7-20-04

By Lanita Withers Staff Writer

News & Record

EDEN -- The city of Eden will appeal a judge's ruling that voided the
annexation of the Indian Hills subdivision and surrounding areas.

The appeal will center on the judge's ruling that a contract for water and
sewer service was required before the annexation was finalized, City
Attorney Tom Medlin said.

"I believe the statute allows the city to have two years to have its water
and sewer services in place," he said.

In June, a Superior Court judge overturned the annexation, ruling that the
city had not shown how it would provide water to the Indian Hills residents
because the city didn't have a contract in place with Dan River Water Inc.,
a nonprofit utilities company that supplies water to the area.

The judge did rule that the area qualified for annexation, the city complied
with legal notice requirements and showed how it would provide sanitation
service.

Jim Eldridge, the attorney for the homeowners, said that later in the
appellate process his clients would point out errors they perceive in the
judge's decision.

In 2003, the City Council voted twice to annex an area including the Indian
Hills subdivision and the land along Harrington Highway northwest to N.C.
770 and east to Matrimony Creek, southwest of Eden. The area includes nearly
240 acres and about 200 residents.

The Eden City Council did not vote on the annexation appeal.

"The council voted previously to proceed with the annexation," City Manager
Brad Corcoran said. "Until they meet and say otherwise, we're going forward.
If four members say stop, the annexation can stop at any point."

Corcoran said discussion of the annexation isn't on the agenda for tonight's
City Council meeting nor was he asked to put it on the agenda.

Medlin said the appeal was filed because the city had a limited period of
time to give notice of appeal.

The council had already authorized the defense of the lawsuit and authorized
the pursuing of the annexation, Medlin said.

Council member Chris Myott, who voted in favor of the annexation, said she
supported the appeal.

"This is what I expected our attorney to do, to appeal it," she said.

"The judge ruled in our favor for everything except getting the contract
worked out with Dan River Water," she said.

Council member Wayne Tuggle Sr., said the appeal was the best use of
taxpayer money.

"We've already probably spent $75,000 plus on annexation, that's with staff
time and legal fees," Tuggle said. "I can't see spending that much of tax
payer money and not following through with it."

Tuggle, along with council members Donna Turner and Bruce Nooe, was elected
in November and was not a part of the annexation vote.

Council members Billy Vestal and C.H. Gover, who both voted against the
annexation, said they were still against the measure.

"Since the judge ruled against them on that one count, I think we ought to
let it lay for a while," Vestal said.

"We have no agreements in place. It's an unknown cost. We'd be signing a
blank check. After they give me some details, I'll vote on it, but, as it
stands now, I'm not going to vote for a blank check."

Council members Turner and Jerry Epps said they supported the appeal. Epps
voted for the annexation last year.

Nooe said he had some unanswered questions about the cost of the annexation
to the city. Until the council discussed the case, Nooe said he would "go
with an open mind."

Mayor Phil Price, who supported the annexation, declined to comment, citing
the legal aspects of the case.

Contact Lanita Withers at 627-4881, Ext. 119, or lwithers@news-record.com

City readies appeal

By Don Worthington
Staff writer

Fayetteville plans to appeal a state Supreme Court decision staying annexation, City Manager Roger Stancil said Sunday. The city plans to file its second appeal today or Tuesday, he said.

Details of the city's appeal have not been released.

On July 13, the state Supreme Court stayed Fayetteville's annexation of 27 square miles that brought 42,000 residents into the city.

The action came after the state Court of Appeals lifted its stay and Fayetteville proceeded with the annexation.

"I'm basically an optimist," Stancil said Friday. "Courts are about justice and fairness and this is an opportunity to get this right."

On Friday, mayors from the state's largest cities discussed Fayetteville's situation during a conference call held by the North Carolina Metropolitan Coalition. The state's 22 largest cities are members of the coalition.

The group shares ideas to make the state's urban regions good places to live, environmentally sound and economically viable.

Coalition members discussed how other cities could support Fayetteville, Stancil said.

Stancil said some cities, as well as counties, may join the fight.

The conference call was requested by Mayor Marshall Pitts Jr., a member of the coalition's executive committee.

Beau Mills, executive director of the coalition, said the group discussed sending a letter to the state Supreme Court but decided against it.

"We took no action as a coalition," Mills said Sunday. "We will closely monitor what's going on."

He said some coalition members were dismayed at the state Supreme Court's decision.

"We are concerned the orderliness of annexation is being questioned," Mills said.

Mills and Stancil said the League of Municipalities is assisting Fayetteville. The league has 530 members representing the state's cities, towns and villages. Fayetteville is a member of the league.

Historically, the league has been an advocate of the state's involuntary annexation laws.

Stop NC Annexation officials said the League of Municipalities overstepped its authority.

"It's insulting that the League of Municipalities wants other communities to join in a fight that's local," said Ron Thoreson, chairman of Stop NC Annexation. The nonprofit group has about 10,000 members statewide, he said.

Thoreson said his group is seeking support from military personnel throughout the state so it can file a court brief in the case filed by Keith Kegley, a soldier at Fort Bragg.

