Archived News - October 2004   Back to StopNCAnnexation Coalition
Goldsboro Update

October 24, 2004

Read the most recent articles below about Goldsboro's court fight and how municipalities around the State are using what we believe to be illegal tactics to annex:

The below articles are important because they present the judge's ruling on our attempts to nullify our annexation because a previous voluntary annexation that made the city boundary contiguous to us was illegal. The illegality occurred because the voluntary annexation included State lands but no one from the State signed the petition. Statutes say that all property owners in a voluntary annexation must sign the petition. This did not occur but the judge said we could not contest the previous annexation. Our situation in this matter is very similar to what has happened with the Swift Creek Alliance affidavit filed with the Attorney General.

Bill Burnette
President Good Neighbors United, Goldsboro, NC
www.StopGoldsboro.com


City wins first round of annexation suit

By Barbara Arntsen
Published in News on October 20, 2004 02:03 PM

Superior Court Judge Kenneth Crow ruled today in Goldsboro's favor on three issues brought before him Tuesday by the city's lawyers.
Lawyers argued Tuesday in Wayne County Superior Court over whether Goldsboro followed the proper procedures in annexing an area north of the city.
The city says it followed the right process, and it also argued that a previous annexation in 2002, which paved the way to annex the Northbrook area, could not be challenged by the residents.
The annexation opponents argued that the 2002 annexation was illegal; therefore, the Northbrook annexation was illegal. Their lawyer also questioned the city's ability to pay for the services it is required to provide to the area.
Crow ruled this morning that the property owners couldn't get their annexation dismissed by attacking the previous annexation; that the city council's voting on the two resolutions did comply with state law and the city charter; and ruled against the property owners contentions regarding the selling of the bonds to pay for annexation.
The Goldsboro City Council voted in April to annex the east and west sides of Salem Church Road and the north and south sides of Buck Swamp Road.
In its lawsuit against the city, the plaintiffs said that the city didn't follow state laws for the voluntary annexation in 2002 of the Lane-Howell property.
The Lane-Howell property consists of 360 acres on the east side of Salem Church Road between Stoney Hill Road and Fedelon Trail. That annexation made the recently annexed property contiguous to city limits, a criteria for the Northbrook annexation.
Jim Eldridge, the lawyer for the plaintiffs, said that the City Council didn't have the required jurisdiction to annex the Lane Farms and Howell Properties in 2002, because all of the property owners didn't sign the annexation petition.
Harrell Everett, the city's lawyer, filed a motion for summary judgment on that charge.
Everett told Judge Crow that none of the parties to the current lawsuit owned property contained in the Lane-Howell annexation and therefore didn't have standing to protest it.
Citing case law, Everett said that a group of people could not "collaboratively attack one annexation in another annexation." He also said that case law said that you had "to own property in the annexed area to contest" that annexation.
Everett also referred to several cases contained in a book on annexation laws by David Lawrence, a professor at the Chapel Hill School of Government.
"In my opinion," Everett said, "the law is clear. They cannot contest the Lane-Howell annexation."
Eldridge disagreed.
"It really isn't that simple and it shouldn't be," Eldridge said. "Not for the petitioners, the public, or the city. The city has made a mistake and they can't brush it under the rug."
Eldridge interpreted Lawrence's cases differently.
A case referenced in Lawrence's book says that an annexation that is void may be challenged in some manner.
"Not all the owners signed the petition, the city admits that," Eldridge said. That makes the annexation void.
"We're not attacking the annexation," Eldridge said, "But we're alleging as a fact that the city made a profound mistake. How can the city rely on that by using a void annexation."
Everett responded that the voluntary annexation wasn't void unless someone attacked it, and he reiterated that Eldridge's clients didn't have standing to attack it.
Eldridge replied that they were introducing it as a fact, not trying to appeal the annexation. That, he said, would be a matter for another court hearing.
Everett also argued that the city met the legal requirements when it passed its resolution of intent to annex the Northbrook area.
The resolution was passed on Feb. 2 by a 6-0 vote, but the date of the public information meeting had been omitted. On Feb. 9, a subsequent resolution was passed with the date of the meeting.
The amended resolution of intent passed with four votes, with only four of the council members present.
Eldridge said that didn't meet the legal requirements of having two-thirds of the council present to pass an ordinance.
The argument then centered on the differences between a resolution and an ordinance.
Everett's third motion for summary judgment revolved around a bond issue. He said the city had the authority to issue bonds to pay for annexation. Those bonds were voted on by the public several years ago.
The allegation, he said, was that the N.C. Local Government Commission stopped the city from selling the bonds.
"There was no denial of the right to sell the bonds," Everett said.
He said that the city's finance officer, in light of pending litigation and because he was being fiscally responsible, decided it might be best not to sell at the scheduled time.
Judge Crow asked if the finance officer thought of this himself, or if it was on the advice of the city attorney.
"We have a bond attorney in New York," Everett replied.
"Oh, a New York attorney," the judge said.
Eldridge said that in a conversation with William Burnette, one of the residents in the annexed area, the city finance director said "they won't let us sell them."
Eldridge also pointed out that the conversation with the Local Government Commission and the bond attorney happened on April 14, five days before the annexation ordinance was passed.
The trial is scheduled to begin at 2 p.m. today.
Annexation trial: City defends plan

By Barbara Arntsen
Published in News on October 21, 2004 02:02 PM

Opponents of Goldsboro's latest annexation wrapped up their case Wednesday, raising questions about fire protection, water service, debt in the city's utility fund and the amount of time they had to respond to the proposed annexation.
The city finished presenting its case today, and closing arguments were expected to be completed this afternoon. The city attempted to defend itself when it was brought up that the water rates for the annexed area would be higher than for city residents, because the city would contract with a water district.
Harrell Everett, the city's lawyer, began by saying the city stipulated that the residents in the annexed area would have to pay more for water, as outlined in the city's annexation report. Everett suggested that the court send that issue back to the City Council to address.
Superior Court Judge Kenneth Crow said that should have been in the plan, and Everett said the city didn't know at that time that the water service would cost more.
Crow said he would make a decision on that issue later.
The Goldsboro City Council voted in April to annex the east and west sides of Salem Church Road and the north and south sides of Buck Swamp Road.
Judge Crow also asked City Manager Richard Slozak if this annexation had been put on the fast track because it was considered a desirable area. Slozak replied that it was a growth area.
"But it has a handsome tax base, doesn't it?" asked Crow.
Slozak said that any area annexed would provide an additional tax base.
Crow said he understood that, but said that he had asked about a "handsome" tax base.
Slozak acknowledged that it was a handsome tax base. "Not as attractive as a commercial area," Slozak said. "But, yes."
The judge also asked when the citizens of the area received their first communication from the city about the annexation.
Slozak said the notices were mailed out in February. The judge noted that gave the citizens about two months to gather information and formulate opinions.
Crow also noted that the city had been gathering information for almost 20 months before sending out those notices.
"Were you predisposed to annex this area?" Crow asked.
"No, sir," answered Slozak.
Jim Eldridge, the residents' lawyer, asked Slozak if he remembered a councilman saying that the city had to annex where they would "get the most bang for their buck," and Slozak said he did.
Slozak recalled that the city passed its resolution of consideration on June 3, 2002. But he didn't remember that the city also approved the voluntary annexation of the Lane-Howell Farms on the same date.
The Lane-Howell property consists of 360 acres on the east side of Salem Church Road between Stoney Hill Road and Fedelon Trail. Its annexation allowed the city to annex the area now being challenged.
Eldridge also questioned Assistant City Planner James Rowe in detail about the annexation report. Rowe acknowledged that he asked for input from city department heads regarding what additional equipment or personnel they would need to provide services to the proposed annexation area. Rowe said that he and Slozak discussed the responses from the department heads.
After that, Rowe compiled the annexation report, detailing the services the city would provide.
Services
Rowe testified that the city would contract with the Belfast Volunteer Fire Department for services as a first-responder on fire calls, and that Goldsboro would serve as back-up.
Larry Pierce, assistant fire chief at Belfast, testified that he believed the proposed fire service was equal to what was already being provided in the area.
Pierce said that Goldsboro was already back-up for fire protection in the current mutual aid agreement between the city, county and volunteer fire departments.
Rowe said that the city would be placing 64 additional hydrants in the area, and that the fire rating would change from a 7 to a 5. "That would give them better insurance rates," he said.
Eldridge asked him what he based that knowledge on, and Rowe said that it was based on conversations with insurance companies and not from information from the State Fire Marshall's Office.
Eldridge also questioned City Finance Director Richard Durham about an Aug. 10 meeting with the managers for the Fork and Belfast water districts.
Durham said the meeting was set up once the city became aware that the water service for the annexed area would cost more for residents. He said that the two districts agreed to continue providing service to the area, agreed to the placement of the fire hydrants and agreed that the city would pay the additional cost of the water.
The agreement was not in writing, but Durham, City Engineer Terry Gallimore and Slozak testified that the city had a good working relationship with the districts. William Coltrane, manager for the Belfast water district, also said he had a good working relationship with the city and that those points had been agreed upon in the Aug. 10 meeting.
Finances
Durham said that he provided only a limited amount of information for how the city would finance the annexation. He said that most of that was provided by the city manager, who also holds the title of budget officer.
Eldridge asked Durham if the revenues and expenses relating to the annexation were included in the 2003-04 budget.
"The revenues were included," Durham said. "Expenses ... various departments requested things ... We reminded them. There are some items I could say yes."
Slozak testified that the revenues and expenses were included in the 2003-04 budget.
Durham was also questioned about the potential $1 million debt the city faced in the utility fund last May.
He said he wasn't sure he knew exactly what the shortfall was. Later Slozak testified that it was between $750,000 and $1 million, but that Walnut Creek made a $339,000 payment.
Slozak said that it wouldn't affect the city's ability to sell bonds to pay for the annexation, because the utility fund balance was good and the city had lowered its water consumption expectations for the current year.
Everett objected strenuously and continuously to the relevance of the testimony of William Burnette, a resident in the proposed annexed area.
The judge noted all his objections, but overruled all of them.
Burnette said he had spoken with a councilman and with the mayor and had read through the annexation report at the library before the public hearing. He also had prepared a detailed two-page report outlining his concerns about the proposed annexation, including the city's plans to provide services.
That report was read to the council during the April 5 public hearing, and Burnette requested that it be made a part of the official written record.


