International Municipal Lawyers Association - Local Government Blog

What’s In Is In and What’s Out Is Out | May 11, 2009

Posted By: Dwight Merriam, Partner, Robinson & Cole, LLP

Some states enable extra-territorial jurisdiction for regulation of land development.  Here is how Professor David W. Owens of the University of North Carolina’s Institute of Government (and planning school classmate of mine) describes North Carolina’s enabling legislation which allows municipalities to plan and regulate 1 to 3 miles from their boundaries, the distance based on the population of the municipality:

“When a city adopts an extraterritorial boundary ordinance, the city acquires jurisdiction for all of its ordinances adopted under … the General Statutes and the county loses its jurisdiction for the same range of ordinances. This includes not only zoning and subdivision ordinances, but also housing and building codes and regulations on historic districts and historic landmarks, open spaces, community development, erosion and sedimentation control, floodways, mountain ridges, and roadway corridors. The city does not acquire, nor does the county lose, jurisdiction for regulations adopted under the general ordinance-making power…, such as junked car or noise ordinances. So, for example, if sign regulations are a section of a city zoning ordinance, they apply in the extraterritorial area; however, if they are part of a separate sign ordinance, they do not.” 

Click here for an excellent report he wrote on the North Carolina experience.

Georgia was one of the first states to give a municipality extra-territorial jurisdiction for health and safety.  Interestingly, it dates back to 1825 and was upheld in 1843.  See footnote 3 of Professor Owen’s report.  But from footnote 4 of the Owens’ report and the decision just handed down by the Georgia Supreme Court, it does not appear that Georgia is among the handful of states with broad extraterritorial planning and zoning authority.

What happened in the case handed down by Georgia’s highest court on May 4th is that the Town of Braselton annexed a 26-acre parcel in March 2005, then created an overlay district encompassing that land and more outside its boundaries, and imposed right-of-way improvements as a condition of approval of a second phase of development, just outside of the municipal boundaries, but part of a larger, single development within the overlay zone.

Specifically, the town wanted the developer to provide “gutter widths, minimum landscape strips, multiuse paths, streetlights and trees” along Georgia State Route 211 just outside the town’s border which is delimited by the right-of-way for the state highway.  The improvements required as a condition of approval included a 1,500-foot long sidewalk along the highway, and outside of the town, which the developer didn’t want provide.

Click here for a news story. Supreme Court rules against Braselton in zoning battle” May 6, 2009, Gainesville Times.

Here’s the project from the developer’s website at


 Here’s the project up close:


Click here for the decision holding that Braselton had no extraterritorial jurisdiction and couldn’t require the improvements in that part of the overlay zone beyond its boundaries.

As of May 6th, the town attorney, noting that he could move to have the court reconsider its decision, said: “We’re still studying the decision and trying to determine what the town’s options are or may be.”

OnlineAthens reports on an ugly back-story.  Seems the developers’ former lawyers (the developer was represented in this appeal by one of Georgia’s former attorneys general), submitted a survey map they knew was incorrect.  The trial judge fined the lawyers $18,000 and then dismissed the case when the lawyers didn’t pay up.  That, the Georgia Supreme Court said, was not a proper basis for dismissal.  “…Braselton’s attorney, Kelly Hundley, said materials have been sent to the State Bar of Georgia about Armstrong and Moeser [the former lawyers for the developer who submitted the incorrect survey map] that could lead to their professional licenses being suspended or revoked.” “Court rules against Braselton on right-of-way demand” May 4, 2009, click here for a copy.

File this in that bulging folder we all carry around in our heads: “What Were They Thinking?”.

Yikes, who would have thought extra-territorial zoning could be this exciting?

Posted in Land Use


  1. Yeah, we really want to give more importance for such matters. Thanks.

    Comment by st louis building — May 17, 2009 @ 7:51 am

  2. It should be known that the Georgia State Bar dismissed the grievance filed against Armstrong and Musser and stated the attorneys acted in a proper manner.

    Comment by Dick Gray — March 8, 2011 @ 1:34 pm

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This blog is made possible by the International Municipal Lawyers Association (IMLA), but may include guest bloggers (who are attorneys with experience in local government matters) who might or might not work for IMLA. Their views (and those expressed on this site) do not necessarily express the views of IMLA.







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