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.



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.






                                                                                                                                                              Elizabeth W. Corn, Clerk to the Board                 Grady Hawkins, Chairman