MINUTES
STATE
OF NORTH CAROLINA BOARD OF COMMISSIONERS
COUNTY
OF HENDERSON FEBRUARY 16, 1999
The Henderson
County Board of Commissioners met for a specially called meeting at 2:00 p.m.
in the Commissioners' Conference Room of the Henderson County Office Building.
Those present
were: Chairman Grady Hawkins,
Vice-Chair Bill Moyer, Commissioner Renee Kumor, Commissioner Don Ward,
Commissioner Marilyn Gordon, County Manager David E. Nicholson, Assistant
County Manager Angela S. Beeker, County Attorney Don H. Elkins, and Clerk to the Board Elizabeth W. Corn.
Also present
were: Staff Attorney Jennifer O. Jackson, Utilities Director Jim Erwin,
Planning Director Matt Matteson, and Doyle Freeman from the Utilities
Department.
CALL TO
ORDER/WELCOME
Chairman
Hawkins called the meeting to order and welcomed all in attendance.
Chairman
Hawkins stated that the purpose of this meeting was a quasi-judicial hearing on
petition of Roger Wolff for determination of vested rights for the Jackson
Village Manufactured Home Park.
AA
quasi-judicial proceeding, much like a court proceeding, is a procedure in
which one=s individual
rights are being determined. The
proceedings will be conducted under the Henderson County Board of Commissioners= Rules of
Procedure for quasi-judicial proceedings.
Only persons who can demonstrate that they will be affected by the
outcome of the decision are allowed to participate in the proceedings.
All persons who
speak and participate, including any witnesses that will be called, will be
placed under oath. The Board will ask
the petitioner, Roger Wolff, or his Attorney, David Matney, what evidence he
wishes to present in support of a determination of vested rights. After the petitioner is finished, anyone
else who has expressed a desire to be a party and who the Board has recognized
as a party, will then be allowed to present their evidence. All parties will be given an opportunity to
ask questions of all witnesses testifying in this proceeding. The Board will be given an opportunity to
ask questions also. Before we begin, I=d like to ask
the County Attorney if there are any matters that the Board needs to be
addressed or resolved prior to identifying the parties and beginning the presentation
of evidence?@
Don Elkins - AMr. Chairman, I
have been given a copy of the Town of Fletcher letter dated February 11,
1999. This letter informs this Board
that on February 8, 1999 the Council of the Town of Fletcher passed an
ordinance to establish an ETJ in the Hoopers Creek area. I also have a map that I=d like to pass
around that shows what appears to be that this property is located in that ETJ
of Fletcher, the point being if that is true, it would be my opinion that the
Town of Fletcher would have jurisdiction over this matter and this Board would
lose jurisdiction to hear it. You might
want to hear from the petitioner or his Attorney as to the jurisdictional
question.@
Chairman
Hawkins - AMr. Matney,
would you care to respond to that prior to the Board considering it?@
David Matney - AYes sir, if I
may. As identified, I am David Matney
and I=m the Attorney
for Mr. Wolff. I first wondered about
that when I heard about that too yesterday and my first reaction was you know
we don=t have any
jurisdiction here but I=m not sure but what we do for a couple of
reasons. First of all, part of what we=re also looking
at is the moratorium that has been passed by the Board and if you look at the
moratorium, it applies to all areas of the county, not then incorporated or
under an ETJ. Well, Town of Fletcher
hadn=t done this at
the time you passed the moratorium in December; therefore, I would submit that
this Board has already taken jurisdiction of a mobile home park in that area by
having entered into that moratorium and you=d still have jurisdiction. I wasn=t sure Mr. Elkins until I went back and
looked at the wording of it, it doesn=t talk about anyone that is - is now not
- is I believe your wording and because of that I think you have taken jurisdiction
and while we may or may not have to go to Fletcher also, I think we still have
to appear before this Board because I think jurisdiction is here due to the
moratorium that=s out there and
the ordinance and what=s already there.@
Attorney Boyd Massagee
asked if he could be heard. AMr. Chairman,
jurisdiction it looks to me like is like a pregnancy questions, you either are
or you=re not. You=ve either got jurisdiction or you don=t have it. Now then what occurred at a particular time
in the past is not going to determine jurisdiction. You didn=t have the hearing before the 8th. This hearing was the 8th. The issue is on this date, on the 16th
do you have jurisdiction and if there has been a valid ordinance passed by the
other community then I would see how you have jurisdiction of the area that
they have taken in at that time. The
State Statutes and the Ordinance provisions allows that to be done. Now if yea have a hearing here then the
question is raised, you may have to appear before Fletcher as well. Obviously both of you don=t have
jurisdiction, only one of you does and I would contend that if we have to hear
it today we=re going to
spend some time. If my group is
fortunate enough to prevail, I=m afraid we=re going to lose when I get to superior
court. And so I would ask you to let
this go to the Board which has assumed jurisdiction when they passed that
ordinance. Now if that=s an invalid
passed ordinance, that=s a different thing. I don=t know what evidence you all have the ordinance
was invalidly passed. I assume the
County Attorney doesn=t and I certainly don=t have any so
it seems to me that Fletcher is the appropriate place. Thank you.@
Chairman
Hawkins - AThank you Mr.
