ARTICLE 1. Definitions and Statutory Construction.

Sec.

§ 160A-1. Application and meaning of terms.

Unless otherwise specifically provided, or unless otherwise clearly required by the context, the words and phrases defined in this section shall have the meaning indicated when used in this Chapter.

  1. "Charter" means the entire body of local acts currently in force applicable to a particular city, including articles of incorporation issued to a city by an administrative agency of the State, and any amendments thereto adopted pursuant to 1917 Public Laws, Chapter 136, Subchapter 16, Part VIII, sections 1 and 2, or Article 5, Part 4, of this Chapter.
  2. "City" means a municipal corporation organized under the laws of this State for the better government of the people within its jurisdiction and having the powers, duties, privileges, and immunities conferred by law on cities, towns, and villages. The term "city" does not include counties or municipal corporations organized for a special purpose. "City" is interchangeable with the terms "town" and "village," is used throughout this Chapter in preference to those terms, and shall mean any city as defined in this subdivision without regard to the terminology employed in charters, local acts, other portions of the General Statutes, or local customary usage. The terms "city" or "incorporated municipality" do not include a municipal corporation that, without regard to its date of incorporation, would be disqualified from receiving gasoline tax allocations by G.S. 136-41.2(a), except that the end of status as a city under this sentence shall not affect the levy or collection of any tax or assessment, or any criminal or civil liability, and shall not serve to escheat any property until five years after the end of such status as a city, or until September 1, 1991, whichever comes later.
  3. "Council" means the governing board of a city. "Council" is interchangeable with the terms "board of aldermen" and "board of commissioners," is used throughout this Chapter in preference to those terms, and shall mean any city council as defined in this subdivision without regard to the terminology employed in charters, local acts, other portions of the General Statutes, or local customary usage.
  4. "General law" means an act of the General Assembly applying to all units of local government, to all cities, or to all cities within a class defined by population or other criteria, including a law that meets the foregoing standards but contains a clause or section exempting from its effect one or more cities or all cities in one or more counties.
  5. "Local act" means an act of the General Assembly applying to one or more specific cities by name, or to all cities within one or more specifically named counties. "Local act" is interchangeable with the terms "special act," "public-local act," and "private act," is used throughout this Chapter in preference to those terms, and shall mean a local act as defined in this subdivision without regard to the terminology employed in charters, local acts, or other portions of the General Statutes.
  6. "Mayor" means the chief executive officer of a city by whatever title known.
  7. "Publish," "publication," and other forms of the verb "to publish" mean insertion in a newspaper qualified under G.S. 1-597 to publish legal advertisements in the county or counties in which the city is located.
  8. "Rural Fire Department" means, for the purpose of Articles 4A or 14 of this Chapter, a bona fide department which, as determined by the Commissioner of Insurance, is classified as not less than class "9" in accordance with rating methods, schedules, classifications, underwriting rules, bylaws or regulations effective or applied with respect to the establishment of rates or premiums used or charged pursuant to Article 36 or Article 40 of Chapter 58 of the General Statutes, and which operates fire apparatus and equipment of the value of five thousand dollars ($5,000) or more; but it does not include a municipal fire department.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 3; 1983, c. 636, s. 17.1; 1985 (Reg. Sess., 1986), c. 934, s. 1.)

Local Modification. - Guilford: 2017-210, s. 1(b) (applicable to notices published on or after December 1, 2017); Union: 1983, c. 150; (As to Chapter 160A) Cabarrus: 1985, c. 194, s. 3.

Editor's Note. - Session Laws 1983, c. 636, which amended this section, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25."

The act was ratified June 29, 1983.

Legal Periodicals. - For note, "Tax Increment Financing in North Carolina: The Myth of the Countermajoritarian Difficulty," see 83 N.C. L. Rev. 1526 (2005).

For article, "Do North Carolina Governments Need Home Rule," see 84 N.C. L. Rev. 1983 (2006).

For article, "Democracy in Rural America,” see 98 N. C.L. Rev. 837 (2020).

CASE NOTES

Constitutionality. - See In re Annexation Ordinance No. 1219, 62 N.C. App. 588, 303 S.E.2d 380, cert. denied and appeal dismissed, 309 N.C. 820, 310 S.E.2d 351 (1983).

Enactment Held a "Local Act". - Under this Chapter, Session Laws 1967, c. 506, which permits the City of Durham to employ the "quick-take" condemnation procedure provided by Article 9 of Chapter 136 of the General Statutes, is a local act and a part of the charter of the City of Durham. City of Durham v. Manson, 285 N.C. 741, 208 S.E.2d 662 (1974).

Session Laws 1967, c. 506, relating to municipal eminent domain procedures, is a legislative act which applies specifically to Durham by name, and is, therefore, a "local act" as that term is defined in subdivision (5) of this section, and as such it is subject to the applicable provisions of this Chapter. City of Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41, modified and aff'd, 285 N.C. 741, 208 S.E.2d 662 (1974).

Time Limitations. - Landowner's challenges to zoning ordinance amendments were time-barred under the two-month limitations period of G.S. 160A-364.1; even if an amendment was adopted inconsistent with the notice requirements of G.S. ch. 160A, an action which attacked the validity of the amendment but was commenced in more time than the statutory period from the adoption of the amendment was barred. Templeton v. Town of Boone, 208 N.C. App. 50, 701 S.E.2d 709 (2010).

Housing authority provided a governmental function and was entitled to rely on doctrine of governmental immunity as it related to a personal injury suit brought against it; G.S. 160A-485(a) did not control whether or not the housing authority had legal capacity to waive its immunity by buying insurance, but authority could have accepted liability to the extent of insurance purchased, and the case was therefore remanded since the appellate court was unable to discern whether the trial court's denial of the housing authority's motion to dismiss was premised upon the housing authority's insurance coverage. Evans v. Hous. Auth., 359 N.C. 50, 602 S.E.2d 668 (2004).

Cited in In re University of N.C. 300 N.C. 563, 268 S.E.2d 472 (1980); Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989); Garrity v. Morrisville Zoning Bd. of Adjustment, 115 N.C. App. 273, 444 S.E.2d 653 (1994); Disher v. Weaver, 308 F. Supp. 2d 614 (M.D.N.C. 2004); Boyd v. Robeson County, 169 N.C. App. 460, 621 S.E.2d 1 (2005), cert. denied, 359 N.C. 629, 615 S.E.2d 866 (2005); City of Asheville v. State, 369 N.C. 80, 794 S.E.2d 759 (2016).


§ 160A-2. Effect upon prior laws.

Nothing in this Chapter shall repeal or amend any city charter in effect as of January 1, 1972, or any portion thereof, unless this Chapter or a subsequent enactment of the General Assembly shall clearly show a legislative intent to repeal or supersede all local acts. The provisions of this Chapter, insofar as they are the same in substance as laws in effect as of December 31, 1971, are intended to continue such laws in effect and not to be new enactments. The enactment of this Chapter shall not require the readoption of any city ordinance enacted pursuant to laws that were in effect before January 1, 1972, and are restated or revised herein. The provisions of this Chapter shall not affect any act heretofore done, any liability incurred, any right accrued or vested, or any suit or prosecution begun or cause of action accrued as of January 1, 1972.

History

(1971, c. 698, s. 1.)

CASE NOTES

Specific legislative intent of this Chapter was not to repeal local acts by implication, but to save them. City of Durham v. Manson, 285 N.C. 741, 208 S.E.2d 662 (1974).

It was the express intent of the legislature to retain local acts unless otherwise specifically indicated. City of Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41, modified and aff'd, 285 N.C. 741, 208 S.E.2d 662 (1974).

This section manifests the legislative concern that certain prior laws should be preserved. City of Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41, modified and aff'd, 285 N.C. 741, 208 S.E.2d 662 (1974).

This section is made more meaningful by reference to G.S. 160A-1, wherein the definitions of "charter" and "local act" are contained. City of Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41, modified and aff'd, 285 N.C. 741, 208 S.E.2d 662 (1974).

Chapter 506 of Session Laws 1967, which became a part of the charter of the City of Durham, was not repealed by this Chapter. City of Durham v. Manson, 285 N.C. 741, 208 S.E.2d 662 (1974).

Applied in Guilford County v. Boyan, 42 N.C. App. 627, 257 S.E.2d 463 (1979).

Cited in Town of Mt. Olive v. Price, 20 N.C. App. 302, 201 S.E.2d 362 (1973).


§ 160A-3. General laws supplementary to charters.

  1. When a procedure that purports to prescribe all acts necessary for the performance or execution of any power, duty, function, privilege, or immunity is provided by both a general law and a city charter, the two procedures may be used as alternatives, and a city may elect to follow either one.
  2. When a procedure for the performance or execution of any power, duty, function, privilege, or immunity is provided by both a general law and a city charter, but the charter procedure does not purport to contain all acts necessary to carry the power, duty, function, privilege, or immunity into execution, the charter procedure shall be supplemented by the general law procedure; but in case of conflict or inconsistency between the two procedures, the charter procedure shall control.
  3. When a power, duty, function, privilege, or immunity is conferred on cities by a general law, and a charter enacted earlier than the general law omits or expressly denies or limits the same power, duty, function, privilege or immunity, the general laws shall supersede the charter.

History

(1971, c. 698, s. 1.)

Local Modification. - Town of Badin: 1989 (Reg. Sess., 1990), c. 894, s. 1, as amended by 2015-253, s. 2; village of Bald Head Island: 1985, c. 156.

CASE NOTES

The provisions of a municipal charter are supplemented by the General Statutes of the State. Parsons v. Wright, 223 N.C. 520, 27 S.E.2d 534 (1943), decided prior to enactment of this section.

City Charter Superseded by State Statute. - Summary judgment was properly awarded to a city and its officials in an action by property owners challenging an annexation because, pursuant to G.S. 160A-3(c), the statutory provision establishing involuntary annexations superseded a city charter provision permitting only voluntary annexations. Brown v. City of Winston-Salem, 171 N.C. App. 266, 614 S.E.2d 599 (2005).

Cited in Moores v. Greensboro Minimum Hous. Stds. Comm'n, 198 N.C. App. 384, 679 S.E.2d 480 (2009); Disher v. Weaver, 308 F. Supp. 2d 614 (M.D.N.C. 2004).


§ 160A-4. Broad construction.

It is the policy of the General Assembly that the cities of this State should have adequate authority to execute the powers, duties, privileges, and immunities conferred upon them by law. To this end, the provisions of this Chapter and of city charters shall be broadly construed and grants of power shall be construed to include any additional and supplementary powers that are reasonably necessary or expedient to carry them into execution and effect: Provided, that the exercise of such additional or supplementary powers shall not be contrary to State or federal law or to the public policy of this State.

History

(1971, c. 698, s. 1.)

Local Modification. - Town of Badin: 1989 (Reg. Sess., 1990), c. 894, s. 1, as amended by 2015-253, s. 2.

Legal Periodicals. - For article, "Economic Development Incentives and North Carolina Local Governments: A Framework for Analysis," see 91 N.C. L. Rev. 2021 (2013).

CASE NOTES

Editor's Note. - Some of the cases cited below were decided prior to enactment of this section.

Legislative Mandate. - The North Carolina Supreme Court treats the language in this section as a legislative mandate to construe in a broad fashion the provisions and grants of power contained in this Chapter. Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994).

Mandate of G.S. 160A-4 Has Replaced "Dillon's Rule." - Narrow rule of statutory construction entitled "Dillon's Rule," used when interpreting municipal powers, has been replaced by the mandate of G.S. 160A-4; and the language of Chapter 160A must be construed in favor of extending powers to a municipality where there is an ambiguity in the authorizing language, or the powers clearly authorized reasonably necessitate additional and supplementary powers to carry them into execution and effect. BellSouth Telecomms., Inc. v. City of Laurinburg, 168 N.C. App. 75, 606 S.E.2d 721, cert. denied, - N.C. - , 615 S.E.2d 660, cert. denied, 359 N.C. 629, - S.E.2d - (2005).

Construction with G.S. 160A-301. - Zoning amendment, which addressed the number of vehicles that could be parked on a private lot, did not address the same subject as G.S. 160A-301, which governed ordinary parking on public vehicular areas; therefore, G.S. 160A-301 is not a more "specific" statute that renders the provisions of G.S. 160A-4 inapplicable because it simply addresses a different subject. Patmore v. Town of Chapel Hill N.C. 233 N.C. App. 133, 757 S.E.2d 302, review denied, 367 N.C. 519, 758 S.E.2d 874, 2014 N.C. LEXIS 447 (2014).

A municipality may not exercise any power not granted to it, and possesses no inherent authority to exercise powers either expressly or impliedly prohibited by statute. Porsh Bldrs., Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981).

Municipal Powers Must Be Expressly Granted or Implied from Express Grants. - A municipal corporation is a political subdivision of the State and can exercise only such powers as are granted in express words, or those necessary or fairly implied or incident to the powers expressly conferred, or those essential to the accomplishment of the declared objects and purposes of the corporation. Stephenson v. City of Raleigh, 232 N.C. 42, 59 S.E.2d 195 (1950).

A municipal corporation has only such powers as are granted to it by the General Assembly in its specific charter or by the general laws of the State applicable to all municipal corporations, and the powers granted in its charter will be construed together with those given under the General Statutes. Laughinghouse v. City of New Bern, 232 N.C. 596, 61 S.E.2d 802 (1950); Starbuck v. Town of Havelock, 252 N.C. 176, 113 S.E.2d 278 (1960).

A municipal corporation is a creature of the General Assembly and has no inherent power, but can exercise such powers as are expressly conferred by the General Assembly or such as are necessarily implied by those expressly given. State v. McGraw, 249 N.C. 205, 105 S.E.2d 659 (1958).

A municipal corporation has only such powers as are granted to it by the General Assembly in its specific charter or by the general laws of the State applicable to all municipal corporations, or such powers as are necessarily implied by those given. State v. Hord, 264 N.C. 149, 141 S.E.2d 241 (1965).

An incorporated city or town is an agency created by the State. It has no governmental power or authority except such as has been granted to it by the legislature, expressly or by necessary implication from the powers expressly conferred. State v. Furio, 267 N.C. 353, 148 S.E.2d 275 (1966).

Municipal corporations are created by legislative enactment and possess only those powers conferred in the express language of a statute and those necessarily implied by law therefrom. Porsh Bldrs., Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981).

What Municipal Powers Are Implied. - The implied powers of a municipality are those which are necessarily or fairly implied in or incident to the powers expressly granted or essential to the accomplishment of the purposes of the corporation. Green v. Kitchin, 229 N.C. 450, 50 S.E.2d 545 (1948), commented on in 27 N.C.L. Rev. 500 (1949).

A municipal corporation is authorized by implication to do an act if the doing of such act is necessarily or fairly implied in or incident to the powers expressly granted, or is essential to the accomplishment of the declared objects and purposes of the corporation. Harrelson v. City of Fayetteville, 271 N.C. 87, 155 S.E.2d 749 (1967).

Municipal corporations have no inherent police powers and can exercise only those conferred, which powers are subject to strict construction. Kass v. Hedgepeth, 226 N.C. 405, 38 S.E.2d 164 (1946).

An incorporated city or town has no inherent police powers. State v. Furio, 267 N.C. 353, 148 S.E.2d 275 (1966).

A city or town in this State has no inherent police power. It may exercise only such powers as are expressly conferred upon it by the General Assembly or as are necessarily implied from those expressly so conferred. Town of Conover v. Jolly, 277 N.C. 439, 177 S.E.2d 879 (1970).

Town had no Authority to Impose Impact Fees. - Water and sewer "impact fee" ordinances were invalid because the Public Enterprise Statutes failed to empower the town to impose impact fees for future services; the enabling statutes clearly and unambiguously empowered the town to charge for the contemporaneous use of water and sewer services, not to collect fees for future discretionary spending, and because the legislature alone controlled the extension of municipal authority, the ordinances exceeded the powers delegated to the town. Quality Built Homes, Inc. v. Town of Carthage, 369 N.C. 15, 789 S.E.2d 454 (2016).

No Power to Spend Tax Revenues Absent Authorization. - A municipality is a creature of the State, with the powers prescribed by the statute and those necessarily implied by law, and no other; therefore a city or town cannot make a rightful outlay of its tax revenues unless the outlay is explicitly or implicitly authorized by a statute conforming to the Constitution. Horner v. Chamber of Commerce, 231 N.C. 440, 57 S.E.2d 789 (1950), aff'd, 235 N.C. 77, 68 S.E.2d 660 (1952); Wilson v. City of High Point, 238 N.C. 14, 76 S.E.2d 546 (1953).

A municipal corporation has no authority to waive its immunity from tort liability in performance of its governmental functions. Stephenson v. City of Raleigh, 232 N.C. 42, 59 S.E.2d 195 (1950).

Municipal Authority to Charge User Fees. - Applying the broad rule of construction of this section, city possessed the authority to charge regulatory user fees as an additional and supplementary power that was reasonably necessary or expedient to carry a regulatory program into execution and effect. Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994).

Absent Statutory Authority. - In the absence of statutory authority, a municipality has no authority to contract away or waive its governmental immunity in respect to torts committed in the exercise of its governmental function. Valevais v. City of New Bern, 10 N.C. App. 215, 178 S.E.2d 109 (1970).

Ordinances Having Effect Outside Territorial Limits of Corporation. - While the legislature may confer upon a municipal corporation the power to enact ordinances having effect in territory contiguous to the corporation, in the absence of the grant of such power a city or town may not, by its ordinance, prohibit acts outside its territorial limits or impose criminal liability therefor. State v. Furio, 267 N.C. 353, 148 S.E.2d 275 (1966).

Statutory delegations of power to municipalities should be strictly construed, resolving any ambiguity against the corporation's authority to exercise the power. Porsh Bldrs., Inc. v. City of Winston-Salem, 302 N.C. 550, 276 S.E.2d 443 (1981).

Any Doubts Must Be Resolved Against Municipality. - A municipality has no inherent police powers, but can exercise only those conferred by the State, and any reasonable doubt concerning such powers is resolved against it. State v. Dannenberg, 150 N.C. 799, 63 S.E. 946 (1909).

Discretion as to Accomplishment of Municipal Purposes. - A municipal corporation has only those powers expressly granted in its charter and by the general law, construing the acts together, and those powers reasonably implied in or incident to the granted powers which are necessary to effect the fair intent and purpose of its creation; however, it may exercise a sound discretion as to the means by which the purposes of its creation may be accomplished. Riddle v. Ledbetter, 216 N.C. 491, 5 S.E.2d 542 (1939).

A municipal corporation may exercise all the powers within the fair intent and purpose of its creation which are reasonably necessary to give effect to the powers expressly granted, and in doing this it may exercise discretion as to the means to the end. Keeter v. Town of Lake Lure, 264 N.C. 252, 141 S.E.2d 634 (1965).

Although the power to impose a privilege license tax must be construed broadly to include incidental powers, a privilege license tax, standing alone, is only a tax and does not carry with it any powers wholly unrelated to its imposition or administration. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, cert. denied, 358 N.C. 543, 599 S.E.2d 43 (2004).

The courts will not inquire into the motives which prompt a municipality's legislative body to enact an ordinance which is valid on its face. Clark's Greenville, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5 (1966).

Contracts with Firefighters Not Ultra Vires. - As the legislature expressly authorized municipal corporations to fix salaries or other compensation or to approve and adopt pay plans to compensate city employees, and thus, the city could legally form contracts for the services of firefighters and offer a plan for accumulated vacation leave as a benefit under the contracts, even though they may have been executed improperly, any contracts entered into by the city through its agents to compensate firefighters with accumulated vacation leave were not ultra vires the city. Pritchard v. Elizabeth City, 81 N.C. App. 543, 344 S.E.2d 821, cert. denied, 318 N.C. 417, 349 S.E.2d 598 (1986).

Contract with Town Manager Not Ultra Vires. - The execution of an employment contract providing severance pay to an at-will town manager was not ultra vires. Myers v. Town of Plymouth, 135 N.C. App. 707, 522 S.E.2d 122 (1999).

Eminent Domain Power of a City. - City lawfully exercised its eminent domain power because, consistent with the mandates of G.S. 160A-4 and G.S. 160A-312, the city could acquire property by condemnation to establish a gas transmission and distribution system, even in the absence of a concrete, immediate plan to furnish gas services to its citizens as the acquisition was for a public use by the city in compliance with G.S. 160A-240.1 and G.S. 40A-3(b). Town of Midland v. Morris, 209 N.C. App. 208, 704 S.E.2d 329, review denied, 365 N.C. 198, 710 S.E.2d 3, 2011 N.C. LEXIS 245, dismissed and review denied, 365 N.C. 198, 710 S.E.2d 1, 2011 N.C. LEXIS 265 (2011).

City had the authority to allow the city tax collector to assess zoning compliance as part of the administration of the business privilege license tax and to deny a business privilege license to a sexually oriented business because the business sought to operate in violation of a zoning ordinance. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, cert. denied, 358 N.C. 543, 599 S.E.2d 43 (2004).

Authority to Impose Water And Sewer Fees. - City was entitled to partial summary judgment as a matter of law because an act transferred the authority of the Board of Light and Water to collect water and sewer fees for services "to be furnished" to the city, and thus, there was no genuine issue as to any material fact with respect to the city's legislative authority to charge those fees to developers for their developments; the General Assembly was not required to use the word "transfer" in order to transfer the powers of the Board. JVC Enters., LLC v. City of Concord, - N.C. - , - S.E.2d - (Mar. 12, 2021).

Applied in City of Durham v. Herndon, 61 N.C. App. 275, 300 S.E.2d 460 (1983); River Birch Assocs. v. City of Raleigh, 326 N.C. 100, 388 S.E.2d 538 (1990); Town of Midland v. Morris, 209 N.C. App. 208, 704 S.E.2d 329, review denied, 365 N.C. 198, 710 S.E.2d 3, 2011 N.C. LEXIS 245, dismissed and review denied, 365 N.C. 198, 710 S.E.2d 1, 2011 N.C. LEXIS 265 (2011).

Cited in Smith v. Keator, 285 N.C. 530, 206 S.E.2d 203 (1974); In re Wilkins, 294 N.C. 528, 242 S.E.2d 829 (1978); Town of West Jefferson v. Edwards, 74 N.C. App. 377, 329 S.E.2d 407 (1985); Grace Baptist Church v. City of Oxford, 320 N.C. 439, 358 S.E.2d 372 (1987); Quality Water Supply, Inc. v. City of Wilmington, 97 N.C. App. 400, 388 S.E.2d 608 (1990); Ricks v. Town of Selma, 99 N.C. App. 82, 392 S.E.2d 437 (1990); Bowers v. City of High Point, 339 N.C. 413, 451 S.E.2d 284 (1994); Maready v. City of Winston-Salem, 342 N.C. 708, 467 S.E.2d 615 (1996); Durham Land Owners Ass'n v. County of Durham, 177 N.C. App. 629, 630 S.E.2d 200 (2006); Five C'S, Inc. v. County of Pasquotank, 195 N.C. App. 410, 672 S.E.2d 737 (2009); Amward Homes, Inc. v. Town of Cary, 206 N.C. App. 38, 698 S.E.2d 404 (2010); Lanvale Props., LLC v. County of Cabarrus, 366 N.C. 142, 731 S.E.2d 800 (2012); King v. Town of Chapel Hill, 367 N.C. 400, 758 S.E.2d 364 (2014).

Opinions of Attorney General

Condemnation of Property to Improve Road. - A proposed escrow agreement between a town and various property owners to collect and dispose of funds in order to acquire right of way, by condemnation or otherwise, in order to widen and improve a road was not prohibited by this section or public policy. See opinion of Attorney General to William C. Coward, Coward, Hicks & Siler, P.A., 2000 N.C. AG LEXIS 28 (4/10/2000).

§ 160A-4.1: Repealed by Session Laws 2019-111, s. 2.6(b), as amended by Session Laws 2020-3, s. 4.33(a), and Session Laws 2020-25, s. 51(a), (b), (d), effective June 19, 2020.

History

(2009-436, s. 2; 2010-180, s. 11(b); repealed by 2019-111, s. 2.6(b), as amended by 2020-3, s. 4.33(a), and 2020-25, s. 51(a), (b), (d), effective June 19, 2020.)

Editor's Note. - Former G.S. 160A-4.1 pertained to the notice of new fees and fee increases; public comment period.

Session Laws 2019-111, s. 2.8, is a severability clause.

Session Laws 2019-111, s. 3.2 provided for the delayed repeal of this section, effective January 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that "Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date." Session Laws 2020-3, s. 4.33(a), extended the delayed repeal of this section, making it effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date. Session Laws 2020-25, s. 51(a), (d), repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33, effective June 19, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Session Laws 2020-25, s. 51(b), provides: "Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

"(2) July 1, 2021."

Effect of Amendments. - Session Laws 2010-180, s. 11(b), effective February 1, 2011, deleted "Electronic" from the beginning of the section catchline; in the introductory paragraph in subsection (a), in the first sentence, substituted "A city shall provide notice to interested parties of the imposition" for "If a city has a Web site maintained by one or more of its employees, the city shall provide notice of the imposition" and deleted "on the city's Web site" following "Part 2 of Article 19 of this Chapter," and added the last sentence; added subdivisions (a)(1) through (a)(4); and added subsection (a1).

§ 160A-5. Statutory references deemed amended to conform to Chapter.

Whenever a reference is made in another portion of the General Statutes or any local act, or any city ordinance, resolution, or order, to a portion of Chapter 160 of the General Statutes that is repealed or superseded by this Chapter, the reference shall be deemed amended to refer to that portion of this Chapter which most nearly corresponds to the repealed or superseded portion of Chapter 160.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 2.)

CASE NOTES

Applied in City of Durham v. Manson, 285 N.C. 741, 208 S.E.2d 662 (1974).


ARTICLE 1A. Municipal Board of Control.

§§ 160A-6 through 160A-10: Repealed by Session Laws 1981 (Regular Session, 1982), c. 1191, s. 63.

Editor's Note. - Session Laws 1981 (Reg. Sess., 1982), c. 1191, s. 64, provided that the repeal of this Article did not affect the validity of any corporate charter issued by the Municipal Board of Control prior to the effective date thereof. Section 65 of the act provided that the repeal became effective October 1, 1982, except that an order incorporating a city which was entered prior to October 1, 1982, but subject to a referendum to be held under G.S. 160A-9.3 between October 1, 1982, and January 1, 1983, would be valid notwithstanding the abolition of the Municipal Board of Control.

ARTICLE 2. General Corporate Powers.

Sec.

§ 160A-11. Corporate powers.

The inhabitants of each city heretofore or hereafter incorporated by act of the General Assembly or by the Municipal Board of Control shall be and remain a municipal corporation by the name specified in the city charter. Under that name they shall be vested with all of the property and rights in property belonging to the corporation; shall have perpetual succession; may sue and be sued; may contract and be contracted with; may acquire and hold any property, real and personal, devised, sold, or in any manner conveyed, dedicated to, or otherwise acquired by them, and from time to time may hold, invest, sell, or dispose of the same; may have a common seal and alter and renew the same at will; and shall have and may exercise in conformity with the city charter and the general laws of this State all municipal powers, functions, rights, privileges, and immunities of every name and nature whatsoever.

All documents required or permitted by law to be executed by municipal corporations will be legally valid and binding in this respect when a legible corporate stamp, which is a facsimile of its seal, is used in lieu of an imprinted or embossed corporate or common seal.

History

(Code, ss. 704, 3117; 1901, c. 283; 1905, c. 526; Rev., s. 2916; 1907, c. 978; P.L. 1917, c. 223; C.S., s. 2623; Ex. Sess. 1921, c. 58; 1927, c. 14; 1933, c. 69; 1949, c. 938; 1955, c. 77; 1959, c. 391; 1961, c. 308; 1967, c. 100, s. 2; c. 1122, s. 1; 1969, c. 944; 1971, c. 698, s. 1; 1973, c. 170; c. 426, s. 7; 2011-284, s. 110.)

Cross References. - As to construction of grants of power to municipalities, see G.S. 160A-4.

Effect of Amendments. - Session Laws 2011-284, s. 110, effective June 24, 2011, deleted "bequeathed" following "devised" in the middle of the first paragraph.

Legal Periodicals. - For note on abrogation of contractual sovereign immunity, see 12 Wake Forest L. Rev. 1082 (1976).

CASE NOTES

Editor's Note. - Many of the cases cited below were decided under former similar provisions.

Control of Municipal Territory and Affairs. - When a municipal corporation is established it takes control of the territory and affairs over which it is given authority to the exclusion of other governmental agencies. Gunter v. Sanford, 186 N.C. 452, 120 S.E. 41 (1923); Parsons v. Wright, 223 N.C. 520, 27 S.E.2d 534 (1943).

Exclusive Control of Municipal Streets. - The object of incorporating a town or city is to invest the inhabitants of the municipality with the government of all matters that are of special municipal concern, and certainly the streets are as much of a special and local concern as anything connected with a town or city can be. It ought, therefore, to be presumed that they pass under the exclusive control of the municipality as soon as it comes into existence under the law. Gunter v. Sanford, 186 N.C. 452, 120 S.E. 41 (1923); Parsons v. Wright, 223 N.C. 520, 27 S.E.2d 534 (1943).

Power to Purchase Land at Tax Sale. - The title of the purchaser at a tax foreclosure sale may not be challenged by the listed owner upon the purchaser's motion for a writ of assistance; such purchaser may be a municipality where it does not appear of record that the purchase of the land was ultra vires, a municipality having the power to purchase land for certain purposes. Wake County v. Johnson, 206 N.C. 478, 174 S.E. 303 (1934).

Ordinance Within Power Granted Presumed Reasonable. - When an ordinance is within the grant of power to the municipality, the presumption is that it is reasonable. Gene's, Inc. v. City of Charlotte, 259 N.C. 118, 129 S.E.2d 889 (1963).

A town must be sued in its corporate name and not in the name of its officers. Young v. Barden, 90 N.C. 424 (1886).

Service Against City. - A summons against a city may be served on the mayor and on the secretary of the board of aldermen. Loughran v. Hickory, 129 N.C. 281, 40 S.E. 46 (1901).

Venue of Suits Against Cities or Towns. - Cities and towns must be sued in the county in which they are located, and if suit is brought in another county, they have the right to have it removed. Jones v. Town of Statesville, 97 N.C. 86, 2 S.E. 346 (1887).

Action in Name of All Citizens Against City. - In an action against a municipal corporation to enjoin the collection of an illegal tax, it was not error to allow all citizens other than the original plaintiff to be made parties plaintiff. Cobb v. Elizabeth City, 75 N.C. 1 (1876).

Action Against City. - In this Age Discrimination in Employment Act of 1967 (ADEA) action, ADEA authorized a suit against the City of Winston-Salem, but not the Winston-Salem Police Department because North Carolina law implied that a city was the employer of the police officer working for the city's police department. Fisher v. Winston-Salem Police Dep't, 28 F. Supp. 3d 526 (M.D.N.C. 2014).

Applied in North Carolina Consumers Power, Inc. v. Duke Power Co., 21 N.C. App. 237, 204 S.E.2d 399 (1974).

Cited in Carolina Action v. Pickard, 465 F. Supp. 576 (W.D.N.C. 1979); Davidson County v. City of High Point, 85 N.C. App. 26, 354 S.E.2d 280 (1987); Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999); Myers v. Town of Plymouth, 135 N.C. App. 707, 522 S.E.2d 122 (1999); Liberty Mut. Ins. Co. v. Pennington, 141 N.C. App. 495, 541 S.E.2d 503 (2000), aff'd, 356 N.C. 571, 573 S.E.2d 118 (2002); City of Asheville v. State, 369 N.C. 80, 794 S.E.2d 759 (2016).

Opinions of Attorney General

Ownership and Operation of Private For-Profit Corporation. - The authority of a city to hold property granted by this section should not be interpreted to authorize a city to act as a shareholder of a private for-profit corporation organized under the provisions of Chapter 55, and to appoint city officials and employees as corporate directors or officers. See opinion of the Attorney General to H. Michael Boyd, Deputy City Attorney, City of Charlotte, 60 N.C.A.G. 114 (1992).

While there may be authority for a city to purchase all of the stock of a corporation which owns and operates a water and sewer system, there is no authority to operate and continue the existence of a private for-profit corporation which is outside of the traditional functions of a municipality and for which there is no judicial or legislative approval. See opinion of the Attorney General to H. Michael Boyd, Deputy City Attorney, City of Charlotte, 60 N.C.A.G. 114 (1992).

§ 160A-12. Exercise of corporate power.

All powers, functions, rights, privileges, and immunities of the corporation shall be exercised by the city council and carried into execution as provided by the charter or the general law. A power, function, right, privilege, or immunity that is conferred or imposed by charter or general law without directions or restrictions as to how it is to be exercised or performed shall be carried into execution as provided by ordinance or resolution of the city council.

History

(Code, s. 703; Rev., s. 2917; C.S., s. 2624; 1971, c. 698, s. 1.)

