City wins first round of annexation suit
By Barbara Arntsen
Published in News on October 20, 2004 2:03 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.