Under what conditions can a property owner withdraw consent to a voluntary annexation? And does it matter if the property has changed hands since the original voluntary annexation petition was enacted?
Those were among the issues in a case involving a group of Guilford County residents who persuaded the state’s second highest court that they should not be bound by an annexation agreement between the developers of their neighborhoods and the city of Greensboro.
A unanimous three-judge panel ruled that state law gives future homeowners the opportunity to get out of an annexation agreement that was completed before the homes in the neighborhood were available for sale — even if the city had agreed to provide water and sewer service. The court said that cities seeking relief from existing statutes should look to the legislature, not the courts, for help.
Between 1997 and 2000, Greensboro entered into agreements with the developers of the Whitehurst, Hartwood, and Laurel Park subdivisions to provide water and sewer service. In return, the neighborhoods were annexed voluntarily into the city. The agreements claimed to be “binding upon the heirs, assigns, transferees, and successors in interest of the Owners and shall, upon execution, be recorded in the Office of the Register of Deeds of Guilford County, North Carolina.”
Annexation proceedings didn’t begin until 2008, however. By that time, the tracts of land covered by the agreement had been subdivided, with houses built and sold to individuals and families, many of whom were unaware they eventually could be annexed at the time they bought their homes.
At a public hearing on April 7, 2008, 39 property owners in the developments submitted forms withdrawing their consent to the voluntary annexation. Despite this, Greensboro City Council voted 5-4 to proceed with the annexation, effective April 21, 2009.
Two months later, four property owners sued the city to have the annexation declared invalid. On Feb 5, 2010, Superior Court Judge Edwin G. Wilson ruled in their favor. The city then brought the matter to the N.C. Court of Appeals, hoping to have the annexation reinstated.
In a 1979 case, Conover v. Newton, the N.C. Supreme Court held that “[voluntary annexation] petitioners may withdraw at any time up until the governing municipal body has taken action upon the petition by enacting an ordinance annexing the area described in the petition.” The appeals court had to decide if any legal barriers precluded the purchasers of the property from withdrawing consent to the annexation.
The city advanced several arguments. For example, Greensboro argued that withdrawing consent was prohibited by N.C. General Statue § 160A-58.21, which “authorize[s] cities to enter into binding agreements concerning future annexation in order to enhance orderly planning by such cities as well as residents and property owners in areas adjacent to such cities.”
The appeals court found this argument lacking. Writing for the court, Judge Sam Ervin IV noted that the statute involved annexation agreements between municipalities, not between a city and an individual. Ervin also said the section in question dealt with annexation agreements, not an agreement to provide water and sewer service.
Greensboro next contended that allowing the homeowners to withdraw consent would thwart the purpose of the state’s voluntary annexation statutes. Again, the court did not agree.
“Nothing in the literal language of [the annexation statute] sets any time limitation within which a petitioning landowner is entitled to withdraw his or her consent to a proposed voluntary annexation. …” Ervin also noted that the city’s complaints were based upon policy considerations rather than legal challenges.
“Defendant’s argument … amounts to a contention that the voluntary annexation process will become unworkable unless limitations upon the ability of individual property owners to withdraw their consents to annexation are created. However, no such limitations appear in the existing statutory provisions relating to voluntary annexations, and the creation of such limitations is a matter for the General Assembly rather than the judicial branch.”
A third line of argument was no more successful. Greensboro claimed that N.C.G.S. § 160A-314, allowing municipalities “to establish and revise from time to time schedules of rents, rates, fees, charges, and penalties for the use of or the services furnished by any public enterprise,” let the city require annexation as a condition of extending water and sewer service. The Court of Appeals disagreed, noting that the city did not annex the properties when it connected them to the water and sewer system.
Because the appeals court decision was unanimous, the N.C. Supreme Court is not obligated to review the case should the city choose to appeal.
The case is Cunningham v. City of Greensboro, (10-584-1)
Michael Lowrey is an associate editor of Carolina Journal.