Judge mulls sending annexation plan back to city

By Barbara Arntsen
Published in News on October 22, 2004 02:02 PM

A judge said Thursday he is considering requiring that Goldsboro redo its controversial annexation after concerns about the process were raised this week at trial.
Closing arguments in the annexation lawsuit were completed Thursday.
Superior Court Judge Kenneth Crow said that he was inclined to send the annexation case back to the City Council and ask for a new annexation report, two public hearings and a new vote on the matter.
But the question is, does he have the legal authority to do that?
The city says he does not. The annexation opponents say he does.
Judge Crow asked the lawyers for the city and the annexation opponents to give him legal briefs by Wednesday on their views.
Crow will decide whether enough detailed information was provided in the city's annexation report to allow the council or the citizens to make an informed decision regarding the annexation.
Those details include fire protection, the additional cost of water service to the residents and financial details of the annexation.
Harrell Everett, the city's lawyer, said he didn't think that the law allowed the judge the authority to request a new hearing and vote. Jim Eldridge, the plaintiff's lawyer, said he didn't see anything in the law that would prevent the judge from issuing that order.
The case revolves around a decision, and the process that led to that decision, by the City Council last April to annex the east and west sides of Salem Church Road and the north and south sides of Buck Swamp Road.
The city wrapped up its case early Thursday morning, after calling Assistant Planning Director James Rowe to the stand.
Rowe went through the annexation process conducted by the city and said that he received calls from some of the residents in the annexation area after the notices of intent were mailed to property owners in February.
Rowe said that some of them asked about services, and he tried to answer "the best I could." Copies of the annexation report were available for viewing at the city clerk's office and at the public library, he said.
Rowe remembered William Burnette, a resident in the area, citing a concern about the water services during the March 25 informational meeting.
The city stipulated Wednesday that the residents in the annexed area would have to pay more for water, as outlined in the city's annexation report. Everett suggested that the court send that one issue back to the City Council to address.
City's argument
In his closing argument, Everett said the city had followed the legal requirements of the general statutes and had committed to provide the same services to the annexed area as were in the city.
"One exception is the water rates, and we ask the court to remand that one issue to the council," Everett said.
Everett said that the council was given the authority to annex under North Carolina law.
"And there's no evidence that a citizen living in Goldsboro appeared before the council and said you shouldn't do that," Everett said. "No one made that argument."
Everett said that the courtroom was the wrong forum for the annexation opponents. Instead he said they needed to express themselves to the state Legislature and ask it to change the annexation laws.
He also said that there was "no predisposition on the part of the City Council" to annex this area.
"I do not believe the financial analysis is an issue except for the" higher water rates, Everett said. "The report sets forth method for services and how it will finance those services."
Everett said that City Manager Richard Slozak and Finance Director Richard Durham left "no questions in my mind that the city has sufficient revenues on hand to handle the finances."
Everett said the only issue he saw before the court was whether a written agreement for the water service and the fire hydrants was necessary. He didn't believe the city had to have that degree of specificity in its report.
Opponents' argument
Crow asked Eldridge what would be gained by voiding the annexation, because the city could start the annexation process again.
"It saves two to three years of taxes for the people," replied Eldridge. He also explained that the politics of the existing council, or a new council, could change if it was given a longer period to consider the annexation.
Eldridge said he believed the annexation report left out essential details.
"The city intends to put 64 fire hydrants, but the report is silent on that," Eldridge said.
The extension of services is a cornerstone of an annexation, Eldridge said, and case law says as much detail as possible should be provided in the report.
"They gave information, notice and the opportunity to be heard," Eldridge said.
But, he said, neither the city nor the petitioners had all the information.
Eldridge said that his understanding, based on testimony from city staff, was that two documents had to be cross-referenced to understand the services. Those documents were the original annexation report and a later addition to that report detailing expenditures and revenues.
"But the sheet with the numbers on it did not exist prior to the night the ordinance was adopted," he said. "If the plan required cross-reading, it wasn't available until the night of the report."
Eldridge said he understood that the city was in a hurry, and that it wasn't uncommon to make mistakes when you hurried.
"But these are significant, if not substantive errors," he said.
He requested that the judge set aside the annexation, making it null and void.
"The ordinance is defective," Eldridge said. "The city needs to start all over again."
The judge wondered if the lack of those specific details affected the council's vote.
"It could have had an impact on the voting members," Crow said. "Maybe we should send it back, detail it more, ask for more input and put it to another vote."
Everett said he thought it was beyond Crow's authority to decide whether the city should hold an additional hearing, but said he'd be glad to research it further.

Posted by Ron at 12:19 PM
Candidates Forum in Swift Creek Area, Amendment One, interest Annexation Foes

October 20, 2004

Below is information on the next candidate forum and Amendment One information

ANNOUNCEMENT:

Please post on your schedule of events.

Thanks

Tom Vass
821 2671

POLITICAL FORUM: THE FUTURE OF SWIFT CREEK
OCTOBER 21, 2004. 7PM.
SWIFT CREEK CENTER ON YATES MILL RD. BEHIND SWIFT CREEK SCHOOL.

A FORUM LIMITED TO CANDIDATES IN WESTERN WAKE COUNTY RUNNING FOR COUNTY COMMISSIONERS, STATE HOUSE AND SENATE.

CONTACT: TOM VASS 821 2671

ANNEXATION AND AMENDMENT ONE

Below are articles from this morning’s Raleigh News and Observer fro your review. Amendment ONE, which is Project Development Financing" (PDF) or Tax Increment Financing (TIF), as explained below, is a referendum question that will be on your Nov 2 ballot. This type of financing could be used in areas municipalities intend to annex. PLEASE BE AWARE THAT THE NORTH CAROLINA LEAGUE OF MUNICAPALITIES IS PUSHING FOR PASSAGE OF AMENDMENT ONE. (and of course you know that this is the same league that lobbies for no changes in annexation laws.) www.StopNCAnnexation takes no formal position on this issue but provides the following to keep you informed.

On its 3rd try, still a dubious proposition
Amendment One on the ballot

By ROB SCHOFIELD

RALEIGH -- If political consultants have learned anything during the past half-century of television politics, it's how to overhaul, package and market a "product." What's more, extreme makeovers are not only applicable to candidates. Today, in North Carolina, the practice is also being applied with equal skill and apparent success to an idea -- in this case a proposed change to the state constitution known as Amendment One.

Amendment One is at least the third attempt by a group of well-meaning and beleaguered state and local officials to win a new way to borrow money without the normal requirement of voter approval. Sometimes called Project Development Financing" (PDF) or Tax Increment Financing (TIF), the idea is really pretty simple and goes something like this:

Many local governments are in difficult straits because voters keep demanding more services and lower taxes. Desperate for revenue to help spur economic development, local officials have latched onto an idea used in other states under which local governments issue bonds (i.e., borrow money) to develop a specified neighborhood or area and then pay off the bondholders with "new" tax revenues that arise as the result of the development. The idea is that the new development will make the specified area much more valuable -- thus raising its property value and the property taxes paid.

As explained by Amendment One supporters, PDF/TIF is a painless, win-win, by-the-bootstraps means of bringing economic development to struggling areas.



Unfortunately, as with a lot of other easy money plans, things are not quite as easy or simple as they appear. In the case of Amendment One, the hidden problems include:

New burdens on existing taxpayers -- When an undeveloped piece of land is developed or a downtown district gets a face-lift, local governments will incur new responsibilities and expenses for schools, police and fire protection and many other services. Unfortunately, if all of the new property taxes generated in the area are pledged to retire debt, the cost for providing expanded services will shift to the existing taxpayers. This has been a problem for PDF/TIF around the country.

Corporate handouts --The language in Amendment One is extremely vague. To be approved for PDF/TIF development, an area's use need only be found to be "appropriate for the economic development of the community." In other states, such vagueness has resulted in the use of more than $100 million in PDF/TIF funds for the construction of Wal-Mart stores! Amendment One does not even include a provision to require businesses that receive PDF/TIF subsidies to pay them back if they change their mind about relocating to a selected area.

