WENDELL - Instead of arguing that the town of Wendell did not follow proper procedure when it annexed 260 acres, the annexation’s opponents are saying the action was illegal. Their attorney, C. Wes Hodges II of Wilmington, argued that the annexation, which includes the Bridgegate subdivision, was a "classic shoestring" variety where a municipality uses a narrow corridor to connect itself to an outlying, noncontiguous area it wants to take in. The approach has been successful in a few cases in North Carolina.

A municipality that wants to annex land involuntarily has to meet three tests required by state statutes: subdivision, use, and contiguity. In the Wendell case, the opponents are concentrating on the contiguity test. Their attorney is arguing that while the town met the test, it did so in a fashion that contravened the purpose of the state annexation statutes.

Because the annexation was an illegal shoestring variety, Wake County Superior Court Judge Abraham Penn Jones should declare it null and void, Hodges said during the case's Feb. 15 trial in Raleigh.

In several cases where the courts decided that meeting the two other tests did not happen, the annexing towns were just ordered to correct their annexation ordinances.

The law states that at least 12.5 percent of the annexed area's boundary has to touch the annexing town's contiguous area. If that test is met, the shoestring argument might be defeated unless the opponents can show that the town went to great lengths to meet the requirement.

Hodges argues that is exactly what happened. Wendell intentionally excluded several lots and tracts from the annexation area because of the negative effect the inclusion would have had on the town's compliance with the state statutes, he said. The town "jumped" from one side of Wendell Boulevard to the other, including some properties while leaving others out. The town also annexed only portions of some properties. Even with "manipulating" the annexation area, Wendell was barely able to meet the 12.5-percent rule, he said.

Using the shoestring argument can be successful. Hodges won a case against the town of Oak Island first in the Brunswick County Superior Court and later in the state Court of Appeals. The state Supreme Court affirmed the appeals court's decision in December 2003.

In its decision, the appeals court cited another case where a shoestring annexation — or ribbon and string like they are also called — was found to have taken place. Town of Stallings' annexation ordinance was rejected in the late 1980s because the appeals court found that the town used the shoestring method to annex three subdivisions that were not contiguous to the existing town limits. To get to the subdivisions, Stallings annexed a narrow strip of land adjacent to the town and used the strip to reach them. Doing that permitted Stallings to satisfy the contiguity test, but the court said that literal compliance with the test was not enough.

Although there are precedents that might support Hodges' argument, winning an involuntary annexation case is not easy. Jim Eldridge, a Wilmington attorney specializing in involuntary annexation, believes state statutes favor municipalities. Annexation opponents have to show the annexing town did something wrong, he said, adding that the error has to be serious for the court to rule in their favor. Another way is to argue that the annexation was invalid from the start like Hodges is trying to do, Eldridge said.

But considering the statutes, a “surprisingly large” number of cases are ruled in opponents' favor, he said. Eldridge estimates that in about 30 percent of the cases he knows of, the opponents prevailed. "Annexing property is not necessarily as easy as it might look," he said. "I have seen cities and towns make mistakes, and the shoestring argument has been successful in a few cases."

North Carolina makes considerable use of cities’ and towns' ability to annex land involuntarily, David Lawrence, professor of public law and government with the University of North Carolina at Chapel Hill, said. According to a study that compared the amount of land annexed in various states between 1990 and 2000, North Carolina ranked third in the nation in the land area annexed, Lawrence said, adding that the study included both involuntary and voluntary annexations. In population, the state placed second, he said.

While Eldridge did not have statistics on the number of involuntary annexations today compared to previous years, he thinks the number increased in the past few years. One of the reasons was the economy, he said. Annexing land brings more money to town coffers, and areas that were hit by job losses became interested in annexations. "And some cities seem to be just plain greedy," he said, naming Winston-Salem and Fayetteville.

Because annexing property involuntarily seems to hit a nerve, involuntary annexations are likely to raise a stink. In North Carolina, annexation opponents are fairly well-organized and many of them are not afraid to let their local representatives know what they think of involuntary annexation, Eldridge said. And every so often, citizens’ complaints lead to the introduction of a bill that would change the current annexation law.

The most recent one was introduced in the state Legislature Jan. 31. Under it, local residents whose property may be forcibly annexed by a municipality could hold a referendum to decide whether to block the action. The bill, sponsored by Sen. Andrew Brock, a Republican from Davie County, would require a petition signed by at least 15 percent of the voters in an affected area before a referendum would be required. Otherwise, there would be no vote, and the involuntary annexation would continue as scheduled.

The N.C. League of Municipalities, a federation of North Carolina's cities and towns, has been opposed to such an idea. Annexation referendums were allowed before a change in the law in 1959.

Eldridge, who recently represented Good Neighbors United against the city of Goldsboro, is not holding his breath over a change in annexation law, but hopes something will be done to level the playing field across the state. In a few communities in North Carolina, such as in River Bend near New Bern, an involuntary annexation cannot take place if it is not approved by voters in the affected area. Due to a local act, River Bend residents can block an involuntary annexation. If at least 25 percent of the registered voters who own property in the area proposed to be annexed sign a petition opposing the action, the city has to hold a referendum.

“But the fact that some people can vote about an involuntary annexation and others can’t puts people in unequal positions,” Eldridge said.

Contact Solja Nygard Frangos at 365-6262 or solja.nygard@nando.com.