Moore County will ask the state Supreme Court to consider hearing an appeal of a unanimous ruling by the N.C. Court of Appeals earlier this month that Pinebluff does not need the county’s approval to extend its zoning authority beyond its borders.
The commissioners met with County Attorney Misty Leland in a closed session for about an hour before the start of their meeting Tuesday evening. Under state law, elected boards are allowed to discuss certain legal matters in a closed session.
When they returned to open session, the commissioners voted 4-1 to file a request with the state Supreme Court for what is called a “discretionary review.” Because the Court of Appeals decision was unanimous, the county does not have an automatic right to appeal.
Commissioner Frank Quis, a former mayor and council member in Southern Pines, was the lone dissenter. He said he does not believe the county will succeed.
“We had a good discussion in our closed session,” he said. “Many points were made all in a positive way. Based on my municipal experience in dealing with the courts, a unanimous decision by the Court of Appeals is a very high hurdle to climb.
“I understand my fellow commissioners’ desire to appeal the case. I am doubtful of its success, based on what I have heard. I’ll leave it at that.”
Commissioner Louis Gregory said with the possibility that this could come up again, he felt the county should ask the Supreme Court to look at the case.
“We’ve gone far too long and we need some closure on this,” he said. “I believe the best method of being able to do this where we don’t have to face the same issue again is to let the Supreme Court hear our concerns and come back with a ruling.”
Once the county files its petition, Pinebluff will have an opportunity to submit a response.
This particular case centered on an what the appeals court termed an “irreconcilable conflict” between a local bill enacted in 1999 for Pinebluff and existing state law regarding a municipality’s ability to extend what is called an extraterritorial zoning jurisdiction (ETJ) — an area beyond its borders that it can control through zoning.
The local bill allows Pinebluff to extend its zoning powers up to two miles beyond its town limits even though it does not meet the population requirement under existing state law. Towns under 10,000 population are allowed to zone up to one mile outside their borders.
Pinebluff contend that the language in the local bill allows it to automatically extend its ETJ authority without the Board of Commissioners’ approval, even if the county is currently zoning the area.
County officials argue that the local bill did not modify or change other sections of the existing state law, which requires the commissioners’ approval since the county was exercising its zoning authority in those areas.
The appeals court concluded that the 1999 local bill, “being the most recent,” invalidates the requirement for county approval under the existing state statutes and takes precedence.
Judge Michael Hunter Murphy wrote in the ruling by the three-judge panel that “the General Assembly intended to remove all discretion from Moore County to oppose an extension of Pinebluff’s extraterritorial jurisdiction.”
The appeals court concluded that the 1999 local bill wiped away the requirement for county approval “and requires Moore County to summarily approve any otherwise lawful extraterritorial jurisdiction expansion request by Pinebluff.”
Pinebuff made its request to the county in 2015, and the commissioners denied it because of widespread opposition from affected property owners.
The town filed a lawsuit in January 2016. Chief Resident Superior Court Judge James Webb ruled in the town’s favor that following November, but the county appealed.
It took the appeals court more than a year to reach its decision.
A similar local bill was enacted by the General Assembly in 1985 giving Pinehurst, Southern Pines and Aberdeen an extra mile of ETJ authority. The populations of Pinehust and Southern Pines have since surpassed 10,000, allowing them to have up to two miles of ETJ authority.
Pinehurst recently made a request to the county to expand its ETJ to the west and north, but asked that it be put on hold last month after running into widespread opposition from affected property owners.
The outcome of this case could lead the council to revisit its position.
Village Manager Jeff Sanborn said in an email to council members after the ruling was released that even though the local bill for Southern Pines, Pinehurst and Aberdeen is not the same one as Pinebluff’s, “they are of the same vintage and have essentially the same language in them.” He said Village Attorney Mile Newman’s initial opinion is that this ruling “opens the door for Pinehurst to unilaterally extend its ETJ in accordance with the language in our local bill.”
In other matters Tuesday:
* During the public comment period at the start of the meeting, several residents who live on or near Summer Hill Road outside Carthage aired complaints about dogs barking constantly at nearby kennel.
Nelson Fry, who lives at 300 Summer Hill Road, said the problem began about a year ago. He said one of his neighbors has about 20 dogs. He said he spoke with the owner in an attempt to resolve the problem, which went no where.
He said he contacted the Sheriff’s Office, which informed him that because of the way the county noise ordinances is worded, there was little deputies could do because it does not specify how long the barking should last to constitute being a nuisance.
Fry said several adjoining counties have ordinances that put a 10-minute time limit on constant barking.
“I implore you, all I want is some peace,” said Fry, who is 80 and retired N.C. Department of Transportation employee. “I don’t hate anyone. There are others besides me who are experience the same thing. Don’t do it just for me, do it for these people sitting here.”
In keeping with their policy, the commissioners did not respond.
* The commissioners voted to change move the time of their meeting on the first Tuesday of the month from 5:30 p.m. to 10:30 a.m. starting in January. The meeting on the third Tuesday will remain at 5:30 p.m., and all public hearings will be held at that meeting, the commissioners agreed.
The first meeting of the month would function almost like a work session, with the board taking action on major items of business at the meeting on the third Tuesday, Vest said.
Vest said during the 1970s and most of the 1980s, the commissioners’ first meeting of the month was at 10 a.m. and the second meeting was 7 p.m. In 1988, it was changed to 1 p.m. and 7 p.m., respectively.
He said it was later altered to 2 p.m. and 6 p.m., respectively, in 2007. Over the next seven years meeting times varied between 4 p.m. and 6 p.m. The current schedule of meeting at 5:30 on the first and third Tuesdays has been in place since 2015.
Quis said the 10:30 a.m. meeting time is “not convenient for working people.” He suggested that items of business with considerable public interest be on the agenda for the 5:30 p.m. meeting.
“I just want to be sensitive to working people,” he said.
Vest said attendance has been “fairly consistent” at meetings regardless of the times they start. He said the earlier start time for the first Tuesday meeting might encourage older residents who don’t like to be out at night to attend, and school groups could also attend them.
He said the board could try to new meeting schedule and monitor attendance for a year, and then decide whether to continue it.