No provision for displaced low-income families -- While no one is opposed to the renewal of struggling neighborhoods, the fact remains that many low-income people inhabit such places because they are often the only place to find affordable housing. Amendment One contains no requirement (as has been included in some other states) that some percentage of PDF/TIF funds to be reserved for the development of affordable housing for displaced residents.

Worsening urban sprawl -- Amendment One would not limit PDF/TIF projects to blighted urban neighborhoods, but would permit their use for development essentially anywhere a city or county (or group of cities or counties) chooses.

With so many causes for concern to conservatives and liberals alike, it's clear that the lack of organized opposition to Amendment One is primarily the result of a fifth, and perhaps, most serious problem:

The extreme makeover -- North Carolina voters have twice before rejected proposed PDF/TIF constitutional amendments. In 1982, the vote was 77.5 percent "against" and 22.5 percent "for." In 1993, the vote was 72.8 percent to 27.2 percent. The difference in 2004 is that while both of the earlier proposals stated explicitly that adoption would eliminate the constitutional requirement of voter approval for PDF/TIF borrowing, the 2004 language carefully avoids such an admission. Under the terms of Amendment One, North Carolina voters may well give up the constitutional right to vote on PDF/TIF bonds without even knowing they did it!

As North Carolina voters wade their way through a long and difficult ballot in the coming days, it is important that they look very carefully at the facts about the "new and improved" PDF/TIF proposal. While the supporters may have good intentions, there is ultimately no disguising the defective product they're trying to sell.

(Rob Schofield is policy director of the N.C. Justice Center.)

48 other states use this development tool

By RAY MOSS

KANNAPOLIS -- The presidential and U.S. Senate races will undoubtedly garner much of the attention as North Carolinians head to the polls, and deservedly so. On that same ballot, though, is another issue that citizens should closely consider -- Amendment One, or self-financing bonds.

Supported by a bipartisan group of former governors -- Jim Holshouser, Jim Hunt and Jim Martin -- self-financing bonds would provide an important business recruitment tool for communities struggling to recover from the loss of our traditional industries.

The N.C. League of Municipalities, a nonpartisan alliance of 530 cities, towns and other communities, also supports Amendment One. According to the league, North Carolina has lost more than 180,000 manufacturing jobs in the past several years. By voting "yes" on self-financing bonds, citizens will give their local governments an important tool to spur job growth and economic development.

Used in 48 other states, the bonds cover projects in designated districts -- an abandoned factory, for example -- to improve and update infrastructure such as sewer systems, water treatment facilities, sidewalks and streets.

With the use of bond money to invest in areas needing new commercial and industrial development and redevelopment, the districts become attractive to private investors. The bonds are then paid back by the increased property values created by the new development that is encouraged by the improvements in infrastructure. In other words, the businesses that locate in new development districts pay off the bonds by paying their property taxes. The citizens would not see an increase in their local property tax rate, or sales tax, to repay the bonds.

If passed by the voters, self-financing bonds will allow local governments in North Carolina to work more effectively with the private sector to renovate old factory complexes, revitalize downtown districts, develop affordable housing and, in the process, create new jobs.

In Kannapolis, self-financing bonds could be used to support a redevelopment project in an empty textile mill or other former manufacturing facility.

Creating a mechanism to help fund demolition, cleanup and the necessary infrastructure improvements would help create jobs and expand our tax base. The same can be said for our older business districts. If the city can improve the attractiveness of these areas for new investment, it helps businesses grow and create new jobs. It would also help our city recruit new business organizations from other states and regions.

Our neighbors South Carolina and Virginia have already made good use of self-financing bond programs. In South Carolina, the City of Rock Hill issued a $6.1 million self-financed bond to help create the Red River development. The projected private investment in this area is more than $140 million, including a mall, hotel and theater. By making infrastructure improvements to lure the private development, Rock Hill will add $2.1 million in tax revenues each year.

Virginia Beach issued an $11.5 million bond to expand public parking and improve traffic flow in the Lynnhaven Mall District. The property value increased by $155 million and 400 new jobs were created.

Greenville, S.C., used $4 million in bonds to improve the West End District by adding landscaping, lighting and improving the streets. Since the improvements were made the district has attracted 30 businesses that have invested nearly $19 million.

As a mayor, I am acutely aware of how the globalization of North Carolina's economy has impacted the state. Not only are we losing jobs to offshore outsourcing, but we are also facing increased competition from other states as they try to lure new business development.

Self-financing bonds will be on the ballot Nov. 2 as a state constitutional amendment. Citizens have the choice to allow local governments to compete on an equal playing field with neighboring states as we try to lure new industries, redevelop abandoned factories and bring new life into downtowns. I urge voters to thoughtfully consider the issue.

Ray Moss is mayor of Kannapolis. Before becoming mayor in 1997

Posted by Ron at 08:38 AM
Town of Cary statement about Property requesting Voluntary annexation Along Ten Ten Road supports Affidavit allegations

October 15, 2004

Click on the "StopCary" stop sign just to the left of this area you are reading now and read about it at the "StopCary.com" site!
Posted by Ron at 12:59 PM
 
Cary's 2002 Annexation Challenged By Swift Creeks Presidents Affidavit

October 07, 2004

Tom Vass, President of the Swift Creek Alliance, filed an Affidavit today with the North Carolina State Attorney Generals office. Below is the text of that Affidavit (exhibits will follow soon):
AFFIDAVIT, ALLEGATIONS AND STATEMENT OF COMPLAINT AGAINST THE TOWN OF CARY, NORTH CAROLINA, REGARDING AN ILLEGAL ANNEXATION CONDUCTED IN 2002, AND WHICH MAKES SUBSEQUENT LAND USE DECISIONS DEPENDENT UPON THAT FIRST ILLEGAL ACT ALSO ILLEGAL AND THEREFORE VOID.

BY THOMAS E. VASS, PRESIDENT, THE MIDDLE CREEK/SWIFT CREEK COMMUNITY ALLIANCE, INC. OCTOBER 2, 2004.

STATE OF NORTH CAROLINA
COUNTY OF WAKE

PERSONALLY came and appeared before me, the undersigned Notary within named Thomas Edward Vass, who is a resident of Wake County, State of North Carolina, and makes this his statement and General Affidavit upon oath and affirmation of belief and personal knowledge that the following matters, fact and allegations set forth are true and correct to the best of his knowledge:

STATEMENTS OF AFFIANT

1. I am Thomas Edward Vass, of 6001 Waters Way Drive, Raleigh, North Carolina, 27606. I am the duly elected President of The Middle Creek/Swift Creek Community Alliance, Inc., a North Carolina incorporated citizens organization. Our group maintains a web site at: www.swiftcreek.org.
2. The Middle Creek/Swift Creek Community Alliance, Inc., was incorporated in June of 1995. Our top 3 purposes as outlined in our by-laws are:
a. To promote and enhance the heath, well-being and environmental quality for the residents of the Alliance's territory.
b. To educate the residents of the Alliance territory in all matters of land use, zoning, development, extensions of municipal boundaries, governmental planning, transportation, and environmental integrity of the region.
c. To provide a forum for members to exchange their views, and to encourage citizens in the community to communicate with each other about how the region should develop and on all matters involving the health and well-being of the residents.
3. On or about June 1, 2002, I generally became aware of a “voluntary” annexation request being executed by the Town of Cary with The North Carolina Department of Transportation involving a section of pavement in the middle of State Road 1010. Affiant’s Exhibit A.
4. Upon investigation, I determined that the voluntary annexation request named John Nance, District Engineer, of the North Carolina Department of Transportation, as the “owner” of the property to be annexed.
5. Upon further investigation, I determined that the portions of the road to be annexed connected two portions of unincorporated areas located with the Cary Short Range Urban Service Area. I discovered that the motive for the annexation of the road rights-of-way would be that it would allow The Town of Cary to subsequently annex “other residential developments in the area whose owners have requested to be served by Cary utilities.” Exhibit A. p. 2.
6. On or about June 2, 2004, two years after I first learned of the annexation of State Road 1010, I came into the possession of a document prepared by the Town of Cary in response to questions raised by citizens regarding a subsequent annexation and a subsequent request by The Town of Cary for Extra Territorial Jurisdiction over 5000 acres of land adjacent to the annexation of the road rights-of-way. Affiant’s Exhibit B.
7. I read in the document that one of the questions raised was stated: “The Town’s annexation of the Ten-Ten Road Right-of-way is illegal and should not be counted when considering this request.” The Town of Cary responded that “The annexation has received no legal challenges.” In text that is struck through, the Town of Cary continues, “The rationale for questioning this annexation (of the road) relates to the 3 mile radius for ETJ extensions (applicable to NC communities with a population over 25,000). With the exceptions of a very small area that could be simply removed from the ETJ request, the proposed ETJ expansion area lies within this distance of the undisputed corporate limits of Cary.” Exhibit B. p 8.
8. Upon my review of the history of the annexation of the road in 2002, and the subsequent annexations and subsequent request for ETJ, I determined that the annexation of the road was the lynchpin that allowed The Town of Cary to comply with statutory requirements regarding extension of municipal boundaries.
9. While I am not an attorney, and do not practice law, I am generally aware of an English common law tradition that a perpetrator of an illegal act should not subsequently benefit from the illicit gains associated with the illegal act.