CASE NOTES

Cited in Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999).

Opinions of Attorney General

Editor's Note. - Many of the opinions cited below were decided under former similar provisions.

Exercise of Corporate Powers by Board of Aldermen. - Where city had not adopted one of the plans of government prescribed in former Article 21 of Chapter 160, and its charter granted only those powers enumerated by the General Statutes, the corporate powers could only be exercised by the board of aldermen, unless otherwise provided by law. See opinion of Attorney General to Mr. Richard A. Williams, Maiden Town Attorney, 40 N.C.A.G. 450 (1969), issued under former statutory provisions.

Effect of Action by Individual Commissioner. - Individual commissioner's representation about payment of a damage claim neither created a duty on the town to pay the same, nor authorized it to pay, unless the board of commissioners, by resolution, authorized the individual to make such an offer, as the municipal power to contract was given to the board, and boards, nothing else appearing, must act through a quorum at a meeting rather than through an individual member on an ad hoc basis. See opinion of Attorney General to Mr. John W. Twisdale, Clayton Town Attorney, 40 N.C.A.G. 522 (1970), issued under former G.S. 160-3.

§§ 160A-13 through 160A-15: Reserved for future codification purposes.

ARTICLE 3. Contracts.

Sec.

§ 160A-16. Contracts to be in writing; exception.

All contracts made by or on behalf of a city shall be in writing. A contract made in violation of this section shall be void and unenforceable unless it is expressly ratified by the council.

History

(1917, c. 136, subch. 13, s. 8; C.S., s. 2831; 1971, c. 698, s. 1.)

Cross References. - As to report on guaranteed energy savings contracts, see G.S. 143-64.17G.

Legal Periodicals. - For article, "The Regulation of Contractual Change: A Guide to No Oral Modification Clauses for North Carolina Lawyers," see 81 N.C.L. Rev. 2239 (2003).

CASE NOTES

City Not Liable Absent Agreement for Treatment of Inebriate Injured While Being Assisted by Police. - A city was not liable to a hospital for the cost of treating a habitual inebriate who was injured when he fell while being assisted by city police officers, where there was no express agreement to pay for such services. Nor was there an implied promise to pay, pursuant to a statutory duty, since persons arrested by city police officers, if confined, were confined in the county jail. Under G.S. 153A-224(b), the cost of emergency medical services rendered to persons confined in local confinement facilities is imposed on the local governmental unit operating the facility. Craven County Hosp. Corp. v. Lenoir County, 75 N.C. App. 453, 331 S.E.2d 690, cert. denied, 314 N.C. 663, 336 S.E.2d 620 (1985).

Where no duty was imposed by statute upon city to pay for medical services rendered to persons in custody of its police officers, there was no relationship implied by law which would obligate the city to pay the costs of such treatment. Craven County Hosp. Corp. v. Lenoir County, 75 N.C. App. 453, 331 S.E.2d 690, cert. denied, 314 N.C. 663, 336 S.E.2d 620 (1985).

Sovereign immunity does not apply to breach of contract claims. Houpe v. City of Statesville, 128 N.C. App. 334, 497 S.E.2d 82, cert. denied, 348 N.C. 72, 505 S.E.2d 871 (1998).

A viable claim for breach of an employment contract must allege the existence of contractual terms regarding the duration or means of terminating employment. Houpe v. City of Statesville, 128 N.C. App. 334, 497 S.E.2d 82, cert. denied, 348 N.C. 72, 505 S.E.2d 871 (1998).

Cited in Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317 (1995); Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999); M Series Rebuild, LLC v. Town of Mt. Pleasant, 222 N.C. App. 59, 730 S.E.2d 254 (2012).


§ 160A-17. Continuing contracts.

A city is authorized to enter into continuing contracts, some portion or all of which are to be performed in ensuing fiscal years. Sufficient funds shall be appropriated to meet any amount to be paid under the contract in the fiscal year in which it is made, and in each ensuing fiscal year, the council shall appropriate sufficient funds to meet the amounts to be paid during the fiscal year under continuing contracts previously entered into.

History

(1971, c. 698, s. 1.)

§ 160A-17.1. Grants from other governments.

  1. Federal and State. - The governing body of any city or county is hereby authorized to make contracts for and to accept grants-in-aid and loans from the federal and State governments and their agencies for constructing, expanding, maintaining, and operating any project or facility, or performing any function, which such city or county may be authorized by general law or local act to provide or perform.
    1. Enter into and carry out contracts with the State or federal government or any agency or institution thereof under which such government, agency, or institution grants financial or other assistance to the city or county;
    2. Accept such assistance or funds as may be granted or loaned by the State or federal government with or without such a contract;
    3. Agree to and comply with any lawful and reasonable conditions which are imposed upon such grants or loans;
    4. Agree to and comply with minimum minority business enterprise participation requirements established by the federal government and its agencies in projects financed by federal grants-in-aid or loans, by including such minimum requirements in the specifications for contracts to perform all or part of such projects and awarding bids pursuant to G.S. 143-129 and 143-131, if applicable, to the lowest responsible bidder or bidders meeting these and any other specifications.
    5. Make expenditures from any funds so granted.
  2. Expired effective December 31, 2010.

In order to exercise the authority granted by this section, the governing body of any city or county may:

History

(1971, c. 896, s. 10; c. 937, ss. 1, 1.5; 1973, c. 426, s. 8; 1981, c. 827; 2007-91, s. 1.)

§ 160A-17.2. Security interests in United States Department of Agriculture loans.

  1. A county or municipality may pledge a security interest in an escrow account funded with loan proceeds, or a certificate of deposit, to secure repayment of the loan, only if the loan is an interest-free loan agreement entered into with the United States Department of Agriculture or an authorized intermediary acting on behalf of the United States Department of Agriculture. Any such escrow account must be substantiated by a written escrow agreement, and the funds must be deposited in accordance with G.S. 159-30 and G.S. 159-31. Any certificate of deposit shall comply with the requirements of G.S. 159-30.
  2. An interest-free loan agreement entered into under this section is subject to approval by the Local Government Commission under Article 8 of Chapter 159 of the General Statutes, unless exempted in G.S. 159-148(b).
  3. No deficiency judgment may be rendered against any county or municipality in any action for breach of a contractual obligation authorized by this section. The taxing power of a county or municipality is not and may not be pledged directly or indirectly to secure any moneys due under a contract authorized by this section.

History

(2015-207, s. 3.)

Editor's Note. - Session Laws 2015-207, s. 7, made this section effective August 11, 2015.

§ 160A-18. Certain deeds validated.

  1. All deeds made, executed, and delivered by any city before July 1, 1970, for a good and valuable consideration are hereby in all respects validated, ratified, and confirmed notwithstanding any lack of authority to make the deed or any irregularities in the procedures by which conveyance of the land or premises described therein was authorized by the city council.
  2. All conveyances and sales of any interest in real property by private sale, including conveyances in fee and releases of vested or contingent future interests, made by the governing body of any city, school district, or school administrative unit before July 1, 1970, are hereby validated, ratified, and confirmed notwithstanding the fact that such conveyances or releases were made by private sale and not after notice and public outcry.
  3. All conveyances of any interest in real property by private sale, including conveyance in fee, made by the governing body of any county before January 1, 1977, are hereby validated, ratified, and confirmed notwithstanding the fact that such conveyances were made by private sale, without advertisement, and not after notice and public outcry.
  4. Nothing in this section shall affect any action or proceeding begun before January 1, 1977.

History

(Ex. Sess. 1924, c. 95; 1951, c. 44; 1959, c. 487; 1971, c. 698, s. 1; 1977, c. 1103.)

§ 160A-19. Leases.

A city is authorized to lease as lessee, with or without option to purchase, any real or personal property for any authorized public purpose. A lease of personal property with an option to purchase is subject to Article 8 of Chapter 143 of the General Statutes.

History

(1973, c. 426, s. 9.)

§ 160A-20. Security interests.

  1. Purchase. - A unit of local government may purchase, or finance or refinance the purchase of, real or personal property by installment contracts that create in some or all of the property purchased a security interest to secure payment of the purchase price to the seller or to an individual or entity advancing moneys or supplying financing for the purchase transaction.
  2. Improvements. - A unit of local government may finance or refinance the construction or repair of fixtures or improvements on real property by contracts that create in some or all of the fixtures or improvements, or in all or some portion of the property on which the fixtures or improvements are located, or in both, a security interest to secure repayment of moneys advanced or made available for the construction or repair.
  3. Accounts. - A unit of local government may use escrow accounts in connection with the advance funding of transactions authorized by this section, whereby the proceeds of the advance funding are invested pending disbursement. A unit of local government may also use other accounts, such as debt service payment accounts and debt service reserve accounts, to facilitate transactions authorized by this section. To secure transactions authorized by this section, a unit of local government may also create security interests in these accounts.
  4. Nonsubstitution. - No contract entered into under this section may contain a nonsubstitution clause that restricts the right of a unit of local government to:
    1. Continue to provide a service or activity; or
    2. Replace or provide a substitute for any fixture, improvement, project, or property financed, refinanced, or purchased pursuant to the contract.
  5. Oversight. - A contract entered into under this section is subject to approval by the Local Government Commission under Article 8 of Chapter 159 of the General Statutes if it:
    1. Meets the standards set out in G.S. 159-148(a)(1), 159-148(a)(2), and 159-148(a)(3), or involves the construction or repair of fixtures or improvements on real property; and
    2. Is not exempted from the provisions of that Article by one of the exemptions contained in G.S. 159-148(b).
  6. Public Hospitals. - A nonprofit entity operating or leasing a public hospital may enter into a contract pursuant to this section only if the nonprofit entity will have an ownership interest in the property being financed or refinanced, including a leasehold interest. The security interest granted in the property shall be only to the extent of the nonprofit entity's property interest. In addition, any contract entered into by a nonprofit entity operating or leasing a public hospital pursuant to this section is subject to the approval of the city, county, hospital district, or hospital authority that owns the hospital. Approval of the city, county, hospital district, or hospital authority may be withheld only under one or more of the following circumstances:
    1. The contract would cause the city, county, hospital district, or hospital authority to breach or violate any covenant in an existing financing instrument entered into by the nonprofit entity.
    2. The contract would restrict the ability of the city, county, hospital district, or hospital authority to incur anticipated bank-eligible indebtedness under federal tax laws.
    3. The entering into of the contract would have a material, adverse impact on the credit ratings of the city, county, hospital district, or hospital authority or would otherwise materially interfere with an anticipated financing by the nonprofit entity.
  7. Limit of Security. - No deficiency judgment may be rendered against any unit of local government in any action for breach of a contractual obligation authorized by this section. The taxing power of a unit of local government is not and may not be pledged directly or indirectly to secure any moneys due under a contract authorized by this section.
  8. Public Hearing. - Before entering into a contract under this section involving real property, a unit of local government shall hold a public hearing on the contract. A notice of the public hearing shall be published once at least 10 days before the date fixed for the hearing.
  9. Local Government Defined. - As used in this section, the term "unit of local government" means any of the following:
    1. A county.
    2. A city.
    3. A water and sewer authority created under Article 1 of Chapter 162A of the General Statutes.
    4. A metropolitan sewerage district created under Article 5 of Chapter 162A of the General Statutes.
    5. A sanitary district created under Part 2 of Article 2 of Chapter 130A of the General Statutes.
    6. A county water and sewer district created under Article 6 of Chapter 162A of the General Statutes.
    7. A metropolitan water district created under Article 4 of Chapter 162A of the General Statutes.
    8. A metropolitan water and sewerage district created under Article 5A of Chapter 162A of the General Statutes.
    9. An airport authority whose situs is entirely within a county that has (i) a population of over 120,000 according to the most recent federal decennial census and (ii) an area of less than 200 square miles.
    10. An airport authority in a county in which there are two incorporated municipalities with a population of more than 65,000 according to the most recent federal decennial census.
    11. An airport board or commission authorized by agreement between two cities pursuant to G.S. 63-56, one of which is located partially but not wholly in the county in which the jointly owned airport is located, and where the board or commission provided water and wastewater services off the airport premises before January 1, 1995, except that the authority granted by this subdivision may be exercised by such a board or commission with respect to water and wastewater systems or improvements only.
    12. A local airport authority that was created pursuant to a local act of the General Assembly.
    13. A local school administrative unit whose board of education is authorized to levy a school tax.
    14. Any other local school administrative unit, but only for the purpose of financing energy conservation measures acquired pursuant to Part 2 of Article 3B of Chapter 143 of the General Statutes.
    15. A community college, but only for the purpose of financing energy conservation measures acquired pursuant to Part 2 of Article 3B of Chapter 143 of the General Statutes.
    16. An area mental health, developmental disabilities, and substance abuse authority, acting in accordance with G.S. 122C-147.
    17. A consolidated city-county, as defined by G.S. 160B-2(1).
    18. Repealed by Session Laws 2001-414, s. 52, effective September 14, 2001.
    19. A regional natural gas district, as defined by Article 28 of this Chapter.
    20. A regional public transportation authority or a regional transportation authority created pursuant to Article 26 or Article 27 of this Chapter.
    21. A nonprofit corporation or association operating or leasing a public hospital as defined in G.S. 159-39.
    22. A public health authority created under Part 1B of Article 2 of Chapter 130A of the General Statutes.
    23. A special district created under Article 43 of Chapter 105 of the General Statutes.
    24. A Ferry Transportation Authority created pursuant to Article 29 of this Chapter.

History

(1979, c. 743; 1987 (Reg. Sess., 1988), c. 981, s. 1; 1989, c. 708; 1991, c. 741, s. 1; 1993 (Reg. Sess., 1994), c. 592, s. 2; 1995, c. 461, s. 6; 1995 (Reg. Sess., 1996), c. 644, s. 2; 1997-380, s. 3; 1997-426, s. 7; 1997-426, s. 7.1; 1998-70, s. 1; 1998-117, s. 1; 1999-386, ss. 1, 2; 2001-414, s. 52; 2002-161, s. 10; 2003-259, s. 1; 2003-388, s. 3; 2007-226, s. 1; 2007-229, s. 3; 2009-527, s. 2(g); 2015-207, s. 5(a); 2017-120, s. 4.)

Editor's Note. - Session Laws 1989, c. 708, which amended this section, in ss. 2 and 3, provides:

"Sec. 2. (a) Any contract made or entered into, prior to the date of ratification of this act, by a city, a county, or a water and sewer authority created under Article 1 of Chapter 162A of the General Statutes which would have been valid under G.S. 160A-20, subsections (a), (b), (c), and (f), as rewritten by this act, is hereby validated, ratified, and confirmed. Furthermore, such a contract may not be held invalid because it contains a nonsubstitution clause, or because no public hearing was advertised and held on the contract, or both.

"(b) Any contract made or entered into, prior to the date of ratification of this act, by a city, a county, or a water and sewer authority created under Article 1 of Chapter 162A of the General Statutes which would have been valid under subsection (a) of this Section 2 or under G.S. 160A-20 as it existed prior to the ratification of this act or as rewritten by this act, except that the Local Government Commission did not approve the contract, is hereby validated, ratified, and confirmed.

"Sec. 3. Nothing in this act shall be interpreted to limit or restrict the authority of cities, counties, or water and sewer authorities created under Article 1 of Chapter 162A of the General Statutes to purchase, improve, or finance the purchase or improvement of real or personal property pursuant to any other applicable law, whether general, special, or local."

Session Laws 1997-426, s. 7.1, provided that if Ratified Senate Bill 389, 1997 Regular Session, became law, then subdivision (h)(9) was recodified as subdivision (h)(10) of this section. Senate Bill 389 became S.L.1997-380, which became law on August 7, 1997.

Session Laws 1997-426, s. 10(a)-(c), provides that, insofar as the provisions of that act are not consistent with the provisions of any other law, public or private, the provisions of that act shall be controlling; that references in that act to specific sections or Chapters of the General Statutes are intended to be references to such sections or Chapters as they may be amended from time to time by the General Assembly; and that that act, being necessary for the health and welfare of the people of the State, shall be liberally construed to effect the purposes thereof.

Session Laws 1997-426, s. 10(d), is a severability clause.

Session Laws 1999-377, s. 4, effective August 4, 1999, provides that any hospital continuing to operate under Article 2 of Chapter 131 of the General Statutes pursuant to Section 3 of Chapter 775 of the 1983 Session Laws shall be considered to be a "public hospital" within the meaning of G.S. 159-39 and to be a "unit of local government" within the meaning of G.S. 160A-20.

Session Laws 2002-161, s. 12, provides that nothing in the act limits the use of any method of contracting authorized by local law or other applicable laws.

Session Laws 2003-388, provides in its preamble:

"Whereas, the State Treasurer's Office formed a Public Finance Advisory Committee comprised of representative city and county governments, as well as the public finance bar and financial services sectors, to review and propose changes to the General Statutes dealing with public finance in an effort to strengthen, modernize, and provide for the most efficient method of issuing of public debt by local governments and other political subdivisions of the State; and

"Whereas, the Public Finance Advisory Committee has developed, and the State Treasurer's Office has reviewed, a set of recommendations to the General Assembly for specific changes to relevant General Statutes around which there is consensus that the proposed changes are beneficial to local governments in their issuance of public debt; and

"Whereas, the Local Government Commission remains the statutorily designated entity to which all proposed issuances must be submitted for approval, and these recommendations in no way lower or lessen the level of due diligence performed in determining the appropriateness of a specific issuance; and

"Whereas, for these reasons, this legislation is submitted for consideration by the General Assembly on behalf of the State Treasurer, the staff of the Local Government Commission, and the Public Finance Advisory Committee; Now, therefore,"

Effect of Amendments. - Session Laws 2007-226, s. 1, effective July 18, 2007, added subdivision (h)(3c).

Session Laws 2007-229, s. 3, effective July 18, 2007, added subdivision (h)(13).

Session Laws 2009-527, s. 2(g), effective August 27, 2009, added subdivision (h)(14).

Session Laws 2015-207, s. 5(a), effective August 11, 2015, added subdivisions (h)(3d) and (h)(3e).

Session Laws 2017-120, s. 4, effective July 18, 2017, added subdivision (h)(15).

Legal Periodicals. - For note, "Constitutional Expansion of Local Government Financing Alternatives: Wayne County Citizens Association v. Wayne County Board of Commissioners," see 70 N.C.L. Rev. 1947 (1992).

CASE NOTES

This section does not contravene N.C. Const., Art. V, § 4, which authorizes the General Assembly to regulate local government finance. Wayne County Citizens v. Wayne County Bd. of Comm'rs, 328 N.C. 24, 399 S.E.2d 311 (1991).

County's installment purchase contract for construction of a new courthouse and jail was authorized by this section. Wayne County Citizens v. Wayne County Bd. of Comm'rs, 328 N.C. 24, 399 S.E.2d 311 (1991).


§ 160A-20.1. Contracts with private entities; contractors must use E-Verify.

  1. Authority. - A city may contract with and appropriate money to any person, association, or corporation, in order to carry out any public purpose that the city is authorized by law to engage in. A city may not require a private contractor under this section to abide by any restriction that the city could not impose on all employers in the city, such as paying minimum wage or providing paid sick leave to its employees, as a condition of bidding on a contract.
  2. Repealed by Session Laws 2015-294, s. 1(b), effective October 1, 2015, and applicable to contracts entered into on or after that date.

History

(1985, c. 271, s. 1; 2013-413, s. 5(d); 2013-418, s. 2(b); 2014-119, s. 13(a); 2015-294, s. 1(b); 2016-3, 2nd Ex. Sess., s. 2.3; 2017-4, s. 1.)

Cross References. - As to procedure for letting of public contracts, see G.S. 143-129.

Executive Order No. 93. - On April 12, 2016, Governor Pat McCrory issued Executive Order No. 93, "To Protect Privacy and Equality," which provides: "WHEREAS, North Carolina's rich legacy of inclusiveness, diversity and hospitality makes North Carolina a global destination for jobs, business, tourists and talent;

"WHEREAS, it is the policy of the Executive Branch that government services be provided equally to all people;

"WHEREAS, N.C. Gen. Stat. § 160A-499.2 permits municipalities to adopt ordinances prohibiting discrimination in housing and real estate transactions, and any municipality may expand such ordinance consistent with the federal Fair Housing Act;

"WHEREAS, N.C. Gen. Stat. § 143-422.2(c) permits local governments or other political subdivisions of the State to set their own employment policies applicable to their own personnel;

"WHEREAS, North Carolina law allows private businesses and nonprofit employers to establish their own non-discrimination employment policies;

"WHEREAS, N.C. Gen. Stat. § 143-128.2 requires each city, county or other local public entity to adopt goals for participation by minority businesses and to make good faith efforts to recruit minority participation in line with those goals;

"WHEREAS, North Carolina law allows a private business or nonprofit to set their own restroom, locker room or shower policies;

"WHEREAS, our citizens have basic common-sense expectations of privacy in our restrooms, locker rooms and shower facilities for children, women and men;

"WHEREAS, to protect expectations of privacy in restrooms, locker rooms and shower facilities in public buildings, including our schools, the State of North Carolina maintains these facilities on the basis of biological sex;

"WHEREAS, State agencies and local governments are allowed to make reasonable accommodations in restrooms, locker rooms and shower facilities due to special individual circumstances;

"NOW, THEREFORE, pursuant to the authority vested in me as Governor by the Constitution and laws of the State of North Carolina, IT IS ORDERED:

"Section 1. Public Services

"In the provision of government services and in the administration of programs, including, but not limited to public safety, health and welfare, public agencies shall serve all people equally, consistent with the mission and requirements of the service or program.

"Section 2. Equal Employment Opportunity Policy for State Employees

"I hereby affirm that the State of North Carolina is committed to administering and implementing all State human resources policies, practices and programs fairly and equitably, without unlawful discrimination, harassment or retaliation on the basis of race, religion, color, national origin, sex, sexual orientation, gender identity, age, political affiliation, genetic information, or disability.

"I also affirm that private businesses, nonprofit employers and local governments may establish their own non-discrimination employment policies.

"Section 3. Restroom Accommodations

"In North Carolina, private businesses can set their own rules for their own restroom, locker room and shower facilities, free from government interference.

"Under current law, every multiple occupancy restroom, locker room or shower facility located in a cabinet agency must be designated for and only used by persons based on their biological sex. Agencies may make reasonable accommodations upon a person's request due to special circumstances.

"Therefore, when readily available and when practicable in the best judgment of the agency, all cabinet agencies shall provide a reasonable accommodation of a single occupancy restroom, locker room or shower facility upon request due to special circumstances.

"All council of state agencies, cities, counties, the University of North Carolina System and the North Carolina Community College System are invited and encouraged to make a similar accommodation when practicable.

"Section 4. State Buildings and Facilities Leased to Private Entities

"The Department of Administration shall interpret the application of N.C. Gen. Stat. § 143-760 as follows:

"When a private entity leases State real property and the property in the lessee's exclusive possession includes multiple occupancy restrooms, locker rooms or other like facilities, the private entity will control the signage and use of these facilities.

"All council of state agencies, cities, counties, the University of North Carolina System and the North Carolina Community College System are invited and encouraged to adopt a similar interpretation of N.C. Gen. Stat. § 143-760.

"Section 5. Human Relations Commission

"Pursuant to N.C. Gen. Stat. § 143B-391, the Human Relations Commission in the Department of Administration shall promote equality and opportunity for all citizens.

"The Human Relations Commission shall work with local government officials to study problems and promote understanding, respect and goodwill among all citizens in all communities in North Carolina.

"The Human Relations Commission shall receive, investigate and conciliate fair housing, employment discrimination and public accommodations complaints.

"The Human Relations Commission shall submit an annual report by April 1st to the Governor detailing the number of complaints received, the number of investigations completed, and the number of conciliations in the preceding calendar year. This report shall also describe any education and outreach efforts made by the Commission in that same calendar year.

"Section 6. State Cause of Action for Wrongful Discharge

"I support and encourage the General Assembly to take all necessary steps to restore a State cause of action for wrongful discharge based on unlawful employment discrimination.

"Section 7. State or Federal Law

"Nothing in this section shall be interpreted as an abrogation of any requirements otherwise imposed by applicable federal or state laws or regulations.

"IN WITNESS WHEREOF, I have hereunto signed my name and affixed the Great Seal of the State of North Carolina at the Capitol in the City of Raleigh, this twelfth day of April in the year of our Lord two thousand and sixteen."

Session Laws 2015-294, s. 17, made the repeal of subsection (b) of this section by Session Laws 2015-294, s. 1(b), applicable to contracts entered into on or after October 1, 2015.

Session Laws 2016-3, 2nd Ex. Sess., provides in its preamble: "Whereas, the North Carolina Constitution directs the General Assembly to provide for the organization and government of all cities and counties and to give cities and counties such powers and duties as the General Assembly deems advisable in Section 1 of Article VII of the North Carolina Constitution; and

"Whereas, the North Carolina Constitution reflects the importance of statewide laws related to commerce by prohibiting the General Assembly from enacting local acts regulating labor, trade, mining, or manufacturing in Section 24 of Article II of the North Carolina Constitution; and

"Whereas, the General Assembly finds that laws and obligations consistent statewide for all businesses, organizations, and employers doing business in the State will improve intrastate commerce; and

"Whereas, the General Assembly finds that laws and obligations consistent statewide for all businesses, organizations, and employers doing business in the State benefit the businesses, organizations, and employers seeking to do business in the State and attracts new businesses, organizations, and employers to the State; Now, therefore,"

Session Laws 2016-3, 2nd Ex. Sess., s. 4, is a severability clause.

Session Laws 2016-3, 2nd Ex. Sess., s. 5, provides: "This act is effective when it becomes law [March 23, 2016] and applies to any action taken on or after that date, to any ordinance, resolution, regulation, or policy adopted or amended on or after that date, and to any contract entered into on or after that date. The provisions of Sections 2.1 [amending G.S. 95-25.1], 2.2 [amending G.S. 153A-449(a)], 2.3 [amending G.S. 160A-20.1(a)], 3.1 [amending G.S. 143-422.2], 3.2 [amending G.S. 143-422.3], and 3.3 [enacting Article 49B of Chapter 143] of this act supersede and preempt any ordinance, resolution, regulation, or policy adopted prior to the effective date of this act that purports to regulate a subject matter preempted by this act or that violates or is not consistent with this act, and such ordinances, resolutions, regulations, or policies shall be null and void as of the effective date of this act."

Session Laws 2017-4, s. 1, effective March 30, 2017, provides: "S.L. 2016-3 and S.L. 2016-99 are repealed." Session Laws 2016-3, 2nd Ex. Sess., s. 2.3, effective March 23, 2016, and applicable to any action taken on or after that date, to any ordinance, resolution, regulation, or policy adopted or amended on or after that date, and to any contract entered into on or after that date, had amended subsection (a) by substituting "regulations or controls on the contractor's employment practices or mandate or prohibit the provision of goods, services, or accommodations to any member of the public as a condition of bidding on a contract or a qualification-based selection, except as otherwise required or allowed by State law" for "any restriction that the city could not impose on all employers in the city, such as paying minimum wage or providing paid sick leave to its employees, as a condition of bidding on a contract."

Session Laws 2017-4, s. 3, provides: "No local government in this State may enact or amend an ordinance regulating private employment practices or regulating public accommodations." Section 3 of this act expires on December 1, 2020.

Effect of Amendments. - Session Laws 2013-413, s. 5(d), effective August 23, 2013, added the second sentence in this section. For applicability, see Editor's note.

Session Laws 2013-418, s. 2(b), effective September 4, 2013, added "contractors must use E-verify" in the section heading; designated the existing provisions as subsection (a); added "Authority" as the subsection heading in subsection (a); and added subsection (b).

Session Laws 2014-119, s. 13(a), effective October 1, 2014, inserted "subject to G.S. 143-129" near the beginning of subsection (b). See Editor's note for applicability.

Session Laws, 2015-294, s. 1(b), effective October 1, 2015, repealed subsection (b). For applicability, see editor's note.

Session Laws 2016-3, 2nd Ex. Sess., s. 2.3, effective March 23, 2016, in the second sentence of subsection (a), substituted "regulations or controls on the contractor's employment practices or mandate or prohibit the provision of goods, services, or accommodations to any member of the public as a condition of bidding on a contract or a qualification-based selection, except as otherwise required or allowed by State law" for "any restriction that the city could not impose on all employers in the city, such as paying minimum wage or providing paid sick leave to its employees, as a condition of bidding on a contract".

ARTICLE 4. Corporate Limits.

Part 1. General Provisions.

Sec.

PART 1.

GENERAL PROVISIONS.

§ 160A-21. Existing boundaries.

The boundaries of each city shall be those specified in its charter with any alterations that are made from time to time in the manner provided by law or by local act of the General Assembly.

History

(1971, c. 698, s. 1.)

Legal Periodicals. - For 1984 survey, "Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule," see 63 N.C.L. Rev. 1260 (1985).

CASE NOTES

Constitutionality of Annexation by Local Act Where Essential Service Not Provided. - Annexation to a municipality by a local act of the General Assembly is not invalid constitutionally where the municipality fails to provide one of the many essential services to the newly acquired territory. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, cert. denied and appeal dismissed, 303 N.C. 710, 283 S.E.2d 136 (1981).

Contiguity and cohesiveness were not constitutionally required in an annexation proceeding under this section. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, cert. denied and appeal dismissed, 303 N.C. 710, 283 S.E.2d 136 (1981).

Legislature Has Power to Regulate Annexation. - Annexation by a municipal corporation is a political question which is within the power of the state legislature to regulate. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, cert. denied and appeal dismissed, 303 N.C. 710, 283 S.E.2d 136 (1981).

But Such Power Is Not Unlimited. - The power of the legislature to expand the boundaries of cities, towns, or other local units, though great, is not unlimited. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, cert. denied and appeal dismissed, 303 N.C. 710, 283 S.E.2d 136 (1981).

Scope of Legislative Discretion. - Enlargement of municipal boundaries by the annexation of new territory, and the consequent extension of corporate jurisdiction, including that of levying taxes, are legitimate subjects of legislation. In the absence of constitutional restriction, the extent to which such legislation shall be enacted, both with respect to the terms and circumstances under which the annexation may be had, and the manner in which it may be made, rests entirely in the discretion of the legislature. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, cert. denied and appeal dismissed, 303 N.C. 710, 283 S.E.2d 136 (1981).

Judicial Review of Local Annexation Act. - A local annexation act is not insulated from judicial review when it is an instrument for circumventing a constitutionally protected right. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, cert. denied and appeal dismissed, 303 N.C. 710, 283 S.E.2d 136 (1981).

Cited in Jones v. Jeanette, 34 N.C. App. 526, 239 S.E.2d 293 (1977); Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988); Pinehurst Enters., Inc. v. Town of S. Pines, 690 F. Supp. 444 (M.D.N.C. 1988).


§ 160A-22. Map of corporate limits.

The current city boundaries shall at all times be drawn on a map, or set out in a written description, or shown by a combination of these techniques. This delineation shall be retained permanently in the office of the city clerk. Alterations in these established boundaries shall be indicated by appropriate entries upon or additions to the map or description made by or under the direction of the officer charged with that duty by the city charter or by the council. Copies of the map or description reproduced by any method of reproduction that gives legible and permanent copies, when certified by the city clerk, shall be admissible in evidence in all courts and shall have the same force and effect as would the original map or description. The council may provide for revisions in any map or other description of the city boundaries. A revised map or description shall supersede for all purposes the earlier map or description that it is designated to replace.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 10.)

CASE NOTES

Cited in Potter v. City of Hamlet, 141 N.C. App. 714, 541 S.E.2d 233, cert. denied, 355 N.C. 379, 547 S.E.2d 814 (2001); Town of Boone v. State, 369 N.C. 126, 794 S.E.2d 710 (2016).


§ 160A-23. District map; reapportionment.

  1. If the city is divided into electoral districts for the purpose of electing the members of the council, the map or description required by G.S. 160A-22 shall also show the boundaries of the several districts.
  2. The council shall have authority to revise electoral district boundaries from time to time. If district boundaries are set out in the city charter and the charter does not provide a method for revising them, the council may revise them only for the purpose of (i) accounting for territory annexed to or excluded from the city, and (ii) correcting population imbalances among the districts shown by a new federal census or caused by exclusions or annexations. When district boundaries have been established in conformity with the federal Constitution, the council shall not be required to revise them again until a new federal census of population is taken or territory is annexed to or excluded from the city, whichever event first occurs. In establishing district boundaries, the council may use data derived from the most recent federal census and shall not be required to use any other population estimates.

History

(1969, c. 629; 1971, c. 698, s. 1.)

Local Modification. - City of Greensboro: 2015-138, s. 2(b), as amended by 2015-264, s. 85.5.

Legal Periodicals. - For article, "Political Gerrymandering After Davis v. Bandemer," see 9 Campbell L. Rev. 207 (1987).

For article, "Racial Gerrymandering and the Voting Rights Act in North Carolina," see 9 Campbell L. Rev. 255 (1987).

