from enacting local laws, rather than general laws, affecting fourteen enumerated subjects. N.C. Const, art. II, § 24. In relevant part, the Local Act Prohibition provides that:
(1) Prohibited subjects. - The General Assembly shall not enact any local, private, or special act or resolution:
(a) Relating to health, sanitation, and the abatement of nuisances;
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(e) Relating to non-navigable streams;
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(j) Regulating labor, trade, mining, or manufacturing.
Id. art. II, § 24(1). The Local Act Prohibition further provides that “[a]ny local, private, or special act or resolution enacted in violation of the provisions of this Section shall be void.” Id. art. II, § 24(3).
This Court has acknowledged that in enacting the Local Act Prohibition “the people were motivated by the desire that the General Assembly should legislate for North Carolina in respect to the subjects specified as a single united commonwealth rather than as a conglomeration of innumerable discordant communities.” Idol v. Street,
free the General Assembly from the enormous amount of petty detail which had been occupying its attention, to enable it to devote more time and attention to general legislation of statewide interest and concern, to strengthen local self-government by providing for the delegation of local matters by general laws to local authorities, and to require uniform and coordinated action under general laws on matters related to the welfare of the whole State.
Williams v. Blue Cross Blue Shield of N.C.,
The Local Act Prohibition provides express restrictions on the General Assembly’s authority in order to safeguard against an abuse of legislative power. See N.C. Const. art. n, § 24 (limiting certain local, private, or special acts). As previously stated, the General Assembly is prohibited from enacting local, private, or special acts relating to one of the enumerated subjects. Id. art. II, § 24(1). Additionally, the Local Act Prohibition prevents the General Assembly from circumventing the prohibitions in subsection (1) by also preventing the “enact[ment] [of] any such local, private, or special act by the partial repeal of a general law.” Id. art. II, § 24(2). As a disincentive for the General Assembly to overstep its powers, the Local Act Prohibition states that “[a]ny local, private, or special act or resolution enacted in violation of the provisions of this Section shall be void.” Id. art. II, § 24(3) (emphasis added).
The Boone Act, which was enacted in 2014 by the General Assembly, withdrew the extraterritorial jurisdiction from the Town and returned regulatory control of the extraterritorial area to the County of Watauga. 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 issue here is whether the Boone Act violates the Local Act Prohibition of Article II, Section 24 of the state constitution.
have the power, and it is their duty in proper cases, to declare an act of the General Assembly unconstitutional— but it must be plainly and clearly the case. If there is any reasonable doubt, it will be resolved in favor of the lawful exercise of their powers by the representatives of the people.
Glenn v. Bd. of Educ.,
The majority is convinced that because Article VII, Section 1 grants plenary power to the legislature, its analysis ends as it concludes that the General Assembly has the constitutional authority to enact the Boone Act. The majority concludes that Article II, Section 24 does not apply here. According to Article VII, Section 1:
The General Assembly shall provide for the organization and government and the fixing of boundaries of counties, cities and towns, and other governmental subdivisions, and, except as otherwise prohibited by this Constitution, may give such powers and duties to counties, cities and towns, and other governmental subdivisions as it may deem advisable.
