“[T]he lower tier of equal protection analysis .. . merely requires that distinctions which are drawn by a challenged statute or action bear some rational relationship to a conceivable legitimate government interest.”
How later courts described this case
- “[T]he lower tier of equal protection analysis .. . merely requires that distinctions which are drawn by a challenged statute or action bear some rational relationship to a conceivable legitimate government interest.”
- relying almost entirely on Federal Equal Protection jurisprudence in analyzing a claim under Article I, Section 19
- “The gist of standing is whether there is a justiciable con troversy being litigated among adverse parties with substantial interest affected so as to bring forth a clear articulation of the issues before the court.”
- “[W]here legislation or governmental action affects discrete and insular minorities, the presumption of constitutionality fades because the traditional political processes may have broken down.”
Written by the judges who cited it.
The opinion
Justice Exum
dissenting.
Believing that this complaint states a claim on the theory that the City of Fayetteville has exceeded its statutory authority in this annexation proceeding, I respectfully dissent and vote to reverse. Both their legislative history and our municipal annexation statutes themselves demonstrate to my satisfaction that the legislature never intended to authorize towns to annex property by way of the referendum procedure outlined in Part 1, Art. 4A, Chapter 160A, of our General Statutes, when there are no residents in the area who can participate in a referendum. Fayetteville seeks to so utilize Part 1. Great mischief, I fear, can result from the majority’s view that it can. In fairness to the majority, plaintiff, apparently overly enamored with its constitutional claims or perhaps for other more strategic reasons, does not really make this argument. Nevertheless a complaint must be sustained against a motion to dismiss if there is any legal theory to support it notwithstanding plaintiffs failure to identify the theory for the Court. See Snyder v. Freeman, 300 N.C. 204 , 266 S.E. 2d 593 (1980).
Both their history and the annexation statutes themselves demonstrate that the legislature does not intend for our towns to be able to annex property by municipal fiat. A town’s power to annex is not absolute. It cannot constitutionally be so. The *15 annexation statutes were designed to permit towns to plan for their own development by empowering them to extend their boundaries, and perforce their services, to “parts of the urban area which are now or soon will become parts of the densely populated and congested urban core.” Municipal Government Study Commission Supplementary Report 6 (26 February 1959). Part 1 of these statutes authorizes annexation by petition and referendum of the “qualified voters” in the subject area. G.S. 160A-25. Parts 2 (towns under 5000 population) and 3 (towns over 5000 population) authorize annexation provided the area is sufficiently urbanized according to rigorous, specific statutory standards. See G.S. 160A-33, et seq., and G.S. 160A-45, et seq. Indeed both Parts 2 and 3 expressly provide, G.S. 160A-33(2)(3); G.S. 160A-45(2)(3):
“(2) That municipalities are created to provide the governmental services essential for sound urban development and for the protection of health, safety and welfare in areas being intensively used for residential, commercial, industrial, institutional and governmental purposes or in areas undergoing such development;
(3) That 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 the public health, safety and welfare.” (Emphasis supplied.)
The power of our towns to annex, therefore, under this statutory scheme is dependent upon and presupposes either (1) the will of the qualified voters in the area or (2) the area itself having become sufficiently urbanized.
I can think of no clearer subversion of our annexation statutes than to permit towns to annex under the referendum procedure when there are no “qualified voters” in the area to be annexed who can express their will. Such a process mocks the referendum procedure, thwarts the legislative will, and constitutes, in effect, annexation by municipal fiat.
*16 There is, of course, some evidence in this record that the area in question is developed industrially. Fayetteville, however, does not purport to demonstrate that the area meets statutory urbanization standards. It claims it need not do so because it is proceeding by way of referendum. It sees no obstacle in the fact that there are no qualified voters with which to conduct a referendum. According to Fayetteville, it could, if it wished, annex large tracts of vacant, unused property under the referendum procedure. It could, in effect, annex at will. I totally reject this position. Our annexation statutes were not intended to permit it. Lithium Corp. v. Bessemer City, 261 N.C. 532 , 135 S.E. 2d 574 (1964).
Whether Fayetteville could proceed to annex this property under Part 3 by showing that it meets statutory urbanization standards is a question not presented to us. Because of a local act, Chapter 1058,1969 Session Laws, applicable to Cumberland County, even this attempt might be thwarted by a petition opposing the annexation “signed by a maj ority of the registered voters residing in the area to be annexed.” This fact should not preclude our holding here that Fayetteville cannot proceed by way of referendum.
The referendum procedure requires that if fifteen percent of the qualified voters request it, the question of annexation shall be submitted “to a vote of the qualified voters of the area proposed to be annexed.” G.S. 160A-25. A favorable vote is a prerequisite, a condition precedent to annexation. Rheinhardt v. Yancey, 241 N.C. 184 , 84 S.E. 2d 655 (1954). Under Part 3, however, the only prerequisite, or condition precedent, to annexation is that the area meet statutory urbanization standards. If it does, annexation can proceed only to be stopped, if at all, by a majority of “registered voters” who so petition within a specified period. It would be far easier for me to hold that this latter procedure is available to Fayetteville notwithstanding the absence of “registered voters” who might oppose it. At least Fayetteville would have met all the conditions precedent to annexation.
It might well be argued and with some force that whether approval of voters is a condition precedent, or opposition of voters fatal to an otherwise statutorily authorized annexation, *17 voters in Cumberland County, under my position, must reside in any area to be annexed. This question is not now before us.
What is before us is whether a town may use the referendum procedure to annex an area in which there are no voters to decide the question. I remain convinced that the answer to this question should be no. I cannot, therefore, join in the majority opinion which, in effect, answers it yes.