City of Kannapolis v. City of Concord
City of Kannapolis v. City of Concord
Opinion of the Court
This appeal involves attempts by two municipalities to annex the same area, Lake Concord and its watershed, which abuts the City of Kannapolis, and which, prior to annexation by the City of Concord of the intervening tract, was separated from that city by an intervening tract of land consisting of eight parcels. The issue presented by defendant Concord’s cross-appeal is whether the North Carolina annexation statutes permit a municipality to annex by voluntary means a tract of land that is contiguous with its municipal boundaries only by virtue of a second tract of land that is being annexed simultaneously. We hold that they do not. The issue presented by plaintiff Kannapolis’ appeal is whether its failure to specify in its initial resolution of intent to annex that the effective date of the annexation would be at least one year
The City of Concord is separated from Lake Concord and its watershed, both of which it owns, by a tract of land whose owners filed a petition for voluntary annexation with the Concord Board of Aldermen on or about 16 September 1987. On 24 September 1987, in accordance with the provisions of N.C.G.S. § 160A-31(c), the Board of Aldermen adopted resolutions acknowledging the submittal of this petition, directing the city clerk to investigate its sufficiency, and fixing 8 October 1987 for the public hearing mandated by the statute. The Board also adopted a third resolution stating defendant Concord’s intent to annex its Lake Concord property and prescribing that the question of this annexation be addressed at the same public meeting as that set for the annexation of the first, privately-owned tract. This third resolution was adopted pursuant to N.C.G.S. § 160A-31(g), which provides that the governing board of a municipality “may initiate annexation of contiguous property owned by the municipality by adopting a resolution stating its intent to annex the property, in lieu of filing a petition.” N.C.G.S. § 160A-31(g) (1987).
Notice of the public hearing was properly published. On 8 October 1987, at the conclusion of the hearing, defendant Concord’s Board of Aldermen found that the landowners’ petition for annexation met the requirements of N.C.G.S. § 160.A-31, and it passed an ordinance annexing that eight-parcel tract to the City of Concord, to be effective 31 October 1987. The Board simultaneously passed an ordinance annexing the Lake Concord property, also to be effective 31 October 1987.
On 14 October 1987, plaintiff Kannapolis’ City Council adopted a “resolution of intent” to consider the annexation of certain properties contiguous with its boundaries, including the Lake Concord property. Plaintiff Kannapolis followed the procedure for involuntary annexation detailed in N.C.G.S. § 160A-49. This statute mandates that no resolution of intent may be adopted unless the municipality’s governing body has either identified the area under consideration for annexation at least one year prior to adopting
In its complaint under the Declaratory Judgment Act, N.C.G.S. § 1-253 through -267 (1983), plaintiff Kannapolis averred that annexation of the Lake Concord property by defendant Concord was invalid because, at the time of adoption of defendant Concord’s resolution of intent to annex the Lake Concord tract, the property was not contiguous with that city’s boundaries. In its answer defendant Concord asserted that plaintiff Kannapolis also had failed to comply with the statutory procedures for involuntary annexation and thus had failed to acquire prior jurisdiction
Aware that its initial efforts to annex the Lake Concord property might have been procedurally flawed, defendant Concord attempted to repeat its annexation process properly. On 10 December 1987, the Board of Aldermen adopted a second resolution of intent to annex the Lake Concord property in accordance with N.C.G.S. § 160A-31(g). As the intervening privately-owned tract had been annexed effective 31 October 1987, the Lake Concord property was, by that date, contiguous with defendant Concord’s boundaries, as was statutorily required for the annexation of municipally owned property. N.C.G.S. § 160A-31(g) (1987).