N.C. Const, art. VII, § 1. The majority concludes that of the two clauses in paragraph one of Article VII, Section 1, it is only under the second clause that “the General Assembly’s authority over local governments [is] expressly subjected] to limitations imposed by other constitutional provisions, including the constraints on local acts in Article II, Section 24.” Assuming that the qualification contained within Article VII, Section 1 only applies to the second clause, I disagree with the majority’s conclusion that the Boone Act falls exclusively within the first clause. As stated in the concurring opinion, the provisions in Article VII, Section 1 relate to both municipal boundaries (clause 1) and municipal powers (clause 2). As the concurring opinion correctly states, “extraterritorial jurisdiction relates to regulatory power or authority rather than the establishment of municipal boundaries” and therefore, the Boone Act is more properly interpreted as relating to the municipal powers in the second clause. As such, the Boone Act is subject to Article VII, Section 1⅛ limiting language, including the limitations imposed by Article II, Section 24. The concurring opinion also correctly states that determining the constitutionality of the Boone Act requires an analysis of Article II, Section 24’s prohibitions; the analysis does not stop at Article VII, Section 1, as argued by the majority. Additionally, while I agree with most of the discussion set forth in the concurring opinion regarding Article II, Section 24 and the test to be applied under it, I disagree with the application of the test proffered in the concurring opinion to the facts of this case. Specifically, in regards to whether the Boone Act violates the constitutional limitations imposed by the Local Act Prohibition, I believe that this Court’s decisions in
To determine whether legislation violates the Local Act Prohibition we must determine whether an act is local or general. This Court follows the “reasonable classification” test to determine whether a law is general or local. See McIntyre v. Clarkson,
In City of New Bern, this Court analyzed the constitutionality of legislation that withdrew the City of New Bern’s inspection and enforcement authority related to building, construction, fire, and safety codes for specific properties located within the city limits and reassigned those responsibilities to Craven County. City of New Bern,
The Court’s reasoning in City of New Bern, that a law altering who is charged with enforcing health and sanitation laws is a law related to health and sanitation, has been consistently applied to similar local legislation brought before this Court. See Idol,
Code regulates plumbing in an effort to maintain sanitary conditions in the buildings and structures of this state and thus directly involves sanitation, and consequently the protection of the health of those who use the buildings. The enforcement of the fire regulations protects lives from fire, explosion and health hazards.
City of New Bern,
Moreover, this Court’s decision in Williams lends further support for the conclusion that the Boone Act violates the Local Act Prohibition. In Williams the challenged legislation authorized Orange County to adopt an antidiscrimination ordinance that made it unlawful for an employer “[t]o fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to that individual’s compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, disability, familial status, or veteran status.”
In considering whether the challenged legislation regulated labor or trade, this Court rejected the argument that the legislation regulated only the acts of discrimination and did not involve labor or trade. Williams, 357 N.C. a,t 189,
As stated above, while I agree with the general discussion in the com curring opinion, I disagree with the result that the Boone Act does not violate the Local Act Prohibition. After analyzing individually each of the subjects in the Local Act Prohibition that the Town alleged the Boone Act violated, the concurring opinion concluded that the Boone Act does not materially connect to either “health, sanitation, and the abatement of nuisances,” N.C. Const, art. II, § 24(l)(a),
Because I disagree with the majority’s holding that the Boone Act does not violate Article II, Section 24,1 would affirm the decision of the three-judge panel of the Superior Court, Wake County that the revocation of the Town’s powers of extraterritorial jurisdiction violated “the prohibition on local acts contained in Article II, Section 24 of the North Carolina Constitution.” Therefore, I respectfully dissent.
. Along with the issue of whether the Boone Act violates the Local Act Prohibition, this Court is presented with issues of sovereign immunity and standing. I agree with the analysis in the concurring opinion regarding these issues, as well as the procedural history of this case.
. Pursuant to N.C.G.S. § 160A-411, the General Assembly authorizes cities to inspect and enforce the North Carolina Building Code within their planning jurisdictions. This statute also appears within Article 19 of Chapter 160A; thus, it is among the powers that the Boone Act withdraws from the Town of Boone.
. The concurring opinion correctly notes that the facts at issue in this case differ from the facts at issue in City of New Bern because City of New Bern involved the removal of a single power, rather than a “bundle of powers” as is the case here. However, the principles espoused in City of New Bern—specifically the interpretation of whether the act relates to health and sanitation—are instructive.