Kegley filed his petition for review of the annexation ordinance based on the Service Members Civil Relief Act. State law requires that any appeal to an annexation be filed within 60 days of the adoption of the ordinance. The Kegley suit argues that the relief act nullifies the 60-day appeals period for him because he is an active-duty soldier.

Federal relief

"This is federal law versus state's rights," Thoreson said.

He predicted the Kegley case would move to federal court if the state Supreme Court rules in the city's favor.

Two other challenges to annexation are being considered by the state Court of Appeals.

They are suits filed by the Homebuilders Association of Fayetteville and Cumberland County Citizens United.

The state Court of Appeals is considering whether the challenges were timely. A Cumberland County Superior Court judge ruled the suits were filed after the 60-day period.

The challenges followed a lawsuit by the Gates Four community. The city settled that lawsuit, removing Gates Four from the annexation.

While the city pursues its legal options, Stancil is dealing with the financial uncertainties caused by delaying annexation.

He has placed 4 percent employee raises on hold and instituted a freeze on hiring as well as capital projects.

Jeannette Council, chairwoman of the Cumberland County Board of Commissioners, said she is not aware of any problems related to the delay in annexation.

Uninterrupted services

"There's been no break in services for anyone," she said.

City employees hired because of annexation have not been laid off, Stancil said.

The city is studying ways to reclaim the 15,000 trash cans it distributed to residents in the annexed areas.

One of the problems the city anticipates is that the cans will be full, Stancil said.

"We also have to get people to roll out the carts," he said.

Stancil said the city will pay private trash haulers for the days they operated under city contracts. He said the city will determine those costs this week.

Stancil said if the legal challenges being considered by the Court of Appeals take more than 60 days to resolve, the city will have to make long-term financial decisions.

"The key is timing," he said. "When do you dismantle things?"

Stancil said the quandary is having people and resources available if the courts rule the annexation is valid.

Staff writer Don Worthington can be reached at worthingtond@fayettevillenc.com or 486-3511.

7-20-04

By Lanita Withers Staff Writer

News & Record

EDEN -- The city of Eden will appeal a judge's ruling that voided the
annexation of the Indian Hills subdivision and surrounding areas.

The appeal will center on the judge's ruling that a contract for water and
sewer service was required before the annexation was finalized, City
Attorney Tom Medlin said.

"I believe the statute allows the city to have two years to have its water
and sewer services in place," he said.

In June, a Superior Court judge overturned the annexation, ruling that the
city had not shown how it would provide water to the Indian Hills residents
because the city didn't have a contract in place with Dan River Water Inc.,
a nonprofit utilities company that supplies water to the area.

The judge did rule that the area qualified for annexation, the city complied
with legal notice requirements and showed how it would provide sanitation
service.

Jim Eldridge, the attorney for the homeowners, said that later in the
appellate process his clients would point out errors they perceive in the
judge's decision.

In 2003, the City Council voted twice to annex an area including the Indian
Hills subdivision and the land along Harrington Highway northwest to N.C.
770 and east to Matrimony Creek, southwest of Eden. The area includes nearly
240 acres and about 200 residents.

The Eden City Council did not vote on the annexation appeal.

"The council voted previously to proceed with the annexation," City Manager
Brad Corcoran said. "Until they meet and say otherwise, we're going forward.
If four members say stop, the annexation can stop at any point."

Corcoran said discussion of the annexation isn't on the agenda for tonight's
City Council meeting nor was he asked to put it on the agenda.

Medlin said the appeal was filed because the city had a limited period of
time to give notice of appeal.

The council had already authorized the defense of the lawsuit and authorized
the pursuing of the annexation, Medlin said.

Council member Chris Myott, who voted in favor of the annexation, said she
supported the appeal.

"This is what I expected our attorney to do, to appeal it," she said.

"The judge ruled in our favor for everything except getting the contract
worked out with Dan River Water," she said.

Council member Wayne Tuggle Sr., said the appeal was the best use of
taxpayer money.

"We've already probably spent $75,000 plus on annexation, that's with staff
time and legal fees," Tuggle said. "I can't see spending that much of tax
payer money and not following through with it."

Tuggle, along with council members Donna Turner and Bruce Nooe, was elected
in November and was not a part of the annexation vote.

Council members Billy Vestal and C.H. Gover, who both voted against the
annexation, said they were still against the measure.

"Since the judge ruled against them on that one count, I think we ought to
let it lay for a while," Vestal said.

"We have no agreements in place. It's an unknown cost. We'd be signing a
blank check. After they give me some details, I'll vote on it, but, as it
stands now, I'm not going to vote for a blank check."

Council members Turner and Jerry Epps said they supported the appeal. Epps
voted for the annexation last year.

Nooe said he had some unanswered questions about the cost of the annexation
to the city. Until the council discussed the case, Nooe said he would "go
with an open mind."

Mayor Phil Price, who supported the annexation, declined to comment, citing
the legal aspects of the case.