For article, "Reconstructing Racially Polarized Voting," see 70 Duke L.J. 261 (2020).

For article, "Math for the People: Reining in Gerrymandering While Protecting Minority Rights,” see 98 N.C.L. Rev. 273 (2020).

§ 160A-23.1. Special rules for redistricting after a federal decennial census.

  1. As soon as possible after receipt of federal decennial census information, the council of any city which elects the members of its governing board on a district basis, or where candidates for such office must reside in a district in order to run, shall evaluate the existing district boundaries to determine whether it would be lawful to hold the next election without revising districts to correct population imbalances. If such revision is necessary, the council shall consider whether it will be possible to adopt the changes (and obtain approval from the United States Department of Justice, if necessary) before the third day before opening of the filing period for the municipal election. The council shall take into consideration the time that will be required to afford ample opportunities for public input. If the council determines that it most likely will not be possible to adopt the changes (and obtain federal approval, if necessary) before the third business day before opening of the filing period, and determines further that the population imbalances are so significant that it would not be lawful to hold the next election using the current electoral districts, it may adopt a resolution delaying the election so that it will be held on the timetable provided by subsection (d) of this section. Before adopting such a resolution, the council shall hold a public hearing on it. The notice of public hearing shall summarize the proposed resolution and shall be published at least once in a newspaper of general circulation, not less than seven days before the date fixed for the hearing. Notwithstanding adoption of such a resolution, if the council proceeds to adopt the changes, (and federal approval is obtained, if necessary) by the end of the third business day before the opening of the filing period, the election shall be held on the regular schedule under the revised electoral districts. Any resolution adopted under this subsection, and any changes in electoral district boundaries made under this section shall be submitted to the United States Department of Justice (if the city is covered under Section 5 of the Voting Rights Act of 1965), the State Board of Elections, and to the board conducting the elections for that city.
  2. In adopting any revisal under this section, if the council determines that in order for the plan to conform to the Voting Rights Act of 1965, the number of district seats needs to be increased or decreased, it may do so by following the procedures set forth in Part 4 of Article 5 of Chapter 160A of the General Statutes, except that the ordinance under G.S. 160A-102 may be adopted at the same meeting as the public hearing, and any referendum on the change under G.S. 160A-103 shall not apply to the municipal election in the two years following a federal decennial census.
  3. If the resolution provided for in subsection (a) of this section is not adopted and:
    1. Proposed changes to the electoral districts are not adopted, or
    2. Such changes are adopted, but approval under the Voting Rights Act of 1965, as amended, is required, and notice of such approval is not received,
  4. If the council adopts the resolution provided for in subsection (a) of this section and does not adopt the changes, or does adopt the changes, but approval under the Voting Rights Act of 1965, as amended, is required, and notice of such approval is not received, by the end of the third day before the opening of the filing period, the municipal election shall be rescheduled as provided in this subsection and current officeholders shall hold over until their successors are elected and qualified. For cities using the:
    1. Partisan primary and election method under G.S. 163-291, the primary shall be held on the primary election date for county officers in the second year following a federal decennial census, the second primary, if necessary, shall be held on the second primary election date for county officers in that year, and the general election shall be held on the general election date for county officers in that year.
    2. Nonpartisan primary and election method under G.S. 163-294, the primary shall be held on the primary election date for county officers in the second year following a federal decennial census, and the election shall be held on the date for the second primary for county officers in that year.
    3. Nonpartisan plurality election method under G.S. 163-292, the election shall be held on the primary election date for county officers in the second year following a federal decennial census.
    4. Election and runoff method under G.S. 163-293, the election shall be held on the primary election date for county officers in the second year following a federal decennial census, and the runoffs, if necessary, shall be held on the date for the second primary for county officers in that year.
  5. This section does not apply to any municipality that, under its charter, is not scheduled to hold an election in the year following a federal decennial census.

by the end of the third business day before the opening of the filing period, the election shall be held on the regular schedule using the current electoral districts.

The organizational meeting of the new council may be held at any time after the results of the election have been officially determined and published, but not later than the time and date of the first regular meeting of the council in November of the second year following a federal decennial census, except in the case of partisan municipal elections, when the organizational meeting shall be held not later than the time and date of the first regular meeting of the council in December of the second year following a federal decennial census.

History

(1989 (Reg. Sess., 1990), c. 1012, s. 2; 1999-227, s. 4; 2000-140, s. 34; 2002-159, s. 52; 2009-414, s. 1; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "Bipartisan State Board of Elections and Ethics Enforcement" for "State Board of Elections" near the end of subsection (a); substituted "163A-1615" for "163-291" in subdivision (d)(1); substituted "163A-1618" for "163-294" in subdivision (d)(2); substituted "163A-1616" for "163-292" in subdivision (d)(3); and substituted "163A-1617" for "163-293" in subdivision (d)(4).

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1, repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to the references in this section.

Editor's Note. - Session Laws 1999-227, s. 3, contains findings of the General Assembly regarding, in part, the use of census data for congressional redistricting.

Session Laws 2021-56, s. 1(b), provides: "Revision of Districts After Release of 2020 Census Data. - G.S. 160A-23.1, and any resolution adopted under that statute, shall not apply with respect to any election delayed to 2022 in accordance with this act. Notwithstanding G.S. 160A-23.1, upon the release of the 2020 Census data by the U.S. Census Bureau, each municipality with elections delayed in accordance with this act shall review and revise its electoral districts in accordance with State and federal law on or before the date provided in Section 1(c) of this act. In revising the electoral districts, the municipality with elections delayed in accordance with this act may seek and provide an opportunity for public input prior to the release of the 2020 Census data. In addition, the municipality with elections delayed in accordance with this act shall provide an opportunity for public input after the release of the 2020 Census data and shall conduct at least one public hearing prior to adopting revised districts."

Session Laws 2021-56, s. 1.9, provides: "This act shall not apply to offices elected at large in any municipality where there is an election of municipal officers scheduled for 2021, where less than the entire jurisdiction is eligible to vote for candidates for one or more offices on the 2021, and that municipality has notified the county board of elections at least five business days prior to the opening of the 2021 filing period as provided in Article 23 or 24 of Chapter 163 of the General Statutes for the method of election for that municipality. If the county board of elections is so notified, the county board of elections shall open the filing period for the offices elected at large only for that municipality and conduct the election in 2021 in accordance with that municipality's charter and Chapter 163 of the General Statutes."

Effect of Amendments. - Session Laws 2009-414, s. 1, effective August 5, 2009, in the section heading, substituted "a federal decennial census" for "2000 census"; in subsection (a), substituted "decennial census information" for "census information in 2001"; in subsection (b), substituted "the two years following a federal decennial census" for "2001 or 2002"; in subsection (d), substituted "the second year following a federal decennial census" or "that year" for "2002" throughout; and added subsection (e).

ARTICLE 4A. Extension of Corporate Limits.

Part 1. Extension by Petition.

Sec.

Part 2. Annexation by Cities of Less Than 5,000.

Part 3. Annexation by Cities of 5,000 or More.

Part 4. Annexation of Noncontiguous Areas.

Part 4A. Effective Dates of Certain Annexation Ordinances.

Part 5. Property Tax Liability of Newly Annexed Territory.

Part 6. Annexation Agreements.

Part 7. Annexations Initiated by Municipalities.

Part 8. Recording and Reporting.

Local Modification. - (As to this Article) Municipalities in Craven County: 1985, c. 92, s. 2; town of Butner: 2007-269, s. 1.1 (restrictions on annexation); town of Wallburg: 2004-37, s. 1 (shall not extend boundaries into Forsyth County); village of Pinehurst: 1985, c. 379, s. 4. (As to Article 4A) Special Airport District for Burke and Caldwell: 2001-306, s. 3.1.

PART 1. EXTENSION BY PETITION.

§§ 160A-24 through 160A-28: Repealed by Session Laws 1983, c. 636, s. 26.

Editor's Note. - Session Laws 1983, c. 636, which repealed these sections, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25."

The act was ratified June 29, 1983.

§ 160A-29. Map of annexed area, copy of ordinance and election results recorded in the office of register of deeds.

Whenever the limits of any municipal corporation are enlarged, in accordance with the provisions of this Article, it shall be the duty of the mayor of the city or town to cause an accurate map of such annexed territory, together with a copy of the ordinance duly certified, and the official results of the election, if conducted, to be recorded in the office of the register of deeds of the county or counties in which such territory is situated and in the office of the Secretary of State. The documents required to be filed with the Secretary of State under this section shall be filed not later than 30 days following the effective date of the annexation ordinance. All documents shall have an identifying number affixed thereto and shall conform in size in accordance with rules prescribed by the Secretary. Failure to file within 30 days shall not affect the validity of the annexation. Any annexation shall be reported as part of the Boundary and Annexation Survey of the United States Bureau of the Census.

History

(1947, c. 725, s. 6; 1973, c. 426, s. 74; 1987, c. 715, s. 6; c. 879, s. 3; 1989, c. 440, s. 7; 1991, c. 586, s. 1.)

Local Modification. - (As to Article 4A) Bladen: 1991 (Reg. Sess., 1992), c. 807, ss. 2, 3; Cabarrus and municipalities located therein: 1987, c. 233, s. 2; 1991, c. 685, s. 7; (As to Article 4A) Davidson: 2012-54; New Hanover: 1997-415; Orange and municipalities located therein: 1987, c. 233, s. 2; 1991, c. 685, s. 7; (As to Article 4A) city of Durham: 1993, c. 342, s. 1; 2014-47, s. 4; (As to Article 4A) city of Reidsville: 1997-360; city of Washington: 1993 (Reg. Sess., 1994), c. 713, s. 1; (as to Part 1) town of Dobbins Heights: 1983, c. 658; (As to Article 4A) town of Holden Beach: 1991, c. 638, s. 1; (As to Article 4A) town of Lewisville: 1991, c. 116, s. 1; (As to Article 4A) town of Middlesex: 1993, c. 480; town of Oak Ridge: 1998-113; (As to Article 4A) town of Swepsonville: 1997-448, s. 2.

Cross References. - As to effective date of annexation ordinances adopted under Article 4A of Chapter 160A, see G.S. 160A-58.9A.

Twelve-year Prohibition on Involuntary Annexation. - Session Laws 2012-3, s. 3, effective July 1, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 4 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-3, s. 4, provides: "Repealed involuntary annexation ordinances.

"(1) Kinston annexation ordinance, as described in House Bill 5, First Edition, 2011 Regular Session.

"(2) Lexington annexation ordinance, as described in House Bill 37, First Edition, 2011 Regular Session.

"(3) Rocky Mount annexation ordinance, as described in House Bill 56, First Edition, 2011 Regular Session.

"(4) Wilmington annexation ordinance, described in House Bill 180, First Edition, 2011 Regular Session.

"(5) Asheville•iltmore Lake annexation ordinance, as described in House Bill 236, First Edition, 2011 Regular Session.

"(6) Marvin annexation ordinance, affecting the area described in RS 2008-02-02, a resolution of the Village of Marvin Council.

"(7) Southport annexation ordinance, affecting 'Area A' and 'Area B,' as described in City of Southport annexation ordinance, adopted June 9, 2011.

"(8) Goldsboro annexation ordinance, affecting the area described in Senate Bill 314, First Edition, 2011 Regular Session.

"(9) Fayetteville Gates Four annexation ordinance, as described in House Bill 231, First Edition, 2011 Regular Session."

Session Laws 2012-103, s. 2, effective June 29, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 3 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-103, s. 3, provides: "Repealed involuntary annexation ordinances. -

"(1) Elizabethtown Annexation Ordinance 2011-04 (Area A) adopted June 6, 2011.

"(2) Elizabethtown Annexation Ordinance 2011-05 (Area B) adopted June 6, 2011.

"(3) Elizabethtown Annexation Ordinance 2011-06 (Area C) adopted June 6, 2011.

"(4) Elizabethtown Annexation Ordinance 2011-07 (Area D) adopted June 6, 2011."

Session Laws 2012-104, s. 2, effective June 29, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 3 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-104, s. 3, provides: "Repealed involuntary annexation ordinances. -

"(1) Elizabethtown Annexation Ordinance 2011-09 (Area J) adopted June 6, 2011.

"(2) Elizabethtown Annexation Ordinance 2011-10 (Area N) adopted June 6, 2011.

"(3) Elizabethtown Annexation Ordinance 2011-07 (Area Q) adopted June 6, 2011."

Editor's Note. - Session Laws 2012-3, s. 6, is a severability clause.

Session Laws 2012-103, s. 4, is a severability clause.

Session Laws 2012-104, s. 4, is a severability clause.

CASE NOTES

As to the constitutionality of this Article, see Forsyth Citizens Opposing Annexation v. City of Winston-Salem, 67 N.C. App. 164, 312 S.E.2d 517, cert. denied and appeal dismissed, 310 N.C. 743, 315 S.E.2d 701, appeal dismissed, 469 U.S. 802, 105 S. Ct. 57, 83 L. Ed. 2d 8 (1984).

Right to Annexation Conditioned on Compliance with Duty to Create Record. - For an annexation ordinance to be valid, the record must show prima facie complete and substantial compliance with Article 4A of G.S. 160A as a condition precedent to the municipality's right to annex the territory. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

If Record Is Complete, Burden of Showing Irregularity Shifts to Those Opposing Annexation. - Once a municipality has made its prima facie showing of compliance with this Article, the burden shifts to those opposing annexation to prove either a procedural irregularity in the annexation process materially prejudicing the rights of those opposing annexation or a failure on the part of the municipality to comply with statutory prerequisites to annexation as a matter of fact. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).


§ 160A-30. Surveys of proposed new areas.

The governing bodies of the cities and towns after five days' written notice to the owner of record or persons in possession of the premises are hereby authorized to enter upon any lands to make surveys or examinations as may be necessary in carrying out the mapping requirements of proposed annexations under any provision of Article 4A of Chapter 160A; provided, the city or town authorizing such entry shall make reimbursement for any damage resulting from such activity.

History

(1947, c. 725, s. 7; 1973, c. 426, s. 74; 1975, c. 312.)

Legal Periodicals. - For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1093 (1981).

§ 160A-31. Annexation by petition.

  1. The governing board of any municipality may annex by ordinance any area contiguous to its boundaries upon presentation to the governing board of a petition signed by the owners of all the real property located within such area. The petition shall be signed by each owner of real property in the area and shall contain the address of each such owner.
  2. The petition shall be prepared in substantially the following form: DATE:                To the ______________ (name of governing board) of the (City or Town) of ____________      1. We the undersigned owners of real property respectfully request that the area described in paragraph 2 below be annexed to the (City or Town) of ____________       2. The area to be annexed is contiguous to the (City or Town) of ____________ and the boundaries of such territory are as follows: ______________________________________________________________________________     (b1)  Notwithstanding the provisions of subsections (a) and (b) of this section, if fifty-one percent (51%) of the households in an area petitioning for annexation pursuant to this section have incomes that are two hundred percent (200%) or less than the most recently published United States Census Bureau poverty thresholds, the governing board of any municipality shall annex by ordinance any area the population of which is no more than ten percent (10%) of that of the municipality and one-eighth of the aggregate external boundaries of which are contiguous to its boundaries, upon presentation to the governing board of a petition signed by the owners of at least seventy-five percent (75%) of the parcels of real property in that area. A municipality shall not be required to adopt more than one ordinance under this subsection within a 36-month period.     (b2)  The petition under subsection (b1) of this section shall be prepared in substantially the following form: DATE:                To the ______________ (name of governing board) of the (City or Town) of ____________      1. We the undersigned owners of real property believe that the area described in paragraph 2 below meets the requirements of G.S. 160A-31(b1) and respectfully request that the area described in paragraph 2 below be annexed to the (City or Town) of ____________.      2. The area to be annexed is contiguous to the (City or Town) of ____________, and the boundaries of such territory are as follows: ______________________________________________________________________________     (c)  Upon receipt of the petition, the municipal governing board shall cause the clerk of the municipality to investigate the sufficiency thereof and to certify the result of the investigation. For petitions received under subsection (b1) or (j) of this section, the clerk shall receive the evidence provided under subsection (l) of this section before certifying the sufficiency of the petition. Upon receipt of the certification, the municipal governing board shall fix a date for a public hearing on the question of annexation, and shall cause notice of the public hearing to be published once in a newspaper having general circulation in the municipality at least 10 days prior to the date of the public hearing; provided, if there be no such paper, the governing board shall have notices posted in three or more public places within the area to be annexed and three or more public places within the municipality.     (d)  At the public hearing persons resident or owning property in the area described in the petition and persons resident or owning property in the municipality shall be given an opportunity to be heard. The governing board shall then determine whether the petition meets the requirements of this section. Upon a finding that the petition that was not submitted under subsection (b1) or (j) of this section meets the requirements of this section, the governing board shall have authority to pass an ordinance annexing the territory described in the petition. The governing board shall have authority to make the annexing ordinance effective immediately or on the June 30 after the date of the passage of the ordinance or the June 30 of the following year after the date of passage of the ordinance.     (d1)  Upon a finding that a petition submitted under subsection (j) of this section meets the requirements of this section, the governing body shall have the authority to adopt an annexation ordinance for the area with an effective date no later than 24 months after the adoption of the ordinance.     (d2)  Upon a finding that a petition submitted under subsection (b1) of this section meets the requirements of this section, the governing body shall, within 60 days of the finding, estimate the capital cost to the municipality of extending water and sewer lines to all parcels within the area covered by the petition and estimate the annual debt service payment that would be required if those costs were financed by a 20-year revenue bond. If the estimated annual debt service payment is less than five percent (5%) of the municipality's annual water and sewer systems revenue for the most recent fiscal year, then the governing body shall within 30 days adopt an annexation ordinance for the area with an effective date no later than 24 months after the adoption of the ordinance. If the estimated annual debt service payment is greater than or equal to five percent (5%) of the municipality's annual water and sewer systems revenue for the most recent fiscal year, then the governing body may adopt a resolution declining to annex the area. If such a resolution is adopted, the governing body shall immediately submit a request to the Local Government Commission to certify that its estimate of the annual debt service payment is reasonable based on established governmental accounting principles.      (1) If the Local Government Commission certifies the estimate, the municipality is not required to annex the area and no petition to annex the area may be submitted under subsection (b1) of this section for 36 months following the certification. During the 36-month period, the municipality shall make ongoing, annual good faith efforts to secure Community Development Block Grants or other grant funding for extending water and sewer service to all parcels in the areas covered by the petition. If sufficient funding is secured so that the estimated capital cost to the municipality for extending water and sewer service, less the funds secured, would result in an annual debt service payment cost to the municipality of less than five percent (5%) of the municipality's annual water and sewer systems revenue for the most recent fiscal year, then the governing body shall within 30 days adopt an annexation ordinance for the area with an effective date no later than 24 months after the adoption of the ordinance.      (2) If the Local Government Commission notifies the governing board that the estimates are not reasonable based on established governmental accounting principles and that a reasonable estimate of the annual debt service payment is less than five percent (5%) of the municipality's annual water and sewer systems revenue for the most recent fiscal year, then the governing body shall within 30 days of the notification adopt an annexation ordinance for the area with an effective date no later than 24 months after the adoption of the ordinance.     (d3)  Municipal services shall be provided to an area annexed under subsections (b1) and (j) of this section in accordance with the requirements of Part 7 of this Article.     (e)  From and after the effective date of the annexation ordinance, the territory and its citizens and property shall be subject to all debts, laws, ordinances and regulations in force in such municipality and shall be entitled to the same privileges and benefits as other parts of such municipality. Real and personal property in the newly annexed territory on the January 1 immediately preceding the beginning of the fiscal year in which the annexation becomes effective is subject to municipal taxes as provided in G.S. 160A-58.10. If the effective date of annexation falls between June 1 and June 30, and the effective date of the privilege license tax ordinance of the annexing municipality is June 1, then businesses in the area to be annexed shall be liable for taxes imposed in such ordinance from and after the effective date of annexation.     (f)  For purposes of this section, an 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 the width of 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. A connecting corridor consisting solely of a street or street right-of-way may not be used to establish contiguity. In describing the area to be annexed in the annexation ordinance, the municipal governing board may include within the description any territory described in this subsection which separates the municipal boundary from the area petitioning for annexation.     (g)  The governing board 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. The resolution shall contain an adequate description of the property, state that the property is contiguous to the municipal boundaries and fix a date for a public hearing on the question of annexation. Notice of the public hearing shall be published as provided in subsection (c) of this section. The governing board may hold the public hearing and adopt the annexation ordinance as provided in subsection (d) of this section.   (h)  A city council which receives a petition for annexation under this section may by ordinance require that the petitioners file a signed statement declaring whether or not vested rights with respect to the properties subject to the petition have been established under G.S. 160A-385.1 or G.S. 153A-344.1. If the statement declares that such rights have been established, the city may require petitioners to provide proof of such rights. A statement which declares that no vested rights have been established under G.S. 160A-385.1 or G.S. 153A-344.1 shall be binding on the landowner and any such vested right shall be terminated.     (i)  A municipality has no authority to adopt a resolution or petition itself under this Part for annexation of property it does not own or have any legal interest in. For the purpose of this subsection, a municipality has no legal interest in a State-maintained street unless it owns the underlying fee and not just an easement.     (j)  Using the procedures under this section, the governing board of any municipality may annex by ordinance any distressed area contiguous to its boundaries upon presentation to the governing board of a petition signed by at least one adult resident of at least two-thirds of the resident households located within such area. For purposes of this subsection, a "distressed area" is defined as an area in which at least fifty-one percent (51%) of the households in the area petitioning to be annexed have incomes that are two hundred percent (200%) or less than the most recently published United States Census Bureau poverty thresholds. The municipality may require reasonable proof that the petitioner in fact resides at the address indicated.     (k)  The petition under subsection (j) of this section shall be prepared in substantially the following form: DATE:               To the ______________ (name of governing board) of the (City or Town) of ____________      1. We the undersigned residents of real property believe that the area described in paragraph 2 below meets the requirements of G.S. 160A-31(j) and respectfully request that the area described in paragraph 2 below be annexed to the (City or Town) of____________.      2. The area to be annexed is contiguous to the (City or Town) of ________ ________, and the boundaries of such territory are as follows: _____________________________________________________________________________
  3. For purposes of determining whether the percentage of households in the area petitioning for annexation meets the poverty thresholds under subsections (b1) and (j) of this section, the petitioners shall submit to the municipal governing board any reasonable evidence that demonstrates the area in fact meets the income requirements of that subsection. The evidence presented may include data from the most recent federal decennial census, other official census documents, signed affidavits by at least one adult resident of the household attesting to the household size and income level, or any other documentation verifying the incomes for a majority of the households within the petitioning area. Petitioners may select to submit name, address, and social security number to the clerk, who shall in turn submit the information to the Department of Revenue. Such information shall be kept confidential and is not a public record. The Department shall provide the municipality with a summary report of income for households in the petitioning area. Information for the report shall be gleaned from income tax returns, but the report submitted to the municipality shall not identify individuals or households.

History

(1947, c. 725, s. 8; 1959, c. 713; 1973, c. 426, s. 74; 1975, c. 576, s. 2; 1977, c. 517, s. 4; 1987, c. 562, s. 1; 1989 (Reg. Sess., 1990), c. 996, s. 3; 2011-57, s. 3; 2011-396, s. 10.)

Local Modification. - City of Asheville: 2005-139, s. 2 (Applicable to petitions for annexation received on or after June 30, 2005); city of Concord: 2004-102, s. 1; city of Durham: 1987, c. 606; 1993, c. 342, s. 1; 2013-386, s. 3; 2015-82, s. 1 (as to subsection (i)); city of Fayetteville: 1969, c. 715; city of Greensboro: 1959, c. 1137, s. 18; city of Kinston: 2017-85, s. 3(a) (as to subsection (a); city of Mount Holly: 2000-24, s. 1; city of Reidsville: 1997-343; town of Atlantic Beach: 1959, c. 395; town of Huntersville: 1999-19, s. 1; 1999-337, s. 45; town of Morrisville: 1989, c. 389, s. 1.

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Effect of Amendments. - Session Laws 2011-57, s. 3, effective April 28, 2011, added subsection (i).

Session Laws 2011-396, s. 10, effective July 1, 2011, rewrote the section to the extent that a detailed comparison is impracticable. For applicability, see editor's notes.

Legal Periodicals. - For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For 1984 survey, "Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule," see 63 N.C.L. Rev. 1260 (1985).

For casenote, "Carolina Power & Light v. City of Asheville Municipal Annexation in North Carolina: The Pros, the Cons and the Judiciary," see 27 N.C. Cent. L.J. 224 (2005).

CASE NOTES

Deliberate preference for voluntary annexation is incorporated into the law. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 357 S.E.2d 686, cert. denied, 320 N.C. 639, 360 S.E.2d 106 (1987).

G.S. 160A-37(e), 160A-49(e), and this section are in pari materia. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

No Authorization to Annex Only Part of Area Described. - If the General Assembly had intended to authorize cities proceeding pursuant to a petition for voluntary annexation to annex merely a part of the area described in the petition, it would have so provided, as it has explicitly done in G.S. 160A-37(e) and 160A-49(e). The absence of such statutory authorization, in light of the explicit provisions for it in the involuntary annexation statutes, is cogent evidence that the General Assembly intended a petition for voluntary annexation to stand or fall as a unity. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

"Contiguous". - North Carolina annexation statutes do not permit municipality to annex by voluntary means tract of land that is contiguous with its municipal boundaries only by virtue of second tract of land that is being annexed simultaneously. City of Kannapolis v. City of Concord, 326 N.C. 512, 391 S.E.2d 493 (1990).

Standing to Contest Annexation. - Because this section describes a voluntary annexation undertaken at the request of land owners and does not authorize suit by neighboring municipalities, plaintiff town did not have standing to contest the annexation scheme of defendant neighboring town; only if another town owned property in the annexed area, or if both towns were simultaneously attempting to annex controverted property, could there be a justiciable controversy, giving one town standing to contest the annexation by the other, and, even then, G.S. 160A-360 provides a way to resolve such a conflict. Town of Ayden v. Town of Winterville, 143 N.C. App. 136, 544 S.E.2d 821 (2001).

Annexation of Undeveloped Lands Only on Petition. - Large tracts of agricultural or vacant lands, where no evidence of urban development can be shown, should not be annexed in any event, except upon petition of the landowners. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

Property owners who have signed a voluntary annexation petition have the right to withdraw from the petition at any time up until the governing municipal body has taken action upon the petition by annexing the area described in the petition. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Resolution of intent is "first mandatory public procedural step" for purposes of the prior jurisdiction rule. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 357 S.E.2d 686, cert. denied, 320 N.C. 639, 360 S.E.2d 106 (1987).

The adoption of a resolution of intent is the critical date for determining whether a municipality utilizing involuntary annexation procedures has prior jurisdiction over the same territory being considered for voluntary annexation by a different municipality. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 357 S.E.2d 686, cert. denied, 320 N.C. 639, 360 S.E.2d 106 (1987).

Property Not Contiguous. - Where city sought to annex private property and municipal property, and where municipal property was not contiguous with city but was contiguous to private property, city could not annex municipal property on the theory that the area as a whole was contiguous; the private property and municipal property were annexed by different procedures with independent requirements and could not be considered one whole area for the purpose of satisfying the contiguity requirement. City of Kannapolis v. City of Concord, 95 N.C. App. 591, 383 S.E.2d 402, rev'd on other grounds, 326 N.C. 512, 391 S.E.2d 493 (1990).

At the time town purported to annex defendant counties' property, the property was not contiguous and the attempted annexation was invalid. Town of Valdese v. Burke, Inc., 125 N.C. App. 688, 482 S.E.2d 24 (1997).

Effect of Withdrawal. - Where six owners of real property located within the area described in a voluntary annexation petition validly withdrew their signatures from the petition before the annexation ordinance was passed, the city governing body was without jurisdiction to take any further action on the petition as submitted, and the entire ordinance purporting to annex all the area described in the petition was void. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Condemnor-County May Enjoin Municipal Annexation Proceeding. - When a county initiates condemnation of property for a sanitary landfill, and the property is being considered for voluntary annexation into a municipality, the county may proceed with the condemnation action. The county is entitled to an injunction enjoining the annexation proceeding, and the property owners and the municipality may raise the proposed annexation in the answer to the condemnation complaint, for appropriate consideration by the court. Yandle v. Mecklenburg County, 85 N.C. App. 382, 355 S.E.2d 216 (1987).

Annexation Held Proper. - City's division of an annexation area into sub-areas did not result in the improper annexation of an "island" not contiguous with the city limits as of the date of the original resolution of intent, although the boundaries of the sub-area, if considered in isolation, rather than as a sub-part of the area originally identified and eventually annexed, were not contiguous with the city limits on the date of the initial resolution. U.S. Cold Storage, Inc. v. City of Lumberton, 170 N.C. App. 411, 612 S.E.2d 415 (2005).

Annexation Held Void. - City's annexation of three developments was void despite utility agreements with the developers barring future lot owners from withdrawing consent to an annexation. No easements were created through the agreements, deeds to non-consenting lot owners did not refer to the agreements, and all owners had to consent under G.S. 160A-31(a). Cunningham v. City of Greensboro, 212 N.C. App. 86, 711 S.E.2d 477 (2011).

Applied in Texfi Indus., Inc. v. City of Fayetteville, 301 N.C. 1, 269 S.E.2d 142 (1980).

Cited in Thompson v. Whitley, 344 F. Supp. 480 (E.D.N.C. 1972); Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820 (1981); Town of Hazelwood v. Town of Waynesville, 83 N.C. App. 670, 351 S.E.2d 558 (1987); South Shell Inv. v. Town of Wrightsville Beach, 703 F. Supp. 1192 (E.D.N.C. 1988).


§ 160A-31.1. Assumption of debt.

  1. If the city has annexed under this Part any area which is served by a rural fire department and which is in:
    1. An insurance district defined under G.S. 153A-233;
    2. A rural fire protection district under Article 3A of Chapter 69 of the General Statutes; or
    3. A fire service district under Article 16 of Chapter 153A of the General Statutes,
  2. The annual payments from the city to the rural fire department on such shared debt service shall be calculated as follows:
    1. The rural fire department shall certify to the city each year the amount that will be expended for debt service subject to be shared by the city as provided by subsection (a) of this section; and
    2. The amount determined under subdivision (1) of this subsection shall be multiplied by the percentage determined by dividing the assessed valuation of the area of the district annexed by the assessed valuation of the entire district, each such valuation to be fixed as of the date the annexation ordinance becomes effective.
  3. This section does not apply in any year as to any annexed area(s) for which the payment calculated under this section as to all annexation ordinances adopted under this Part by a city during a particular calendar year does not exceed one hundred dollars ($100.00).
  4. The city and rural fire department shall jointly present a payment schedule to the Local Government Commission for approval and no payment may be made until such schedule is approved. The Local Government Commission shall approve a payment schedule agreed upon between the city and the rural fire department in cases where the assessed valuation of the district may not readily be determined, if there is a reasonable basis for the agreement.

then beginning with the effective date of annexation the city shall pay annually a proportionate share of any payments due on any debt (including principal and interest) relating to facilities or equipment of the rural fire department, if the debt was existing at the time of submission of the petition for annexation to the city under this Part. The rural fire department shall make available to the city not later than 30 days following a written request from the city, information concerning such debt. The rural fire department forfeits its rights under this section if it fails to make a good faith response within 45 days following receipt of the written request for information from the city, provided that the city's written request so states by specific reference to this section.

History

(1989, c. 598, s. 2.)

§ 160A-32: Repealed by Session Laws 1983, c. 636, s. 26.1.

Editor's Note. - Session Laws 1983, c. 636, which repealed this section, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25."

The act was ratified June 29, 1983.

PART 2. ANNEXATION BY CITIES OF LESS THAN 5,000.

§§ 160A-33 through 160A-42: Repealed by Session Laws 2011-396, s. 1, effective July 1, 2011. For applicability, see editor's note.