Our review is limited to the following inquiries: “(1) Did [each] municipality comply with the statutory procedures? (2) If not, will [the opposing party] ‘suffer material injury’ by reason of the municipality’s failure to comply?” In re Annexation Ordinance, 278 N.C. 641, 647, 180 S.E.2d 851, 855 (1971). Where annexation proceedings “show prima facie that there has been substantial compliance with the requirements and provisions of the Act, the burden is upon [the opposing party] to show by competent evidence failure on the part of the municipality to comply with the statutory requirements as a matter of fact, or irregularity in proceedings which materially prejudice^] the substantive rights of [the opposing party].” In re Annexation Ordinance, 255 N.C. 633, 642, 122 S.E.2d
The question presented by the cross-appeal is whether the initial annexation of the Lake Concord property by defendant Concord was invalid because that property was not itself contiguous to any boundary of that city at the time of the adoption of the resolution of intent to annex. We hold that the Court of Appeals correctly resolved this question. The governing statute plainly states that a municipality “may initiate annexation of contiguous property owned by the municipality by adopting a resolution stating its intent to annex the property, in lieu of filing a petition.” N.C.G.S. § 160A-31(g) (1987) (emphasis added). N.C.G.S. § 160A-31(f) provides:
[A]n area shall be deemed “contiguous” if, at the time the petition is submitted, such area either abuts directly on the municipal boundary or is separated from the municipal boundary by a street or street right-of-way, a creek or river, or the right-of-way of a railroad or other public service corporation, lands owned by the municipality or some other political subdivision, or lands owned by the State of North Carolina.
N.C.G.S. § 160A-31(f) (1987). As the Court of Appeals noted, the privately-owned tract linking the Lake Concord property to the Concord city limits was not legally annexed on the date the Concord Board of Aldermen adopted its resolution of intent regarding the Lake Concord property, and it did not become so annexed until the effective date of the annexation ordinance, 31 October 1987. City of Kannapolis v. City of Concord, 95 N.C. App. at 594, 383 S.E.2d at 404. Contiguity with the boundaries of the annexing municipality at the time of the adoption of a resolution of intent pursuant to N.C.G.S. § 160A-31(g) is without question an essential requirement of N.C.G.S. §§ 160A-31(f) and (g), read together; failure to meet that requirement precludes a showing of substantial compliance with the Act’s provisions and compels the holding that this resolution of intent was void. Thus, for purposes of the prior jurisdiction rule, the first valid mandatory public procedural step by defendant Concord in its attempt to annex the Lake Concord property was taken on 10 December 1987, the date of the adoption by the Concord Board of Aldermen of its second resolution of intent to annex that property.
Absolute and literal compliance with a statute enacted describing the conditions of annexation is unnecessary; substantial compliance only is required. . . . The reason is clear. Absolute and literal compliance with the statute would result in defeating the purpose of the statute in situations where no one has been or could be misled.
In re Annexation Ordinance, 278 N.C. 641, 648, 180 S.E.2d 851, 856 (quoting State v. Town of Benson, Cochise County, 95 Ariz. 107, 108, 387 P.2d 807, 808 (1963)).
As we noted in Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 93, 357 S.E.2d 686, 688, the statute governing involuntary annexation mandates a waiting period of at least one year before annexation may be completed, whether the process is initiated by resolution of consideration or, as here, by resolution of intent to annex. The reason the statute requires a lengthy period of consideration preceding either the mandatory resolution of intent or the effective date of the annexation ordinance is “to require towns and cities to consider carefully the consequences of involuntary annexation of a particular territory, and it indicates the legislature’s desire to enable residents of the area under consideration to anticipate and adjust to the proposed annexation.” Id., 357 S.E.2d at 689. It is not the specification of a date at least one year in advance of a resolution of intent to annex that provides a municipality a lengthy period of reflection on its intention and provides affected property owners an opportunity to anticipate and adjust, but the period itself, which is mandated by statute. Given that the minimum period is set by statute and that the annexation ordinance adopted by plaintiff Kannapolis on 30 March 1988 did state the date annexation was to be effective, viz, 31 March 1989, the failure of plaintiff Kannapolis to state that date in its resolution of intent was not an omission of an essential requirement of the statute. The statement of the effective date in the annexation ordinance allowed affected parties ample time for
Because the first valid mandatory public procedural step taken towards the involuntary annexation of the Lake Concord property by the City of Kannapolis was its resolution of intent of 14 October 1987, its proceedings were prior in time and thus prior in jurisdiction to the valid, voluntary annexation proceedings belatedly initiated by the City of Concord on 10 December 1987. See City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E.2d 534. Accordingly, the decision of the Court of Appeals affirming summary judgment for defendant City of Concord is reversed. The case is remanded to the Court of Appeals for further remand to the Superior Court, Cabarrus County, for entry of summary judgment for plaintiff City of Kannapolis.