Massagee.@
Don Elkins - AWell I think
also statutory construction would give the presumption of correctness to a
ordinance that has been passed during the interim period of time.@
Commissioner
Kumor - AExcuse me,
could you explain - say that again.@
Don Elkins - AAny statute,
the local government, state government, the statute is presumed to be
constitutional and valid until set aside or ruled on by a court of competent
jurisdiction. That=s the general
construction law not the language. The
only other thing I can say is that I believe when we opened the meeting that
quasi-judicial hearing affects one=s individual rights and only persons who
can demonstrate that they will be affected by the outcome of the decision are
allowed to participate in the proceeding so this is more than just a hearing or
public input. This is sort of a court
type hearing and it=s my opinion that the question of jurisdiction
is fundamental to hearing this and that being said I=ll shut up.@
Chairman
Hawkins - AThank you. The
- I guess the question before the Board here is to in our first . . . cover is whether or not having
listened to the information by both of the representatives here is to whether
or not the - and from our County Attorney - is whether or not in fact this
Board has, in the opinion of the Board, jurisdiction to proceed with the
hearing.@
David Matney
asked to be heard - AIf it is the opinion of the County Attorney and
the Board would so agree, that if extraterritorial jurisdiction of the Town of
Fletcher governs this area then your moratorium does not apply to this area. If that is the conclusion of the Board, then
you don=t have any
jurisdiction, if you=re saying that their act to pass an ETJ ended
your moratorium and that they then could decide to approve a mobile home park
or any city could in the incorporated or ETJ jurisdiction, then I think the
Town of Fletcher and Mr. Wolff would consider to not go forward if the
moratorium is ended as to this property due to the fact that it is within the
ETJ. Because otherwise I=ve got to go by
both places - if there=s still a moratorium we still have to have it
before you. If the moratorium is over
because they=ve exercised
ETJ, then I will agree with Mr. Massagee and Mr. Elkins that it is before
Fletcher but until - as long as the moratorium is out there we still have to appear
before you all.@
AMr. Chairman@
Chairman
Hawkins - AYes, Mr.
Massagee.@
Boyd Massagee -
AI don=t agree with
the initial preface. Jurisdiction and
the moratorium are different animals.
The jurisdiction issue is on whether or not you can make a determination
that Mr. Wolff has vested rights. That=s the sole
purpose that you=re here today
for. Now the moratorium if you pass one has nothing more to do with the
jurisdiction issue than what you might have done in East Flat Rock. The question of a moratorium and the
question of jurisdiction are two totally different animals. I believe the County Attorney will agree
with me on that.@
Chairman
Hawkins - AMr. Elkins, do
you have any comments on that?@
Don Elkins - AWell, it=s my opinion
that this Board does not have jurisdiction since the ordinance was passed and I
understood this hearing was to be on vested rights. As far as the moratorium, that=s another issue to be decided at a later
time.@
David Matney - AMr. Chairman,
our appeal referred to both, vested rights and the moratorium. Are we only hearing half of our appeal
today?@
Chairman
Hawkins - AI think the
only thing on our docket was vested rights and I don=t think that
there was . . . and I=ll defer to our County Attorney but I don=t know that the
question of moratorium is applicable for this body.@
Don Elkins - AWell, I don=t think - agree
with Mr. Massagee. I don=t think you=re going to get
to that question. You=ve got to
decide whether or not you have the power and jurisdiction to hear the matter
and if you don=t you=re not going to
get to those questions.@
Chairman
Hawkins - AThank you.@
Commissioner
Ward - AMr. Chair, if I
can ask the County Attorney. When we do
a moratorium it=s only in the
unincorporated areas, isn=t it?@
Don Elkins - AI believe that=s correct.@
Commissioner
Kumor - ANo it would be
in areas that we have no jurisdiction in, which is different than
unincorporated.@
Chairman
Hawkins - AOr those areas
perhaps in an incorporated area that they choose to go with the moratorium
also.@
Commissioner
Gordon - ASo in other
words, we=re saying that
when this area became a part of the ETJ of the Town of Fletcher our moratorium
is no longer effective in that particular area, is that what we=re saying?@
Commissioner
Moyer - ANo we=re not saying
that.@
Don Elkins - AI don=t think we want
to get to that decision right now.@
Commissioner
Moyer - AWhether we have
jurisdiction in the vested rights hearing, an entirely different question. And I agree with the County Attorney. I don=t believe we have jurisdiction and I don=t believe we
should proceed.@
Chairman
Hawkins - AAny other, any
other comments from the Board? Any other thoughts? I would have to be in agreement with the advice given to the
Board by the County Attorney in that it would appear that once a municipality,
in this case the Town of Fletcher, has exercised their statutory rights for ETJ
that we probably no longer have jurisdiction in it and I would put that
question to the Board for your vote. If
you think that we should not hear the proceedings because of lack of
jurisdiction please signify by saying aye.@
Unanimous AAye@.
Chairman
Hawkins - AOK, it=s
unanimous. We will not hear the case.@
The meeting was
adjourned at approx. 2:14 p.m.
Attest:
Elizabeth
W. Corn, Clerk to the Board Grady Hawkins, Chairman