History

(§ 160A-33: 1959, c. 1010, s. 1; 1973, c. 426, s. 74; 1983, c. 636, s. 8; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-34: 1959, c. 1010, s. 2; 1973, c. 426, s. 74; 1985, c. 92, s. 1; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-35: 1959, c. 1010, s. 3; 1973, c. 426, s. 74; 1983, c. 636, ss. 7.1, 16, 18; 1985, c. 610, ss. 1, 5, 7; 1989, c. 598, s. 5; 1991, c. 25, s. 1; c. 761, s. 30; 1998-150, s. 4; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-35.1: 1991, c. 25, s. 1; c. 761, s. 30; 1998-150, s. 5; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-36: 1959, c. 1010, s. 4; 1973, c. 426, s. 74; 1985, c. 757, s. 205(c); 1993 (Reg. Sess., 1994), c. 696, s. 6; c. 714, s. 6; 1998-150, s. 6; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-37: 1959, c. 1010, s. 5; 1967, c. 1226, s. 1; 1973, c. 426, s. 74; 1975, c. 576, s. 3; 1977, c. 517, s. 5; 1983, c. 636, ss. 2, 4, 6, 36; 1985, c. 384, s. 1; 1987, c. 44, s. 1; 1989, c. 598, s. 11; 1998-150, s. 7; 2001-487, s. 36; 2006-264, s. 17(a)-(c); repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-37.1: 1983, c. 636, s. 20; 1987, c. 827, s. 1; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-37.2: 1983, c. 636, s. 22; 1998-150, s. 8; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-37.3: 1985, c. 610, s. 3; 1987, c. 827, s. 1; 1989, c. 598, s. 6; 1998-150, s. 9; 2006-193, s. 1; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-38: 1959, c. 1010, s. 6; 1973, c. 426, s. 74; 1977, c. 148, ss. 6, 7; 1989, c. 598, s. 7; 1995 (Reg. Sess., 1996), c. 746, s. 4; 1998-150, s. 10; 1999-148, s. 2; 2009-570, s. 27; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-39: 1959, c. 1010, s. 7; 1973, c. 426, s. 74; 1987, c. 715, s. 7; c. 879, s. 3; 1989, c. 440, s. 8; 1991, c. 586, s. 2; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-40: 1959, c. 1010, s. 8; 1973, c. 426, s. 74; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-41: 1959, c. 1010, s. 9; 1973, c. 426, s. 74; repealed by 2011-396, s. 1, effective July 1, 2011. § 160A-42: 1959, c. 1010, s. 10; 1973, c. 426, s. 74; 1998-150, s. 11; repealed by 2011-396, s. 1, effective July 1, 2011.)

Cross References. - As to effective date of annexation ordinances adopted under Article 4A of Chapter 160A, see G.S. 160A-58.9A. For current provisions as to annexations initiated by municipalities, see G.S. 160A-58.50 et seq.

Editor's Note. - Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Former G.S. 160A-33 through 160A-42, repealed by Session Laws 2011-396, s. 1, pertained to annexation by cities having a population of less than 5,000 persons. For current provisions, see G.S. 160A-58.50 et seq.

Former G.S. 160A-36, was amended by Session Laws 2011-363, s. 2, effective June 27, 2011, and applicable to annexations of property used for bona fide farm purposes that were initiated by municipalities on or after that date or are pending on that date, by adding a subsection (f), which read: "(f) As used in this subsection, 'bona fide farm purposes' is as described in G.S. 153A-340. As used in this subsection, 'property' means a single tract of property or an identifiable portion of a single tract. Property that is being used for bona fide farm purposes on the date of the resolution of intent to consider annexation may not be annexed without the written consent of the owner or owners of the property."

§§ 160A-43, 160A-44: Repealed by Session Laws 1983, c. 636, s. 27.

Editor's Note. - Session Laws 1983, c. 636, which repealed these sections, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25."

The act was ratified June 29, 1983.

PART 3. ANNEXATION BY CITIES OF 5,000 OR MORE.

§§ 160A-45 through 160A-49: Repealed by Session Laws 2011-396, s. 7, effective July 1, 2011. For applicability, see editor's note.

History

(§ 160A-45: 1959, c. 1009, s. 1; 1973, c. 426, s. 74; 1983, c. 636, s. 9; repealed by 2011-396, s. 7, effective July 1, 2011. § 160A-46: 1959, c. 1009, s. 2; 1973, c. 426, s. 74; repealed by 2011-396, s. 7, effective July 1, 2011. § 160A-47: 1959, c. 1009, s. 3; 1973, c. 426, s. 74; 1983, c. 636, ss. 7, 10, 11, 17, 19; 1985, c. 610, ss. 2, 6, 7; 1989, c. 598, s. 8; 1991, c. 25, s. 2; c. 761, s. 31; 1998-150, s. 12; repealed by 2011-396, s. 7, effective July 1, 2011. § 160A-47.1: 1991, c. 25, s. 2; c. 761, s. 31; 1998-150, s. 13; repealed by 2011-396, s. 7, effective July 1, 2011. § 160A-48: 1959, c. 1009, s. 4; 1973, c. 426, s. 74; 1983, c. 636, s. 15; 1985, c. 757, s. 205(d); 1993 (Reg. Sess., 1994), c. 696, s. 7; c. 714, s. 7; 1998-150, s. 14; repealed by 2011-396, s. 7, effective July 1, 2011. § 160A-49: 1959, c. 1009, s. 5; 1973, c. 426, s. 74; 1975, c. 576, s. 4; 1977, c. 517, s. 6; 1983, c. 636, ss. 1, 3, 5, 6, 12-14, 37; c. 768, s. 25; 1985, c. 384, s. 1; 1987, c. 44, s. 2; 1989, c. 598, s. 12; 1998-150, s. 15; 2006-162, s. 21; 2006-264, s. 18(a); repealed by 2011-396, s. 7, effective July 1, 2011.)

Cross References. - As to annexations initiated by municipalities, see G.S. 160A-58.50 et seq.

Editor's Note. - Former G.S. 160A-48 was amended by Session Laws 2011-363, s. 3, effective June 27, 2011, and applicable to annexations of property used for bona fide farm purposes that were initiated by municipalities on or after that date or are pending on that date, by adding a subsection (g), which read: "(g) As used in this subsection, 'bona fide farm purposes' is as described in G.S. 153A-340. As used in this subsection, 'property' means a single tract of property or an identifiable portion of a single tract. Property that is being used for bona fide farm purposes on the date of the resolution of intent to consider annexation may not be annexed without the written consent of the owner or owners of the property."

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Former Part 3 of Article 4A of Chapter 160A, which was repealed by Session Laws 2011-396, s. 7, pertained to annexation by cities having a population of 5,000 or more persons. For current provisions, see G.S. 160A-58.50 et seq. The current provisions include five sections recodified from former Part 3.


§ 160A-49.1: Recodified to G.S. 160A-58.57 by Session Laws 2011-396, s. 2, effective July 1, 2011.

§ 160A-49.2: Recodified to G.S. 160A-58.58 by Session Laws 2011-396, s. 3, effective July 1, 2011.

§ 160A-49.3: Recodified to G.S. 160A-58.59 by Session Laws 2011-396, s. 4, effective July 1, 2011.

§ 160A-50: Repealed by Session Laws 2011-396, s. 7, effective July 1, 2011. For applicability, see editor's note.

History

(1959, c. 1009, s. 6; 1973, c. 426, s. 74; 1981, c. 682, ss. 20, 21; 1983, c. 636, s. 14.1; 1989, c. 598, s. 10; 1995 (Reg. Sess., 1996), c. 746, s. 3; 1998-150, s. 18; 1999-148, s. 1; 2009-570, s. 27; repealed by Acts 2011-396, s. 7, effective July 1, 2011.)

Cross References. - As to annexations initiated by municipalities, see G.S. 160A-58.50 et seq.

Editor's Note. - Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Former Part 3 of Article 4A of Chapter 160A, which was repealed by Session Laws 2011-396, s. 7, pertained to annexation by cities having a population of 5,000 or more persons. For current provisions, see G.S. 160A-58.50 et seq.

Effect of Amendments. - Session Laws 2009-570, s. 27, effective August 28, 2009, substituted "judgment" for "judgement" in the last sentence of subsection (i).

§ 160A-51: Recodified to G.S. 160A-58.61 by Session Laws 2011-396, s. 5, effective July 1, 2011.

§ 160A-52: Recodified to G.S. 160A-58.62 by Session Laws 2011-396, s. 6, effective July 1, 2011.

§§ 160A-53, 160A-54: Repealed by Session Laws 2011-396, s. 7, effective July 1, 2011. For applicability, see editor's note.

History

(§ 160A-53: 1959, c. 1009, s. 9; 1973, c. 426, s. 74; repealed 2011-396, s. 7, effective July 1, 2011. § 160A-54: 1959, c. 1009, s. 10; 1973, c. 426, s. 74; 1998-150, s. 19; repealed 2011-396, s. 7, effective July 1, 2011.)

Editor's Note. - Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Former Part 3 of Article 4A of Chapter 160A, which was repealed by Session Laws 2011-396, s. 7, pertained to annexation by cities having a population of 5,000 or more persons. For current provisions, see G.S. 160A-58.50 et seq.


§§ 160A-55, 160A-56: Repealed by Session Laws 1983, c. 636.

Editor's Note. - Session Laws 1983, c. 636, which repealed these sections, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25."

Session Laws 1983, c. 636 was ratified June 29, 1983.

§ 160A-57: Reserved for future codification purposes.

PART 4. ANNEXATION OF NONCONTIGUOUS AREAS.

§ 160A-58. Definitions.

The words and phrases defined in this section have the meanings indicated when used in this Part unless the context clearly requires another meaning:

  1. "City" means any city, town, or village without regard to population, except cities not qualified to receive gasoline tax allocations under G.S. 136-41.2.
  2. "Primary corporate limits" means the corporate limits of a city as defined in its charter, enlarged or diminished by subsequent annexations or exclusions of contiguous territory pursuant to Parts 1, 2, and 3 of this Article or local acts of the General Assembly.
  3. "Satellite corporate limits" means the corporate limits of a noncontiguous area annexed pursuant to this Part or a local act authorizing or effecting noncontiguous annexations.

History

(1973, c. 1173, s. 2.)

Local Modification. - (As to Part 4) Iredell and municipalities located therein: 1989, c. 598, s. 12.1; Union: 2003-321, s. 1; (as to Part 4) town of Dobbins Heights: 1983, c. 658; town of Moorehead City and Newport: 1997-219, s. 1; 1997-363, s. 1.1; (as to Part 4) city of Sanford: 2007-43, s. 2 (shall not annex areas located within Chatham County).

Cross References. - As to effective date of annexation ordinances adopted under Article 4A of Chapter 160A, see G.S. 160A-58.9A.

Twelve-year Prohibition on Involuntary Annexation. - Session Laws 2012-3, s. 3, effective July 1, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 4 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-3, s. 4, provides: "Repealed involuntary annexation ordinances.

"(1) Kinston annexation ordinance, as described in House Bill 5, First Edition, 2011 Regular Session.

"(2) Lexington annexation ordinance, as described in House Bill 37, First Edition, 2011 Regular Session.

"(3) Rocky Mount annexation ordinance, as described in House Bill 56, First Edition, 2011 Regular Session.

"(4) Wilmington annexation ordinance, described in House Bill 180, First Edition, 2011 Regular Session.

"(5) Asheville•iltmore Lake annexation ordinance, as described in House Bill 236, First Edition, 2011 Regular Session.

"(6) Marvin annexation ordinance, affecting the area described in RS 2008-02-02, a resolution of the Village of Marvin Council.

"(7) Southport annexation ordinance, affecting 'Area A' and 'Area B,' as described in City of Southport annexation ordinance, adopted June 9, 2011.

"(8) Goldsboro annexation ordinance, affecting the area described in Senate Bill 314, First Edition, 2011 Regular Session.

"(9) Fayetteville Gates Four annexation ordinance, as described in House Bill 231, First Edition, 2011 Regular Session."

Session Laws 2012-103, s. 2, effective June 29, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 3 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-103, s. 3, provides: "Repealed involuntary annexation ordinances. -

"(1) Elizabethtown Annexation Ordinance 2011-04 (Area A) adopted June 6, 2011.

"(2) Elizabethtown Annexation Ordinance 2011-05 (Area B) adopted June 6, 2011.

"(3) Elizabethtown Annexation Ordinance 2011-06 (Area C) adopted June 6, 2011.

"(4) Elizabethtown Annexation Ordinance 2011-07 (Area D) adopted June 6, 2011."

Session Laws 2012-104, s. 2, effective June 29, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 3 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-104, s. 3, provides: "Repealed involuntary annexation ordinances. -

"(1) Elizabethtown Annexation Ordinance 2011-09 (Area J) adopted June 6, 2011.

"(2) Elizabethtown Annexation Ordinance 2011-10 (Area N) adopted June 6, 2011.

"(3) Elizabethtown Annexation Ordinance 2011-07 (Area Q) adopted June 6, 2011."

Editor's Note. - Session Laws 2012-3, s. 6, is a severability clause.

Session Laws 2012-103, s. 4, is a severability clause.

Session Laws 2012-104, s. 4, is a severability clause.

Legal Periodicals. - For 1984 survey, "Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule," see 63 N.C.L. Rev. 1260 (1985).

CASE NOTES

Satellite corporate limits are not "municipal boundaries" as that term is used in G.S. 160A-36. Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

Satellite Corporate Limits. - A corporate limit is defined as a satellite only when there is no connection whatsoever between the municipality and the satellite. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, cert. denied, 349 N.C. 241, 516 S.E.2d 611 (1998).

Cited in Taylor v. City of Raleigh, 290 N.C. 608, 227 S.E.2d 576 (1976); Texfi Indus., Inc. v. City of Fayetteville, 301 N.C. 1, 269 S.E.2d 142 (1980).


§ 160A-58.1. Petition for annexation; standards.

  1. Upon receipt of a valid petition signed by all of the owners of real property in the area described therein, a city may annex an area not contiguous to its primary corporate limits when the area meets the standards set out in subsection (b) of this section. The petition need not be signed by the owners of real property that is wholly exempt from property taxation under the Constitution and laws of North Carolina, nor by railroad companies, public utilities as defined in G.S. 62-3(23), or electric or telephone membership corporations. A petition is not valid in any of the following circumstances:
    1. It is unsigned.
    2. It is signed by the city for the annexation of property the city does not own or have a legal interest in. For the purpose of this subdivision, a city has no legal interest in a State-maintained street unless it owns the underlying fee and not just an easement.
    3. It is for the annexation of property for which a signature is not required and the property owner objects to the annexation.
  2. A noncontiguous area proposed for annexation must meet all of the following standards:
    1. The nearest point on the proposed satellite corporate limits must be not more than three miles from the primary corporate limits of the annexing city.
    2. No point on the proposed satellite corporate limits may be closer to the primary corporate limits of another city than to the primary corporate limits of the annexing city, except as set forth in subsection (b2) of this section.
    3. The area must be so situated that the annexing city will be able to provide the same services within the proposed satellite corporate limits that it provides within its primary corporate limits.
    4. If the area proposed for annexation, or any portion thereof, is a subdivision as defined in G.S. 160A-376, all of the subdivision must be included.
    5. The area within the proposed satellite corporate limits, when added to the area within all other satellite corporate limits, may not exceed ten percent (10%) of the area within the primary corporate limits of the annexing city.
  3. Repealed by Session Laws 2004-203, ss. 13(a) and 13(d), effective August 17, 2004.
  4. A city may annex a noncontiguous area that does not meet the standard set out in subdivision (b)(2) of this section if the city has entered into an annexation agreement pursuant to Part 6 of this Article with the city to which a point on the proposed satellite corporate limits is closer and the agreement states that the other city will not annex the area but does not say that the annexing city will not annex the area. The annexing city shall comply with all other requirements of this section.
  5. The petition shall contain the names, addresses, and signatures of all owners of real property within the proposed satellite corporate limits (except owners not required to sign by subsection (a)), shall describe the area proposed for annexation by metes and bounds, and shall have attached thereto a map showing the area proposed for annexation with relation to the primary corporate limits of the annexing city. When there is any substantial question as to whether the area may be closer to another city than to the annexing city, the map shall also show the area proposed for annexation with relation to the primary corporate limits of the other city. The city council may prescribe the form of the petition.
  6. A city council which receives a petition for annexation under this section may by ordinance require that the petitioners file a signed statement declaring whether or not vested rights with respect to the properties subject to the petition have been established under G.S. 160A-385.1 or G.S. 153A-344.1. If the statement declares that such rights have been established, the city may require petitioners to provide proof of such rights. A statement which declares that no vested rights have been established under G.S. 160A-385.1 or G.S. 153A-344.1 shall be binding on the landowner and any such vested rights shall be terminated.

This subdivision does not apply to the Cities of Asheboro, Belmont, Claremont, Concord, Conover, Durham, Elizabeth City, Gastonia, Greenville, Hickory, Kannapolis, Kings Mountain, Locust, Lowell, Marion, Mount Airy, Mount Holly, New Bern, Newton, Oxford, Randleman, Roanoke Rapids, Rockingham, Saluda, Sanford, Salisbury, Shelby, Southport, Statesville, and Washington and the Towns of Ahoskie, Angier, Apex, Ayden, Belville, Benson, Bladenboro, Bridgeton, Bunn, Burgaw, Calabash, Carthage, Catawba, China Grove, Clayton, Columbia, Columbus, Cramerton, Creswell, Dallas, Dobson, Four Oaks, Franklin, Franklinton, Franklinville, Fuquay-Varina, Garner, Godwin, Granite Quarry, Green Level, Grimesland, Harrisburg, Holly Ridge, Holly Springs, Hookerton, Hope Mills, Huntersville, Jamestown, Kenansville, Kenly, Knightdale, Landis, Leland, Liberty, Lillington, Louisburg, Maggie Valley, Maiden, Mayodan, Maysville, Middlesex, Midland, Mocksville, Morrisville, Mount Pleasant, Nashville, North Wilkesboro, Norwood, Oak Island, Oakboro, Ocean Isle Beach, Pembroke, Pine Level, Pollocksville, Princeton, Ramseur, Ranlo, Richlands, Rockwell, Rolesville, Rutherfordton, Shallotte, Siler City, Smithfield, Spencer, Spring Lake, Stanley, Stem, Stovall, Surf City, Swansboro, Taylorsville, Troutman, Troy, Vass, Wallace, Warsaw, Watha, Waynesville, Weldon, Wendell, West Jefferson, Wilson's Mills, Windsor, Wingate, Yadkinville, Youngsville, and Zebulon.

History

(1973, c. 1173, s. 2; 1989 (Reg. Sess., 1990), c. 996, s. 4; 1997-2, s. 1; 2001-37, s. 1; 2001-72, s. 1; 2001-438, s. 1; 2002-121, s. 1; 2003-30, s. 1; 2004-203, s. 13(a), (c); 2004-57, s. 1; 2004-99, s. 1; 2004-203, ss. 13(a)-(d); 2005-52, s. 1; 2005-71, s. 1; 2005-79, s. 1; 2005-173, s. 1; 2005-433, s. 9; 2006-62, s. 1; 2006-122, s. 1; 2006-130, s. 1; 2007-17, s. 1; 2007-26, ss. 1, 2(a); 2007-62, s. 1; 2007-225, s. 1; 2007-311, s. 1; 2007-342, s. 1; 2008-24, s. 1; 2008-30, s. 1; 2009-40, s. 2; 2009-53, s. 1; 2009-111, s. 1; 2009-156, s. 1; 2009-298, s. 1; 2009-323, s. 1; 2011-57, s. 1; 2012-96, s. 1; 2013-248, s. 1; 2014-30, s. 2(a); 2015-80, s. 1; 2015-81, s. 2(a); 2015-172, s. 2; 2016-48, s. 2; 2018-56, s. 1; 2019-58, s. 1; 2019-103, s. 1; 2019-160, s. 1; 2021-17, s. 2; 2021-21, s. 1; 2021-86, s. 1; 2021-87, s. 1; 2021-101, s. 1.)

Local Modification. - Brunswick: 2001-478, s. 1 (as to subdivision (b)(2)); Municipalities located wholly or partly in Guilford: 1987 (Reg. Sess., 1988), c. 1009, s. 6; Union: 2003-321, s. 1; city of Archdale: 2015-81, s. 1 (as to subdivision (b)(4)); city of Asheboro: 1998-203, s. 1; city of Asheville: 2005-139, s. 3 (applicable to petitions for annexation received on or after June 30, 2005); city of Belmont: 2009-111 (as to subdivision (b)(5)); 2017-48, s. 1 (as to subdivision (b)(5)); city of Brevard: 1987, c. 254, s. 2; 2001-105, s. 2 (as to subdivision (b)(5)) city of Durham: 1987, c. 606; 2007-269, s. 1.1 (as to subdivision (b)(2)); city of Greensboro: 1997-344, s. 1; city of Greenville: 1999-283, s. 1; city of Henderson: 1996, 2nd Ex. Sess., c. 3, s. 1; city of Hickory: 1987, c. 179; 1999-208, s. 1; 1999-456, s. 49; city of Kannapolis: 2007-344, ss. 1, 3 (as to subdivision (b), and applicable only to annexations in the area of Cabarrus County bound by the existing city of Kannapolis corporate limits to the east, Mecklenburg County/Cabarrus County line to the west, the Cabarrus County/Rowan County/Iredell County lines to the north, and N.C. Highway 73 to the south); city of King's Mountain: 2003-241, s. 1; city of Kinston: 2017-85, s. 3(b); (as to subsection (c)); city of Mebane: 2017-82, s. 1; city of Mooresville, 1995, c. 82, s. 1; city of Mount Airy: 1999-232, s. 1; 2003-281, s. 1; city of Mount Holly: 1985, c. 110; city of New Bern: 1989, c. 382, s. 1; 1993 (Reg. Sess., 1994), c. 605, s. 3; 2016-41, s. 5; city of Newton: 2002-50, s. 1 (as to subdivision (b)(2)); city of Raleigh: 1998-200, s. 1; city of Reidsville: 1997-343; city of Rockingham: 1995 (Reg. Sess., 1996), c. 654, s. 1; city of Sanford: 2007-43, s. 1; 2019-105, s. 1 (as to subdivision (b)(1)); city of Statesville: 1989 (Reg. Sess., 1990), c. 882, s. 1; city of Winston-Salem: 2004-37, s. 1 (as to subdivision (b)(2)); town of Andrews: 2003-243, s. 1 (as to certain locations); town of Apex: 1993, c. 312, s. 3; 1995, c. 82, s. 1; town of Banner Elk: 1998-77; town of Beaufort: 1995, c. 82, s. 1, 1997-432, s. 1, 2003-204, s. 1; 2019-105, s. 1 (as to subsection (b)); town of Brookford: 1999-208, s. 1; 1999-456, s. 49; town of Butner: 2007-269, s. 1.1 (as precleared under Section 5 of the Voting Rights Act), as amended by 2012-117, s. 1; town of Canton: 1983, c. 301; 1985 (Reg. Sess., 1986), c. 979; 1997-2, s. 1; town of Clayton: 1993, c. 63, s. 1; 1999-10, s. 1; 2007-327, s. 2 (as to subdivision (b)(1)); town of Cornelius: 1999-103, s. 1; town of Davidson: 1999-85, s. 1; town of Eastover: 2007-267, s. 1 (as to subdivision (b)(2), contingent on preclearance under section 5 of the Voting Rights Act); town of Edenton: 1995 (Reg. Sess., 1996), c. 707; town of Franklin: 2015-81, s. 1 (as to subdivision (b)(4)); town of Fuquay-Varina: 1999-304, s. 1; town of Holly Springs: 1991, c. 243 (as to annexation ordinances adopted before July 1, 1993); town of Huntersville: 1999-24, s. 1; town of Kenly; 1987, c. 67; town of Kernersville: 2004-37, s. 1 (as to subdivision (b)(2)): town of Knightdale: 1987, c. 234; town of Madison (subdivision (b)(2) does not apply to Madison): 1997-251, s. 2; town of Maggie Valley: 2005-79 (as to subdivision (b)(4)); and 2008-28 (as to subdivision (b)(1), and applicable to annexations in certain area in Haywood county); town of Mayodan: 2001-405 (as to subdivisions (b)(4) and (b)(5)); town of Mooresville: 1997-219, ss. 2, 3; town of Morehead City: 1998-42; town of Oak Island: 2007-26, s. 2 (as to subdivision (b)(2) and notification requirement to the town of St. James); town of Oak Ridge: 1998-113; town of Pittsboro: 1987 (Reg. Sess., 1988), c. 1023, s. 4.1; town of Pleasant Garden: 1997-344, s. 1; towns of Summerfield and Leland: 1997-249; town of Trent Woods: 1989, c. 382, s. 1; town of Troy: 1993, c. 159, s. 2; town of Wake Forest: 1989 (Reg. Sess., 1990), c. 882, s. 2(a); 1997-432, s. 1(a), (b); town of Wallace: 1995 (Reg. Sess., 1996), c. 692, s. 1; 2012-118, s. 1, as amended by 2013-32, s. 1 (as to subdivision (b)(4)); town of Waxhaw: 2003-273, s. 2(b); town of Weaverville: 1989, c. 181, s. 1 (applicable with respect to annexation ordinances adopted on or before June 30, 1990); 1997-151, s. 2; town of Winterville: 2001-77, s. 1 (as to subdivision (b)(2)); village of Foxfire: 2014-30, s. 1(a) (as to subdivision (b)(4)); village of Marvin: 2002-140, s. 1 (as to subdivision (b)(5)).

Editor's Note. - Session Laws 2001-37, s. 1, amended subsection (b) by deleting subdivision (b)(5), regarding limitations on the area within the proposed satellite corporate limits. Section 2 of the act made this amendment applicable to the Cities of Marion, Oxford, and Rockingham and the Towns of Calabash, Catawba, Dallas, Godwin, Louisburg, Mocksville, Pembroke, Rutherfordton, and Waynesville only. Session Laws 2001-37, ss. 1 and 2, have been codified as subsection (b1) at the direction of the Revisor of Statutes. Session Laws 2001-438, s. 1, also enacted a subsection (b1), which has been recodified as subsection (b2) at the direction of the Revisor of Statutes.

Session Laws 2002-121, s. 1, provides that subdivision (b)(5) does not apply to the cities of Claremont, Concord, Conover, Newton, Sanford, and Southport, and the Towns of Maiden, Midland, Swansboro, and Warsaw. Session Laws 1997-2, s. 1, provided that subdivision (b)(5) did not apply to the town of Catawba, and Session Laws 2001-72, s. 1 provided the subdivision did not apply to the city of Salisbury. Since subdivision (b)(5) does not apply to more than 10 jurisdictions, the second paragraph of that subdivision has been added at the direction of the Revisor of Statutes.

Session Laws 2007-26, s. 2(a), contained a local modification as to G.S. 160A-58.1(b)(2) and (b)(5). The local modification as to subdivision (b)(5) adds to a local modification that affects ten or more localities. It was codified at this section at the direction of the Revisor of Statutes by inserting "Oak Island" in the second paragraph of subdivision (b)(5).

Pursuant to Session Laws 2009-298, s. 1, and at the direction of the Revisor of Statutes, the town of Huntersville has been added to the list of localities in subdivision (b)(5) to which that subdivision is inapplicable.

Session Laws 2013-32, s. 1, amended subsection (b) by deleting subdivision (b)(4), regarding annexation of all of a subdivision. Section 2 deleted the limitation as applicable to the Vidant Family Medical Center. Section 3 of the act made this amendment applicable to the Town of Wallace only.

Effect of Amendments. - Session Laws 2004-57, s. 1, effective July 6, 2004, rewrote the second paragraph of subdivision (b)(5).

Session Laws 2004-99, s. 1, effective July 15, 2004, inserted "Angier" in the second paragraph of subdivision (b)(5).

Session Laws 2004-203, ss. 13(a)-(d), effective August 17, 2004, rewrote subdivision (b)(5) and repealed subdivision (b1).

Session Laws 2005-52, s. 1, effective May 18, 2005, inserted "Taylorsville" in subdivision (b)(5).

Session Laws 2005-71, s. 1, effective June 1, 2005, inserted "Elizabeth City," "Greenville," "Ayden," "Surf City," and "Windsor" in subdivision (b)(5).

Session Laws 2005-79, s. 1, effective June 7, 2005, inserted "Maggie Valley" in subdivision (b)(5).

Session Laws 2005-173, s. 1, effective July 11, 2005, inserted "Kannapolis," "Landis," and "Shallotte, Spencer" in subdivision (b)(5).

Session Laws 2005-433, s. 9, effective September 22, 2005, inserted "Columbia" in subdivision (b)(5).

Session Laws 2006-62, s. 1, effective July 6, 2006, inserted "Princeton" and "Smithfield" in the second paragraph of subdivision (b)(5).

Session Laws 2006-122, s. 1, effective July 18, 2006, inserted "Benson", "Burgaw", "Clayton", "Dobson", and "Yadkinville" in the second paragraph of subdivision (b)(5).

Session Laws 2006-130, s. 1, effective July 19, 2006, inserted "Grimesland", "Stem" and "Stovall" in the second paragraph of subdivision (b)(5).

Session Laws 2007-17, s. 1, effective April 19, 2007, inserted "Four Oaks" in the second paragraph of subdivision (b)(5).

Session Laws 2007-26, s. 1, effective April 26, 2007, inserted "Green Level" in the second paragraph of subdivision (b)(5).

Session Laws 2007-62, s. 1, effective June 6, 2007, inserted "Cramerton" and "Watha" in the second paragraph of subdivision (b)(5).

Session Laws 2007-225, s. 1, effective July 17, 2007, inserted "Durham" in the second paragraph of subdivision (b)(5).

Session Laws 2007-311, s. 1, effective July 28, 2007, inserted "Roanoke Rapids," "Ahoskie," "Columbus," and "Weldon" in the second paragraph of subdivision (b)(5).

Session Laws 2007-342, s. 1, effective August 2, 2007, added "Mount Pleasant" in the second paragraph of subdivision (b)(5).

Session Laws 2008-24, s. 1, effective June 30, 2008, inserted "Middlesex" and "Nashville" in the second paragraph of subdivision (b)(5).

Session Laws 2008-30, s. 1, effective June 30, 2008, inserted "Granite Quarry," "Kenansville," "Lillington," "Nashville" and "Troutman" in the second paragraph of subdivision (b)(5).

Session Laws 2009-40, s. 2, effective May 27, 2009, inserted "Richlands" in the second paragraph of subdivision (b)(5).

Session Laws 2009-53, s. 1, effective June 2, 2009, inserted "Apex" in the second paragraph of subdivision (b)(5).

Session Laws 2009-111, s. 1, effective June 16, 2009, inserted "Belmont" in the second paragraph of subdivision (b)(5).

Session Laws 2009-156, s. 1, effective June 23, 2009, inserted "Bridgeton" in the second paragraph of subdivision (b)(5).

Session Laws 2009-323, s. 1, effective July 22, 2009, inserted "Jamestown" in the second paragraph of subdivision (b)(5).

Session Laws 2011-57, s. 1, effective April 28, 2011, added the last sentence in the beginning paragraph in subsection (a); and added subdivisions (a)(1) through (a)(3).

Session Laws 2012-96, s. 1, effective June 28, 2012, inserted "Ocean Isle Beach" in the second paragraph of subdivision (b)(5).

Session Laws 2013-248, s. 1, effective July 9, 2013, in the second paragraph of subdivision (b)(5), inserted "Hookerton" and "Maysville."

Session Laws 2014-30, s. 2(a), effective June 30, 2014, inserted "Harrisburg" in subdivision (b)(5).

Session Laws 2015-80, s. 1, effective June 15, 2015, inserted "Wilson's Mills" in subdivision (b)(5).

Session Laws 2015-81, s. 2(a), effective June 17, 2015, inserted "Franklin" in subdivision (b)(5).

Session Laws 2015-172, s. 2, effective July 30, 2015, inserted "Hope Mills" and "Spring Lake" in subdivision (b)(5).

Session Laws 2016-48, s. 2, effective June 29, 2016, in subdivision (b)(5), inserted "Siler City."

Session Laws 2018-56, s. 1, effective June 25, 2018, added "Carthage," following "Calabash," and "Pollocksville," following "Pine Level," in subdivision (b)(5).

Session Laws 2019-58, s. 1, effective June 26, 2019, inserted "China Grove" following "Catawba" in subdivision (b)(5).

Session Laws 2019-103, s. 1, effective July 10, 2019, added "Asheboro," "Bunn," "Franklinton," and "Youngsville" to the concluding paragraph in subdivision (b)(5).

Session Laws 2019-160, s. 1, effective July 24, 2019, inserted "Saluda" following "Rockingham" and "West Jefferson" following "Wendell" in subdivision (b)(5).

Session Laws 2021-17, s. 2, effective April 28, 2021, inserted "Rockwell" prior to "Rolesville" in the last paragraph of subdivision (b)(5).

Session Laws 2021-21, s. 1, effective May 12, 2021, inserted "Belville" prior to "Benson" and "Wingate" prior to "Yadkinville" in the last paragraph of subdivision (b)(5).

Session Laws 2021-86, s. 1, effective July 14, 2021, inserted "Franklinville," "Liberty," and "Ramseur" in subdivision (b)(5).

Session Laws 2021-87, s. 1, effective July 15, 2021, inserted "Kings Mountain," "Lowell," "Shelby," "Franklinville," "Liberty," "Ramseur," "Stanley," and "Vass" in subdivision (b)(5).

Session Laws 2021-101, s. 1, effective August 9, 2021, inserted "North Wilkesboro, Norwood,” and "Oakboro” in subdivision (b)(5).

