News: CJ Exclusives

Court Allows Fayetteville Annexation

NC Court of Appeals says the challenges to annexation were untimely

The N.C. Court of Appeals on Tuesday rejected as untimely challenges to a proposed large-scale annexation by Fayetteville. The ruling would allow the annexation to proceed unless the N.C. Supreme Court decides to hear the case.

Battle lines were drawn Nov. 24, 2003 when Fayetteville adopted an annexation ordinance that would have added 28 square miles of land and more than 40,000 people to the city effective June 30, 2004. Under North Carolina law, property owners have 60 days after an annexation ordinance is adopted to challenge it in the courts.

Residents of the Gates Four community filed the only timely challenge to the annexation. On March 25, 2004 the city and the Gates Four Homeowners Association agreed to work toward a settlement that would keep the subcommunity from being involuntary annexed until at least 2008. The Fayetteville Observer reported the story on April 4, 2004. By May 12, 2004 Fayetteville and Gates Four had finalized their agreement and had it approved by a Superior Court judge.

In mid-to-late June 2004, less than three weeks before the annexation was scheduled to take effect, three challenges were filed to the remaining annexation. As the court noted, the challenges were obviously late. Annexation opponents attempted to get around the filing requirement by arguing that the Gates Four deal created a need for a new annexation ordinance and new 60-day window for objections, that they should have been allowed to intervene in the Gates Four case, or that the federal Servicemembers Civil Relief Act bars the annexation.

Perhaps the most serious challenge to the bulk of annexation was that the Gates Four settlement required a new annexation ordinance or allowed a new 60-day period for challenges to be filled.

The Court of Appeals found, however, that it did not have the power to do what the opponents asked. “Because the sections [of state law on annexation] dealing with time limits and settlements have no language permitting a remand or a new 60-day period to seek judicial review, we are not at liberty to create such a remedy,” Judge McCullough wrote for the court.

“In fact, there are sound public policy reasons for maintaining a clear, unqualified 60-day period for challenges. The strict time limitation promotes certainty and allows cities to extend services to newly annexed areas. Adopting petitioners’ position would destroy the certainty of the 60-day period and allow those who did not file timely petitions (petitioners in this case) to unfairly benefit from those who did timely file and settle their dispute (the Gates Four community).”

The court also noted that the settlement is not an “action having the effect of an ordinance,” which would require a remand to city.

“We recognize that every settlement changes the area to be annexed to some degree. In this case, the settlement between the City and Gates Four removed Gates Four from the area to be annexed. However, there are provisions in the annexation statute that show that the City is not required to start over simply because the area to be annexed has changed. Subsection (e) states ‘at any time before or during the review proceeding, any petitioner or petitioners may apply to the reviewing court for an order staying the operation of the annexation ordinance pending the outcome of the review. The court may grant or deny the stay in its discretion upon such terms as it deems proper, and it may permit annexation of any part of the area described in the ordinance concerning which no question for review has been raised.” (Emphasis in decision)

The appeals court was also not impressed by annexation opponents’ argument that they should have been allowed to intervene in the Gates Four case after it had been decided.

The Court of Appeals also rejected a claim in a separate, equally untimely suit, that the federal Servicemembers Civil Relief Act granted members of the military affected by the annexation extra time to seek review. The appeals court noted that U.S. Supreme Court precedent holds that federal laws trump state sovereignty only when they clearly state their intent to do so. There is nothing in the Servicemembers Civil Relief Act about local annexations, and courts have never recognized such a right in annexations.

The appeals court also noted that applying the act in annexations would give servicemembers the ability to challenge annexations years or even decades after it had been completed, a notion the court found would produce an absurd result. The law presumes Congress does not intend the laws it enacts to produce absurd results.

Lastly, the relief sought was overly broad, as it would delay the annexation of both servicemembers’ and non-servicemembers’ property.

“While we recognize and appreciate the sacrifices of the members of our armed forces, we believe that Congress did not intend to defeat municipalities’ ability to operate, including their ability to complete annexations with finality,” McCullough wrote.

Rulings by the N.C. Court of Appeals are controlling interpretations of North Carolina law unless overturned by the N.C. Supreme Court. Because the ruling by the three-judge panel of the appeals court was unanimous, if annexation opponents seek further review before the N.C. Supreme Court, the high court would not have to hear the case unless it chooses to.

The cases are Home Builders Assoc. of Fayetteville N.C. v. City of Fayetteville, (04-1108), Gates Four Homeowners Ass’n v. City of Fayetteville, (04-1202) and Kegley v. City of Fayetteville, (04-1123).

Main opinion:

Another right to intervene decision:


Michael Lowrey is associate editor of Carolina Journal.