Nolan v. Village of Marvin

Tyson, Judge dissenting.

The majority's opinion holds respondent's annexation ordinance satisfies the statutory and case law requirements and affirms the trial court's order. I respectfully dissent.

I. Legislative Intent

Our Supreme Court stated in Carolina Power & Light Co. v. City of Asheville:

"The primary rule of statutory construction is that the intent of the legislature controls the interpretation of a statute." Stevenson v. City of Durham, 281 N.C. 300 , 303, 188 S.E.2d 281 , 283 (1972). The foremost task in statutory interpretation is " `to determine legislative intent while giving the language of the statute its natural and ordinary meaning unless the context *904 requires otherwise.' " Spruill v. Lake Phelps Vol. Fire Dep't, Inc., 351 N.C. 318 , 320, 523 S.E.2d 672 , 674 (2000) (quoting Turlington v. McLeod, 323 N.C. 591 , 594, 374 S.E.2d 394 , 397 (1988)).

358 N.C. 512 , 518, 597 S.E.2d 717 , 722 (2004).

In 1957, the General Assembly established a Municipal Government Study Commission ("the Commission") to analyze the issue of involuntary annexation. H.R. 1434, Gen. Assem., Reg. Sess. (N.C.1957) ("It shall be the duty of the Commission to make a detailed and comprehensive study of the problems of municipal government in North Carolina which may include . . . . The procedures, powers and authority which are granted by the General Assembly and are available to municipalities that govern and limit the ability of municipal government to provide for orderly growth, expansion and sound development."). The Commission issued two reports in 1958 and 1959. Municipal Government Study Commission, Report dated 1 November 1958; Municipal Government Study Commission, Report dated 26 February 1959. The Commission recognized that annexation was intended to spur and foster economic growth and development and to provide urban services for rapidly developing areas. The Commission also acknowledged that municipalities should not be allowed to tax without providing services to promote development.

When a city expands its boundaries, either to take in developed land or land ripe for development, it must be prepared to provide services of a quality needed where population density is high. If the land taken does not receive such services, at the time of annexation or shortly thereafter, the impact of municipal taxes discriminates against the landowner.

Commission Report dated 1 November 1958, p. 11.

As a matter of State policy, N.C. Gen.Stat. § 160A-33(3) (2003) requires "municipal boundaries should be extended, in accordance with legislative standards applicable throughout the State, to include such areas and to provide the high quality of governmental services needed therein for . . . public health, safety and welfare . . . ."

In N.C. Gen.Stat. § 160A-48, "the General Assembly has carefully specified the standards which must be met in order for any area to be annexed, so as to prevent municipalities from extending their boundaries arbitrarily or without due regard for the policy, reasons, and standards mandated by the legislature." Carolina Power & Light Co., 358 N.C. at 516 , 597 S.E.2d at 720 .

In In re Annexation Ordinance, our Supreme Court also stated:

The central purpose behind our annexation procedure is to assure that, in return for the added financial burden of municipal taxation, the residents receive the benefits of all the major services available to municipal residents. The minimum requirements of the statute are that the City provide information which is necessary to allow the public and the courts to determine whether the municipality has committed itself to provide a nondiscriminatory level of service and to allow a reviewing court to determine after the fact whether the municipality has timely provided such services.

304 N.C. 549 , 554, 284 S.E.2d 470 , 474 (1981) (internal citations omitted) (emphasis supplied); see also Bali Co. v. City of Kings Mountain, 134 N.C.App. 277 , 284, 517 S.E.2d 208 , 213 (1999) ("The underlying legislative purpose is to assure that annexed residents will receive all major city services in return for the additional city taxes.") (citation omitted); Parkwood Assn., Inc. v. City of Durham, 124 N.C.App. 603 , 606, 478 S.E.2d 204 , 206 (1996) ("The purpose of the statute is to insure that, in return for the financial burden of city taxes, the annexed residents receive all major city services.") (citation omitted), disc. rev. denied, 345 N.C. 345 , 483 S.E.2d 175 (1997). The statutes make clear and our Courts have held that a fundamental requirement of involuntary annexation is the annexing municipality will provide municipal services to the area annexed.

Involuntary annexation is by its nature a harsh exercise of governmental power affecting private property and so is properly restrained and balanced by legislative policy and mandated standards and procedure.

*905 Annexation is initiated upon the decision of a municipal governing board to extend the municipal corporate limits, and upon challenge by a property owner, the extent and implementation of this decision must comply with legislative intent.

Carolina Power & Light Co., 358 N.C. at 515 , 597 S.E.2d at 720 .

The record indicates respondent does not offer police, fire, streetlight, solid waste, street maintenance, water and sewer, animal control, or parks and recreation services to its residents. Three administrators work part-time for twelve hours per week. Respondent contracts for planning services, engineering services, an auditor, and an attorney. It formerly contracted with the county sheriff's department, but the record shows the contract was not renewed. While respondent will not discriminate between "services" provided to current residents and those located in the annexed area, petitioners already pay for and receive all such "services" from other sources. The only new "service" respondent will provide residents in the annexed area is an additional annual tax bill. See In re Annexation Ordinance, 304 N.C. at 554 , 284 S.E.2d at 474 .