CASE NOTES

A city has statutory authority to annex areas both contiguous and noncontiguous to its primary corporate limits. It must stand ready to provide sewer service (among other services) to newly annexed areas on substantially the same basis and in the same manner in which these services are provided to the rest of the city. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. - Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use the city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Town Had No Standing to Challenge Annexations. - Plaintiff town had no standing to challenge annexations of contiguous properties by nearby village. Town of Seven Devils v. Village of Sugar Mt., 125 N.C. App. 692, 482 S.E.2d 39, cert. denied, 346 N.C. 185, 486 S.E.2d 219 (1997).

Residents and Property Owners Without Standing to Challenge Voluntary Annexation of Noncontiguous Property. - Residents and property owners in town, who instituted an action in which they sought to enjoin town from placing into effect an ordinance annexing into the corporate limits of the town 89.68 acres of noncontiguous property belonging to intervenor company, residents and property owners did not have standing; no judicial review is provided for annexations of noncontiguous territory, since such annexations are, by statute, the result of voluntary petitions by the property owners. Joyner v. Town of Weaverville, 94 N.C. App. 588, 380 S.E.2d 536 (1989).

Cited in Town of Valdese v. Burke, Inc., 125 N.C. App. 688, 482 S.E.2d 24 (1997).


§ 160A-58.2. Public hearing.

Upon receipt of a petition for annexation under this Part, the city council shall cause the city clerk to investigate the petition, and to certify the results of his investigation. If the clerk certifies that upon investigation the petition appears to be valid, the council shall fix a date for a public hearing on the annexation. Notice of the hearing shall be published once at least 10 days before the date of hearing.

At the hearing, any person residing in or owning property in the area proposed for annexation and any resident of the annexing city may appear and be heard on the questions of the sufficiency of the petition and the desirability of the annexation. If the council then finds and determines that (i) the area described in the petition meets all of the standards set out in G.S. 160A-58.1(b), (ii) the petition bears the signatures of all of the owners of real property within the area proposed for annexation (except those not required to sign by G.S. 160A-58.1(a)), (iii) the petition is otherwise valid, and (iv) the public health, safety and welfare of the inhabitants of the city and of the area proposed for annexation will be best served by the annexation, the council may adopt an ordinance annexing the area described in the petition. The ordinance may be made effective immediately or on any specified date within six months from the date of passage.

History

(1973, c. 1173, s. 2.)

Local Modification. - City of Durham: 1993, c. 342, s. 1; 2013-386, s. 3; city of Reidsville: 1997-343; town of Pittsboro: 1987 (Reg. Sess., 1988), c. 1023, s. 4.1.

CASE NOTES

Cited in Taylor v. City of Raleigh, 290 N.C. 608, 227 S.E.2d 576 (1976); Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980); Joyner v. Town of Weaverville, 94 N.C. App. 588, 380 S.E.2d 536 (1989).


§ 160A-58.2A. Assumption of debt.

  1. If the city has annexed under this Part any area which is served by a rural fire department and which is in:
    1. An insurance district defined under G.S. 153A-233;
    2. A rural fire protection district under Article 3A of Chapter 69 of the General Statutes; or
    3. A fire service district under Article 16 of Chapter 153A of the General Statutes,
  2. The annual payments from the city to the rural fire department on such shared debt service shall be calculated as follows:
    1. The rural fire department shall certify to the city each year the amount that will be expended for debt service subject to be shared by the city as provided by subsection (a) of this section; and
    2. The amount determined under subdivision (1) of this subsection shall be multiplied by the percentage determined by dividing the assessed valuation of the area of the district annexed by the assessed valuation of the entire district, each such valuation to be fixed as of the date the annexation ordinance becomes effective.
  3. This section does not apply in any year as to any annexed area(s) for which the payment calculated under this section as to all annexation ordinances adopted under this Part by a city during a particular calendar year does not exceed one hundred dollars ($100.00).
  4. The city and rural fire department shall jointly present a payment schedule to the Local Government Commission for approval and no payment may be made until such schedule is approved. The Local Government Commission shall approve a payment schedule agreed upon between the city and the rural fire department in cases where the assessed valuation of the district may not readily be determined, if there is a reasonable basis for the agreement.

then beginning with the effective date of annexation the city shall pay annually a proportionate share of any payments due on any debt (including principal and interest) relating to facilities or equipment of the rural fire department, if the debt was existing at the time of submission of the petition for annexation to the city under this Part. The rural fire department shall make available to the city not later than 30 days following a written request from the city, information concerning such debt. The rural fire department forfeits its rights under this section if it fails to make a good faith response within 45 days following receipt of the written request for information from the city, provided that the city's written request so states by specific reference to this section.

History

(1989, c. 598, s. 3.)

§ 160A-58.3. Annexed area subject to city taxes and debts.

From and after the effective date of the annexation ordinance, the annexed area and its citizens and property are subject to all debts, laws, ordinances and regulations of the annexing city, and are entitled to the same privileges and benefits as other parts of the city. Real and personal property in the newly annexed territory on the January 1 immediately preceding the beginning of the fiscal year in which the annexation becomes effective is subject to municipal taxes as provided in G.S. 160A-58.10. If the effective date of annexation falls between June 1 and June 30, and the privilege licenses of the annexing city are due on June 1, then businesses in the annexed area are liable for privilege license taxes at the full-year rate.

History

(1973, c. 1173, s. 2; 1975, c. 576, s. 5; 1977, c. 517, s. 7.)

§ 160A-58.4. Extraterritorial powers.

Satellite corporate limits shall not be considered a part of the city's corporate limits for the purposes of extraterritorial land-use regulation pursuant to G.S. 160A-360, or abatement of public health nuisances pursuant to G.S. 160A-193. However, a city's power to regulate land use pursuant to Chapter 160A, Article 19, or to abate public health nuisances pursuant to G.S. 160A-193, shall be the same within satellite corporate limits as within its primary corporate limits.

History

(1973, c. 1173, s. 2.)

Local Modification. - Town of Canton: 1983, c. 301; town of Mooresville: 1991, c. 289, s. 1; 1997-219, s. 4.

§ 160A-58.5. Special rates for water, sewer and other enterprises.

For the purposes of G.S. 160A-314, provision of public enterprise services within satellite corporate limits shall be considered provision of service for special classes of service distinct from the classes of service provided within the primary corporate limits of the city, and the city may fix and enforce schedules of rents, rates, fees, charges and penalties in excess of those fixed and enforced within the primary corporate limits. A city providing enterprise services within satellite corporate limits shall annually review the cost thereof, and shall take such steps as may be necessary to insure that the current operating costs of such services, excluding debt service on bonds issued to finance services within satellite corporate limits, does not exceed revenues realized therefrom.

History

(1973, c. 1173, s. 2.)

Cross References. - As to satellite annexation in conjunction with municipal annexation in certain sanitary districts, see G.S. 130A-70.1.

§ 160A-58.6. Transition from satellite to primary corporate limits.

An area annexed pursuant to this Part ceases to constitute satellite corporate limits and becomes a part of the primary corporate limits of a city when, through annexation of intervening territory, the two boundaries touch.

History

(1973, c. 1173, s. 2.)

CASE NOTES

If a town wishes to annex involuntarily two unannexed areas on either side of the satellite area, it must first annex the area which abuts directly on both the primary corporate limits and the satellite corporate limits. Only after this intervening territory has been successfully annexed is the area which presently abuts solely on satellite corporate limits eligible for annexation. Only then do the satellite corporate limits become part of the primary corporate limits in accord with this section. Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

Definition of Satellite. - A corporate limit is defined as a satellite only when there is no connection whatsoever between the municipality and the satellite. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, cert. denied, 349 N.C. 241, 516 S.E.2d 611 (1998).


§ 160A-58.7. Annexation of municipal property.

  1. The city council may initiate annexation of property not contiguous to the primary corporate limits and owned by the city by adopting a resolution stating its intent to annex the property, in lieu of filing a petition. The property must satisfy the requirements of G.S. 160A-58.1. The resolution shall contain an adequate description of the property and fix a date for a public hearing on the question of annexation. Notice of the public hearing shall be published once at least 10 days before the date of the hearing. At the hearing, any resident of the city may appear and be heard on the question of the desirability of the annexation. If the council finds that annexation is in the public interest, it may adopt an ordinance annexing the property. The ordinance may be made effective immediately or on any specified date within six months from the date of passage.
  2. A city has no authority to adopt a resolution or petition itself under this Part for annexation of property it does not own or have any legal interest in. For the purpose of this subsection, a city has no legal interest in a State-maintained street unless it owns the underlying fee and not just an easement.

History

(1987, c. 562, s. 2; 2011-57, s. 2.)

Local Modification. - City of Durham: 1993, c. 342, s. 1; 2013-386, s. 3; 2015-82, s. 1 (as to subsection (b)); city of Reidsville: 1997-343.

Effect of Amendments. - Session Laws 2011-57, s. 2, effective April 28, 2011, added the subsection (a) designation; and added subsection (b).

§ 160A-58.8. Recording and reporting.

Annexations made under this part shall be recorded and reported in the same manner as under G.S. 160A-29.

History

(1987, c. 879, s. 4.)

PART 4A. EFFECTIVE DATES OF CERTAIN ANNEXATION ORDINANCES.

§ 160A-58.9. Effective date of certain annexation ordinances adopted from January 1, 1987, to August 3, 1987.

  1. In the case of any annexation ordinance adopted during the period beginning January 1, 1987, and ending on August 3, 1987, if the effective date of the annexation under the ordinance is during 1988, the governing board of the municipality may, notwithstanding G.S. 160A-37(j) or G.S. 160A-49(j), amend the ordinance to provide for an effective date of December 31, 1987. The board must give notice by publication of its intent to consider adoption of such ordinance, such notice to be published at least 10 days before the meeting at which the ordinance is adopted. Copies of the adopted ordinance shall be recorded in accordance with the provisions of G.S. 160A-39 or G.S. 160A-58.61, as applicable.
  2. This section applies only to territory located in counties with a population of 55,000 or over, according to the 1980 decennial federal census.

History

(1987, c. 715, s. 2.)

Editor's Note. - The reference to "G.S. 160A-58.61" was substituted for "G.S. 160A-51" at the direction of the Revisor of Statutes to conform to recodification of that section by Session Laws 2011-396, s. 5.

G.S. 160A-37, 160A-39, and 160A-49, referred to in subsection (a), were repealed by Session Laws 2011-396, ss. 1 and 7, effective July 1, 2011.

§ 160A-58.9A. Effective date of certain annexation ordinances adopted under Article 4A of Chapter 160A.

  1. No annexation ordinance adopted under Article 4A of Chapter 160A of the General Statutes may become effective during the period beginning November 1, 1989, and ending January 1, 1990. If because of the operation of G.S. 160A-37.1(h), G.S. 160A-37.3(g), G.S. 160A-38, G.S. 160A-58.57(h), G.S. 160A-58.59(g), G.S. 160A-50, the order of any court, or the operation of Section 5 of the Voting Rights Act of 1965, an annexation ordinance is to become effective during the period beginning November 1, 1989, and ending January 1, 1990, it shall instead become effective on a date during the period beginning January 2, 1990, and ending December 31, 1990, set by ordinance of the governing board of the city.
  2. If the final date upon which an annexation ordinance adopted under Article 4A of Chapter 160A of the General Statutes, may be made effective occurs during the period beginning November 1, 1989, and ending January 1, 1990, the effective date of the annexation may be set in the annexation ordinance as any date during the period beginning January 2, 1990, and ending December 31, 1990, in addition to any date permitted by law before November 1, 1989.
  3. This section applies to territory located in counties with a population of 55,000 or over, according to the 1980 decennial federal census, and to territory located in all other counties subject to Part 2 of Article 12A of Chapter 163 of the General Statutes, pursuant to G.S. 163-132.6.

History

(1987, c. 715, s. 3; 1989, c. 440, s. 6; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "Part 2 of Article 20 of Chapter 163A" for "Article 12A of Chapter 163" in subsection (c).

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in subsection (c).

Editor's Note. - Former G.S. 163-132.6, referred to in subsection (c), was repealed by Session Laws 1991 (Regular Session, 1992), c. 927, s. 1.

References to "G.S. 160A-58.57(h), G.S. 160A-58.59(g)," were substituted for "G.S. 160A-49.1(h), G.S. 160A-49.3(g)," at the direction of the Revisor of Statutes to conform to recodification of those sections by Session Laws 2011-396, ss. 2 and 4.

G.S. 160A-37.1 and 160A-37.3, referred to in subsection (a), were repealed by Session Laws 2011-396, s. 1, effective July 1, 2011. Former G.S. 160A-33 through 160A-42 pertained to annexation by cities having a population of less than 5,000 persons. For current provisions, see G.S. 160A-58.50 et seq.

PART 5. PROPERTY TAX LIABILITY OF NEWLY ANNEXED TERRITORY.

§ 160A-58.10. Tax of newly annexed territory.

  1. Applicability of Section. - Real and personal property in territory annexed pursuant to this Article is subject to municipal taxes as provided in this section.
  2. Prorated Taxes. - Real and personal property in the newly annexed territory on the January 1 immediately preceding the beginning of the fiscal year in which the annexation becomes effective is subject to prorated municipal taxes levied for that fiscal year as provided in this subsection. The amount of municipal taxes that would have been due on the property had it been within the municipality for the full fiscal year shall be multiplied by the following fraction: the denominator shall be 12 and the numerator shall be the number of full calendar months remaining in the fiscal year, following the day on which the annexation becomes effective. The product of the multiplication is the amount of prorated taxes due. The lien for prorated taxes levied on a parcel of real property shall attach to the parcel taxed on the listing date, as provided in G.S. 105-285, immediately preceding the fiscal year in which the annexation becomes effective. The lien for prorated taxes levied on personal property shall attach on the same date to all real property of the taxpayer in the taxing unit, including the newly annexed territory. If the annexation becomes effective after June 30 and before September 2, the prorated taxes shall be due and payable on the first day of September of the fiscal year for which the taxes are levied. If the annexation becomes effective after September 1 and before the following July 1, the prorated taxes shall be due and payable on the first day of September of the next succeeding fiscal year. The prorated taxes are subject to collection and foreclosure in the same manner as other taxes levied for the fiscal year in which the prorated taxes become due.
  3. Taxes in Subsequent Fiscal Years. - In fiscal years subsequent to the fiscal year in which an annexation becomes effective, real and personal property in the newly annexed territory is subject to municipal taxes on the same basis as is the preexisting territory of the municipality.
  4. Transfer of Tax Records. - For purposes of levying prorated taxes the municipality shall obtain from the county a record of property in the area being annexed that was listed for taxation on the January 1 immediately preceding the fiscal year for which the prorated taxes are levied. In addition, if the effective date of annexation falls between January 1 and June 30, the municipality shall, for purposes of levying taxes for the fiscal year beginning July 1 following the date of annexation, obtain from the county a record of property in the area being annexed that was listed for taxation as of said January 1.

History

(1977, c. 517, s. 9.)

Cross References. - As to effective date of annexation ordinances adopted under Article 4A of Chapter 160A, see G.S. 160A-58.9A.

Editor's Note. - Session Laws 2006-72, s. 1, provides: "A taxing unit's governing body may by resolution provide that, notwithstanding the provisions of G.S. 105-360 regarding the due date and accrual of interest, G.S. 105-380 and G.S. 105-381 regarding the release, refund, and compromise of taxes, and G.S. 160A-58.10 regarding the taxation of newly annexed property, property taxes for the partial fiscal year October 1, 2005, through June 30, 2006, shall be collected over a three-year period with one-third due and payable on September 1, 2006, one-third due and payable on September 1, 2007, and the remaining one-third due and payable on September 1, 2008. The resolution may provide that interest accrues on unpaid property taxes only to the extent that the property taxes have become due and payable under the payment schedule set out in the resolution. To the extent property taxes are due and payable pursuant to a resolution adopted under this act, interest accruing on taxes that remain unpaid shall be computed according to the schedule stated in G.S. 105-360. A resolution adopted pursuant to this act applies only to taxes for the partial fiscal year October 1, 2005, through June 30, 2006, on property located in an area that was annexed between January 1, 2003, and January 1, 2006, and for which effective date of the annexation was set by judicial order."

Session Laws 2006-72, s. 2, provides: "If a resolution adopted by a taxing unit's governing body pursuant to this act delays the due date, accrual of interest, or both for any property taxes, the tax collector's obligations under G.S. 160A-58.10 and G.S. 105-360 with respect to those taxes are delayed to the same extent."

Legal Periodicals. - For 1984 survey, "Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule," see 63 N.C.L. Rev. 1260 (1985).

§§ 160A-58.11 through 160A-58.20: Reserved for future codification purposes.

PART 6. ANNEXATION AGREEMENTS.

§ 160A-58.21. Purpose.

It is the purpose of this Part to authorize cities to enter into binding agreements concerning future annexation in order to enhance orderly planning by such cities as well as residents and property owners in areas adjacent to such cities.

History

(1989, c. 143, s. 1.)

CASE NOTES

Cited in Cunningham v. City of Greensboro, 212 N.C. App. 86, 711 S.E.2d 477 (2011).


§ 160A-58.22. Definitions.

The words defined in this section shall have the meanings indicated when used in this Part:

  1. "Agreement" means any written agreement authorized by this Part.
  2. "Annexation" means any extension of a city's corporate limits as authorized by this Article, the charter of the city, or any local act applicable to the city, as such statutory authority exists now or is hereafter amended.
  3. "Participating city" means any city which is a party to an agreement.

History

(1989, c. 143, s. 1.)

§ 160A-58.23. Annexation agreements authorized.

Two or more cities may enter into agreements in order to designate one or more areas which are not subject to annexation by one or more of the participating cities. The agreements shall be of reasonable duration, not to exceed 20 years, and shall be approved by ordinance of the governing board and executed by the mayor of each city and spread upon its minutes.

History

(1989, c. 143, s. 1.)

CASE NOTES

Cited in Cunningham v. City of Greensboro, 212 N.C. App. 86, 711 S.E.2d 477 (2011).


§ 160A-58.24. Contents of agreements; procedure.

  1. The agreement shall:
    1. State the duration of the agreement.
    2. Describe clearly the area or areas subject to the agreement. The boundaries of such area or areas may be established at such locations as the participating cities shall agree. Thereafter, any participating city may follow such boundaries in annexing any property, whether or not such boundaries follow roads or natural topographical features.
    3. Specify one or more participating cities which may not annex the area or areas described in the agreement.
    4. State the effective date of the agreement.
    5. Require each participating city which proposes any annexation to give written notice to the other participating city or cities of the annexation at least 60 days before the adoption of any annexation ordinance; provided, however, that the agreement may provide for a waiver of this time period by the notified city.
    6. Include any other necessary or proper matter.
  2. The written notice required by subdivision (a)(5) of this section shall describe the area to be annexed by a legible map, clearly and accurately showing the boundaries of the area to be annexed in relation to: the area or areas described pursuant to subdivision (a)(2) of this section, roads, streams and any other prominent geographical features. Such notice shall not be effective for more than 180 days.
  3. No agreement may be entered into under this Part unless each participating city has held a public hearing on the agreement prior to adopting the ordinance approving the agreement. The governing boards of the participating cities may hold a joint public hearing if desired. Notice of the public hearing or hearings shall be given as provided in G.S. 160A-31(c).
  4. Any agreement entered into under this Part may be modified or terminated by a subsequent agreement entered into by all the participating cities to that agreement. The subsequent agreement shall be approved by ordinance after a public hearing or hearings as provided in subsection (c).
  5. No agreement entered into under this Part shall be binding beyond three miles of the primary corporate limits of a participating city which is permitted to annex the area under the agreement, unless approved by the board of county commissioners with jurisdiction over the area. Provided however, that an area where the agreement is not binding because of failure of the board of county commissioners to approve it, shall become subject to the agreement if subsequent annexation brings it within three miles. The approval of a board of county commissioners shall be evidenced by a resolution adopted after a public hearing as provided in subsection (c).
  6. A participating city may terminate an annexation agreement unilaterally or withdraw itself from the agreement, by repealing the ordinance by which it approved the agreement and providing five years' written notice to the other participating cities. Upon the expiration of the five-year period, an agreement originally involving only two cities shall terminate, and an agreement originally involving more than two cities shall terminate unless each of the other participating cities shall have adopted an ordinance reaffirming the agreement.

History

(1989, c. 143, s. 1.)

Local Modification. - Town of Carthage: 1999-239, s. 11.

CASE NOTES

Cited in Cunningham v. City of Greensboro, 212 N.C. App. 86, 711 S.E.2d 477 (2011).


§ 160A-58.25. Effect of agreement.

From and after the effective date of an agreement, no participating city may adopt an annexation ordinance as to all or any portion of an area in violation of the agreement.

History

(1989, c. 143, s. 1.)

§ 160A-58.26. Part grants no annexation authority.

Nothing in this Part shall be construed to authorize the annexation of any area which is not otherwise subject to annexation under applicable law.

History

(1989, c. 143, s. 1.)

§ 160A-58.27. Relief.

  1. Each provision of an agreement shall be binding upon the respective parties. Not later than 30 days following the passage of an annexation ordinance concerning territory subject to an agreement, a participating city which believes that another participating city has violated this Part or the agreement may file a petition in the superior court of the county where any of the territory proposed to be annexed is located, seeking review of the action of the city alleged to have violated this Part or the agreement.
  2. Within five days after the petition is filed with the court, the petitioning city shall serve copies of the petition by certified mail, return receipt requested, upon the respondent city.
  3. Within 15 days after receipt of the copy of the petition for review, or within such additional time as the court may allow, the respondent city shall transmit to the reviewing court:
    1. A transcript of the portions of the ordinance or minute book in which the procedure for annexation has been set forth;
    2. A copy of resolutions, ordinances, and any other document received or approved by the respondent city's governing board as part of the annexation proceeding.
  4. The court shall fix the date for review of the petition so that review shall be expeditious and without unnecessary delays. The review shall be conducted by the court without a jury. The court may hear oral arguments and receive written briefs, and may take evidence intended to show either:
    1. That the provisions of this Part were not met; or
    2. That the provisions of the agreement were not met.
  5. At any time before or during the review proceeding, any petitioner may apply to the reviewing court for an order staying the operation of the annexation ordinance pending the outcome of the review. The court may grant or deny the stay in its discretion upon such terms as it deems proper, and it may permit annexation of any part of the area described in the ordinance concerning which no question for review has been raised.
  6. Upon a finding that the respondent city has not violated this Part or the agreement, the court may affirm the action of the respondent city without change. Upon a finding that the respondent city has violated this Part or the agreement, the court may:
    1. Remand to the respondent city's governing board any ordinance adopted pursuant to Parts 2 or 3 of this Article, as the same exists now or is hereafter amended, for amendment of the boundaries, or for such other action as is necessary, to conform to the provisions of this Part and the agreement.
    2. Declare any annexation begun pursuant to any other applicable law to be void. If the respondent city shall fail to take action in accordance with the court's instructions upon remand under subdivision (d)(1) of this section within three months from receipt of such instructions, the annexation proceeding shall be void.
  7. Any participating city which is a party to the review proceedings may appeal from the final judgment of the superior court under rules of procedure applicable in other civil cases. The appealing party may apply to superior court for a stay in its final determination, or a stay of the annexation ordinance, whichever shall be appropriate, pending the outcome of the appeal to the appellate division; provided, that the superior court may, with the agreement of the parties, permit annexation to be effective with respect to any part of the area concerning which no appeal is being made and which can be incorporated into the respondent city without regard to any part of the area concerning which an appeal is being made.
  8. If part or all of the area annexed under the terms of a challenged annexation ordinance is the subject of an appeal to the superior court or appellate division on the effective date of the ordinance, then the ordinance shall be deemed amended to make the effective date with respect to such area the date of the final judgment of the superior court or appellate division, whichever is appropriate, or the date the respondent city's governing board completes action to make the ordinance conform to the court's instructions in the event of remand.
  9. A participating city which is prohibited from annexing into an area under a binding agreement may file a petition in the superior court where any of the territory proposed to be annexed is located, or a response in a proceeding initiated by another participating city, seeking permission to annex territory in the area notwithstanding the agreement. If the territory qualifies for annexation by the city seeking to annex it, the court may enter an order allowing the annexation to proceed with respect to all or a portion of the territory upon a finding that there is an imminent threat to public health or safety that can be remedied only by the city seeking annexation. The procedural provisions of this section shall apply to proceedings under this subsection, so far as applicable.

History

(1989, c. 143, s. 1.)

Local Modification. - Town of Carthage: 1999-239, s. 11.

§ 160A-58.28. Effect on prior local acts.

This Part does not affect Chapter 953, Session Laws of 1983, Chapter 847, Session Laws of 1985 (1986 Regular Session), or Chapters 204, 233, or 1009, Session Laws of 1987, authorizing annexation agreements, but any city which is authorized to enter into agreements by one of those acts may enter into future agreements either under such act or this Part.

History

(1989, c. 143, s. 1; 1991 (Reg. Sess., 1992), c. 1030, s. 48.)

§§ 160A-58.29 through 160A-58.49: Reserved for future codification purposes.

PART 7. ANNEXATIONS INITIATED BY MUNICIPALITIES.

§ 160A-58.50. Declaration of policy.

It is hereby declared as a matter of State policy:

  1. That sound urban development is essential to the continued economic development of North Carolina.
  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.
  4. That areas annexed to municipalities in accordance with such uniform legislative standards should receive the services provided by the annexing municipality.
  5. That the provision of services to protect the health, safety, and welfare is a public purpose.
  6. That it is essential for citizens to have an effective voice in annexations initiated by municipalities.

History

(2011-396, s. 9.)

Twelve-year Prohibition on Involuntary Annexation. - Session Laws 2012-3, s. 3, effective July 1, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 4 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-3, s. 4, provides: "Repealed involuntary annexation ordinances.

"(1) Kinston annexation ordinance, as described in House Bill 5, First Edition, 2011 Regular Session.

"(2) Lexington annexation ordinance, as described in House Bill 37, First Edition, 2011 Regular Session.

"(3) Rocky Mount annexation ordinance, as described in House Bill 56, First Edition, 2011 Regular Session.

"(4) Wilmington annexation ordinance, described in House Bill 180, First Edition, 2011 Regular Session.

"(5) Asheville•iltmore Lake annexation ordinance, as described in House Bill 236, First Edition, 2011 Regular Session.

"(6) Marvin annexation ordinance, affecting the area described in RS 2008-02-02, a resolution of the Village of Marvin Council.

"(7) Southport annexation ordinance, affecting 'Area A' and 'Area B,' as described in City of Southport annexation ordinance, adopted June 9, 2011.

"(8) Goldsboro annexation ordinance, affecting the area described in Senate Bill 314, First Edition, 2011 Regular Session.

"(9) Fayetteville Gates Four annexation ordinance, as described in House Bill 231, First Edition, 2011 Regular Session."

Session Laws 2012-3, s. 6, is a severability clause.

Session Laws 2012-103, s. 2, effective June 29, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 3 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-103, s. 3, provides: "Repealed involuntary annexation ordinances. -

"(1) Elizabethtown Annexation Ordinance 2011-04 (Area A) adopted June 6, 2011.

"(2) Elizabethtown Annexation Ordinance 2011-05 (Area B) adopted June 6, 2011.

"(3) Elizabethtown Annexation Ordinance 2011-06 (Area C) adopted June 6, 2011.

"(4) Elizabethtown Annexation Ordinance 2011-07 (Area D) adopted June 6, 2011."

Session Laws 2012-103, s. 4, is a severability clause.

Session Laws 2012-104, s. 2, effective June 29, 2012, provides: "Twelve-year prohibition on involuntary annexation. - All areas affected by the annexation ordinances described in Section 3 of this act shall not be subject to any annexation proceeding, other than a voluntary annexation under Part 1 or Part 4 of Article 4A of Chapter 160A of the General Statutes, or local act of the General Assembly, for a period of 12 years from and after the effective date of this act. After the 12-year period, the area may be subject to annexation in accordance with State law effective at that time."

Session Laws 2012-104, s. 3, provides: "Repealed involuntary annexation ordinances. -

"(1) Elizabethtown Annexation Ordinance 2011-09 (Area J) adopted June 6, 2011.

"(2) Elizabethtown Annexation Ordinance 2011-10 (Area N) adopted June 6, 2011.

"(3) Elizabethtown Annexation Ordinance 2011-07 (Area Q) adopted June 6, 2011."

Session Laws 2012-104, s. 4, is a severability clause.

Editor's Note. - Session Laws 2011-396 repealed former Parts 2 and 3 of Article 4A and enacted in their place new Parts 7 and 8.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Legal Periodicals. - For survey of 1980 administrative law, see 59 N.C.L. Rev. 1026 (1981).

For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1093 (1981).

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For 1984 survey, "Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule," see 63 N.C.L. Rev. 1260 (1985).

For survey, "Municipal Annexation in North Carolina: A Look at the Past Decade," see 14 Campbell L. Rev. 135 (1992).

For comment, "'Caught Between a Rock and a Hard Place': Fringe Landowners 'Can't Get No Satisfaction.' Is It Time to Re-Think Annexation Policy in North Carolina?," see 24 Campbell L. Rev. 317 (2002).

For note, "Consent Not Required: Municipal Annexation in North Carolina," see 83 N.C. L. Rev. 1634 (2005).

For article, "Bargain Basement Annexation: How Municipalities Subvert the Intent of North Carolina Annexation Laws," see 29 N.C. Cent. L.J. 77 (2006).

CASE NOTES

This Part does not constitute an unconstitutional delegation of legislative power in violation of N.C. Const., Art. VIII. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

The legislature may, without violating the state or federal Constitutions, delegate to a municipality the authority to implement a plan of annexation. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

The guidelines established by this Part are as stringent as those in G.S. 160A-45 et seq., and the discretion conferred upon the municipalities of population less than 5,000 is no greater than that conferred upon municipalities of population of 5,000 or greater. Therefore, the contention that the annexation statute is unconstitutional is untenable. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

Rational Basis for Statutory Scheme. - Given the State policy, it is not difficult to conceive of a rational basis supportive of the patchwork statutory scheme governing annexation in North Carolina. Thompson v. Whitley, 344 F. Supp. 480 (E.D.N.C. 1972).

Application to Property of Condominium Owners. - Condominium unit owners need municipal services like water, sewage disposal, and police and fire protection just as do homeowners in any new development. It would lead to anomalous results and violate legislative intent to construe the statute as applying to the property of homeowners but not to the property of condominium unit owners. Tar Landing Villas Owners' Ass'n v. Town of Atlantic Beach, 64 N.C. App. 239, 307 S.E.2d 181 (1983), cert. denied, 310 N.C. 156, 311 S.E.2d 296 (1984).

Annexation of territory by a municipality is a legislative and not a judicial act; hence, in the absence of statutory directive, the court, on appeal from an annexation ordinance, cannot divide the territory, annex a part thereof and refuse to annex the remainder. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Proceeding Is Summary. - A proceeding by a municipality to annex territory pursuant to this Part is summary in nature. Southern Ry. v. Hook, 261 N.C. 517, 135 S.E.2d 562 (1964).

Material statutory requirements must be complied with. Southern Ry. v. Hook, 261 N.C. 517, 135 S.E.2d 562 (1964).

Summary Judgment Inappropriate for Fact Questions. - The trial court erred in granting summary judgment as to whether defendant-town had fulfilled its duty to maintain a street it annexed where the record was undeveloped as to the current state of repair of the street and the customary maintenance provided by defendant on similar streets. Buckland v. Town of Haw River, 141 N.C. App. 460, 541 S.E.2d 497 (2000).

Burden of Showing Noncompliance. - In an annexation proceeding under this Part, the record of the proceedings must show prima facie complete and substantial compliance with the applicable provisions of the statutes; the burden is upon petitioners requesting review of annexation proceedings 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 the proceedings which materially prejudiced the substantive rights of petitioners. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Voluntary Procedure Is Simpler and Quicker Than Involuntary Procedure. - The voluntary procedure initiated by landowners and future municipal taxpayers has understandably been made simpler and quicker than involuntary annexation procedures. Town of Hudson v. City of Lenoir, 279 N.C. 156, 181 S.E.2d 443 (1971).

Injection of Element of Choice. - The variations in procedural requirements with respect to voluntary and involuntary annexation make it possible for property owners in the affected area to inject an element of choice as to which municipality will govern them. Town of Hudson v. City of Lenoir, 279 N.C. 156, 181 S.E.2d 443 (1971).

Contiguity is an essential component of the traditional concept of a municipal corporation, which is envisioned as a governmental unit capable of providing essential governmental services to residents within compact borders on a scale adequate to insure "the protection of health, safety, and welfare in areas being intensively used for residential, commercial, industrial, and government purposes or in areas undergoing such development." Imposition of the contiguity requirement is one means of ensuring that the annexation process remains consistent with principles of sound urban development. Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

Section 160A-37 provides two different procedural methods for beginning the involuntary annexation process under G.S. 160A-33 to 160A-42, and former G.S. 160A-43 and 160A-44. A municipality may either pass a resolution of consideration one year prior to adopting its resolution of intent, or it may immediately adopt the resolution of intent and postpone the effective date of annexation for at least a year after the ordinance is passed. Town of Hazelwood v. Town of Waynesville, 83 N.C. App. 670, 351 S.E.2d 558, rev'd on other grounds, 320 N.C. 89, 357 S.E.2d 686 (1987).

