A lawsuit filed by the town of Boone against the state over a zoning authority matter will be the first to test a new legal process established by N.C. Republicans irked by judges who have ruled against them.
Instead of going in front of a single judge in Watauga County, where the complaint was filed, the town of Boone will air its legal challenge before a three-judge panel in Raleigh.
Judges Paul Ridgeway of Wake County, Alma Hinton of Halifax County and Nathaniel J. Poovey of Catawba County have been selected to preside over Boone's challenge of a law adopted by N.C. legislators this past summer that stripped the mountain town of its authority to regulate land use just outside town limits but in an area called the town's extraterritorial jurisdiction, or ETJ.
Residents of ETJ areas do not vote in town elections, do not pay town taxes and do not receive town services. But they serve on the town's planning commission and Board of Adjustment, a quasi-judicial board that hears development disputes and challenges.
In June, the General Assembly voted to take away Boone's authority over the ETJ rim around the town. Sen. Dan Soucek of Boone, a Republican, introduced the local bill, claiming the town had abused its power.
The law applied only to Boone.
Attorneys for the town filed a complaint in Watauga County Superior Court on Oct. 10, claiming the law violates the state Constitution.
In their challenge, Boone officials point out that more than 200 municipalities statewide have such jurisdictions. The western N.C. town contends the zoning power amendment was pursued at the request of a few people and was an act that would cause irreparable harm.
But this year, under the guidance of N.C. Senate leadership, the General Assembly adopted a law outlining a new judicial process for constitutional challenges of new laws.
Republican state legislators had seen some of their laws - on issues such as abortion and election conditions, taking away teacher tenure and providing vouchers for private school tuition - stymied in state and federal courtrooms.
Phil Berger, president pro tem of the N.C. Senate, told Associated Press reporters in the spring that he thought a three-judge panel was preferable in such cases to prevent so-called "shopping" for a sympathetic judge likely to render a preferable verdict.
In September, a new law went into effect that took those cases out of the hands of individual Superior Court judges and sent them to be heard in Wake County, where panels of judges from across the state will assemble when needed.
The state Supreme Court chief justice appoints the panel members for challenges that, if appealed, go directly to the state's highest court.
The N.C. Bar Association opposed the legislation.
On Tuesday, after hearing that the Boone case would be the first to test the new system, Catharine Arrowood, president of the association, said her organization would watch with interest but had no immediate plans to try and intervene in the case.
Attorneys representing Boone could challenge the new judicial process, but lawyers from Brooks, Pierce, McLendon, Humphrey and Leonard, the firm representing the town, declined on Tuesday to comment about the case.