RALEIGH-Major portions of the new law designed to restrict municipal annexations in North Carolina were declared unconstitutional Tuesday by a Wake County Superior Court judge, undercutting a major policy plank of the GOP-led legislature.
Judge Shannon Joseph agreed with the arguments of five North Carolina towns, which asserted that the legislature overstepped its authority last year when it passed a law making involuntary annexations possible only if most affected landowners agreed.
The ruling was a setback for annexation opponents who have passionately fought to overhaul North Carolina’s 1959 annexation law, saying it was undemocratic for residents to be forced to become part of a town or a city against their wishes.
Opponents said they would likely appeal the ruling.
“Even though the trial judge’s decision is a setback, I think it’s not the end of the story,” said James Eldridge, a Wilmington attorney who argued on behalf of the new law for homeowners, along with the attorney general’s office, which represented the state. “We will continue forward with our defense. I will recommend to our clients that we appeal the matter.”
But it was a victory for towns and cities that say the annexation law has allowed for orderly growth and healthy cities for decades. In particular it was a victory for five cities that had brought suits to challenge the law. The five were either in the middle of the annexation process or had recently completed it. Those five – Kinston, Rocky Mount, Wilmington, Lexington and Fayetteville – saw their annexation processes suspended or even faced de-annexation.
“The communities did everything required of them by state law,” said Anthony Fox, a Charlotte attorney who represented the cities. “To inject a new process into this annexation after they complied with the law as it existed didn’t seem fair.”
After growing complaints about annexation, the legislature overhauled the old annexation law last year. The new law would bar annexations if 60 percent of residents of the affected areas signed a petition saying they did not want to become part of the town or city.
The cities argued successfully that the petition process created under the law was an election. But the election process violated several provisions of the state constitution, the cities argued, because it allowed only property owners to cast ballots, excluding other people such as renters from voting, while allowing non-resident property owners to vote.
The cities also argued that the law unconstitutionally delegated to a group of landowners the power to set municipal boundaries and that it ran afoul of the constitution by according certain citizens the right to stop or reverse annexations, but not those in every community.
While striking down the petition process and the measures singling out the five cities, the judge’s decision does not affect other parts of the new annexation law that deal with issues such as when services must be provided to annexed areas.
The annexation changes were passed with strong Republican support, including from some anti-tax groups that are part of the GOP coalition that helped win control of the legislature in 2010. Anti-annexation sentiment played an important role in some races, such as Republican Rayne Brown’s defeat of Democratic House Majority leader Hugh Holliman, both of Lexington.
Senate Leader Phil Berger sent a bluntly worded letter to municipal officials in December warning them to back off their lawsuits. He wrote that the legislature could consider a number of bills, including those that would roll back previously passed annexations, when it returns in May.
“If necessary, these matters will be heard by the legislature to ensure North Carolina taxpayer money is not wasted on frivolous and abusive legal maneuvers,” Berger wrote.
On Tuesday, Berger reacted cautiously, saying he understood that the attorney general’s office planned to appeal. (A spokeswoman for Attorney General Roy Cooper said no decision had been made.)
“I want the lawyers who represent the state to give me some additional information as to the basis of the appeal, the arguments, that sort of thing,” Berger said. “We’ve still got another month before we get back to the short session. We will figure out what we need to do, if anything, as we move forward.”
‘A hollow victory’
Dallas Woodhouse, director of Americans for Prosperity – North Carolina, a conservative activist group, said the legislature had ultimate authority over the boundaries of towns, and he urged the Senate to enact seven or eight pending bills that are essentially de-annexation bills.
“They have already shown some willingness to do so and make the court decision moot,” Woodhouse said.
“They (the municipalities) are now at risk at having the legislature come in and decide what their boundaries are for a long time,” Woodhouse said. “That happened in Fayetteville, which had a moratorium on annexation for 30 years. I think it’s a hollow victory for them today. I believe they will regret doing this. I believe the Senate will move these bills. The cities exercised their constitutional right to sue. The legislature will exercise their constitutional right to decide what the boundaries are.”
Kelli Kukura, lobbyist for the N.C. League of Municipalities, which she noted was not part of the lawsuits, said she hoped the parties could work out a compromise.
“We have a lot of respect for the General Assembly’s need to have reasonable annexation reforms that are obviously constitutional and fair to what I call the in-town residents and the near-town residents,” Kukura said. “We are ready to continue to work with the General Assembly leadership and others to reach that goal and are really interested in reaching out to them to have further discussion about how we resolve this issue.”
By Rob Christensen
Published Wed, Mar 28, 2012 12:00 AM
Modified Wed, Mar 28, 2012 05:52 AM