Prior Jurisdiction Doctrine. - Adherence to the prior jurisdiction doctrine is not only consistent with the majority rule, but is in keeping with the spirit and intent of the annexation statutes. City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E.2d 534 (1984).

Where one municipality institutes valid annexation proceedings first, that municipality should be given priority under the prior jurisdiction rule, and subsequent annexation proceedings, of whatever nature, are of no force and effect. City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E.2d 534 (1984).

Preference of Landowners Is of No Consequence. - For purposes of the prior jurisdiction rule, annexation proceedings, regardless of their nature, are "equivalent proceedings," and it is of no consequence which town or city the landowners prefer. In fact, it appears to be the very essence of the involuntary annexation procedures that the affected landowners have no choice, as long as the annexing body complies with the applicable statutes. City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E.2d 534 (1984).

Objectives Held Sufficient to Justify Annexation. - Three avowed objectives stated by a town's governing board, namely, (1) essentially all of the town's desirable building sites were exhausted, (2) the tax base was unable to provide the kind of services people needed, and (3) many interested people were unable to participate in town government were sufficient to qualify annexation under this Part. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

Annexation Proper. - Trial court properly found that a village provided independent administrative, engineering, auditing, legal, and planning services to its residents, and that the village was exploring options for obtaining additional police patrol services, and had committed itself to providing its current and future levels of such services to its residents in a non-discriminatory manner; the trial court found that the village was going to provide some additional services to the area to be annexed, notwithstanding land owners' claim they would receive no additional services whatsoever, and the trial court's order affirming the annexation was proper. Nolan v. Village of Marvin, 172 N.C. App. 84, 615 S.E.2d 898 (2005).

Village essentially complied with the requirements of G.S. 160A-33 because the village's annexation of property was consistent with the public policy of sound urban development articulated in G.S. 160A-33. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

Annexation Ordinance Unenforceable. - Appellate court's decision that upheld the trial court's judgment upholding the annexation ordinance was reversed, as the village's annexation ordinance did not provide for meaningful extension of municipal services to the lots subject to annexation, which meant that the village had not substantially complied with the statutory procedures for annexation and that the property owners would suffer material injury, in the form of municipal taxes, if annexation proceeded. Nolan v. Village of Marvin, 360 N.C. 256, 624 S.E.2d 305 (2006).

Municipality Need Not Acquire Private Water and Sewer Systems. - An annexation ordinance may not be attacked on the ground that the municipality has no plans to purchase or finance the purchase of private water and sewer systems existing in the annexed territory, since the mere existence of such private systems within the territory to be annexed does not compel the city to purchase or acquire ownership of them. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Nor Does Mere Extension of Limits or Voluntary Maintenance Appropriate Such Systems. - Where a municipality annexes territory served by private water or sewer lines, the owners of such lines may not recover the value thereof from the municipality in the absence of provisions for payment by contract or ordinance, unless the municipality appropriates such private lines and controls them as proprietor; the mere extension of the city limits to include such lines or the voluntary maintenance of such lines by the city does not amount to an appropriation of such lines by the municipality. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

.

Annexation Procedure Constitutional. - The procedure for annexation by cities of 5,000 or more, G.S. 160A-45 et seq., does not violate N.C. Const., Art. I, § 25, because it does not provide for trial by jury on issues of fact. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

The procedure for annexation by cities of 5,000 or more does not authorize a taking of private property without just compensation in violation of the due process clause of U.S. Const., Amend. V or the law of the land provision of N.C. Const., Art. I, § 19, on the alleged ground that petitioner will pay a substantial sum in ad valorem taxes to the annexing town without receiving any substantial benefits or major services he does not already receive, since petitioner may petition for a writ of mandamus pursuant to G.S. 160A-49(h) if he discovers he is not receiving services other residents are receiving, within 12 to 15 months from the effective date of the annexation, and the annexation procedure thus provides adequate due process safeguards to assure that citizens in the annexed area get municipal services on a nondiscriminatory basis. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

Provisions Not Unconstitutional as Special or Local Legislation. - Sections 160A-45 through 160A-50 are not unconstitutional as special or local legislation even though as enacted the statutes exempted certain counties from their application, because municipal annexation is not one of the subject matter areas which the Constitution requires to be accomplished by general or uniformly applicable laws. In re City of Durham Annexation Ordinance Numbered 5991 for Area A, 69 N.C. App. 77, 316 S.E.2d 649, appeal dismissed and cert. denied, 312 N.C. 493, 322 S.E.2d 553 (1984).

Sections 160A-45 et seq. do not violate N.C. Const., Art. II, § 24, which prohibits the General Assembly from enacting "any local, private, or special act or resolution" in regard to certain enumerated subjects. This constitutional provision does not apply to annexation proceedings by municipalities, since N.C. Const., Art. VII, § 1, authorizes the General Assembly "except as otherwise prohibited by this Constitution" to "give such powers and duties to counties, cities, and towns and other governmental subdivisions as it may deem advisable," and no other provision of the Constitution prohibits the General Assembly from enacting special legislation for the annexation of areas by municipalities. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

No Denial of Equal Protection. - Part 3 of Article 4A of Chapter 160A does not deny equal protection under either the state or federal Constitutions. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

Rational Basis for Statutory Scheme. - Given the state policy, it is not difficult to conceive of a rational basis supportive of the patchwork statutory scheme governing annexation in North Carolina. Thompson v. Whitley, 344 F. Supp. 480 (E.D.N.C. 1972).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195 (1984), cert. denied and appeal dismissed, 313 N.C. 514, 329 S.E.2d 392 (1985).

Legislative Intent. - To apply a strict interpretation to G.S. 160A-45, et seq., would contravene the intent of the legislature, which is to obtain a meaningful review of annexation ordinances. Southern Glove Mfg. Co. v. City of Newton, 63 N.C. App. 754, 306 S.E.2d 466 (1983).

The legislative policy expressed in this section is that municipalities remain dynamic growing entities. Quality Water Supply, Inc. v. City of Wilmington, 97 N.C. App. 400, 388 S.E.2d 608, cert. denied, 326 N.C. 597, 393 S.E.2d 881 (1990).

Central purpose behind the 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. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982); In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

The General Assembly has established detailed criteria and guidelines for annexation under Part 3 of this Article. McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, cert. denied, 308 N.C. 544, 302 S.E.2d 885 (1983).

The minimum requirements of the annexation 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. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Prima facie complete and substantial compliance with this Part is a condition precedent to annexation of territory by a municipality. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

The provisions of this section are merely statements of policy. No procedural steps, substantive rights, or annexation requirements are contained in that statute. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980); In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

Policies enumerated under this section are aids for statutory interpretation when other sections of Part 3 of this Article are in need of clarification, definition, and interpretation. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980); In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

Statement of Policy Not Part of G.S. 160A-50 "Procedure". - The statement of state policy with regard to annexation set forth in this section is not part of the "procedure" of annexation under G.S. 160A-50. In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

It is not required that proposed sewer interceptors be included on the maps that accompany annexation reports. Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832 (1983), cert. denied, 310 N.C. 630, 315 S.E.2d 697 (1984).

The legislature has recognized the importance of adequate water and sewer facilities to the end of quality urban development and specifically required that certain present and proposed water and sewer facilities be shown in the report. That the legislature did not include proposed sewer interceptors among those certain facilities is a matter of legislative concern. Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832 (1983), cert. denied, 310 N.C. 630, 315 S.E.2d 697 (1984).

Prior Jurisdiction Doctrine. - Adherence to the prior jurisdiction doctrine is not only consistent with the majority rule, but is in keeping with the spirit and intent of the annexation statutes. City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E.2d 534 (1984).

A county may not exercise jurisdiction over any part of a city located within its borders. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Statutes do not give a county authority over provision of sewer services within a city, or over newly annexed areas of the city which also lie in the county. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. - Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Where one municipality institutes valid annexation proceedings first, that municipality should be given priority under the prior jurisdiction rule, and subsequent annexation proceedings, of whatever nature, are of no force and effect. City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E.2d 534 (1984).

Meaningful Benefit Provided to Annexed Residents. - Town's annexation was valid because: (1) according to the annexation report, the town would extend its municipal services on a non-discriminatory basis, thus satisfying the statutory requirements under G.S. 160A-47(3); (2) the town annexation provided police protection, a service that promoted the health, safety, and welfare of residents within the annexed area; (3) such protection provided a meaningful benefit to the annexed residents and furthered the public policies underlying the annexation statutes, under G.S. 160A-45; and (4) property owners were bound by a trial court's factual finding that the owners had not shown that the annexation area currently received police services that were comparable to those that the town would provide the annexation area after the annexation became effective. Nolan v. Town of Weddington, 182 N.C. App. 486, 642 S.E.2d 261 (2007).

Preference of Landowners Is of No Consequence. - For purposes of the prior jurisdiction rule, annexation proceedings, regardless of their nature, are "equivalent proceedings," and it is of no consequence which town or city the landowners prefer. In fact, it appears to be the very essence of the involuntary annexation procedures that the affected landowners have no choice, as long as the annexing body complies with the applicable statutes. City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E.2d 534 (1984).

Discovery. - Though discovery in annexation proceedings is not altogether forbidden, its scope is necessarily limited by the nature of the proceeding. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

Reports' Statement of Policy Objectives Held Sufficient. - A statement in an annexation plan report that the annexation was designed to promote sound urban development and assure adequate provision of government services was a sufficient statement of the policy objectives to be met by the annexation to comply with this section. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

Judicial Review. - The General Assembly has provided for limited judicial review of annexation ordinances. Section 160A-50 provides that a property owner in the annexed area may seek judicial review of the ordinance. Upon such review, the superior court may consider only whether (1) the statutory procedure was not followed, or (2) the provisions of G.S. 160A-47 were not met, or (3) the provisions of G.S. 160A-48 have not been met. Additionally, petitioner must carry the burden of showing both noncompliance with statutory requirements and procedure and material injury flowing from such noncompliance. McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, cert. denied, 308 N.C. 544, 302 S.E.2d 885 (1983).


§ 160A-58.51. Definitions.

As used in this Part, the following definitions apply:

  1. Contiguous area. - Any area which, at the time annexation procedures are initiated, 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, 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. A connecting corridor consisting solely of the length of a street or street right-of-way may not be used to establish contiguity.
  2. Eligible property owner. - A property owner who is eligible to be notified of the opportunity to have water lines and sewer lines and connections installed at no cost to the property owner. A property owner is eligible to be notified of the opportunity to have water lines and sewer lines and connections installed at no cost to the property owner if that property owner held a freehold interest in the real property to be annexed as of the date of the combined notice of public informational meeting and public hearing.
  3. Necessary land connection. - An area that does not exceed twenty-five percent (25%) of the total area to be annexed.
  4. Property owner. - Any person having a freehold interest in real property.
  5. Used for residential purposes. - Any lot or tract five acres or less in size on which is constructed a habitable dwelling unit. The term also includes any lot or tract that is used in common for social or recreational purposes by either owners of lots with habitable dwelling units or owners of lots intended for occupation by dwelling units and the lot owners have a real property interest in the commonly used property that attaches to or is appurtenant to the owners' lots.

History

(2011-396, s. 9; 2012-11, s. 4.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Subdivisions (2) through (5) of this section were originally enacted by Session Laws 2011-396, s. 9, as subdivisions (1a), (2), (3) and (4), respectively. The subdivisions have been renumbered at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2012-11, s. 2, effective July 1, 2012, in the first sentence of subdivision (2), deleted "to sign a petition to deny an annexation ordinance or a property owner who is eligible"; and deleted the second sentence, which read: "A property owner is eligible to sign a petition to deny an annexation ordinance if the property owner held a freehold interest in the property, determined as of the date of the resolution of consideration." For applicability, see Editor's note.

CASE NOTES

Coincidence of Boundary Requirement. - In considering the coincidence of boundary requirement, the entire area proposed for annexation must be viewed as a whole, rather than as various component portions. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599 (1987).

Territory which is contiguous solely to "satellite corporate limits" is not a "contiguous area " as that term is defined in subdivision (1). Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

Classification of Landlocked and Fronting Lots in Single Ownership as Single Lot. - It is not unreasonable and beyond the statutory definition to classify a landlocked lot and its fronting lot in single ownership as a single lot in residential use where only the fronting lot contains "a habitable dwelling unit." Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496 (1969).

Annexation Proper. - Village essentially complied with the requirements of G.S. 160A-41 because the village met the literal contiguity requirements in annexing an area. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

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"Used for Residential Purposes." - Under G.S. 160A-53(2), "used for residential purposes" means any lot or tract five acres or less in size on which is constructed a habitable dwelling unit, for purposes of an annexation ordinance. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40 (2007), review denied, 362 N.C. 354, 663 S.E.2d 312 (2008).

Mobile Homes as "Constructed" for "Residential Purposes" Requirement. - Petitioners/property owners failed to overcome the presumption that the City substantially complied with G.S. 160A-48(c)(3) when it moved to annex disputed areas; mobile homes used to meet the "urban purposes" percentage requirement were "constructed" on the lots pursuant to "residential purposes" as defined by subdivision (2) of this section, and the deletion of a condemned home, originally included as a "habitable" residence, did not affect the calculations or the city's compliance. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208 (1999).

Tract Classified as Residential Despite Growing of Grass Thereon for Cattle Feed. - A city could classify a 1.83 acre tract with a rented house located on it as one lot used for residential purposes, despite the fact that on two separate parts of the lot fescue and sudex grass was grown and a person living in the neighborhood had been allowed to mow this grass, bale it and feed it to his cows. Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, cert. denied, 314 N.C. 669, 336 S.E.2d 401 (1985).


§ 160A-58.52. Authority to annex.

The governing board of any municipality may extend the corporate limits of such municipality under the procedure set forth in this Part.

History

(2011-396, s. 9.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

CASE NOTES

Annexation of territory to a municipal corporation is a legislative function which may not be delegated to a court. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Municipality's Discretion Limited to Method of Annexation. - The only discretion given to the governing boards of municipalities is the permission and discretionary right to use the new method of annexation set out in this Article, provided such boards conform to the procedure and meet the requirements set out in this Part as a condition precedent to the right to annex. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Burden of Showing Failure to Meet Statutory Requirements. - Where the record of annexation proceedings under this section on its face showed substantial compliance with every essential element of the applicable statutes, the burden was upon petitioners, who appealed from the annexation ordinance, to show by competent evidence that the city in fact failed to meet the statutory requirements or that there was irregularity in the proceedings which materially prejudiced their substantive rights. Dunn v. City of Charlotte, 284 N.C. 542, 201 S.E.2d 873 (1974).

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This section is constitutional. In re Annexation Ordinances Nos. 866-870, 253 N.C. 637, 117 S.E.2d 795 (1961).

Right to Use New Annexation Method as Only Discretion Delegated to Municipalities. - By the enactment of Part 3 of this Article, the General Assembly did not delegate to the municipalities of the State having a population of 5,000 or more any discretion with respect to the provisions of the law. The guiding standards and requirements of the act are set out in great detail. The only discretion given to the governing boards of such municipalities is the permissive or discretionary right to use this new method of annexation, provided such boards conform to the procedure and meet the requirements set out in the act as a condition precedent to the right to annex. In re Annexation Ordinances Nos. 866-870, 253 N.C. 637, 117 S.E.2d 795 (1961).

A city has statutory authority to annex areas both contiguous and non-contiguous to its primary corporate limits. It must stand ready to provide sewer service (among other services) to newly annexed areas on substantially the same basis and in the same manner in which these services are provided to the rest of the city. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. - Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).


§ 160A-58.53. Prerequisites to annexation.

A municipality exercising authority under this Part shall make plans for the extension of services to the area proposed to be annexed and shall, prior to the public hearing provided for in G.S. 160A-58.55, prepare a report setting forth such plans to provide services to the area proposed to be annexed. The report shall include the following:

  1. A map or maps of the municipality and adjacent territory to show the following information:
    1. The present and proposed boundaries of the municipality.
    2. The present major trunk water mains and sewer interceptors and outfalls, and the proposed extensions of such mains, outfalls, and lines as required in subdivision (3) of this section. The water and sewer map shall bear the seal of a registered professional engineer.
    3. The general land use pattern in the area proposed to be annexed.
  2. A statement showing that the area proposed to be annexed meets the requirements of G.S. 160A-58.54.
  3. A statement setting forth the plans for extending to the area proposed to be annexed each major municipal service on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation and the method to finance the extension of major municipal services into the area proposed to be annexed as follows:
    1. Provision of police protection, fire protection, solid waste collection, and street maintenance services on the effective date of annexation. A contract with a rural fire department to provide fire protection shall be an acceptable method of providing fire protection. A contract with a private firm to provide solid waste collection services shall be an acceptable method of providing solid waste collection services.
    2. Extension of water and sewer services to each lot or parcel, if an installation easement is provided by the affected property owner, with a proposed timetable for construction of such mains, outfalls, and lines within three and one-half years of the effective date of annexation, in accordance with G.S. 160A-58.56.
  4. A statement of the impact of the annexation on any rural fire department providing service in the area proposed to be annexed and a statement of the impact of the annexation on fire protection and fire insurance rates in the area proposed to be annexed, if the area where service is provided is in an insurance district designated under G.S. 153A-233, a rural fire protection district under Article 3A of Chapter 69 of the General Statutes, or a fire service district under Article 16 of Chapter 153A of the General Statutes. The rural fire department shall make available to the municipality not later than 30 days following a written request from the municipality all information in its possession or control, including operational, financial, and budgetary information, necessary for preparation of a statement of impact. The municipality shall, in a timely fashion, supply the rural fire department with information requested by the rural fire department to respond to the written request. The rural fire department forfeits its rights under G.S. 160A-58.57 if it fails to make a good faith response within 45 days following receipt of the written request for information from the municipality, provided that the municipality's written request so states by specific reference to this subdivision.
  5. A statement showing how the proposed annexation will affect the municipality's finances and services, including municipal revenue change estimates. This statement shall be delivered to the clerk of the board of county commissioners at least 30 days before the date of the public informational meeting on any annexation under this Part.

History

(2011-396, s. 9.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

CASE NOTES

Local Modification Held Unconstitutional. - Chapter 1189, Session Laws 1963, amending subdivision (3)b of this section solely as it applied to the Town of Beaufort and providing that a municipality shall not be required to extend sewage outfalls into an area annexed by it in the event that the municipal sewerage system shall have been declared a source of unlawful pollution, was a local act relating to health and sanitation within the meaning of N.C. Const., Art. II, § 24, and was unconstitutional and void. Gaskill v. Costlow, 270 N.C. 686, 155 S.E.2d 148 (1967); Safrit v. Costlow, 270 N.C. 680, 155 S.E.2d 252 (1967).

Standard of Review Under This Section. - The trial court's order affirming a town annexation ordinance had to be vacated where the court applied the material prejudice standard of review to the adequacy of maps contained in the town report as well as to the questions of solid waste collection and the financing of services instead of determining whether or not the town complied with this section in formulating and carrying out its annexation plan; procedural irregularities under G.S. 160A-37 are to be evaluated under a "material prejudice" standard, while violations of either this section or G.S. 160A-36 are to be viewed in light of compliance or lack thereof and, if necessary, result in appropriate amendment. Sonopress, Inc. v. Town of Weaverville, 139 N.C. App. 378, 533 S.E.2d 537 (2000).

Municipality, as a condition precedent to the right to annex, must file a report showing on its face strict compliance with statutory requirements, and upon review in superior court has the burden of sustaining the regularity, adequacy, veracity and validity of the report and annexation ordinance by competent evidence. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

The legislature has empowered municipal governing boards to amend the report required by this section, in order to make changes in the plans for serving the area proposed to be annexed, so long as such changes meet the requirements of this section. Gregory v. Town of Plymouth, 60 N.C. App. 431, 299 S.E.2d 232, cert. denied, 308 N.C. 544, 304 S.E.2d 237 (1983).

Plans Held in Compliance with Subdivision (3)a. - Plans which contained (1) information with respect to the current level of services within town, (2) a commitment to provide substantially the same level of services in the annexation area, and (3) information as to how the extension of services would be financed set forth sufficient information to allow the public and the courts to determine that the town had committed itself to provide a nondiscriminatory level of services to the annexed area and to establish compliance with subdivision (3)a. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

Failure to Call for Increase in Personnel in Plans. - Plans for services to the annexed area are not defective in failing to call for any significant increase in personnel where the record is devoid of evidence showing any need for increased personnel. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681 (1969).

The fact that the metes and bounds description in a resolution of intent to annex failed to close, because one small piece of property owned by a person who did not join the petition for review was not included within the resolution of intent, was not fatal to the validity of the annexation ordinance where the resolution of intent and the published notice of public hearing made full reference to a map filed in the office of the clerk of the city and available for public inspection of the area proposed to be annexed, and this map and a map published in the newspaper notice of the public hearing showed all the property proposed to be annexed. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

This section does not make it incumbent upon the municipality to justify annexation other than to the extent of its ability to serve the areas to be annexed. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

While the extent to which an area needs municipal services is among the factors to be considered in a decision to annex, the statute requires only that a city demonstrate an ability to serve the area to be annexed. Thompson v. City of Salisbury, 24 N.C. App. 616, 211 S.E.2d 856, cert. denied, 287 N.C. 264, 214 S.E.2d 437 (1975).

Map Requirement Met. - Annexation report complied with statutory map requirements where the map indicated the current town limits, the area of proposed annexation, and the current town limits of satellite annexation, as well as major roads and property boundaries; there was no requirement that the report contain a sealed map where the town did not plan to extend water and sewer into an annexed area. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, cert. denied, 355 N.C. 751, 565 S.E.2d 671 (2002).

Providing nondiscriminating level of services within statutory time is all that is required. Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

Remedy Where Municipality Has Not Carried Out Service Plans Adopted under Subdivision (3). - The statutory remedy for owners of property in annexed territory where the municipality has not followed through on its service plans adopted under the provisions of subdivision (3) of this section and G.S. 160A-37 is by writ of mandamus. Safrit v. Costlow, 270 N.C. 680, 155 S.E.2d 252 (1967).

Record Held to Sustain Finding of Compliance. - Where the record disclosed the plans of the municipality for extending municipal services to the area annexed, itemizing the cost, and obtaining such cost from current taxes, the record supported a finding by the court of compliance with this section, and such finding would not be disturbed in the absence of evidence to the contrary of sufficient weight to overcome the prima facie presumption of regularity. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Evidence supporting the plans set out in the report, and no evidence that the service would not be adequate, was sufficient to support the conclusion that the police protection requirement of this section would be met. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973).

Annexation ordinance and report met the requirements of this section and G.S. 160A-37. Williams v. Town of Grifton, 22 N.C. App. 611, 207 S.E.2d 275 (1974).

A second public hearing after amendment is not required by this section. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681 (1969).

There is no requirement that a second public hearing be held on an amended annexation proposal, when that amendment is adopted to achieve compliance with this section, pursuant to the authority granted in G.S. 160A-37(e). Gregory v. Town of Plymouth, 60 N.C. App. 431, 299 S.E.2d 232, cert. denied, 308 N.C. 544, 304 S.E.2d 237 (1983).

There is no requirement that a second public hearing be held on an amended annexation proposal, when that amendment is adopted to achieve compliance with G.S. 160A-35, and G.S. 160A-35 is the corollary to G.S. 160A-47, with the only significant difference in these statutes being that G.S. 160A-35 applies to cities less than 5,000 and G.S. 160A-47 applies to cities of 5,000 or more. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40 (2007), review denied, 362 N.C. 354, 663 S.E.2d 312 (2008).

Town Not Required to Provide Service. - Language in annexation ordinances to the effect that since water service then provided to the annexed areas by plaintiff was comparable to that provided by the town, the town would not be required to appropriate funds to extend water and sewer lines to the annexed area was required by G.S. 160A-37(e)(3) and subdivision (3)b to insure that residents of the area to be annexed would have access to comparable water service; in no way did this serve as a promise to be rightfully relied upon that the town would not in the future construct its own water lines within the annexed area or that plaintiff had the exclusive right to furnish water service there. Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317 (1995).

Additional Services Not Required. - Annexation report complied with statutory requirements where it stated that no additional police officers were required by the annexation and that roads would continue to be maintained by the State; evidence supported the town's statements that additional police officers were not required and that the State would continue to provide road maintenance. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, cert. denied, 355 N.C. 751, 565 S.E.2d 671 (2002).

Annexation Proper. - Trial court properly found that a village provided independent administrative, engineering, auditing, legal, and planning services to its residents, and that the village was exploring options for obtaining additional police patrol services, and had committed itself to providing its current and future levels of such services to its residents in a non-discriminatory manner; the trial court found that the village was going to provide some additional services to the area to be annexed, notwithstanding land owners' claim they would receive no additional services whatsoever, and the trial court's order affirming the annexation was proper. Nolan v. Village of Marvin, 172 N.C. App. 84, 615 S.E.2d 898 (2005).

Village essentially complied with the requirements of G.S. 160A-35 because a map prepared by the village as part of its original report clearly included a one-acre tract of land which was ultimately annexed. Moreover, the annexation ordinance would have extended the same police protection, waste collection services, and recreation department facilities that were then provided within the village. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

Annexation Ordinance Unenforceable. - Appellate court's decision that upheld the trial court's judgment upholding the annexation ordinance was reversed, as the village's annexation ordinance did not provide for meaningful extension of municipal services to the lots subject to annexation, which meant that the village had not substantially complied with the statutory procedures for annexation and that the property owners would suffer material injury, in the form of municipal taxes, if annexation proceeds. Nolan v. Village of Marvin, 360 N.C. 256, 624 S.E.2d 305 (2006).

Financing Statement Not Required. - Town did not need to set out a method for the financing of additional services in its annexation report where the town's statement that no additional services were required was supported by competent evidence in the record; a financing statement was required only if there was to be an extension of services. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, cert. denied, 355 N.C. 751, 565 S.E.2d 671 (2002).

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I. IN GENERAL.

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Purpose. - The purpose of this section is to insure that major municipal services are provided to newly annexed areas on a nondiscriminatory basis. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225 (1989).

The purpose of this statute is to insure that, in return for the financial burden of city taxes, annexed residents receive all major city services. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204 (1996).

Section Required to Be Followed Only Where Annexation Achieved Under Chapter 160A, Art. 4A, Part 3. - This section, dealing with the submission of plans by the municipality for the extension of municipal services (including police and fire protection, solid waste collection, and street maintenance), and G.S. 160A-49.1 and 160A-49.3, dealing with contracting for fire protection and sewage services, are required to be followed by a municipality only where the annexation is to be achieved under Chapter 160A, Art. 4A, Part 3. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988), rev'd on other grounds, 324 N.C. 499, 380 S.E.2d 107 (1989).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195 (1984), cert. denied and appeal dismissed, 313 N.C. 514, 329 S.E.2d 392 (1985).

Central purpose behind the 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. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982); Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832 (1983), cert. denied, 310 N.C. 630, 315 S.E.2d 697 (1984); In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Local act requiring city to extend municipal services, including services under this section, to newly annexed areas did not violate N.C. Const., Art. II, § 24(1)(a). Piedmont Ford Truck Sale v. Greensboro, 324 N.C. 499, 380 S.E.2d 107 (1989).

A city has statutory authority to annex areas both contiguous and non-contiguous to its primary corporate limits. It must stand ready to provide sewer service (among other services) to newly annexed areas on substantially the same basis and in the same manner in which these services are provided to the rest of the city. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. - Since county had no authority to restrict or regulate city's provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county's special use permit, with a condition attached to the permit requiring the county's prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county's prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252, 362 S.E.2d 553 (1987).

Discovery. - Judicial review of an annexation ordinance is a limited judicial review, with few similarities to ordinary civil actions which are initiated, tried and adjudicated in a different manner and for which the Rules of Civil Procedure were mostly devised. Nevertheless, since the court reviewing annexation proceedings is explicitly authorized to receive evidence as to the city's compliance with the various procedures prescribed, as to its annexation plan meeting the requisites of this section, and as to the area involved being eligible for annexation under G.S. 160A-48, in those instances where discovery may illuminate these issues it is authorized under the Rules of Civil Procedure. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

II. MAPS.

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It is not required that proposed sewer interceptors be included on the maps that accompany annexation reports. Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832 (1983), cert. denied, 310 N.C. 630, 315 S.E.2d 697 (1984).

Maps Held Sufficient. - Maps prepared by a town as part of its revised annexation plan report substantially complied with subdivision (1) of this section, although the eastern boundary and approximately one-fifth of the town area were omitted and the map showing the general land use pattern contained several blank areas representing vacant lots which did not appear as a category on the legend of the maps, where both the entire area contiguous to the area to be annexed and that area itself were included on the map. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

III. PLANS FOR EXTENDING SERVICES.

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A. IN GENERAL.

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Plans for Extension of Services as Condition Precedent. - The requirement of plans for extension to the area to be annexed of all major municipal services performed within the municipality at the time of annexation is a condition precedent to annexation. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

The minimum requirements of subdivision (3) 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. In re Annexation Ordinance No. 300-X, 304 N.C. 549, 284 S.E.2d 470 (1981); Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832 (1983), cert. denied, 310 N.C. 630, 315 S.E.2d 697 (1984).

The minimum requirements of the annexation 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. If such services are not provided, the residents of the annexed area would be entitled to a writ of mandamus requiring the municipality to live up to its commitments. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

The minimum requirements of the annexation 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. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Providing Forms to Property Owners. - Subdivision (3)(b) does not require the city to provide notice to the property owners that they may request a form providing for extension of lines to their property in accordance with the financial policies of the city, and in the absence of a request, the city is not required to provide forms to property owners to be used to request extensions from their property to a major main in accordance with the city financial policies for such extensions. Barnhardt v. City of Kannapolis, 116 N.C. App. 215, 447 S.E.2d 471, cert. denied, 338 N.C. 514, 452 S.E.2d 807 (1994).

Use of the word "substantially" in subdivision (3)a does not render the section vague and ambiguous. In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

This Article requires that services be provided on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. When a municipality engages in supplying water to its inhabitants, it owes the duty of equal service to consumers within its corporate limits, as a general rule. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

The city is required by law to provide waste disposal services on substantially the same basis and in the same manner as such services are provided within the municipality prior to annexation. Stillings v. City of Winston-Salem, 63 N.C. App. 618, 306 S.E.2d 489 (1983), rev'd on other grounds, 311 N.C. 689, 319 S.E.2d 233 (1984).

Subdivision (3)a of this section requires that the annexation report reflect the city's plans to provide certain enumerated services on substantially the same basis and in the same manner as in the rest of the city. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Nowhere in this section does the concept of equality with "average service" appear in reference to the municipal services to be supplied by the annexing municipality. No reasonable reading of the statutory language permits that inference. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

There is no requirement that a municipality duplicate services, in an area to be annexed, which are already available in the area. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978); In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

City May Not Delegate Duty of Extending Services. - The city must furnish major municipal services to areas annexed as provided by Parts 2 and 3 of this Article. The performance of this duty may not be made to depend upon a doubtful contingency, and may not be delegated to others by the city so as to relieve the city of the duty. If other parties are obligated to the city to perform such duty, the city must enforce the obligation directly against such parties and may not be otherwise relieved of its primary duty to the area which it seeks to make a part of the city for all other purposes. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

Plans May Provide Only for Needed Services. - Plans for extension of services may, of course, take into consideration all circumstances and provide only for services if and when needed. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

When a village proposed to involuntarily annex an area which contained privately owned streets, owners of property on the private streets could not defeat the annexation by denying the village's employees access to the private streets, if the owners chose to keep the streets private and the area were annexed, because it was not the intent of the general assembly, in adopting G.S. 160A-47(3), to provide private communities with an avenue to defeat annexation by denying access to municipal employees, when all other statutory requirements were met, as this would create unacceptable inequities between the rights of citizens in private communities and those living on public roads. Pinewild Project Ltd. P'ship v. Vill. of Pinehurst, 198 N.C. App. 347, 679 S.E.2d 424 (2009), review denied, 363 N.C. 856, 691 S.E.2d 17, N.C. LEXIS 110 (2010).

When a village proposed to involuntarily annex an area which contained privately owned streets, the village's annexation plan met the requirements of G.S. 160A-47(3) when the village proposed that, if the street's owners dedicated the street to the village, the village would provide the same level of municipal services as the village provided to residents living on public streets because these options were substantially consistent with how the village currently treated public and private streets within the village's limits. Pinewild Project Ltd. P'ship v. Vill. of Pinehurst, 198 N.C. App. 347, 679 S.E.2d 424 (2009), review denied, 363 N.C. 856, 691 S.E.2d 17, N.C. LEXIS 110 (2010).