Respondent's plan does not comply with the plain legislative intent and purpose behind involuntary annexation. Carolina Power & Light Co., 358 N.C. at 515 , 597 S.E.2d at 720 ("Annexation is initiated upon the decision of a municipal governing board to extend the municipal corporate limits, and upon challenge by a property owner, the extent and implementation of this decision must comply with legislative intent."). There is no evidence the annexation is intended to spur and foster economic growth and development or to provide urban services not currently available to the affected residents. See Commission Reports dated 1 February 1958 and 26 February 1959. Respondent's elected officials expressly refused to answer when asked about respondent's motivations to annex during the public hearing.

Respondent has not shown any benefit petitioners will receive that is not currently provided in return for the extra tax burden. While petitioners will receive the same "services" provided to current residents, our inquiry does not end there. Petitioners already receive and pay for such services from other sources.

II. Services Offered

The majority's opinion holds respondent's proposed annexation satisfies the statutory requirements pursuant to N.C. Gen.Stat. § 160A-35. The crux of its holding is N.C. Gen.Stat. § 160A-35(3) solely requires a municipality to provide to the annexed area "each major municipal service performed within the municipality at the time of annexation. . . on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation."

The majority's opinion cites several cases to support the notion that respondent need only provide the same level of no services to petitioners as current residents receive. See In re Annexation Ordinance, 304 N.C. at 555 , 284 S.E.2d at 474 ("We believe that the report need contain only the following: (1) information on the level of services then available in the City, (2) a commitment by the City to provide this same level of services in the annexed area within the statutory period, and (3) the method by which the City will finance the extension of these services.") (citation omitted).

However, in these and similar cases, each municipality proposing to extend its boundaries offered substantial, significant, and numerous new services not currently provided to the annexed areas. Id. at 551-54 , 284 S.E.2d at 472-74 (police, fire, street maintenance, garbage collection, and water and sewer services to be provided); Greene v. Town of Valdese, 306 N.C. 79 , 86-87, 291 S.E.2d 630 , 635 (1982) (water and sewer lines or septic systems extended to annexed area); Parkwood Assn., Inc., 124 N.C.App. at 607 , 478 S.E.2d at 206 ("[F]ire and police service will be provided to the annexation area on substantially the same bas[is] and in the same manner as provided in the rest of the City."); Chapel Hill Country Club v. Town of Chapel Hill, 97 N.C.App. 171 , 184-85, 388 S.E.2d 168 , 176 (1990) (police, fire, water and sewer services provided to annexed area); Matheson v. City of Asheville, 102 N.C.App.

*906 156, 161-68, 402 S.E.2d 140 , 143-47 (1991) (police, fire, garbage collection, water and sewer service provided to annexed area); In re Annexation Ordinance, 303 N.C. 220 , 231, 278 S.E.2d 224 , 231 (1981) (police, fire, recreation, water and sewer services, and street maintenance provided to annexed area). Respondent's additional "services" at issue here are insignificant and offer affected residents solely an additional tax bill for bureaucratic services currently provided to and paid for by residents in the annexed areas.

III. Purpose of the Statute

The legislative purpose and intent behind the statutes governing involuntary annexation is to create and foster economic growth and development and make urban services available to developing areas. See Commission Reports dated 1 November 1958 and 26 February 1959. Previous involuntary annexation cases required the introduction of substantial municipal services to the areas subject to involuntary annexation. While respondent is not discriminating between current residents and petitioners, those services are solely administrative and duplicative. The only new "service" respondent intends on providing is another annual ad valorem tax bill. Respondent's plan does not satisfy the purpose and intent of our statutes.

IV. Conclusion

Respondent's "harsh exercise" of involuntary annexation offers petitioners nothing in return. Carolina Power & Light Co., 358 N.C. at 515 , 597 S.E.2d at 720 . Respondent demands the privileges of taxation and involuntary annexation without accepting the responsibility for providing needed urban or meaningful municipal services. In re Annexation Ordinance, 304 N.C. at 554 , 284 S.E.2d at 474 . Respondent's purported involuntary annexation is a flagrant violation of the plain language, intent, and purpose of the statute and supporting case law.

Respondent's plan gives new meaning to the phrase "taxation without representation" and adds to that phrase "or anything else." See e.g., The Declaration of Independence para. 1 (U.S.1776); see also Bd. of Commissioners of Vance County v. Town of Henderson, 163 N.C. 114 , 120, 79 S.E. 442 , 444 (1913) ("Taxation without representation often leads to the exercise of arbitrary and even despotic power, and is not tolerated or permitted in our system of government."). Respondent's illegal conduct is exacerbated by its refusal to answer petitioners' questions at a statutorily required public hearing and denial to petitioners of minimal due process. N.C. Gen.Stat. § 160A-37(c)(1) (2003).

The trial court's order affirming respondent's involuntary annexation of petitioners' property should be reversed. I respectfully dissent.