. As quoted verbatim from the concurring opinion, the following statutory provisions removed from the Town implicate issues relating to health, sanitation, and the abatement of nuisances: N.C.G.S. § 160A-381 (2015) (granting zoning authority to municipalities “[f]or the purpose of promoting health, safety, morals, or the general welfare of the community” and authorizing municipalities to regulate and restrict the height, number of stories and size of buildings and other structures; the percentage of lots that may be occupied; the size of yards, courts and other open spaces; population densities; and the location and use of buildings, structures and land); N.C.G.S. § 160A-383 (2015) (providing that “[zjoning regulations shall be designed to promote the public health, safety, and general welfare” and may address issues such as the provision of adequate light and air; the prevention of overcrowding; avoiding undue population concentration; lessening street congestion; securing safety from fire, panic, and dangers; and facilitating the provision of transportation, water, sewerage, schools, parks, and other public requirements); N.C.G.S. § 160A-383.4 (2015) (authorizing regulations seeking to reduce the amount of energy consumption through the use of measures like density bonuses and similar incentives); N.C.G.S. § 160A-412(a) (2015) (providing for the enforcement of state laws and local ordinances relating to the construction of buildings and other structures; the installation of facilities such as plumbing, electrical, and air-conditioning systems; the safe, sanitary, and healthful maintenance of buildings and other structures; and other issues specified by the city council); N.C.G.S. § 160A-424(a) (2015) (providing that “[t]he inspection department may malee periodic inspections, subject to the council’s discretion, for unsafe, unsanitary, or otherwise hazardous and unlawfifl conditions in buildings or structures within its territorial jurisdiction”); N.C.G.S. § 160A-426(b) (2016) (providing that “an inspector may declare a nonresidential building or structure within a community development target area to be unsafe if’ it “appears... to be vacant or abandoned” or “appears... to be in such dilapidated conditions as to cause or contribute to blight, disease, vagrancy, fire or safety hazard, to be a danger to children, or to tend to attract persons intent on criminal activities or other activities that would constitute apublic nuisance”); N.C.G.S. § 160A-432(c) (2015) (stating that “[n]othing in this section shall be construed to impair or limit the power of the city to define and declare nuisances and to cause their removal or abatement by summary proceedings, or otherwise”); N.C.G.S. § 160A-439 (2015) (authorizing the adoption of ordinances providing for the repair, closing, and demolition of nonresidential buildings or structures “that fail to meet minimum standards of maintenance, sanitation, and safely established by the governing body”); and N.C.G.S. § 160A-441 (2015) (finding “that the existence and occupation of dwellings in this State that are unfit for human habitation are inimical to the welfare and dangerous and injurious to the health, safety and morals of the people” and “that a public necessity exists for the repair, closing or demolition of such dwellings”).
. As quoted verbatim from the concurring opinion that notes that the following statutory provisions removed from the Town implicate issues relating to non-navigable streams: N.C.G.S. § 160A-458 provides that “[a]ny city may enact and enforce erosion and sedimentation control ordinances as authorized by Article 4 of Chapter 113A of the General Statutes, and in such enactment and enforcement shall comply with all applicable provisions of Article 4.” In addition, N.C.G.S. § 113A-51 provides that “[t]he sedimentation of streams, lakes and other waters of this State constitutes a major pollution problem,” that “control of erosion and sedimentation is deemed vital to the public interest and necessary to the public health and welfare,” and that “the purpose of’ Article 4 is “to provide for the creation, administration, and enforcement of a program and for the adoption of minimal mandatory standards which will permit development of this State to continue with the least detrimental effects from pollution by sedimentation.” N.C.G.S. § 113A-51 (2015); N.C.G.S. § 160A-458.1 provides that “[a]ny city may enact and enforce floodway regulation ordinances as authorized” and in compliance with “Part 6 of Article 21 of Chapter 143 of the General Statutes,” N.C.G.S. § 160A-458.1, with the purposes of floodplain regulation being to “[m]inimize the extent of floods by preventing obstructions that inhibit water flow and increase flood height and damage,” “ [p]revent and minimize loss of life, injuries, property damage, and other losses in the flood hazard areas,” and “[pjromote the public health, safety, and welfare of citizens of North Carolina in flood hazard areas,” N.C.G.S. § 143-215.51 (2015). N.C.G.S. § 160A-459 provides that “[a] city may adopt and enforce a storm-water control ordinance to protect water quality and control water quantity.” N.C.G.S. § 160A-459 (2015).
. The Town fails to point to any statutory provisions in support of the argument that the Boone Act relates to “labor, trade, mining, or manufacturing.”