ALLEGATIONS OF AFFIANT
1. I allege that the Town of Cary “voluntary” annexation of the road in 2002 was illegal and deceptive in that the purported owner of the land was not, and could not have been John Nance, a state employee.
2. I allege that the Town of Cary annexation was in fact an illegal annexation and that property owners surrounding the area were never notified, as required by state law, and thus were denied due process as a result of a deliberate deceptive illegal act by The Town of Cary. I attach land ownership deeds of property owners which describe their ownership extending to the middle of the road. I allege that these owners were not contacted about the annexation, and were thus denied due process. Affiant’s Exhibit C.
3. I allege that at the time of the illegal annexation, as described in Exhibit A, that The Town of Cary intended to annex other property associated with the illegal annexation, but would be prohibited from subsequent annexations without the illegal annexation first occurring. The subsequent annexations and request for ETJ are a part and parcel of a connected sequence of events, and that the statute of limitations involving the first illegal act can not have run.
4. I allege that on or about September 9, 2004, William B. Coleman, Town Manager, for The Town of Cary, sent a letter to David Cooke, County Manager, for the County of Wake, requesting that the Town of Cary ETJ request be tabled, until the Town of Cary is ready for the request to be reconsidered. I allege that the request for delay is part and parcel of the connected sequence of events related to the illegal annexation that occurred in 2002, and that the statute of limitations regarding the illegal annexation is therefore still running. Affiant’s Exhibit D.
5. I allege that the Town of Cary has engaged in deceptive and untruthful public statements regarding its intent to annex and control the land in the area of the illegal annexation. Citizens are entitled to utmost faith and fidelity in public statements regarding the activities of the agents of government. On August 2, 2000, I allege that the Town of Cary unilaterally and unequivocally deceived the citizens by stating in response to a question from a citizen “Is Cary planning to annex some nearby land “that wants to be rezoned?”
No. None of the property in the Swift Creek area is part of the involuntary annexation
Study and is not being considered for annexation. Additionally, Town staff is unaware of any property owner initiated annexation petitions. Affiant’s Exhibit E.
6. I allege that at the time this statement was made in 2000, that the Town of Cary knew the statement to be false, and in fact, was engaged itself in planning and preparation for the illegal annexation which occurred in 2002. The action and statements made in 2000 and the subsequent illegal annexation of the road constitutes a pattern of material prejudice against the rights and actions of citizens to claim that they were denied due process.
7. I allege that the prior annexation on April 22, 1999, of approximately 220 acres, cited as 98-REZ-28, in this same area is an illegal “satellite” annexation. I allege that this prior illegal annexation constituted the basic motive for the subsequent illegal annexation of the road. I allege that the Town of Cary is engaged in a pattern of illegal acts involving annexation and land use decisions in an attempt to deprive citizens of due process. Affiant’s Exhibit F.
8. I allege that at the time of the illegal annexation in 2002, that The Town of Cary knew, and should have known, that the annexation was not contiguous to the existing borders of Cary, and was therefore illegal, under N. C. General Statutes Chapter 160A-48(b).
9. I allege that at the time of the illegal annexation in 2002, that The Town of Cary knew, and should have known that the annexation was a “shoestring” annexation, and as such had been declared illegal under 95 N. C. App. 64, 382 S.E. 2cd 221 (1989) in re Amick v. Town of Stallings.
10. I allege that the Town of Cary proceeded with the illegal annexation knowing in advance that it was illegal in an attempt to cover its earlier illegal annexation, and that the Town of Cary is therefore engaged in a pattern of illegal behavior intended to deny citizens in the affected areas constitutional due process.
11. I allege that the pattern of illegal activity that involves both the 1999 satellite annexation and the illegal 2002 annexation of the road were executed to evade the provisions of the N. C. General Statutes that states that territory that is contiguous to a municipality only by virtue of its satellite corporate limits is not eligible for involuntary annexation until the satellite corporate limits become a part of the primary limits. The “voluntary” annexation of 2002, allowed the Town of Cary to evade the provisions of the “involuntary” annexation provisions regarding the satellite annexation of 1999. In other words, I allege that the Town of Cary would have been required, by law, to annex the intervening property between the 1999 and 2002 annexations, before it annexed the area affected by the 2002 illegal annexation.
12. I allege that the illegal annexation of 2002 could not have been effected as an “involuntary” annexation because the land use plan for the Town of Cary does not provide for “urban purposes” associated with the affected territory. Affiant’s Exhibit G. Because the land could not be annexed “involuntarily” the only pathway open to the Town of Cary, to cover its earlier illegal act, was to engage in the deceptive and illegal “voluntary” annexation with the fictitious owner of the land, identified as John Nance.

STATEMENT OF COMPLAINT AND RELIEF SOUGHT
1. The citizens in the affected territory have been denied constitutional rights of due process, including the civil rights of notice and the rights to be heard. Affiant asks that the appropriate Federal and State law enforcement agencies investigate my allegations to determine if illegal acts have occurred, as I have stated and alleged.
2. Affiant asks that State law enforcement agencies seek a temporary restraining order, restraining either the Town of Cary and/or The County of Wake from further deliberations or action regarding the currently delayed request for ETJ until all law enforcement agencies have had time to investigate my allegations.
3. Affiant asks State and Federal law enforcement agents to seek a permanent injunction against the Town of Cary for any further annexation actions involving the Middle Creek or Swift Creek territory.
4. Affiant asks that State and Federal law enforcement agents prosecute, to the fullest extent of the law, any illegal activity or actions that they may uncover in the course of their investigation of my allegations involving the Town of Cary illegal annexations of 1999 and 2002.

Dated this the 4th day of October, 2004.

Signature of Affiant


___________________
Thomas E. Vass, President
Middle Creek/Swift Creek Community Alliance, Inc.

SWORN to and subscribed before me, this the 1st day of October, 2004. Notary Public

 

TOWN OF CARY ANNEXATION DATA SHEET

PETITION: 02-A-010

OWNER & ADDRESS: NCDOT c/o John Nance, District Engineer
PO Box 25201
Raleigh, NC 27611-5201

ADDRESS OF PROPERTY: 0 1010 Road, West Lake Road

LOCATION OF PROPERTY:
1010 Road from Kildare Farm southeast to West Lake Road. West Lake Road from 1010 Road south to Optimist Farm Road

ASSOCIATED REZONING: DEVELOPMENT PLAN: none
N/A
% CONTIGUITY: 16.8% (3,740'/22,230')

UTILITIES N/A

WAKE CO. PARCEL ID #: Pt. of SR 1010 & pt. of SR 1387

REALID NUMBER: N/A

AREA: 0 acres + 29.46 acres of adjacent right-of-way

TOTAL ACREAGE: 29.46

ZONING: N/A

CURRENT/PROPOSED USE: Street Right-of-Way

FIRE DISTRICT: N/A

VOTING DISTRICT: N/A

TAX VALUE: N/A

CORPORATE LIMITS: Contiguous

TOWN COUNCIL DATES:
Request to investigate sufficiency: 5/23/02
Certificate of sufficiency: 6/13/02
Public hearing: 7/11/02
PROPOSED EFFECTIVE DATE: 7/11/02


4. Public hearing on annexation 02-A-010, NCDOT, road rights of way, 29.46 acres.
Voluntary Annexation Petition Number 02-A-010
Property Owner NCDOT
c/o John Nance, District Engineer
Property Address N/A
General Location Ten Ten Road from Kildaire Farm Road southeast to West Lake Road
&
West Lake Road from Ten Ten Road south to Optimist Farm Road
Wake County PIN(s) Pt. of SR Ten Ten & pt. of SR 1387
Current Zoning N/A
Associated Rezoning/Development Plan N/A
Proposed Zoning Designation (if applicable) N/A
Current Land Use Street Right-of-Way
Proposed Land Use (if applicable) Street Right-of-Way
Property Acres 0
Amount of Adjacent ROW Being Annexed N/A
Total Amount of Land Being Annexed 29.46
% Contiguous with Corporate Limits 16.8%

This petition for voluntary annexation has been submitted by NCDOT for portions of two road rights-of-way located outside the Cary ETJ, but which connect two portions of incorporated area located within the Cary Short Range Urban Service Area. Land within this Urban Service Area boundary is designated by Wake County for ultimate inclusion within the Town’s jurisdiction; this entire area is included in the Town’s Land Use Plan.

Staff recommends approving this annexation since these roadways are already utilized and serviced by Town vehicles and personnel, including members of the Police, Fire, Public Works, and Parks and Recreation Departments. These departments are currently providing support services to the Middle Creek Park and Community Center, Middle Creek Schools, and the South Cary Water Reclamation Facility. In addition, the Town is already responsible for the roadway capital improvements, which have occurred and are ongoing for these road rights-of-way.

Approval of this annexation will also enable the Town to annex the two West Lake Schools (located south of Optimist Farm Road) that are connected to the town’s water and sewer system through an annexation agreement. Annexation of the West Lake Schools will provide the same level of town service already provided to the new Middle Creek Schools. In addition, annexation of these road rights-of-way will permit subsequent annexation of other residential developments in the area whose owners have requested to be served by Cary utilities.
Based on the above justifications, the staff recommends approval of this annexation ordinance.
Staff Recommendation: Staff recommends approval of the above annexation after the public hearing with the effective date of July 11, 2002.
No one came forward to speak, and Mayor Lang closed the public hearing.

