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
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
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
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
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
|