Contact Lanita Withers at 627-4881, Ext. 119, or lwithers@news-record.com

The North Carolina Supreme Court recently took an unprecedented action by effectively de-annexing urban land adjacent to the city of Fayetteville in response to two last-minute law suits filed to stop the annexation. The suits were filed by attorneys from the Yarborough law firm in Fayetteville and the Brough law firm in Chapel Hill

The Supreme Court action took place after the Superior Court ruled that the participants in the law suit did not have legal standing. The Court of Appeals initially stayed the annexation a mere seven hours before the effective date. However, it later dissolved the stay, thereby allowing the annexation to proceed. The city then commenced with its annexation and for one week provided police fire, street repair, garbage collection, and other municipal services before the Supreme Court ordered the city to stop and pull back.

Fayetteville Mayor Marshall Pitts has asked that members of the NC Metropolitan Coalition participate in an important conference call on Friday at 10:30 a.m. The call in number is 919.733.2490. We encourage that city managers and city attorneys also participate.

Among the items of discussion is the attached letter to the NC Supreme Court. It is essential that municipal leaders become aware of this fiscally damaging action by the NC Supreme Court and the consequences this action can have on other municipalities in North Carolina, especially if lawsuits can be filed within days of the effective annexation date and thereby delay or reverse the annexation.

Please review the letter and participate in Friday’s conference call.

Thank you for your participation and concern.
(end memo)

I respectfully join this letter to the North Carolina Supreme Court in support of the City of Fayetteville’s Motion for Reconsideration. If this Court does not reconsider and dissolve its July 13, 2004 writ of supersedeas, that ruling will seriously damage the statutory process that has guided North Carolina annexations for almost 50 years by destroying the finality necessary for that process to occur.

As Fayetteville’s motion explains, the statutory annexation process needs finality to function effectively. Annexations can occur only if municipalities can budget and plan during the months preceding the effective date. They must confidently be able to hire new employees, buy new equipment, and incur costs and obligations, all while budgeting how annexations will affect both their short- and long-term finances. They must be able to commit their resources and ready for expansion without fear that a late challenge will undo the entire process. Consequently, North Carolina law insists upon annexation finality by establishing deadlines beyond which an annexation’s validity becomes certain. Now, however, to the peril of annexation law, this Court has undermined two bedrock components of this finality

First, property owners may not challenge an annexation more than 60 days past adoption of the annexation ordinance. N.C.G.S. § 160A-50(a). Once that deadline passes, a municipality may prepare with confidence that a last-minute challenge will not waste all this preparation and throw the process into chaos. Such waste and chaos, however, will occur nonetheless when even time-barred annexation challenges can trigger a last minute stay. Once a stay descends, whether the municipality ultimately will prevail becomes secondary. Even if it will prevail, opponents still have arrested the annexation at the eleventh hour and delayed it for a prolonged, uncertain appeal. The municipality must grapple with the resulting uncertainty and absorb the financial obligations it has incurred. Consequently, even the prospect of a stay alone, with all its negative consequences, sufficiently discourages annexation to undermine the statutory process.

Second, this Court’s writ also unsettles another source of finality, the effective date. Upon arrival of the effective date, an annexation takes effect under the statutes automatically. Once effective, no constitutional or statutory provision permits any entity other than the General Assembly to reverse it. Consequently, once an annexation is done, a municipality can devote resources to annexed areas without hesitation, confident that only legislative action can reverse the annexation. This Court, however, reversed Fayetteville’s annexation after it already had taken effect. In light of this precedent, even when an effective date arrives, a municipality now might view its annexed areas with skepticism, and it might even hesitate to devote resources to such areas. Again, the statutory process for annexation will cease to work as the General Assembly intended.

I also concur with Fayetteville’s conclusion that the writ of supersedeas finds no support in the annexation statutes. Although N.C.G.S. §160A-50(i) can stay some annexations during appeal, the General Assembly intended it to trigger a stay only for timely filed petitions. By contrast, if a petition is untimely, the annexation statutes disregard it entirely. After the 60-day window closes, petitions are banned absolutely and do not even confer jurisdiction upon the lower court to review an annexation. Without the jurisdiction created by a timely petition, a court his no statutory authority to stay an annexation.

Further, the General Assembly did not intend a single provision, N.C.G.S. § 1 60A- 50(i), to defeat the entire annexation process. As described above, the entire annexation process will be defeated if even time-barred petitions trigger a stay.

This Court’s writ of supersedeas will have a long and profound reach. Rather than just delaying Fayetteville’s annexation, it will frustrate every annexation contemplated in North Carolina. The statutory annexation process, crafted by the General Assembly a half-century ago, will be rendered unworkable and ineffective.

I urge this Court to grant Fayetteville’s Motion and dissolve its writ of supersedeas.
(end letter)

"We are a nonpartisan group and this forum is for candidates, both Democrat and Republican, who are facing primary appointments. We are specifically focusing on candidates who will have an influence regarding annexation issues in North Carolina. Because of the nature of how we are organized for tax purposes, we are not supporting or endorsing any candidate.

Our schedule will be as follows: 4:00 to 5:00 will be an informal candidate “meet and greet” followed by candidate speeches from 5:00 – until. For more information, please contact us at:"

Forsyth Citizens Against Forced Annexation
Post Office Box 5853
Winston-Salem, NC 27113-5853
Hotline: 336-922-1944