ACTION: Mayor Pro Tem Smith made a motion to approve the annexation. Mrs. Robinson provided the second, and Council granted unanimous approval.
(Resolution 02-029 is on file in the town clerk’s office and is incorporated in these minutes by reference.)

 

ACTION AGENDA Cary Town Council
Thursday, May 23, 2002
6:30 PM
Town Hall, Building A, Auditorium
316 N. Academy St., Cary, N.C.
Web Site: http://www.townofcary.org
Council meetings are broadcast live the night of the meeting at 6:30 p.m. and are rebroadcast the Friday following the meeting at 7:30 a.m., the Saturday following the meeting at 7:30 p.m., and the Sunday following the meeting at 3 p.m.

Agenda Topics
Action

A. COMMENCEMENT
1. Invocation Provided
2. Approval of the minutes of the regular Town Council meeting held May 9, 2002; approval of the minutes of the work session held on May 9, 2002. Approved

B. RECOGNITIONS, REPORTS, AND PRESENTATIONS
1. Presentation of Triangle Transit Authority’s annual report. Presented
2. Presentation of the proposed 2003 operating and capital improvement budgets. Presented
3. Report on the Wake County Growth Management Task Force discussion on open space. Reported

C. PUBLIC HEARINGS
1. 02-REZ-07 / 02-LPA-04: Application by Jerry Turner and Associates on behalf of the owner, Panther Creek Raleigh Limited Partnership, to amend the conditions of the Residential-40 Planned Unit Development. The property contains 57.50 acres and is located south of Panther Creek Parkway, west of Cary Glen Boulevard and Green Level Durham Road. Referred to 7/15/02 Planning and Zoning Board meeting
2. Public hearing to consider amending the Cary zoning code regarding minimum lot sizes, lot widths, and building setbacks for attached and semi-attached townhouses and multi-family developments within the Residential Mixed, Downtown Residential, Residential Multi-family-8 and Residential Multi-family-12 Districts. Referred to 7/15/02 Planning and Zoning Board meeting
3. Public hearing to consider renaming Conservatory Place to Arboretum Park Place. Approved (effective immediately)
4. Public hearing to consider renaming Walnut Street to Macedonia Road beginning with the addresses 2617 up to and including 2808 AND renaming the 2900 block of Walnut Street to Jones Franklin Road; and to consider renaming Holly Springs Road to Jones Franklin Road beginning with the addresses 5800 up to and including 6115. Approved (Walnut St. portions effective 6/1/02; Holly Springs Rd. portion effective 7/1/02)

D. PUBLIC SPEAKS OUT (1 hour time limit) See official minutes

E. PLANNING AND ZONING BOARD REPORT
N/A

F. FOR INFORMATION ONLY
The residential development plans listed below are going through the staff approval process: For Information Only
1. Cary Park SF-11a
2. The Grove at Cary Park (Parcel MR-9)

G. CONSENT AGENDA
1. Consideration of adoption of certificates of sufficiency and resolutions calling for public hearings for the following annexation petitions:
a. 02-A-006, Richard & Kimberly Murray, 0.92 acre Approved
b. 02-A-007, Wake County Board of Education, 19.68 acres Approved
c. 02-A-009, Highcroft PUD (various owners), 145.57 acres Approved
2. Consideration of a request to direct staff to investigate the sufficiency of annexation 02-A-010, Department of Transportation, 29.46 acres of right-of-way. Approved
3. Consideration of adoption of the tax report approved by the Wake County Commissioners on May 6, 2002. Approved

H. COMMITTEE REPORTS
Planning and Development Committee (May 16, 2002)
Consent Agenda

1. Wake County Public School System – Request for "Blanket Waiver" from Thoroughfare Improvements Associated with Mobile Unit Additions (EN02-133)
Committee recommended granting a "blanket waiver" from Thoroughfare Improvements typically required of any development plan submitted for Town Staff review. Approved committee recommendation
2. Request for Waiver from Morrisville Parkway Construction (EN02-130)
Committee recommended granting a waiver from constructing Morrisville Parkway through parcel 0735.04-61-9230 in conjunction with a proposed development plan. Tabled until 6/13/02
3. Passenger Rail Service (AD02-014)
Committee recommended adopting a resolution in support of the southern route of the proposed Wilmington to Raleigh passenger rail service which would be routed through
Fuquay-Varina and southern Wake County. Approved committee recommendation
4. Town Code Amendment: Use of Vehicular Gates for Traffic Control (PL02-057)
Committee tabled this item until the June 20, 2002 meeting. Approved to table until the 6/20/02 committee meeting
5. Comprehensive Plan Update (PL02-058)
Committee recommended developing an approach and process to update the Comprehensive Plan to reflect current Town Council goals. Approved committee recommendation
For Discussion
1. Dr. Polavaram Office Renovation – Request for Waiver from Widening and Right-of-Way Dedication for Kildaire Farm Road (EN02-120A)
Committee directed staff to work with the applicant to obtain a letter of credit or some other suitable security as opposed to a payment-in-lieu before the May 23, 2002 Council meeting. Denied waivers
2. Cary Academy – Thoroughfare Construction Agreement (EN02-134)
Committee recommended items 1 and 3 of the staff recommendation. On the issue of right of way dedication, one member favored right of way dedication and one member favored reservation of the right of way. Tabled until 6/13/02
For Information
Northwest Cary Area Plan (PL02-059)
Update on the status of work on the NW Cary Area Plan. For Information Only

I. OLD/NEW BUSINESS
Consideration of adoption of Cary’s state legislative agenda. Approved agenda and hiring of lobbyist

J. LEGAL AND ADMINISTRATIVE ISSUES
Closed session will be called if necessary. Not Called

K. ADJOURNMENT 8:50 p.m.

2. Consideration of a request to direct staff to investigate the sufficiency of annexation 02-A-010, Department of Transportation, 29.46 acres of right-of-way.
PETITION: 02-A-010

OWNER & ADDRESS: NCDOT c/o John Nance, District Engineer
PO Box 25201
Raleigh, NC 27611-5201

ADDRESS OF PROPERTY: 0 1010 Road, West Lake Road

LOCATION OF PROPERTY: 1010 Road from Kildare Farm southeast to West Lake Road. West Lake Road from 1010 Road south to Optimist Farm Road

ASSOCIATED REZONING: DEVELOPMENT PLAN: none
N/A
% CONTIGUITY: 16.8% (3,740'/22,230')

UTILITIES N/A

WAKE CO. PARCEL ID #: Pt. of SR 1010 & pt. of SR 1387

REALID NUMBER: N/A

AREA: 0 acres + 29.46 acres of adjacent right-of-way

TOTAL ACREAGE: 29.46

ZONING: N/A

CURRENT/PROPOSED USE: Street Right-of-Way

FIRE DISTRICT: N/A

VOTING DISTRICT: N/A

TAX VALUE: N/A

CORPORATE LIMITS: Contiguous

TOWN COUNCIL DATES:
Request to investigate sufficiency: 5/23/02
Certificate of sufficiency: 6/13/02
Public hearing: 7/11/02
PROPOSED EFFECTIVE DATE: 7/11/02

(Resolution 02-029 is on file in the town clerk’s office and is incorporated in these minutes by reference.)

 

Town of Cary ETJ Request

Town Response to Public Comments
Made to the
Wake County Planning Board and Land Use Committee
June 2, 2004; June 9, 2004; and July 14, 2004

Comments from June 2 and June 9 Meetings

1. “Cary will require a landowner to get a $50 permit to remove a tree from a house lot.”

No, this is incorrect. While the Town does have an ordinance that prohibits the clear-cutting (complete removal of all trees) of a tract of land prior to development to avoid the Town’s buffering requirements, single-family lots in existing subdivisions and parcels of land smaller than 3 acres are specifically exempted from obtaining any sort of tree clearing certificate.

2. “I will have to pay Cary property taxes if I am included in the Cary ETJ.”

No, this is incorrect. As explained at the Land Use Committee meeting, landowners in any municipal ETJ only pay county taxes.

3. “I will have to pay to connect to Cary water and sewer if I am included in the Cary ETJ.”

No, this is incorrect. Cary does not provide utilities to properties that are not in the Town limits unless requested by property owners when wells or septic systems fail. In that case, recipients pay “triple rates” to receive this service.

4. “If we are annexed, we will be forced to immediately connect to Cary utilities and this will cost me $20,000 or $25,000.”

No, this is incorrect. First, ETJ does not equal annexation and vice versa. That said, if the Town does choose to annex a property, the property owner is not required to connect to utilities until or unless there is a failure in his/her existing utilities.

The Town policy for utility connections was entirely revised in 2002 and 2003 as part of the annexations that occurred. Water and sewer service are only extended to an annexed subdivision if a majority of the property owners in the subdivision petition the Town for such utilities. Even then, an individual does not have to connect to water and sewer. He or she will, however, pay an availability charge of $1.97 per month per utility (a total of $3.94 if both water and sewer are available).

The costs to connect to Town water and sewer will vary depending on the unique circumstances of property (in particular the size of the home) but will not be $20,000 or $25,000. The costs for connections and fees have been established at a level that a landowner would face if he/she had to replace his/her well and septic system. In situations where utilities are presently being extended at the request of property owners recently annexed, their costs are ranging from $4,000 to $6,000.