Reversed and remanded.
. On 2 February 1987 both plaintiff Kannapolis and defendant Concord had initiated annexation of the Lake Concord area in accordance with N.C.G.S. § 160A-49Ü) by adopting resolutions of consideration for the future annexation of that tract.
. Among equivalent proceedings the “one which is prior in time is prior in jurisdiction to the exclusion of those subsequently instituted.” City of Burlington v. Town of Elon College, 310 N.C. 723, 727, 314 S.E.2d 534, 537 (1984) (quoting 2 E. McQuillin, The Law of Municipal Corporations Sec. 7.22a (3d ed. 1966)).
Dissenting Opinion
dissenting.
I respectfully dissent from the opinion by my brother Whichard. The majority is correct in its holding that Concord’s first valid attempt to annex the subject property was taken on 10 December 1987, however, that does not answer the entire case. Kannapolis has never filed a valid proceeding for the purpose of annexing the property in question. Its resolution of intent on 14 October 1987 was fatally defective. Kannapolis began its procedure pursuant to N.C.G.S. § 160A-49(j) which requires that the resolution of intent provide that the effective date of the annexation shall be at least one year from the date of passage of the annexation ordinance. Kannapolis concedes that it failed to include this statutory requirement in its resolution. The statutory procedure for involuntary annexation requires a one-year waiting period, and the statute clearly requires that such be stated in the resolution of intent.
Nevertheless, Kannapolis argues that it has substantially complied with the statute and that its error is not fatal. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961). Kannapolis
The purpose of requiring this information to be included in the resolution of intent is not to set a period of one year aside for the annexing municipality to think great thoughts about whether it should proceed with the annexation. This appears to be the principal argument of the majority. The purpose of requiring this information in the resolution of intent is so that the affected people living in the area to be annexed, and in the other areas of the municipality, may have an opportunity to review and study the issue and to attend any meetings to be held with respect thereto and to organize on their own such groups as they might care to either favoring or disfavoring such annexation. The resolution of intent is not something for the benefit of the governing body of the municipality but is for the purpose of providing information to the affected citizens and to the affected neighboring municipalities as to the impending annexation, thus allowing those affected parties to take such action as they think proper with respect to the proposed annexation. I cannot conceive how this is simply a technical or procedural error. It is the very heart and reason for requiring the passage of the resolution of intent. Plaintiff’s fatally flawed resolution of intent does not support the “prior jurisdiction rule.”
The majority attempts to justify Kannapolis’ proceeding by arguing that the notice in the ordinance is sufficient to substantially comply with the statute. This argument totally misses the mark. Once the ordinance is passed, affected parties have no recourse with the city. I do not know of any incidence in which a municipality has revoked an annexation ordinance.
The citizens affected by the annexation need to know the effective date so that they can take intelligent action to attack or support the passage of the proposed ordinance. They have no “ample time for action” once the ordinance is adopted. There is no need to lock the barn once the horse has departed.
Dissenting Opinion
dissenting.
Stripped of legalese, the question in this case is whether Concord or Kannapolis took the first valid mandatory public procedural step to annex Lake Concord and its watershed. Concord made a false start but corrected it on 10 December 1987. Kannapolis made a false start on 14 October 1987 and attempted to correct it on 30 March 1988 when the annexation ordinance was adopted. Thus, Concord, not Kannapolis, wins the race. I do not believe that the failure to include the effective date in the resolution of intent is a “slight irregularity” or that putting the correct date in the annexation ordinance some five and one-half months later cures the defect so as to cut off Concord’s right to annex its own property. Accordingly, I dissent from the result reached by the majority.
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