Statement of Plans for Extension of Services. - In its annexation report the city must include a statement setting forth the plans of the municipality for extending certain enumerated municipal services to the area to be annexed on the date 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. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

Only Services Listed in Subdivision (3) Must Be Described in Plan. - The annexation statute requires municipalities to include in their annexation reports plans to extend into the area proposed to be annexed only those municipal services specifically enumerated in subdivision (3) of this section: police protection, fire protection, garbage collection, street maintenance, major trunk water mains, and sewer outfall lines. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Other Anticipated Services Need Not Be Included. - In a municipal annexation proceeding the city is not required to include in its annexation report plans for extending into the proposed annexation area municipal services other than those enumerated in subdivision (3) of this section. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

The legislative intent expressed in subdivision (3) requires extension of a variety of municipal services, all of which are required for the public health and safety. Public transportation and parks and recreational facilities do not fall within this classification of service. In re Annexation Ordinance No. 1219, 62 N.C. App. 588, 303 S.E.2d 380, cert. denied and appeal dismissed, 309 N.C. 820, 310 S.E.2d 351 (1983).

Municipal services, such as transportation, which are not specifically enumerated in subsection (3) are not required to be included in the annexation report. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204 (1996).

Since plans and procedures concerning transportation are not required by law, a reviewing court has no jurisdiction to hear evidence on this issue. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204 (1996).

Only Major Municipal Services. - The required information is not that of plans for extending all municipal services, but only the "major" municipal services. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

City bus service and TV service are not "major" municipal services required to be addressed in the annexation report. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

The respondent city was not required to file a new services plan under this section although the annexation area changed during subsequent revisions to the annexation ordinance, where the only significant change to the services plan was the scope of its coverage - the services for petitioners remained the same - and where the city was bound by the terms of the services plan as amended under principles of equitable estoppel. Bowers v. City of Thomasville, 143 N.C. App. 291, 547 S.E.2d 68, cert. denied, 353 N.C. 723, 550 S.E.2d 769 (2001).

Contents of Report. - 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. In re Annexation Ordinance No. 300-X, 304 N.C. 549, 284 S.E.2d 470 (1981).

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. With this minimal information, both the city council and the public can make an informed decision of the costs and benefits of the proposed annexation, a reviewing court can determine whether the city has committed itself to a nondiscriminating level of services, and the residents and the courts have a benchmark against which to measure the level of services which the residents receive within the statutory period. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Service Is Municipal Even If Performed by Another. - A service, such as water or sewer service, is a "municipal service" even though it is performed or furnished by an independent authority or by franchise. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Service Must Still Be Included in Plan. - If the municipal service is one enumerated in subdivision (3) of this section, it must be included in the annexation report, even though it is provided by an independent authority or under a franchise agreement. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

The requirement that the annexation report contain a statement setting forth the plans for extending each major municipal service extends to a major service "performed within the municipality," not performed by the municipality. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Plans Should Be Stated Fully and in Detail. - The report of plans for extension of services is the cornerstone of the annexation procedure under this Part, and to be of greatest possible benefit, the plans for services should be stated as fully and in as much detail as resources of the municipality reasonably permit. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Response time is only one of many factors that enters into the court's consideration of whether an annexation report reflects plans to provide certain required municipal services on substantially the same basis and in the same manner as in the pre-annexation city area. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Time for Implementing Extension of Services. - It would appear from a reading of G.S. 160A-49(h) that a city annexing territory has one year, and possibly 15 months, to implement its plan for extending services to an annexed area. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978); In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

Burden of Showing Noncompliance with Subdivision (3). - The burden is on petitioner to establish, by competent and substantial evidence, the city's noncompliance with subdivision (3). In re Annexation Ordinance No. 300-X, 304 N.C. 549, 284 S.E.2d 470 (1981); Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Factors Affecting Whether a Plan Is Discriminatory. - A town's established policies for the provision of municipal services within pre-existing municipal limits should be taken into account when determining whether a proposed plan for extension of services to annexed territories is discriminatory. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Plan Held Sufficient. - Trial court did not err in finding that city's report of plans for the extension of police protection into annexed area met the requirements of this section; the city made a prima facie showing of substantial compliance where it promised to provide a full range of police protection on the same basis and manner as in the present municipality and where the report then outlined the specific services it currently provided, to include a regular patrol division, criminal investigation, ordinance enforcement and traffic control. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989), rev'd on other grounds, 327 N.C. 251, 393 S.E.2d 842 (1990).

City's annexation plan which included provisions for police and fire protection and capital improvements for new water lines complied with subdivision (3)a. of this section, even though it did not include provisions for additional staff or equipment. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208 (1999).

When a city proposed the involuntary annexation of certain real property, it had to determine the use of that property at the time it prepared the service plan required by G.S. 160A-47, to determine if it complied with the urban usage percentages required under G.S. 160A-48(c)(3), and it was error to classify property according to its intended future use, rather than its use at the time the service plan was prepared. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400 (2003), aff'd, 358 N.C. 216, 593 S.E.2d 584 (2004).

B. POLICE AND FIRE PROTECTION.

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There are many variables that affect the level of fire protection afforded to different areas of a municipality: height and size of buildings, construction materials, proximity of buildings to one another and street pattern, among others. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Police Protection Provided. - Town's annexation was valid because: (1) according to the annexation report, the town would extend its municipal services on a non-discriminatory basis, thus satisfying the statutory requirements under G.S. 160A-47(3); (2) the town annexation provided police protection, a service that promoted the health, safety, and welfare of residents within the annexed area; (3) such protection provided a meaningful benefit to the annexed residents and furthered the public policies underlying the annexation statutes, under G.S. 160A-45; and (4) property owners were bound by a trial court's factual finding that the owners had not shown that the annexation area currently received police services that were comparable to those that the town would provide the annexation area after the annexation became effective. Nolan v. Town of Weddington, 182 N.C. App. 486, 642 S.E.2d 261 (2007).

Regardless of the level of services that county residents receive through a private contractor prior to annexation, the city is only required to provide annexed territories with substantially the same level of services as are enjoyed in other areas of the city. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

An increase in the police force proportional to the increase in the population attributable to annexation is a sufficiently sophisticated plan for the provision of services to meet the requirements of subdivision (3)a of this section. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Where city planned to hire three additional sworn officers to maintain its current ratio of one officer for every 486 citizens, the plan was sufficient to meet the requirements of subdivision (3)a of this section. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Full Compliance as to Police and Fire Protection Shown. - Record of annexation proceedings showed prima facie full compliance with this section in regard to extension of police and fire protection to the area to be annexed. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

City had shown prima facie compliance with the statute by proposing to provide fire protection services to the annexed area under the same plan as such services are provided to the pre-annexation portions of the city, and similar response times should be anticipated. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

When a city proposed to annex certain land, the city's proposal for the extension of police services to the annexed land met the requirements of G.S. 160A-47 because the plan addressed the level of services currently provided in the city and committed to provide substantially the same level of services to the annexed land, and this was all that the applicable statute required. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40 (2007), review denied, 362 N.C. 354, 663 S.E.2d 312 (2008).

Response time for the fire services is only one of many factors that determines whether an annexation report complies with statutory requirements for the extension of fire protection services. That an annexation report did not include an average response time did not preclude a finding of compliance with the statute. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

C. STREET MAINTENANCE.

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City Must Plan to Maintain Streets. - So far as an annexation proceeding is concerned, the primary duty of street maintenance in an area after annexation is upon the city, and it must in good faith make plans to maintain the streets, whether paved or unpaved, on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

May Not Limit Its Duty to Streets Meeting Certain Standards. - A municipality may not limit its obligations to maintain streets in the area to be annexed by it to those streets which are improved to stipulated standards by the landowners and developers in the area. Any obligation of the landowners and developers to the city to improve the streets is a matter between them and the municipality and is irrelevant to the question of the sufficiency of the annexation ordinance to meet the requirements of the statute. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

Even if the property owners and developers in the area to be annexed are under a duty to the city to pave all streets and provide storm sewers and curbs and gutters, the city is in no position to rely on this obligation in an annexation proceeding and thereby shift to others the duty which this Article imposes on the city as a condition precedent to annexation. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

Specificity Concerning Street Maintenance. - A revised annexation plan report was sufficiently specific with respect to extension of street maintenance services where it detailed what services were provided in the annexing town and stated that all such services would be provided in the annexed area, and was not deficient in failing to provide for the extension of water and sewer lines where this was not a service provided by the town to anyone but was a duty vested with an independent water authority. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

City's annexation report was appropriate to the extent which it contained a statement setting forth the plans of the city for the extension of street maintenance services to the annexation area in compliance with G.S. 160A-47(3)(a). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, review denied, 365 N.C. 362, 719 S.E.2d 22, 2011 N.C. LEXIS 964 (2011).

D. WATER AND SEWER SERVICE.

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City May Not Limit Water and Sewer Services to Existing Lines. - Where an annexation ordinance contains no plans for the municipality to extend water and sewer services in the area to be annexed beyond those services presently in existence in the area unless the water and sewer lines are extended by landowners and developers in the area, the ordinance fails to meet the requirements of subdivision (3)b of this section. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

As to assessment of cost of water and sewer extensions upon lots or parcels of land abutting directly on lateral mains of water and sewer systems pursuant to former G.S. 160-241 to 160-248 and G.S. 160-255, see In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

Remedy for Failure to Implement Plan. - After an area is annexed, if the residents find that the city is not providing them with water and sewer services, they may petition the court for a writ of mandamus requiring the city to provide such services. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Timetables for Extending Water Mains and Sewer Lines. - Since the city included in the annexation report its plans and timetables for extending the water mains and the sewer lines to the area proposed for annexation, it met the requirements of subdivisions (3)b and (3)c of this section even though no plan or associated timetables had been identified for the water supply. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Failure to Show Extension Was a Major Water Main. - Where the plaintiffs offered no evidence from which the trial court or appellate court could ascertain in this instance that the twelve-inch water extension was a "major water main," and the policy requiring these petitioners to pay for the cost of water line extensions to their property was consistent with the policy of water line extensions within the pre-existing municipal limits, the trial court was not in error in concluding the town had substantially complied with all the relevant provisions of this section. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225 (1989).

Annexation Denied Because Plan Did Not Provide Statutorily Required Sewer Service. - Trial court's judgment upholding an ordinance which the City of Asheville (North Carolina) passed to annex property was reversed because the court failed to recognize that the city's plan for providing services to the area it proposed to annex did not provide statutorily required sewer service. Briggs v. City of Asheville, 159 N.C. App. 558, 583 S.E.2d 733, cert. denied, 357 N.C. 657, 589 S.E.2d 886, cert. dismissed sub nom., 357 N.C. 657, 589 S.E.2d 887 (2003).

Remand When Protections of Section not Honored. - Where petitioners show that the degree of noncompliance with statutory requirements for annexation is so great as to eviscerate the protections provided in G.S. 160A-47, a trial court does not err in declaring an ordinance null and void. However, in order for a trial court to properly declare an ordinance null and void under G.S. 160A-50(g)(4), it must specifically find that "the ordinance cannot be corrected by remand" as opposed to finding that "the ordinance is not likely to be corrected on remand." Because the trial court failed to make the appropriate finding, perhaps acting under a misapprehension of applicable law, the matter was remanded to the trial court for appropriate findings to support one of the statutory grounds under G.S. 160A-50(g). Fix v. City of Eden, 175 N.C. App. 1, 622 S.E.2d 647 (2005).

Duties under Section. - The requirements of G.S. 160A-47 are that plans for extension to the area to be annexed of all major municipal services performed within the municipality at the time of annexation is a condition precedent to annexation. The minimum requirements of G.S. 160A-47 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. A city need only substantially comply with G.S. 160A-47. A city is required to provide major municipal services under G.S. 160A-47, and its performance of that duty may not be made to depend upon a doubtful contingency. Fix v. City of Eden, 175 N.C. App. 1, 622 S.E.2d 647 (2005).

City's annexation report was appropriate to the extent which it complied with G.S. 160A-47 regarding the sewer service installation fee. Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, review denied, 365 N.C. 362, 719 S.E.2d 22, 2011 N.C. LEXIS 964 (2011).

IV. METHOD OF FINANCING.

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Subdivision (3)d requires only that the method of financing be disclosed, not that the precise source of each dollar be pinpointed. In re Annexation Ordinance No. 300-X, 304 N.C. 549, 284 S.E.2d 470 (1981).

Use of Federal Funds to Finance Extension of Services. - Although a city's proposals with reference to the financing of the extension of services into the area to be annexed contemplated the use of certain federal funds in connection with such financing, the method set forth in plans to finance extension of the services into the areas to be annexed constituted compliance with subdivision (3)d. Dunn v. City of Charlotte, 284 N.C. 542, 201 S.E.2d 873 (1974).

Budgeting of Funds at Time of Trial Held Unnecessary. - Since subdivision (3) of this section requires only that the annexing city file a statement showing how it will provide and finance municipal services to the annexed area, and since there is no requirement that available services be duplicated, the City of Goldsboro, in annexing a federal air force base, was not required to have funds budgeted at the time of trial to provide municipal services to the base in the event the federal government ceased providing those services, where the plan of annexation was based upon sound estimates of anticipated expenditures and revenues. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Sufficiency of Annexation Report. - City provided a sufficient statement in an annexation report showing the financial impact of an annexation as required by G.S. 160A-47(5). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, review denied, 365 N.C. 362, 719 S.E.2d 22, 2011 N.C. LEXIS 964 (2011).


§ 160A-58.54. Character of area to be annexed.

  1. A municipal governing board may extend the municipal corporate limits to include any area that meets all of the following criteria:
    1. It shall be adjacent or contiguous to the municipality's boundaries at the time the annexation proceeding is begun, except if the entire territory of a county water and sewer district created under G.S. 162A-86(b1) is being annexed, the annexation shall also include any noncontiguous pieces of the district as long as the part of the district with the greatest land area is adjacent or contiguous to the municipality's boundaries at the time the annexation proceeding is begun.
    2. At least one-eighth of the aggregate external boundaries of the area shall coincide with the municipal boundary.
    3. No part of the area shall be included within the boundary of another incorporated municipality.
    4. The total area to be annexed shall meet the requirements of any of the following:
      1. Part or all of the area to be annexed must be developed for urban purposes at the time of approval of the report provided for in G.S. 160A-58.53. The area of streets and street rights-of-way shall not be used to determine total acreage under this subdivision. An area developed for urban purposes is defined as any area which meets any one of the following standards:
        1. Has a total resident population equal to at least two and three-tenths persons for each acre of land included within its boundaries.
        2. Has a total resident population equal to at least one person for each acre of land included within its boundaries, and is subdivided into lots and tracts such that at least sixty percent (60%) of the total acreage consists of lots and tracts three acres or less in size and such that at least sixty-five percent (65%) of the total number of lots and tracts are one acre or less in size.
        3. Is so developed that at least sixty percent (60%) of the total number of lots and tracts in the area at the time of annexation are used for residential, commercial, industrial, institutional, or governmental purposes, and is subdivided into lots and tracts such that at least sixty percent (60%) of the total acreage, not counting the acreage used at the time of annexation for commercial, industrial, governmental, or institutional purposes, consists of lots and tracts three acres or less in size.
        4. Is the entire area of any county water and sewer district created under G.S. 162A-86(b1), if all of the following apply:
          1. The municipality has provided in a contract with that district that the area is developed for urban purposes.
          2. The contract provides for the municipality to operate the sewer system of that county water and sewer district.
          3. The municipality is annexing in one ordinance the entire territory of the district not already within the corporate limits of a municipality.
        5. Is so developed that, at the time of the approval of the annexation report, all tracts in the area to be annexed are used for commercial, industrial, governmental, or institutional purposes.
      2. Part or all of the area to be annexed meets either of the following:
        1. Lies between the municipal boundary and an area developed for urban purposes so that the area developed for urban purposes is either not adjacent to the municipal boundary or cannot be served by the municipality without extending major municipal services, including water or sewer lines, through such sparsely developed area.
        2. Is adjacent, on at least sixty percent (60%) of its external boundary, to any combination of the municipal boundary and the boundary of an area or areas developed for urban purposes as defined in sub-subdivision a. of this subsection.
      3. The total area to be annexed is completely surrounded by the municipality's primary corporate limits.
  2. In fixing new municipal boundaries and determining whether an area is developed for urban purposes, a municipal governing board shall comply with all the following:
    1. Use recorded property lines and streets as boundaries. Some or all of the boundaries of a county water and sewer district may also be used when the entire district is not already within the corporate limits of the municipality.
    2. Use whole parcels of property in that if any portion of that parcel is included, the entire parcel of real property as recorded in the deed transferring title shall be included.
    3. Not use a connecting corridor consisting solely of the length of a street or street right-of-way to establish contiguity.
    4. Not consider property in use for a commercial, industrial, institutional, or governmental purpose if the lot or tract is used only temporarily, occasionally, or on an incidental or insubstantial basis in relation to the size and character of the lot or tract.
    5. Include acreage actually occupied by buildings or other man-made structures together with all areas that are reasonably necessary and appurtenant to such facilities for purposes of parking, storage, ingress and egress, utilities, buffering, and other ancillary services and facilities when determining acreage in use for commercial, industrial, institutional, or governmental purposes.
    6. Consider the area of an abolished water and sewer district to be a water and sewer district for the purpose of this section even after its abolition under G.S. 162A-87.2(b).
  3. As used in this subsection, "bona fide farm purposes" is as described in G.S. 153A-340. As used in this subsection, "property" means a single tract of property or an identifiable portion of a single tract. Property that is being used for bona fide farm purposes on the date of the resolution of intent to consider annexation may not be annexed without the written consent of the owner or owners of the property.

The purpose of paragraphs 1. and 2. of this sub-subdivision is to permit municipal governing boards to extend corporate limits to include all nearby areas developed for urban purposes and where necessary to include areas which at the time of annexation are not yet developed for urban purposes but which constitute necessary land connections between the municipality and areas developed for urban purposes or between two or more areas developed for urban purposes.

History

(2011-396, s. 9; 2011-363, s. 3.1.)

Editor's Note. - Session Laws 2011-363, s. 3.1, which amended this section by adding subsection (c), effective July 27, 2011, and applicable to annexations of property used for bona fide farm purposes that were initiated by municipalities on or after that date or pending on that date, was contingent upon House Bill 845, 2011 Regular Session, becoming law. House Bill 845 was enacted as Session Laws 2011-396.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Legal Periodicals. - For article, "Math for the People: Reining in Gerrymandering While Protecting Minority Rights,” see 98 N.C.L. Rev. 273 (2020).

CASE NOTES

I. IN GENERAL.

.

This section was not copied from the laws of other states, but is a result of a study and recommendations made by the Municipal Government Study Commission, which was established in accordance with Joint Resolution 51 of the General Assembly of 1957. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

This Section and § 160A-48 Compared. - The provisions of subsections (b), (c) and (e) of G.S. 106A-48 are virtually identical to their counterparts in subsections (b), (c) and (d) of this section. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

When Annexation Proper Generally. - The language of subsection (a) of this section makes it clear that a municipality may annex any area which meets the general standards of subsection (b) and the requirements of subsection (c). Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

Particular Facts Control in Doubtful Cases. - When compliance with the statutory requirements is in doubt, the determination of whether an area is used for a purpose qualifying it for annexation will depend upon the particular facts of each case. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, cert. denied, 306 N.C. 559, 294 S.E.2d 371 (1982).

This section does not specify any particular method of calculation for determination of compliance with statutorily mandated requirements and the reasonableness of the method chosen is to be determined in light of the particular circumstances of the questioned annexation proceedings. Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739 (1985).

Contiguous Area and Coincidence of Boundary Requirements Held Met. - For case holding that where each of three portions included in proposed annexation area was contiguous to the existing town boundary, and, by using a railroad strip as a connector, were contiguous to each other, when viewed as an entire area, the area was contiguous to the boundaries of the town as they existed at the commencement of the annexation proceedings and that the required coincidence of boundaries existed, see Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

Reason for Providing for Judicial Review. - The difficulties of applying the standards of this section in extreme cases were the reason the Municipal Government Study Commission recommended a provision for court review, set out in G.S. 160A-38, to determine whether the agency making the decision made a reasonable decision in accord with statutory standards. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

The trial court's order affirming a town annexation ordinance had to be vacated where the court applied the material prejudice standard of review to the adequacy of maps contained in the town report as well as to the questions of solid waste collection and the financing of services instead of determining whether or not the town complied with this section in formulating and carrying out its annexation plan; procedural irregularities under G.S. 160A-37 are to be evaluated under a "material prejudice" standard, while violations of either G.S. 160A-35 or this section are to be viewed in light of compliance or lack thereof and, if necessary, result in appropriate amendment. Sonopress, Inc. v. Town of Weaverville, 139 N.C. App. 378, 533 S.E.2d 537 (2000).

Cited in In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980); Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989); Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 493 S.E.2d 797 (1997); Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155 (1999), cert. denied, 351 N.C. 350, 543 S.E.2d 122 (2000).

II. STANDARDS UNDER SUBSECTION (B).

Annexation of Area in Another Municipality Prohibited. - Any new or amended proceeding by a town correcting procedural irregularities would be an exercise in futility after the disputed area became a part of another city, because after that date any attempt by the town to annex the disputed area would be in violation of this statute, which prohibits the annexation of an area already included within the boundary of another incorporated municipality. Town of Hudson v. City of Lenoir, 279 N.C. 156, 181 S.E.2d 443 (1971).

Summary judgment was proper in case involving a determination of prior jurisdiction between two towns' competing resolutions of intent where one municipality had sought to involuntarily annex two acres within the boundaries of the other. Town of Spencer v. Town of E. Spencer, 351 N.C. 124, 522 S.E.2d 297 (1999).

Competing Resolutions of Intent and Priority Jurisdiction. - A resolution of intent to annex territory which includes any territory already within the boundaries of another municipality is void and will lose priority to an intervening and competing valid resolution of intent; the elements listed in this section are "essential elements" with regard to a "prior jurisdiction" determination. Town of Spencer v. Town of E. Spencer, 351 N.C. 124, 522 S.E.2d 297 (1999).

Territory which is contiguous solely to the "satellite corporate limits" fails to satisfy the requirement of subdivision (b)(1) of this section that the area to be annexed in an involuntary annexation proceeding be contiguous or adjacent to the municipal boundaries of the city which seeks annexation. Territory contiguous solely to "satellite corporate limits" is not eligible for annexation until such "satellite corporate limits" become "a part of the primary corporate limits." This occurs in accord with G.S. 160A-58.6 when, through annexation of intervening territory, the boundaries of the satellite area and those of the primary town area touch. Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

If a town wishes to annex involuntarily two unannexed areas on either side of the satellite area, it must first annex the area which abuts directly on both the primary corporate limits and the satellite corporate limits. Only after this intervening territory has been successfully annexed is the area which presently abuts solely on satellite corporate limits eligible for annexation. Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

Coincidence of Boundary Requirement. - In considering the coincidence of boundary requirement, the entire area proposed for annexation must be viewed as a whole, rather than as various component portions. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599 (1987).

Purposes Underlying Subsection (b) Subverted. - Superior court properly remanded town's annexation ordinance for amendment of its proposed boundaries, where although the literal contiguity requirements of subsection (b) of this section and G.S. 160A-41(1) were apparently satisfied by the town's ordinance, the town's compliance with the literal requirements of these statutes resulted in the subversion of the purposes underlying subsection (b), since the town's intentional gerrymandering of the annexation boundary created isolated islands connected to the town by a single narrow corridor of land. Amick v. Town of Stallings, 95 N.C. App. 64, 382 S.E.2d 221 (1989).

When a town proposed to annex certain land, it did not comply with the purpose of the standards in G.S. 160A-36(b), to provide essential government services within compact borders, even though it technically complied with the one-eighth contiguity requirement of G.S. 160A-36(b)(2), because it sought to annex certain noncontiguous valuable property by connecting it to the town by a narrow strip of land, surrounded on either side by nonannexed property, thus creating the potential for confusion in the provision of emergency and other services, and this was an impermissible "shoestring" annexation. Hughes v. Town of Oak Island, 158 N.C. App. 175, 580 S.E.2d 704, aff'd, 357 N.C. 653, 588 S.E.2d 467 (2003).

III. TESTS UNDER SUBSECTION (C).

Tax Records and Land Use Maps Are Proper Basis for Use Calculations. - Tax records and land use maps have been approved as accepted methods designed to provide reasonably accurate results for calculating the land use requirements in G.S. 160A-36 for the annexation of property. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, cert. denied, 355 N.C. 751, 565 S.E.2d 671 (2002).

For discussion as to history and scope of subsection (c), see Tar Landing Villas Owners' Ass'n v. Town of Atlantic Beach, 64 N.C. App. 239, 307 S.E.2d 181 (1983).

"Use" Test and "Subdivision" Test for Determining Availability for Annexation. - The General Assembly adopted a standard containing two tests for determining availability for annexation: (1) The use test, i.e., that not less than 60% of the lots and tracts in the area must be in actual use, other than for agriculture, and (2) the subdivision test, i.e., that not less than 60% of the acreage which is in residential use, if any, and is vacant must consist of lots and tracts of five acres or less in size. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

The criteria in subsection (c) are known as the "use" test and the "subdivision" text. Thompson v. City of Salisbury, 24 N.C. App. 616, 211 S.E.2d 856 (1975).

Subsection (c) contains two tests for determining the availability for annexation, the use test and the subdivision test. American Greetings Corp. v. Town of Alexander Mills, 128 N.C. App. 727, 497 S.E.2d 108 (1998).

Both Tests Must Be Complied With. - The fact that the General Assembly connected the two test clauses in subsection (c) of this section with the conjunctive "and," and the clear abuses and hardships which a literal application of the use test, if alone applied, would produce, leads to the conclusion that the legislative intent is that both tests be complied with. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

Both tests established by the General Assembly must be met in order for an area to meet the statutory standard. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496.

Both the "use" test and the "subdivision" test must be met before an area can be classified as urban. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240 (1982).

Application of Tests in Subsection (c). - The use and subdivision tests prescribed by subsection (c) of this section yield accurate results only if applied to a land area which encompasses only unannexed territory. This is so because these tests require a determination of the percentage of lots being used for "urban purposes" and the percentage of "total acreage" subdivided into lots of five acres or less. Such percentage figures will be skewed and inaccurate if not based on data from all the acreage and lots encompassed by the land area under consideration. Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980).

Application of Both Tests May Cause Absurd Results in Extreme Cases. - Literal insistence upon the application of both tests in subsection (c) might in some extreme and improbable circumstances bring about absurd results adverse to municipalities. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

When applying the subdivision test the central inquiry is the degree of actual urbanization of the proposed area. American Greetings Corp. v. Town of Alexander Mills, 128 N.C. App. 727, 497 S.E.2d 108 (1998).

Determining What Is a "Lot". - There are several methods which can be used in determining what is a lot in making an appraisal of an area to be annexed. One is to count each numbered lot separately. Another is to consider a landlocked lot as part of the lot in front of it and group the two lots, i.e., the landlocked lot and the one providing it with access to a street, as being a single lot. A third method would be to consider a group of lots in single ownership and used for a single purpose as being a tract within the meaning of the statute, and count tracts rather than lots. Any one of these methods would be "calculated to provide reasonably accurate results," as required by G.S. 160A-42. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496 (1969).

Property owners did not show that a town was unreasonable in relying upon an actual survey, as allowed by G.S. 160A-36; thus, the reviewing court did not err in concluding that one property consisted of two separate lots for the purposes of the subdivision test. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717 (2004), cert. denied, 359 N.C. 410, 612 S.E.2d 320 (2005).

The word "lot " in subsection (c) includes the concept of a condominium unit. Tar Landing Villas Owners' Ass'n v. Town of Atlantic Beach, 64 N.C. App. 239, 307 S.E.2d 181 (1983).

Landlocked Lot and Fronting Lot as Single Lot. - It is not unreasonable and beyond the statutory definition to classify a landlocked lot and its fronting lot in single ownership as a single lot in residential use, where only the fronting lot contains "a habitable dwelling unit." Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496 (1969).

Lots in Single Ownership Used for Common Purpose May Be Considered Single Tract. - In appraising an area to be annexed, one of the methods which can be used to determine what is a tract is to consider several lots in single ownership used for a common purpose as being a single tract; these consolidated lots can then be used to determine the percentage of tracts used for urban purposes. Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739 (1985).

"Use " means "to put into service" under subsection (c). Southern Ry. v. Hook, 261 N.C. 517, 135 S.E.2d 562 (1964).

Tract Held for Future Development Not "Used". - Where about a tenth of a tract of land, marked off by a bumper strip or barrier, was used for parking, and the rest of the tract was graded and held by the owner for possible future industrial development, the vacant part of the tract was not "used " for industrial purposes within the purview of subsection (c). Southern Ry. v. Hook, 261 N.C. 517, 135 S.E.2d 562 (1964).

As to classification of tract as being in industrial use, see Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496 (1969).

Industrial Classification Proper Where Area Is Actively So Used. - When an area is used for an active industrial purpose, the land is properly classified as in industrial use within the meaning of the annexation statute. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240 (1982).

Industrial Classification Improper Absent Evidence of Such Use. - An area proposed for annexation is improperly classified as property in use for industrial purposes where there is no evidence that the land in question is being used either directly or indirectly for industrial purposes. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240 (1982).

Transmission of electrical power over land by a power company is an industrial activity for an urban use. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240.

Golf Course as Commercial Purpose. - Golf course, open to the public and operated for profit, is used for a commercial purpose within the meaning of subsection (c). Thompson v. City of Salisbury, 24 N.C. App. 616, 211 S.E.2d 856 (1975).

Classification of apartment complex as commercial rather than residential property was a reasonable method of complying with statutorily mandated requirements for the character of an area to be annexed; the general statutory intent is not to exclude areas of urbanized land from annexation on a technicality, but to provide municipalities with a flexible planning tool. Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739 (1985).

Annexation Ordinance Statement Held Insufficient for Lack of Specific Findings. - A statement in an annexation ordinance that the area to be annexed was in the process of being developed for urban purposes, that more than 60 percent of the area was in use for residential, commercial, industrial, governmental or institutional purposes, and that at least 60 percent of the total acreage, not counting the acreage so used, consisted of lots and tracts of five acres or less in size, did not meet the requirements of this section, as the statement was a mere conclusion and there were no specific findings nor any showing on the face of the record as to the method used by the municipality in making its calculations or as to the present use of any particular tract. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Review as to Availability of Area. - If a municipality clearly complies with the standards of subsection (c) of this section, there is nothing to review with respect to the availability of an area proposed for annexation. Where compliance is in doubt, the determination must be made upon the facts in the particular case. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

Substantial Compliance with Statute Shown. - Trial court erred in concluding that the usage of disputed acres affected the classification of a golf course tract as a whole when the golf course was annexed by a town ordinance, because the golf course tract was properly designated as commercial by the town in its original calculations, and the entire acreage should have been included as commercial acreage for purposes of calculations under the use test; based on the new calculations, the annexation area met the 60 percent minimum required under the subdivision test of G.S. 160A-36(c)(1), and, given that the town substantially complied with the provisions of G.S. 160A-36, the ordinance was properly affirmed without amendment pursuant to G.S. 160A-38. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717 (2004), cert. denied, 359 N.C. 410, 612 S.E.2d 320 (2005).

Village essentially complied with the requirements of G.S. 160A-36 because (1) the village's use and reliance on the then-existing recorded deed and plat, both of which were consistent with the actual description of a one-acre tract of property, complied with the mandates of G.S. 160A-36(d); (2) the recorded line that the village used from a voluntarily-annexed tract was already part of the pre-existing municipal boundary; as such, the line did not constitute a new municipal boundary within the meaning of the statute; (3) the village correctly classified the a tract of land for purposes of G.S. 160A-36(c)(1)'s subdivision test; (4) the village used methods calculated to provide reasonably accurate results to determine the degree of land subdivision; and (5) the village met the literal contiguity requirements in annexing an area. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

Statutory Requirements Not Met. - Where tract was not currently under active development; a plat was never recorded by either party and there was no evidence that the family intended to sell any portion of it, the tract was not sufficiently urbanized to satisfy the statutory requirements. American Greetings Corp. v. Town of Alexander Mills, 128 N.C. App. 727, 497 S.E.2d 108 (1998).

In order for a town to comply with the statutory requirements, there must exist some actual, minimum urbanization of the proposed annexation property. American Greetings Corp. v. Town of Alexander Mills, 128 N.C. App. 727, 497 S.E.2d 108 (1998).

When a town proposed to annex certain land, it did not comply with the subdivision test in G.S. 160A-36(c)(1), requiring that at least 60 percent of a proposed annexation site, not counting acreage used at the time of annexation for commercial, industrial, governmental, or industrial purposes, consist of lots and tracts three acres or less in size, because it designated certain acreage in the proposed annexation area as commercial, when, in fact, the commercial use of the acreage was only proposed, so the acreage was not being used at the time of the annexation for commercial purposes. Hughes v. Town of Oak Island, 158 N.C. App. 175, 580 S.E.2d 704, aff'd, 357 N.C. 653, 588 S.E.2d 467 (2003).