5. “The South Cary Wastewater Plant was located on Middle Creek so that Cary could ask for ETJ. The plant should have been put somewhere else and doesn’t have sufficient capacity.”

No, this is incorrect. The location was chosen based on geographic characteristics necessary to meet rules governing where such a plant can be sited.

In the mid-1980s, the Town of Cary purchased approximately 107 acres on Middle Creek for the future site of the South Cary Water Reclamation Facility (SC WRF). This site was chosen based on the 7-day, 10-year low flow characteristics of Middle Creek. At this location, Middle Creek has enough assimilative capacity flow during low flow times to receive highly treated wastewater and not cause detrimental environmental effects, as judged by the State of North Carolina.

This location on Middle Creek was the first location on the first creek south of Cary that had such characteristics. Swift Creek to the north of Middle Creek flows into a protected water supply watershed and there was not enough stream length between any potential discharge point and Lake Wheeler to meet the guidance rules of the State of North Carolina which govern distances between point source discharges of highly treated wastewater and water supply lakes. Middle Creek is the next large creek to the south capable of meeting the requirements.

Cary’s Sewer Master Plan has evaluated all possible future scenarios for flow contributions to SC WRF. SC WRF’s current size should be adequate to treat all wastewater from all areas within Cary now flowing to SC WRF and all possible future flows from all of those intervening areas between SC WRF and the Town, should they fully develop as projected on Cary’s Land Use Plan.

SC WRF started treating wastewater from Cary in mid-1988. The service area of SC WRF includes the upper Swift Creek basin (all of it upstream of Holly Springs Road). This area reaches to the railroad tracks in downtown Cary formerly owned by the Seaboard Railroad which run from Raleigh, through Cary to Apex, and southward from there.

The South Cary Water Reclamation Facility has a permit issued by the State of North Carolina to treat up to 16.0 million gallons per day. The present treatment works are designed to treat 12.8 million gallons per day. The present annual average day flow rates into SC WRF are approximately 5.8 million gallons per day.

6. “My property rights are being “taken” if I am included in the ETJ.”

No, this is incorrect. Properties in ETJ still have a full complement of property rights. What does happen is that property moves from being developed under county rules to being developed under municipal rules.

A “taking” of property occurs when a unit of government exercises eminent domain (condemnation) to obtain the property (in such case, the land is actually purchased for a public purpose) or enacts regulations that render the property useless. This does not occur when properties are included in a municipal ETJ. If that were the case, the 1615 parcels – totaling approximately 7900 acres and having an assessed value of some $358 million – now in Cary’s ETJ would have no property rights.

7. “Cary hasn’t held any community meetings about this ETJ proposal.”

This is correct because the ETJ request process is under the direction of the county. However, Cary staff is prepared to host informational, open house meetings with affected property owners after the County Planning Board recommendation and before the Board of County Commissioners acts on this request. We have not held any meetings before now since we believe that it would be premature to do so without an indication from the County that this request is being given due consideration.

We will also hold informational meetings if the Commissioners approve this ETJ extension request and before any Town zoning is put in place.



Additional Responses to Comments Made on July 14

• “The answer to Issue #1 (tree clearing) is not correct; larger lots in Dutchman Downs subdivision will be affected by the Town of Cary’s tree-clearing requirement.”

The purpose of this ordinance requirement is to minimize the clearing of larger tracts of land before they are submitted for development to avoid the Town’s buffering standards. There are several exemptions to the tree clearing provisions, including lots larger than 3 acres and lots in existing subdivisions. So, lots greater than 3 acres in Dutchman Downs are exempt on two counts.

• “While the Town response in Issue #2 (property taxes) refers to taxes, that’s not what people really meant. They are also concerned about permits and fees.”

Town staff responded to what was said in prior meetings. Many people referred to taxes, not other costs. Nevertheless, if such comments were intended to also cover permits and fees, property owners in the unincorporated county already face the cost of obtaining permits and paying the fees imposed by Wake County government. A quick comparison of some typical building permit & inspection fees between Wake County and the Town of Cary reveals that costs are comparable (and even lower in Cary for some types of improvements):

Type of Permit Wake County Town of Cary

Building permit - single family residence (2500 sq. ft.) $672 $675
Building permit - Residential addition (300 sq. ft. bed/bath) $228 $117.50
Building permit - Residential accessory structure (450 sq. ft. with electricity) $228 $210

• “To suggest a cost figure of $4,000 to $6,000 for future water & sewer utility connections is misleading. And it doesn’t include costs on private property.”

We have provided up-to-date, factual information. Some have suggested that property owners will face charges of $20,000 to $25,000, and our experience does not support this claim. And, as previously explained, this cost estimate does include the costs to make connections on private property.

• “The response to the question about the South Cary Water Reclamation Facility is inadequate. The Town could simply have located another plant in the northern part of Town.”

This takes a very simplistic view of a very complex issue. Town staff stands behind the answer previously provided in #5 above regarding how this treatment facility was sited.

• “The area proposed for ETJ is not “urban” in nature.”

This speaker is mixing annexation requirements with extraterritorial jurisdiction requirements. The basic premise of ETJ is to include it under a municipality’s zoning jurisdiction before it becomes urban. In part, Section 160A-360(b) of the North Carolina General Statutes reads that a city council should consider “…the areas to be included based upon existing or projected urban development and areas of critical concern to the city….”

• “The Town of Cary is in financial trouble and has no plans to ever provide infrastructure (roads, utilities, parks) in this area.”

This is incorrect. With our Triple A bond rating, Cary has one of the best financial profiles in the state. The Town of Cary has already spent considerable funds - more than $60 million - on public capital improvements in the area covered by this ETJ request over the past decade or more. And the Town has future improvements included in its 10-year Capital Improvement Plan (CIP).

To keep our financial condition healthy in light of the sluggish economy, the Cary Council, like most elected groups in our area, has made wise and necessary choices to delay – not delete - some future capital projects throughout the jurisdiction. This happens in every community as capital programs and budgets are developed, prioritized, and funded annually, even in times when the economy is strong.

• “The law requires Cary to annex this area within 10 years, without exception. Granting ETJ puts this area on a 10-year annexation clock.”

This is incorrect. Wake County policy, contained in the County’s adopted Land Use Plan, provides a guideline that areas brought into municipal ETJ should generally be annexed within a 10-year period. No law requires such action. The exact wording of this criterion is as follows:

ETJ extensions should only be granted for areas anticipated to be substantially developed and annexed within ten (10) years. The ten year period projection should be used as a guideline, and is adopted with the understanding that actual progress in development and annexation of a given ETJ area may vary from that originally projected at the time of ETJ extension. To determine the potential for annexation within ten (10) years the following should be considered: relevant County and Municipal plans and policies, past development experiences, and previous projections.

• “This area is not planned to develop for urban purposes.”

This is incorrect. The Wake County Land Use Plan, adopted by the Board of County Commissioners in 1997, designates this area for future urban development. It is shown as part of the Town’s urban services area (USA).

• “ETJ should be extended in a circle around a municipality.”

Cities and towns do not grow in neat circles. The presence of natural features; man-made improvements (like airports, freeways, and utilities), the presence of other municipalities and boundaries, and other factors produce an urban development pattern that is much more complicated.

• “The Town’s annexation of the Ten-Ten Road right-of-way is illegal and should not be counted when considering this request.”

No, this is incorrect. The annexation has received no legal challenges. This voluntary annexation was submitted by the North Carolina Department of Transportation. This right-of-way annexation allowed the Town to make needed road and intersection improvements to Ten Ten Road and Westlake Road, and provide various municipal services to the Wake County school sites in that vicinity. The Town of Cary followed statutory requirements for annexing this area.

 

TOWN OF CARY
REZONING/COMPREHENSIVE PLAN AMENDMENT
PUBLIC HEARING DATA SHEET
REZONING PETITION: 98-REZ-28
West Lake Road
CORRESPONDING COMPREHENSIVE
PLAN AMENDMENT: 98-CPA-005
LOCATION: Northwest corner of West Lake Road (SR1387) and Optimist Farm Road (SR 1390)
MAPS: Vicinity Map
Zoning Map
Growth Plan Map

*In Town Limits _X_ Cary ETJ ___ Cary Planning Jurisdiction Only ___
*Currently requesting annexation into the Town of Cary

PROPOSED SCHEDULE OF MEETINGS:
TOWN COUNCIL PUBLIC HEARING: November 12, 1998
PLANNING & ZONING BOARD: November 23, 1998
TOWN COUNCIL: December 10, 1998
STAFF CONTACT: J.W. Shearin, AICP
(919) 469-4080
jshearin@ci.cary.nc.us
APPLICANT(S): Charles M. Elam
Etd, PA
280 Nottingham Drive
Cary, NC 27511 (919) 467-0577
(919) 467-0591 fax
OWNER(S): Camp Branch Associates
426 Fincastle Drive
Raleigh, NC 27607
(PIN#067901087356)
South Fork, Inc.
5902 Fayetteville Road
Raleigh, NC 27603
(PIN#06790303780 (919) 851-2344

PARCEL INFORMATION:
Parcel # Realid #
067901087356 0005249
Portion of: 067903037803 0075853
PARCEL AREA: 375.62

