Serving Boone, Blowing Rock, Banner Elk, and other towns of the North Carolina High Country | Founded 05-05-05

January 25, 2007 issue

Boone Faces Steep Slope Suit

Jeff Templeton, Neil Hartley and Jim Hartley, plaintiffs in a suit filed against the Town of Boone seeking relief from the recently adopted steep slope and viewshed protection regulations, look over maps of the areas impacted by the ordinances. Photo by Ken Ketchie

Local Property Owners Seek Injunctive Relief

Story by Kathleen McFadden

Four couples, one individual and an LLC are the plaintiffs in a suit filed against the Town of Boone seeking preliminary and permanent injunctions against the town’s recently adopted steep slope and viewshed protection regulations. The ordinances, passed as amendments to the town’s Unified Development Ordinance, apply to properties in the town limits and the town’s extraterritorial jurisdiction.

Plaintiffs Jeff and Amy Templeton, Jeff Templeton Rentals, Elizabeth Colonna, Neil and Audrey Harley, James and Iva Hartley and Lewis and Frances Phillips are represented by local attorney Charles Clement.

The complaint, filed December 21, maintains that the enacted regulations should be struck down for six reasons:

• Violation of constitutional substantive and procedural due process: The complaint maintains that the town’s adoption of the regulations was “arbitrary, capricious and unduly interfered with the rights of Plaintiffs as property owners, was an abuse of the exercise of land use regulation, was based on irrational and unlawful means.” This claim for relief maintains that the town violated the touchstone of due process, the protection of the individual against arbitrary action of the government, that the public notices preceding the September 25, 2006 public hearing on the proposed ordinances were “fatally defective” and that the town deprived the plaintiffs of their rights by disregarding its own ordinance requirements, state and federal law and the state and federal constitutions

• Violation of plaintiffs’ civil rights: The complaint maintains that the town has deprived the property owners of their lawful rights to use their land in the ways allowed before the adoption of the steep slope and viewshed protection ordinances.

• Unlawful rezoning and use of property: The complaint maintains that the town’s adoption of the ordinances was unlawful because it changed the zoning and use of the plaintiffs’ land and the land of everyone who owns property in the town and its ETJ.

• Inverse condemnation-unlawful taking: The complaint maintains that the town’s adoption of the ordinances was without due process and materially altered the zoning and use of property in the regulation area, limiting properties in the viewshed to R-1 zoning uses only rather than the uses previously available.

• Uncontrolled, arbitrary and capricious authority vested in staff as lawmakers: The complaint maintains that the ordinance gives town staff “unlawful, unbridled and unqualified authority to make uncontrolled, arbitrary and capricious decisions which may affect Plaintiffs and all citizens and property owners in the Town of Boone and its ETJ areas.”

• Unlawful preemption of state building code: The complaint maintains that the town’s steep slope and viewshed protection ordinances preempt regulation reserved by the legislature to the NC State Building Code Council in violation of state statute and case law.

The suit asks for immediate injunctive relief to protect the plaintiffs from “immediate, irreparable injury, loss or damage,” and a permanent injunction following jury trial, with the town assessed the cost of the action, including plaintiffs’ attorney fees and expert witness fees.

According to plaintiff Jeff Templeton, the town has 30 days to respond to the filing, and a judicial hearing will determine the next step in the process.

“This suit isn’t about me,” Templeton said, “but it’s about everyone who owns property in the town and the ETJ. I am encouraged by the support I’m hearing from people at the post office, Wal-Mart and other public places who have encouraged me to keep up the opposition to the steep slope and viewshed regulations.”