ADJACENT ZONING AND LAND USES:
Zoning: Land Use:
North: R-30- (Wake County) Single family residential, rural, agriculture
South: R-30- (Wake County) Institutional (schools), single family residential
East: R-30- (Wake County) Single family residential, rural, agriculture
West: R-30- (Wake County) Single family residential, rural, agriculture

REZONING REQUEST:
CURRENT PROPOSED
Zoning: 067901087356: Residential 30 (Wake Co.)
067903037803: Residential 30 (Wake Co. Tract A – 169.83 Acres: Residential-10, Conditional Use
Tract B – 6.83 Acres: Residential Multi-Family 12, Conditional Use
Tract C – 24 Acres: Planned Employment Center, Conditional Use.
Tract D – 174.96 Acres: Residential-30, Conditional Use
Overlay District:
Zoning Conditions: Tract A - R-10 CU:
There shall be a Maximum of 3 units per acre. Also, the area designated by the North Carolina Department of Transportation for the Southern Wake Expressway shall be reserved for their future use and acquisition.
Tract B - RMF-12 CU: The density of the development shall be limited to 10 units per acre.
Tract C - PEC CU: No heavy manufacturing uses will be allowed.
Tract D – R-30 CU: No manufactured homes will be allowed.
REZONING HISTORY: Currently Zoned Residential- 30 (Wake County)

COMPREHENSIVE PLAN AMENDMENT:
CURRENT PROPOSED
Plan Designation: Low Density Residential Low Density Residential, High Density Residential, and Office/Industrial
Alternate Designation: Traditional Neighborhood Development none
Activity Center: None none
COMPREHENSIVE PLAN AMENDMENT HISTORY: None

WATER/SEWER AVAILABILITY:
Staff Remarks: This property does not currently have access to the Town’s water and sanitary sewer systems. An extension of the Town’s water and sanitary sewer systems will be required with the development of this property.
TRANSPORTATION:
Traffic Impact Analysis Required _x_ Yes ___No

Staff Remarks: The Town is currently preparing a Traffic Impact Analysis report for the rezoning request.
STORM WATER/WATERSHED IMPACTS:
Staff Remarks: This property will not be required to comply with the Town’s Reservoir Watershed Protection Ordinances.

WAKE COUNTY SCHOOL CAPACITY IMPACTS:
Enrollment Building Capacity Number of Mobile Units Campus Capacity
Elementary Fuquay 905 690 8 890
Middle Fuquay 988 765 0 765
High Fuquay 1,384 1,197 4 1,297
Staff Remarks:

 

Town of Cary Land Use Plan
adopted Nov. 14, 1996
Page 1-2 Chapter 1: Introduction amended July 1, 2003

1. INTRODUCTION

1.1 Background

The Land Use Plan is the product of a two year effort by Town staff, a Citizen Advisory
Committee appointed by Town Council, and by elected and appointed officials. The Committee
consisted of 20 citizens representing a wide range of interests and occupations, including two
representatives from Town Council, two representatives from the Planning and Zoning Board,
two representatives from local civic organizations, a rural representative, and an equal number of
citizen and business representatives. The Committee met regularly for 18 months with Town
planning staff to develop the Plan. Their work included evaluating the issues facing the town,
agreeing on a common vision for Cary, developing goals and objectives for the Plan, developing
the Plan’s basic concepts and text, and drafting the Land Use Plan Map.
This Plan is the product not only of Town staff and the Citizens Advisory Committee, but
also of Cary’s citizens. In meetings held with citizens in May 1995, approximately two hundred
citizens participated in focus groups to determine what Cary’s citizens liked and disliked about
their environment, and their vision for Cary’s future. An open house was held in May 1996 to
determine if the draft Plan developed by staff and the Committee had achieved the community’s
vision, and to get feedback on the draft Plan. Over three hundred citizens participated in this
open house meeting, and their input was used to develop the final draft.
This Land Use Plan is very different from prior plans. The following features make it
unique:

1. This Land Use Plan has a very strong emphasis on urban design. Meetings with citizens
revealed that, more than anything else, Cary’s residents care passionately about the
appearance, design, and form of their community. Thus, this Plan provides design guidance,
clearly defining the vision for future development desired by citizens.

2. This Land Use Plan provides a great deal of flexibility in the arrangement of future land uses,
while avoiding strip development and promoting a pedestrian- and transit-friendly
community. Strip development is avoided by encouraging the creation of a number of
“village centers,” termed activity centers, at certain locations throughout Cary. Activity
centers are intended to be mixed-use nodes, having commercial, office, institutional, and
high-density residential uses clustered together in a pedestrian-friendly, village-like manner.

3. This Land Use Plan provides very strong guidance for the development of Cary’s roads,
sidewalks, and bikeways. Citizen focus groups revealed profound concern among residents
for attractive and pedestrian-friendly roads and sidewalks. In response to residents’ desires
for safe, convenient travel ways that make all points in Cary safely accessible to motorists,
pedestrians, and bicyclists, the Plan encourages a higher degree of connectivity for roadways
and pedestrian and bicycle paths.

Town of Cary Land Use Plan
adopted Nov. 14, 1996
Page 1-3 Chapter 1: Introduction amended July 1, 2003

The design and landscaping of roadways is also addressed by the Plan, since many citizen
comments were received on this subject. This Plan recognizes that roadways serve many
functions in addition to the movement of traffic. Their design can either promote or impede
nonresidential strip development, enhance or degrade local property values, improve or
detract from the community’s appearance, and either increase or decrease the Town’s
livability.

4. The Land Use Plan provides guidance on the preservation and protection of Cary’s natural
resources, including wetlands, streams, forest areas, and water resources. The Plan also
provides guidance for enhancement of the landscape in developed areas.

5. The Land Use Plan provides strong support for transit-friendly development. While Cary
does not currently operate a municipal transit system, as Cary grows to over 200,000 people it
will be important to establish a development pattern at this early stage that offers the potential
for economical and efficient transit services at a later date. Further, the Plan provides support
for the planned Regional Rail System for the Triangle area.

6. The Land Use Plan reserves prime employment areas for future office and industrial
development, to ensure Cary’s continued economic growth and vitality.
1.2 Definition, Usage, and Standing of the Plan
This Plan is actually the land use component of a larger Comprehensive Plan that will
ultimately include a number of additional components that address growth-related issues,
including elements covering transportation, parks and recreation, housing, public services and
community facilities, economic development, and natural and historic resources. The Land Use
Plan consists of both this Plan document and an accompanying Land Use Plan Map. The Map
illustrates the location of future land uses and types of development. This Plan document defines
the types of land uses specified on the Map, and provides design guidelines for different types of
development. The Map and this document must be used together to understand the Land Use
Plan.
As the other Comprehensive Plan components are completed or revised, they will be
inserted with the Land Use Plan or included by reference to form the Comprehensive Plan for the
Town of Cary.
Cary’s Land Use Plan is a policy document that describes Cary’s official vision of the
physical form and appearance desired for the town as it continues to grow over the coming years.
That is, the Land Use Plan attempts to answer the question “what do we want Cary to be like ten
or twenty years from now?” Thus, the Plan provides a long-range vision for:

the geographic arrangement of various land uses within the town, including the
arrangement of commercial, office, industrial, institutional, and residential land uses
(at varying intensities and densities of development);

the desired characteristics and qualities of community form;

future roadways, pedestrian ways, bicycle paths, and their design;

the arrangement and layout of buildings, roads, paths, landscaping, parking, and other
features within specific types of developments;

the design, appearance, and aesthetics of the built environment in Cary.
As a policy document, the Comprehensive Plan has a different standing -- and serves a
different purpose -- than does a town ordinance. Both ordinances and policy documents are
officially adopted by Town Council. However, ordinances and ordinance amendments, codified
into the Town’s Land Development Ordinance (LDO), are legally-binding procedural rules and
statutes governing the municipal government and its citizens. That is, ordinances set forth law.
A policy document, on the other hand, is not law. Rather, it is an official statement by the
municipal government of its land use vision, policies, and intentions. The Land Use Plan, then,
is the Town’s official declaration of the desired characteristics and pattern of future development
in Cary. But beyond being simply a declaration of the Town’s official vision for Cary, the Land
Use Plan is actively used to guide growth in the following ways:

The Land Use Plan guides the application of the Town’s rezoning, annexation,
subdivision, and site plan ordinances.
Section 1.4.1 of the Town’s Land Development Ordinance states:
“The Comprehensive Plan for the Town of Cary shall serve as the basic policy guide for the administration of
this Ordinance. The Comprehensive Plan serves as the statement of goals, recommendations, and policies
guiding the development of the physical environment of the Town, its extraterritorial jurisdiction, and any other
geographic areas specifically addressed by the Comprehensive Plan.”
and furthermore, Section 1.4.2 states:
“All development and redevelopment within the Town and its extraterritorial jurisdiction shall be in accordance
with the applicable provisions of the Comprehensive Plan, as adopted or amended by the Town Council.”
Thus, all aspects of the Town’s Land Development Ordinance having to do with growth,
development, and community appearance are administered in accordance with the
Comprehensive Plan. When a new annexation, rezoning, planned unit development (PUD),
subdivision, or site plan request is filed with the Town of Cary, the town planning staff
reviews and evaluates the application and prepares a formal recommendation regarding the
application to the Town Council. This report includes an evaluation of the degree to which
the proposed action conforms with the Comprehensive Plan.
This forms a very powerful connection between the Comprehensive Plan and the pattern
and character of development that occurs in Cary. The potential exists through this
mechanism alone -- namely the requirement for administration of the Ordinance in
conformance with the Comprehensive Plan -- to achieve the community form and vision set
forth in the Comprehensive Plan.

The Land Use Plan guides growth in Cary by guiding new town infrastructure and public
investment.
The Town of Cary’s departments, including Development Services, Public Works &
Utilities, Parks & Recreation, Police, Fire, and so on, use the Comprehensive Plan to guide
planning for their own long-range public facilities, services, and infrastructure needs. For
example, the Engineering Division and the Public Works & Utilities Department use the
Comprehensive Plan to guide the development of plans for water and sewer service
expansion and for developing the Town’s Thoroughfare Plan and other roadway
improvements. The Parks, Recreation, and Cultural Resources Department uses the
Comprehensive Plan to anticipate where new growth will occur and where new parks will be
needed. Similarly, the Police and Fire Departments use the Comprehensive Plan to anticipate
where new growth will occur in order to determine staff requirements and the location of new
stations.
As a result of this wide-spread internal reliance on the Comprehensive Plan, long-range
facilities, infrastructure, and services reflect the direction of the Comprehensive Plan. And,
since development tends to follow infrastructure and public facilities expansion, new
development springs up most readily around new and widened roads, new parks and
community centers, and new and expanded water and sewer lines. In this way, the
Comprehensive Plan strongly influences the course of private development.

The Land Use Plan guides growth in Cary through private sector and citizen reliance on
the Plan in making investment decisions.
The Comprehensive Plan is the town’s strongest official statement of both where growth
and development should occur in the future and the types of development that are desired --
in terms of land use, design, and appearance. As such, considerable reliance is placed on the
Comprehensive Plan by landowners, the development community, businesses, and citizens
alike. Landowners and property buyers rely on the Comprehensive Plan to inform them of
what type of growth may occur around them in the future. Businesses choose site locations
and formulate business plans on the basis of the type, nature, and arrangement of future land
uses delineated in the Comprehensive Plan. Subdivision developers and home builders select
locations for new development that will be convenient to future public facilities and
supporting future land uses, such as future grocery stores. Likewise, commercial developers
select sites and plan projects on the basis of the location and type of expected future
residential development, as identified by the Comprehensive Plan.
In this manner, the vision embodied by the Comprehensive Plan becomes
“institutionalized” in the assumptions of the community. As more parties move forward with
plans based on the vision and assumptions provided within the Comprehensive Plan, that
reliance on the Plan can become a “self-fulfilling” prophecy. Reliance on the Comprehensive
Plan also helps to avoid or reduce potential conflicts between citizens and developers, since
both parties can proceed from a common vision and set of assumptions about future
development in Cary.

The Land Use Plan guides growth in Cary through its recommendations for new
ordinances, policies, and studies.
In addition to providing a clear vision for future growth in Cary, the Comprehensive Plan
also makes recommendations for actions that will help to make that vision a reality, including
recommendations for new ordinances and revisions to existing ordinances. The Plan also
makes recommendations for specific Town projects, policies, and initiatives that are not in
the direct purview of the Land Development Ordinance. Lastly, the Plan makes
recommendations for follow-up studies and projects deemed necessary to effectively
implement the Plan.

1.3 Jurisdictional Boundaries, Planning Areas, and Study Areas
In total, the Land Use Plan Map encompasses an area of approximately 60,600 acres of
land. The following geographic areas are covered by the Land Use Plan, and together make up
the Land Use Plan Study Area (see Figure 1.1):
1. The area inside Cary’s existing town limits.

2. The area inside Cary’s Extra-Territorial Planning Jurisdiction (ETJ), which is an area
outside of Cary’s official town limits where Wake County has granted authority to Cary to
zone land and control development, in anticipation of future town limits expansion.

3. The areas inside Cary’s Perimunicipal Planning Area (PPA), which is an area outside of
Cary’s official town limits and ETJ. This area is currently under Wake County’s
development control, but is planned for jointly by Cary and Wake County. Perimunicipal
areas represent areas into which Cary’s ETJ may be allowed to expand, given County
approval.

4. The Chatham County Study Area, which is an area of Chatham County bounded to the east
by the Chatham-Wake County line, to the west by the U.S. Army Corps of Engineers land
around Jordan Lake, to the north by the Chatham-Durham County Line, and to the South by
an arm of the Corps land surrounding White Oak Creek. This area is included in the Plan
because Cary is the only municipality that can feasibly provide urban services in this area,
and because of Cary’s rapid growth toward the west.

5. The Upper Middle Creek Study Area, lying to the south of Ten-Ten Road (S.R. 1010), north
of Middle Creek, west of Bells Lake Road, and east of Kildaire Farm Road and Sunset Lake
Road. This area is included in the Plan because the area abuts Cary’s southern PPA and is
rapidly urbanizing in a suburban manner, with traffic spillovers affecting Cary. Further,
Cary’s South Wastewater Treatment Plant is located on Middle Creek, and a major Cary
sewer line traverses the Middle Creek Area, from Cary to the treatment plant. These facilities
could enable municipal gravity-flow sewer service in this study area. In addition, the planned
Outer Wake Expressway will cut through the area, and is expected to include two local
interchanges.
The Land Use Plan is an enforceable policy document in all areas within Cary’s corporate
limits and the Town’s Extra-Territorial Jurisdiction. The Plan’s treatment of the Perimunicipal
Planning Areas will be used to guide Cary’s position with regard to requests for municipal
development within the PPA, and as a basis for updating the joint Cary-Wake County Master
Plans for the PPA. The Plan’s treatment of the Chatham County and Upper Middle Creek Study
Areas will be used to guide Cary’s position with regard to: (1) requests for Cary municipal
services and annexations within those areas; (2) the development of joint plans with other
planning agencies; and (3) the development of the Wake County Master Plan.

1.4 Regional Geographic Context

Cary is located in the center of the Research Triangle metropolitan area, which includes
the cities of Raleigh, Durham, Chapel Hill, and the Research Triangle Park (See Figure 1.2). As
the most centrally located municipality in a rapidly growing area, Cary provides businesses and
residents with easy access to key services and facilities. Cary is also favorably located within
North Carolina and the Southeastern U.S., both in terms of accessibility to other urban markets
and important cultural and recreational opportunities. Charlotte and Atlanta are only 150 and
350 miles to the southwest, respectively, and Washington, D.C. is approximately 270 miles to
the north. The Blue Ridge Mountains and the Outer Banks are each within easy driving distance.
Cary’s proximity to Interstate Highways 40, 85, and 95, as well as U.S. Highways 1 and
64, provide superb access to other urban centers in the southeast and the country as a whole. In
addition to high accessibility to the national and regional roadway network, Cary is at a
crossroads for passenger and freight systems served by Amtrak and the Norfolk-Southern and
CSX railways. Raleigh-Durham International Airport, on Cary’s northern border, provides
access to urban centers world-wide.

1.5 Governmental Entities Affected by and Affecting the Plan

The Plan’s consideration of lands not within Cary’s jurisdiction, and the need to
coordinate Town plans with those of other jurisdictions, required that this Plan be prepared in
consultation with a number of governmental and other authorities. The governmental authorities
that provided consultation on the development of Cary’s Land Use Plan include: (1) Wake
County; (2) the City of Raleigh; (3) the Town of Morrisville; (4) the Town of Apex; (5) the
Town of Holly Springs; (6) Chatham County; (7) the U.S. Army Corps of Engineers; (8) the
Raleigh-Durham Airport Authority; (9) the Triangle J Council of Governments; (10) the
Research Triangle Park Foundation; and (11) the Triangle Transit Authority.
Posted by Ron at 10:13 AM
 
AMENDMENT ONE HAS ANNEXATION FOES CONCERNED

October 06, 2004

Below is several responses concerning Amendment ONE, the referendum question that will be on the Nov 2 North Carolina ballot. StopNCAnnexation makes no endorsement of any candidates or positions but will provide information such as below for your review:
From an e-mail of a concerned citizen:

Did you catch the article regarding Amendment 1 to the NC Constitution this past weekend? The NC League of Municipalities is behind the legal push. If this passes on Nov.2, this opens the door to make annexation easier as well as having a nearly empty bucket of nonexistent monies to fund bonds to annex more territory!!!!!!!!!!!

From Michael Joyce, Cary Town Councilor

Please send this message to your friends.

The League of Municipalities is attempting to fool the voters of NC.

The VOTE NO website for Amendment One is http://www.noamendmentone.org.

The League has launched two other web addresses that both point to their official website.

They have launched http://www.noamendmentone.com and http://www.noamendmentone.info.

When a voter attempts to find the .ORG site and stumbles across the COM or INFO addresses, they are led to the Leagues propaganda site to vote yes.

This trickery in an attempt to fool the voters is enough to distrust them and to certainly VOTE NO TO AMENDMENT ONE IN NOVEMBER.

Sincerely,
Councilman Michael A. Joyce
Cary, NC
919-460-8558

Posted by Ron at 08:30 AM