IV. BOUNDARIES.

Purpose of Subsection (d). - The legislative history of subsection (d) of this section suggests that the reason for its inclusion was the legislature's concern that the full range of municipal services be available to citizens in the annexed area. Recognizing that water and, particularly, sewer services are necessarily limited by natural drainage boundaries, the Municipal Government Study Commission, whose recommendations were followed in establishing the present annexation procedures, included topography as an important consideration to be incorporated into the new statutory scheme of annexation. In order to ensure consideration of such topographic features, subsection (d) was enacted specifically enumerating certain features which create natural drainage boundaries. Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

Subsection (d) contains no mandatory standards or requirements for annexation. Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

Requirements of Subsection (d) Not Intended to Defeat Otherwise Proper Annexation. - It was not the intent of the legislature to defeat the annexation of an area which was otherwise ripe for annexation because of the directory language contained in subsection (d) of this section. Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

"Practical" as used in subsection (d) is defined as "that which is possible of reasonable performance." Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

Tree lines do not constitute "natural topographic features" within the meaning of the requirement of subsection (d) of this section. Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982).

No provision in subsection (d) prevents a municipality from using a street as a reference in setting the boundary lines of an area to be annexed. Rexham Corp. v. Town of Pineville, 26 N.C. App. 349, 216 S.E.2d 445 (1975).

Drawing boundary exactly five feet from and parallel to a street for its entire length did not violate subsection (d). Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739 (1985).

Splitting of Tracts Not Prohibited. - The statutory requirement contained in subsection (d) that a municipality use natural topographic features wherever practical in setting an annexation boundary does not demonstrate a legislative intent to prevent the splitting of tracts. Rexham Corp. v. Town of Pineville, 26 N.C. App. 349, 216 S.E.2d 445 (1975).

Proof of Noncompliance with Subsection (d). - In order to establish noncompliance with subsection (d) of this section, petitioners must show two things: (1) that the boundary of the annexed area does not follow natural topographic features, and (2) that it would have been practical for the boundary to follow such features. Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 (1982); Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739 (1985); Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83 (1996).

Topographic Features Not Followed. - There was sufficient evidence to support the court's conclusion that the town did not attempt to follow topographic features in violation of G.S. 160A-36(d). Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83 (1996).

.

Constitutionality. - See In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195 (1984), cert. denied and appeal dismissed, 313 N.C. 514, 329 S.E.2d 392 (1985).

Question whether area is ripe for annexation should be addressed under statutory criteria set up in this section. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

The entire area to be annexed must meet the requirements of subsection (b) of this section. In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

Cities with 5,000 or more people may annex an outlying urban area pursuant to subsection (c) of this section and the intervening undeveloped lands pursuant to subsection (d) so long as the entire area meets the requirements of subsection (b). In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

This Section and § 160A-36 Compared. - The provisions of subsections (b), (c) and (e) of this section are virtually identical to their counterparts in subsections (b), (c) and (d) of G.S. 160A-36. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Character of areas which may properly be annexed (i) cannot be included within the boundary of another incorporated municipality, (ii) must be adjacent to the existing boundaries of the annexing municipality, (iii) must be developed for urban purposes or must connect an outlying area developed for urban purposes with the municipality and (iv) wherever practical should use topographic features as boundaries. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

When a city proposed the annexation of a certain area, it could combine lots in single ownership used for a common purpose into a single tract, which could then be used to determine the percentage of tracts in the area used for urban purposes, under G.S. 160A-48(c)(3), but it was impermissible for the city to combine lots being developed for commercial purposes into a single tract classified as commercial because the lots had to be used for a common purpose, and these lots were in the process of development rather than in commercial use. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400 (2003), aff'd, 358 N.C. 216, 593 S.E.2d 584 (2004).

City proposing to annex certain land substantially complied with G.S. 160A-48 because land improperly classified as residential should have been classified as "non-urban," as the land met no qualifications to be classified as urban, making G.S. 160A-48(c) inapplicable, as was also true with certain other undeveloped land, and making the classification of this land under G.S. 160A-48(d) proper, which meant the land did not have to qualify under G.S. 160A-48(c), so the land was correctly excluded from calculations of land qualifying for annexation under G.S. 160A-48(c) and, as a result, the total land qualified for annexation under G.S. 160A-48(c)(3), applying the use/subdivision test. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40 (2007), review denied, 362 N.C. 354, 663 S.E.2d 312 (2008).

Each sub-area must be considered as a whole and must qualify under one of the urban purposes tests set forth in subsection (c). Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225 (1989).

Tests as to Urban Development to Be Applied to Whole Annexation Area. - Not only must the entire annexation area meet the requirements of subsection (c)(1), but even more importantly, the tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole. In re Annexation Ordinance, 284 N.C. 442, 202 S.E.2d 143 (1974); In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

The tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Division into Sub-Areas or Study Areas Improper. - The urban area that a city seeks to qualify for annexation under one of the urban purposes tests set forth in subdivisions (c)(1) through (c)(3) of this section must be considered as a whole, i.e., as one area, and may not be divided into sub-areas or study areas. In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

Application of population credits. - City acted under a misapprehension of the law, and misapplied the statutory standard in subdivision (c)(1), in deciding that population credits should be applied only in the "study area" in which such credits were accumulated, rather than applied uniformly to the whole area to be annexed. In re Annexation Ordinance, 284 N.C. 442, 202 S.E.2d 143 (1974).

Alternative Standards in Subdivisions (c)(1) and (c)(2). - This section's requirement that the area to be annexed must be developed for urban purposes is satisfied if either the standard of subdivision (c)(1) or the standard of subdivision (c)(2) is met. It is not required that both standards be satisfied. In re Annexation Ordinance 301-X, 304 N.C. 565, 284 S.E.2d 475 (1981).

To perform the computations required by the "subdivision test" under subdivision (c)(2) of this section, two figures are needed: the total acreage and the subdivided acreage. In re Annexation Ordinance 301-X, 304 N.C. 565, 284 S.E.2d 475 (1981).

Use of Different Standards Upheld. - The trial court did not err in concluding the town complied with subsection (c) of this section in annexing three noncontiguous sub-areas using different standards for qualifying each of the three sub-areas as urban property. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225 (1989).

Applicability of Error Margins of G.S. 160A-54 to Calculations Under Subsection (c). - The five percent error margins allowed in subdivisions (2) and (3) of G.S. 160A-54 apply exclusively to calculations made by the municipality for purposes of establishing compliance with the population and subdivision tests contained within the alternative standards prescribed by subsection (c) of this section. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

The language of G.S. 160A-54 is free from ambiguity and represents a legislative determination that margins of error should be allowed with respect to the calculations made by a municipality to establish compliance with the population and subdivision tests of subsection (c) of this section, but not with respect to the calculations made to establish compliance with the use test of subsection (c). Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

Counting "Total Resident Population". - A person is properly counted as a member of the "total resident population" under this section if such person would have been counted as an inhabitant of the proposed area of annexation under rules governing the last preceding decennial census. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Finding of Domicile Not Required. - The annexing unit is not required to make a finding that a person is actually domiciled within the proposed area of annexation before counting that person for the purpose of making the population estimate required by this section. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Military Personnel Properly Counted in Estimating Annexed Population. - In an annexation proceeding the military personnel on an air force base in the area to be annexed were properly counted in determining the population estimate required by this section, since in accordance with census practice dating back to 1790, persons enumerated in the 1970 census who lived on military bases as members of the armed forces were counted as residents of the states, counties, and minor civil divisions in which their installations were located. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

The purpose of subsection (d) is to permit municipal governing boards to extend corporate limits to include all nearby areas developed for urban purposes and, where necessary, to include areas which at the time of annexation are not yet developed for urban purposes but which constitute necessary land connections between the municipality and areas developed for urban purposes or between two or more areas developed for urban purposes. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225 (1989).

Annexation of Intervening Undeveloped Land under Subsection (d). - Where the area proposed to be annexed by a municipality, when considered as a whole, meets the requirements of subsections (b) and (c) of this section, the fact that a part of the area is an undeveloped tract which does not comply with the standards set out in the statute does not require that such part be excluded from annexation. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

The language of this section simply means that where a developed tract and an undeveloped tract are included in an area to be annexed, and the developed tract complies with subsection (c), but when the undeveloped tract is added, the area as a whole does not so comply, then the undeveloped tract must be excluded unless it complies with one of the requirements of subsection (d). In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

The requirement that the urban area that a city seeks to qualify for annexation be considered as a whole does not preclude annexation of intervening undeveloped land pursuant to subsection (d) of this section. In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

A city properly annexed land which was not developed for urban purposes, under G.S. 160A-48(d)(2), along with its annexation of land which was developed for urban purposes, even though the undeveloped land was not contiguous with the city's pre-annexation boundaries, because at least 60 percent of the land's external boundaries were contiguous with the developed land which was being annexed. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Plain language of G.S. 160A-48(d)(2), regarding the annexation of areas not developed for urban used, included all possible combinations which made the following equation work: the amount of border which the non-urban area shared with the municipality combined with the amount of border that the non-urban area shared with an area or areas developed for urban purposes equaled 60 percent of the border of the non-urban area, and one workable combination existed where a non-urban area touched, on at least 60 percent of its external border, only an area or areas developed for urban purposes. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Cities with 5,000 or more people could annex an outlying urban area pursuant to G.S. 160A-48(c) and the intervening undeveloped lands pursuant to G.S. 160A-48(d) so long as the entire area met the requirements of G.S. 160A-48(b). Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Compliance with Subsection (d). - In defining areas not developed for urban purposes that nevertheless may be annexed, G.S. 160A-48(d)(2) clearly specifies a combination of two things, in "any" variation or quantities of these two entities: the municipal boundary and the boundary of the urban developed area. To totally exclude one entity from the equation fails to yield a true "combination." Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 597 S.E.2d 717 (2004).

Plain meaning of G.S. 160A-48(d)(2) states that there must be a "combination" of adjacency to a municipality and adjacency to areas developed for urban purposes in order for a city to annex land under § 160A-48(d). Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 597 S.E.2d 717 (2004).

Pursuant to G.S. 160A-48(d)(1) and (d)(2), a city could not annex a landowner's parcel of land, where the parcel was not developed for urban use and where the parcel was adjacent to areas developed for urban purposes but was not also adjacent to the city's boundary. Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 597 S.E.2d 717 (2004).

Sub-area under subsection (d) may consist entirely of tracts of five acres or less. Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, cert. denied, 314 N.C. 669, 336 S.E.2d 401 (1985).

Two lots, 60 percent of external boundaries of which were contiguous to city limits or to a part of other land which the city proposed to annex, qualified as sub-areas under subsection (d)(2), although they allegedly did not constitute "necessary land connections," as mentioned in the unnumbered paragraph at the end of subsection (d). The unnumbered paragraph had to be read as describing the sub-areas specifically allowed by subsection (d). Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, cert. denied, 314 N.C. 669, 336 S.E.2d 401 (1985).

In order to establish noncompliance with subsection (e) of this section, it must be shown: (1) that the boundary of the annexed area does not follow topographic features, and (2) that it would have been practical for the boundary to follow such features. In re City of Durham Annexation Ordinance Numbered 5991 for Area A, 69 N.C. App. 77, 316 S.E.2d 649, appeal dismissed and cert. denied, 312 N.C. 493, 322 S.E.2d 553 (1984).

Annexation of Water and Sewer District. - Even though a water and sewer district under Chapter 162A is termed a municipal corporation, a water and sewer district is a municipal corporation organized for a special purpose, which does not qualify as a municipal corporation for purposes of this Chapter. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989), rev'd on other grounds, 327 N.C. 251, 393 S.E.2d 842 (1990).

Annexation of Air Force Base. - A federal air force base was subject to annexation by the City of Goldsboro where the annexation was not for the sole purpose of generating revenue, and it did not interfere with federal jurisdiction. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

The annexation of a federal air force base by the City of Goldsboro did not create unconstitutional tax classes. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Tract Classified as Residential Despite Growing of Grass Thereon for Cattle Feed. - A city could classify a 1.83 acre tract with a rented house located on it as one lot used for residential purposes, despite the fact that on two separate parts of the lot fescue and sudex grass was grown and a person living in the neighborhood had been allowed to mow this grass, bale it and feed it to his cows. Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, cert. denied, 314 N.C. 669, 336 S.E.2d 401 (1985).

Record of annexation proceedings showed prima facie full compliance with requirements of this section as to the character of the area to be annexed. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

Discovery. - Judicial review of an annexation ordinance is a limited judicial review, with few similarities to ordinary civil actions which are initiated, tried and adjudicated in a different manner and for which the Rules of Civil Procedure were mostly devised. Nevertheless, since the court reviewing annexation proceedings is explicitly authorized to receive evidence as to the city's compliance with the various procedures prescribed, as to its annexation plan meeting the requisites of G.S. 160A-47, and as to the area involved being eligible for annexation under this section, in those instances where discovery may illuminate these issues that it is authorized under the Rules of Civil Procedure. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

Commercial Classification Upheld. - Two parcels of six and over 41 acres were properly classified as commercial where the tracts had been consolidated for development and tax purposes, all but 19.75 acres had recently been developed as a commercial shopping center, and the remaining 19.75 acres, contiguous to the shopping center, had been cleared and graded, and indirectly served the shopping center as a dumping ground. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989), rev'd on other grounds, 327 N.C. 251, 393 S.E.2d 842 (1990).

Institutional Classification Upheld. - Tract of 5.92 acres owned by local school board was properly classified as being in institutional use, where the evidence tended to show that only because of the unusual circumstance that high school was in the process of relocating was property not used for agriculture class as it has been for most summers since 1973; since the property was consistently used for institutional purposes for about 13 years prior to the trial, the property's disuse was merely a brief hiatus which did not disqualify the property from being in urban use. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989), rev'd on other grounds, 327 N.C. 251, 393 S.E.2d 842 (1990).

Trial court properly classified property as industrial in use rather than as vacant; where the record supported the trial court's finding that a large part of its 17.7 acres consisted of a creek and that property owner pumped water from the creek for industrial use and also discharged effluent into the creek. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657 (1989), rev'd on other grounds, 327 N.C. 251, 393 S.E.2d 842 (1990).

Substantial Compliance with Subdivision (c)(3) Shown. - Petitioners/property owners failed to overcome the presumption that the City substantially complied with subdivision (c)(3) of this section when it moved to annex disputed areas; mobile homes used to meet the "urban purposes" percentage requirement were "constructed" on the lots pursuant to "residential purposes" defined by G.S. 160A-53(2), and the deletion of a condemned home, originally included as a "habitable" residence, did not affect the calculations or the city's compliance. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208 (1999).

It was error to include certain property among the acreage counted as subdivided and used for residential purposes under subdivision (c)(3) of this section where such classification did not reflect the factual characteristics of the property. Even though recorded plat indicated land was subdivided, the property had never been surveyed and divided on the ground, no lots had been sold, and no roads had been constructed and opened for traffic. Such land was not subdivided within the meaning of subdivision (c)(3) of this section. Thrash v. City of Asheville, 327 N.C. 251, 393 S.E.2d 842 (1990).

Collateral Estoppel Barred Reclassification of Land Previously Classified as "Vacant." - Original trial court decision that divided the landowner's property into commercial and "vacant" portions and the order that only the commercial portion be used on remand to determine compliance with G.S. 160A-48(c)(3) could not be construed as a license to attempt to re-classify the vacant acres. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415 (2003).

Collateral estoppel applied where a second trial court decision permitted a city to reclassify a landowner's vacant acres for purposes of involuntary annexation because the original decision included an adjudication that the subject area was vacant. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415 (2003).

Actual Minimum Urbanization Is An Essential Requirement of the Annexation Act. - "Sound urban development" does not mean a territory may be annexed whenever some documentation of record supports its assessment as urban; it means a territory may be annexed when its character reflects some actual minimum urbanization. Thrash v. City of Asheville, 327 N.C. 251, 393 S.E.2d 842 (1990).

Some actual, minimum urbanization of a proposed annexation area is required for annexation Shackelford v. City of Wilmington, 127 N.C. App. 449, 490 S.E.2d 578 (1997), aff'd, 349 N.C. 222, 505 S.E.2d 80 (1998).

When a city proposed to annex certain property, including certain lots which were being developed for commercial purposes, it was error to classify those lots as being used for a commercial purpose, for purposes of determining compliance with G.S. 160A-48(c)(3), because the property's actual use at the time of the city's service plan was the relevant consideration, rather than a proposed future use. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400 (2003), aff'd, 358 N.C. 216, 593 S.E.2d 584 (2004).

Topographic Features Requirement. - In addressing the division between urban and non-urban areas, this section requires the use of topographic features to fix exterior boundaries of the municipality as annexed, but does not speak to interior boundaries. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208 (1999).

While this section does not provide "mandatory standards or requirements for annexation," the provision itself is mandatory in light of the N.C. Supreme Court's holding in Greene v. Town of Valdese, 306 N.C. 79, 291 S.E.2d 630 that a boundary "must" follow topographic features unless to do so would defeat the annexation. Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155 (1999), cert. denied, 351 N.C. 350, 543 S.E.2d 122 (2000).

Landowners met their burden of showing that the boundary of an involuntarily annexed area failed to follow natural topographic features, and that it would have been practical for the boundary to follow such features. Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155 (1999), cert. denied, 351 N.C. 350, 543 S.E.2d 122 (2000).

Micro Approach Calculations Meet Urbanization Test. - Town met the urbanization test for annexation, where the town used a "micro approach" whereby it determined the number of dwelling units in each census block within the area to be annexed, then determined the average family size therein, then multiplied the number of dwelling units in each census block by the average family size to calculate the estimated population of each block, and finally added the block numbers together to produce the population estimate. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, cert. denied, 349 N.C. 241, 516 S.E.2d 611 (1998).

Governmental Use. - Involuntary annexation was improper where there was insufficient evidence of governmental use on four disputed tracts; while the evidence supported a finding of common ownership, there was insufficient evidence that the lots served a common purpose, and the court, therefore, erred in relying on a plan of future development to classify the entire tract as under governmental use. Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155 (1999), cert. denied, 351 N.C. 350, 543 S.E.2d 122 (2000).

Characterization of Property Held Proper. - Town could properly classify country club's property as being used for commercial or institutional purposes, even though much of the property was used as a golf course. Chapel Hill Country Club, Inc. v. Town of Chapel Hill, 97 N.C. App. 171, 388 S.E.2d 168 (1990).

When a power company asserted that certain parts of its land which a city proposed to annex were not developed for industrial use, and, thus, not subject to annexation, there was sufficient evidence from which the trial court could find each tract was used in support of the company's power plant, as there was testimony that two tracts were a buffer for a cooling pond, and that two other tracts were buffers for ash ponds on the property. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

In addition to topographic features, the statute explicitly permits the use of streets as boundaries. In order to establish non-compliance with subdivision (e) of this section, petitioners must show two things: (1) that the boundary of the annexed area does not follow topographic features, and (2) that it would have been practical for the boundary to follow such features. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

City Not Required to Extend Annexation to Areas in Conflict with Mandatory Statute Provisions. - The city was not required to extend the boundaries of the proposed annexation area to include ridge lines where to do so would have defeated the city's compliance with the other mandatory portions of the annexation statute. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140 (1991).

Shoestring Annexation Not Shown. - The area to be annexed by the town was not a prohibited ribbon, balloon or "shoestring" annexation, where the annexation area was a rectangle, with the easternmost side solidly abutted against the existing corporate limits. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, cert. denied, 349 N.C. 241, 516 S.E.2d 611 (1998).

Contiguity Requirement Met. - Town's annexation ordinance met the contiguity requirement of this subsection, where more than one-eighth of the area to be annexed coincided with the municipal boundary. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, cert. denied, 349 N.C. 241, 516 S.E.2d 611 (1998).

Annexation areas that were at least one-eighth contiguous with the municipal boundary and whose portions were connected by street right-of-way corridors, complied with the requirements of G.S. 160A-48(b). Anthony v. City of Shelby, 152 N.C. App. 144, 567 S.E.2d 222 (2002).

City's division of an annexation area into sub-areas did not result in the improper annexation of an "island" not contiguous with the city limits as of the date of the original resolution of intent, although the boundaries of the sub-area, if considered in isolation, rather than as a sub-part of the area originally identified and eventually annexed, were not contiguous with the city limits on the date of the initial resolution. U.S. Cold Storage, Inc. v. City of Lumberton, 170 N.C. App. 411, 612 S.E.2d 415 (2005).

Compliance with Subsection (e). - Sufficient evidence supported a finding that the city substantially complied with this section, where the city's Planning Director testified that the city first examined the area to be annexed for natural topographic features, and in the absence of such features, used a 200 foot setback requirement. Blackwell v. City of Reidsville, 129 N.C. App. 759, 502 S.E.2d 371, cert. denied, 349 N.C. 352, 517 S.E.2d 886 (1998).

City's setting of an annexation boundary parallel to a road within a mobile home park property did not comply with the requirements of G.S. 160A-48(e). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, review denied, 365 N.C. 362, 719 S.E.2d 22, 2011 N.C. LEXIS 964 (2011).

Classification of Condominium Common Areas. - Common areas belonging to people who owned condominium units is residential property, and must be recognized in the city's plan for providing services to the area the City proposed to annex to provide statutorily required sewer service. Briggs v. City of Asheville, 159 N.C. App. 558, 583 S.E.2d 733, cert. denied, 357 N.C. 657, 589 S.E.2d 886, cert. dismissed sub nom., 357 N.C. 657, 589 S.E.2d 887 (2003).

Section 160A-48(c)(3) contained two mandatory tests for determining the availability of an area for annexation: (1) the use test - that not less than 60 percent of the lots and tracts in the area had to be in actual use, other than for agriculture, and (2) the subdivision test - not less than 60 percent of the acreage which was in residential use, if any, and was vacant had to consist of lots and tracts of five (now three) acres or less in size. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Acreage in use for an industrial purpose was excluded from the subdivision test of the availability of acreage for annexation. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Purpose of G.S. 160A-48(d) was to permit municipal governing boards to extend corporate limits to include all nearby areas developed for urban purposes and where necessary to include areas which at the time of annexation were not yet developed for urban purposes but which constituted necessary land connections between the municipality and areas developed for urban purposes or between two or more areas developed for urban purposes, and for purposes of this subsection, "necessary land connection" meant an area that did not exceed 25 percent of the total area to be annexed. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Judicial Review - Annexation ordinance could be challenged in a trial court on the basis that the provisions of G.S. 160A-48 had not been met, under G.S. 160A-50(f)(3), and judicial review of an annexation ordinance was limited to determining whether the annexation proceedings substantially complied with the requirements of the applicable annexation statute. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Petitioners challenging a city's annexation ordinances failed to show the city misclassified the lots to be annexed or that the county tax maps it relied on were inaccurate. As petitioners offered no reliable evidence that the city's methodology was inaccurate and not calculated to provide reasonably accurate results, as required by G.S. 106A-54, the ordinances were properly deemed valid. Brown v. City of Winston-Salem, 176 N.C. App. 497, 626 S.E.2d 747 (2006).


§ 160A-58.55. Procedure for annexation.

  1. Resolution of Consideration. - Any municipal governing board desiring to annex territory under the provisions of this Part shall first pass a resolution of consideration identifying the area under consideration for annexation by either a metes and bounds description or a map. The resolution of consideration shall remain effective for two years after adoption and be filed with the municipal clerk. A new resolution of consideration adopted before expiration of the two-year period for a previously adopted resolution covering the same area shall relate back to the date of the previous resolution. Adoption of a resolution of consideration shall not confer prior jurisdiction over the area as to any other municipality.
  2. Notice of Resolution of Consideration. - A notice of the adoption of the resolution of consideration shall be published once a week for two successive weeks, with each publication being on the same day of the week, in a newspaper having general circulation in the municipality. The second publication shall be no more than 30 days following adoption of the resolution of consideration. The resolution of consideration shall contain a map or description of the area under consideration and a summary of the annexation process and time lines. A copy of the resolution of consideration shall be mailed within 30 days after the adoption of the resolution of consideration by first class mail to the property owners of real property located within the area under consideration for annexation as shown by the tax records of the county. If a proposed annexation extends across a county border into a county other that the county where the majority of the area of the existing municipality is located, a copy of the resolution of consideration shall be mailed within 30 days after the adoption of the resolution of consideration by first class mail to the clerk of the board of county commissioners of that county.
  3. Resolution of Intent. - At least one year after adoption of the resolution of consideration, the municipal governing body may adopt a resolution of intent of the municipality to proceed with the annexation of some or all of the area described in the resolution of consideration. The resolution of intent shall describe the boundaries of the area proposed for annexation, fix a date for a public informational meeting, fix a date for a public hearing on the question of annexation, and fix a date for the referendum on annexation. The date for the public informational meeting shall be not less than 45 days and not more than 55 days following passage of the resolution of intent. The date for the public hearing shall be not less than 130 days and not more than 150 days following passage of the resolution of intent. The date of the referendum on annexation shall be set for the next municipal general election that is more than 45 days from the date of the resolution of intent.
  4. Notice of Public Informational Meeting, Public Hearing, and Opportunity for Water and Sewer. - A combined notice of public informational meeting and public hearing shall be issued as provided for in this subsection as follows:
    1. The notice shall be a combined notice that includes at least all of the following:
      1. The date, hour, and place of the public informational meeting.
      2. The date, hour, and place of the public hearing.
      3. A clear description of the boundaries of the area under consideration, including a legible map of the area.
      4. A statement that the report required by G.S. 160A-58.53 will be available at the office of the municipal clerk.
      5. An explanation of a property owner's rights under this section.
      6. A summary of the annexation process with time lines.
      7. A summary of the opportunity to vote in the referendum and available statutory remedies appealing the annexation and the failure to provide services.
      8. Information on how to request to become a customer of the water and sewer service, all forms to request that service, and the consequences of opting in or opting out, as provided in G.S. 160A-58.56.
      9. A clear description of the distinction between the public informational meeting and the public hearing.
    2. The combined notice shall be given by publication of the information required by sub-subdivisions (1)a., b., and c. of this subsection and a statement regarding the availability of the information required by the remaining sub-subdivisions of subdivision (1) of this subsection in a newspaper having general circulation in the municipality once a week for at least two successive weeks prior to the date of the public informational meeting, with each publication being on the same day of the week. The date of the last publication shall be not more than 10 days preceding the date of the public informational meeting. In addition thereto, if the area proposed to be annexed lies in a county containing less than fifty percent (50%) of the land area of the municipality, the same publication shall be given in a newspaper having general circulation in the area of proposed annexation. If there is no such newspaper, the municipality shall post the notice in at least five public places within the municipality and at least five public places in the area to be annexed for 30 days prior to the date of public informational meeting.
    3. The combined notice, together with the information about requesting water and sewer service, shall be mailed within five business days of the passage of the resolution of intent by first class mail to the property owners of real property located within the area to be annexed as shown by the tax records of the county. The person or persons mailing such notices shall certify to the governing board that fact, and such certificate shall become a part of the public record of the annexation proceeding and shall be deemed conclusive in the absence of fraud. If a notice is returned to the municipality by the postal service by the tenth day before the informational meeting, a copy of the notice shall be sent by certified mail, return receipt requested, at least seven days before the informational meeting. Failure to comply with the mailing requirement of this subsection shall not invalidate the annexation unless it is shown that the requirements were not substantially complied with.
    4. If the governing board by resolution finds that the tax records are not adequate to identify the property owners within the area to be annexed after exercising reasonable efforts to locate the property owners, it may, in lieu of the mail procedure required by subdivision (3) of this subsection, post the notice at least 30 days prior to the date of the public informational meeting on all buildings, on such parcels, and in at least five other places within the area to be annexed as to those parcels where the property owner could not be so identified. In any case where notices are placed on property, the person placing the notice shall certify that fact to the governing board.
  5. Action Prior to Informational Meeting. - At least 30 days before the date of the public informational meeting, the municipal governing board shall do all of the following:
    1. Approve the report provided for in G.S. 160A-58.53.
    2. Prepare a summary of the approved report for public distribution.
    3. Post in the office of the clerk all of the following:
      1. The approved report provided for in G.S. 160A-58.53.
      2. The summary of the approved report.
      3. A legible map of the area to be annexed.
      4. The list of the property owners, and associated mailing addresses, in the area to be annexed that the municipality has identified and mailed notice.
      5. Information for property owners on how to request to become a customer of the water service or sewer service and all forms to request that service.
    4. If the municipality has a Web site, post on that Web site all of the information under this section together with any forms to apply for water and sewer service.
    5. Prepare a summary of the opportunity to vote in the referendum and available statutory remedies for appealing the annexation for public distribution.
  6. Public Informational Meeting. - At the public informational meeting, a representative of the municipality shall first make an explanation of the report required in G.S. 160A-58.53 and an explanation of the provision of major municipal services. The explanation of the provision of services shall include how to request water service or sewer service to individual lots, the average cost of a residential connection to the water and sewer system, and the opportunity for installation of a residential connection under G.S. 160A-58.56. A summary of the annexation process with time lines, a summary of opportunity to vote in the referendum and available statutory remedies for appealing the annexation, an explanation of the provision of services, and information for requesting water service or sewer service to individual lots and any forms to so request shall also be distributed at the public informational meeting. Following such explanation, all property owners and residents of the area proposed to be annexed as described in the notice of public informational meeting and hearing, and all residents of the municipality shall be given the opportunity to ask questions and receive answers regarding the proposed annexation.
  7. Public Hearing. - At the public hearing, a representative of the municipality shall first make an explanation of the report required in G.S. 160A-58.53. Following such explanation, all property owners and residents of the area proposed to be annexed as described in the notice of public informational meeting and hearing, and all residents of the municipality, shall be given an opportunity to be heard.
  8. The municipal governing board shall take into consideration facts presented at the public hearing and shall have authority to amend the report required by G.S. 160A-58.53 to make changes in the plans for serving the area proposed to be annexed so long as such changes meet the requirements of G.S. 160A-58.53. At any regular or special meeting held no sooner than the tenth day following the certification of the election held under G.S. 160A-58.64, the governing board shall have authority to adopt an ordinance, subject to subsection (i) of this section, extending the corporate limits of the municipality to include all, or part, of the area described in the notice of public hearing which the governing board has concluded should be annexed. The annexation ordinance shall:
    1. Contain specific findings showing that the area to be annexed meets the requirements of G.S. 160A-58.54.
    2. Describe the external boundaries of the area to be annexed by metes and bounds.
    3. Include a statement of the intent of the municipality to provide services to the area being annexed as set forth in the report required by G.S. 160A-58.53 and a time line for the provision of those services.
    4. Contain a specific finding that on the effective date of annexation, the municipality will have funds appropriated in sufficient amount to finance construction of any water and sewer lines stated in the report required by G.S. 160A-58.53 to extend the water and sewer services into the area to be annexed, or that on the effective date of annexation the municipality will have authority to issue bonds in an amount sufficient to finance such construction. If authority to issue such bonds shall be secured from the electorate of the municipality prior to the effective date of annexation, then the effective date of annexation shall be no earlier than the day following the statement of the successful result of the bond election.
    5. Fix the effective date for annexation as June 30 next following the adoption of the ordinance or the second June 30 following adoption of the ordinance, but not before the completion of the water and sewer request appeal periods are complete.
    6. Together, with the list of the property owners of parcels within the area described in the annexation ordinance to which a notice was mailed under subsection (d) of this section, be delivered within five business days to the tax assessor and the board of elections of the county in which a majority of the municipality lies.
    7. Repealed by Session Laws 2012-11, s. 2, effective July 1, 2012.
    8. If a public body has a Web site, conspicuously post notice of the referendum until after the certification of the election.
  9. Referendum Vote on Annexation Ordinance. - The procedures in G.S. 160A-58.64 shall apply to any annexation under this Part. The municipality shall reimburse the board or boards of elections the costs of the referendum required under G.S. 160A-58.64.
  10. Effect of Annexation Ordinance. - From and after the effective date of the annexation ordinance, the territory and its citizens and property shall be subject to all debts, laws, ordinances, and regulations in force in such municipality and shall be entitled to the same privileges and benefits as other parts of such municipality.
  11. Reserved.
  12. Reserved.
  13. Simultaneous Annexation Proceedings. - If a municipality is considering the annexation of two or more areas which are all adjacent to the municipal boundary but are not adjacent to one another, it may undertake simultaneous proceedings under authority of this Part for the annexation of such areas.
  14. Remedies for Failure to Provide Services. - If, not earlier than 30 days after the effective date of annexation and not later than 15 months from the effective date of annexation, any property owner in the annexed territory shall believe that the municipality has not followed through providing services as set forth in the report adopted under G.S. 160A-58.53 and subsection (e) of this section, the property owner may apply for a writ of mandamus. Relief may be granted by the judge of superior court if the municipality has not provided the services set forth in its plan submitted under the provisions of G.S. 160A-58.53(3)a. on substantially the same basis and in the same manner as such services were provided within the rest of the municipality prior to the effective date of annexation and those services are still being provided on substantially the same basis and in the same manner within the original corporate limits of the municipality. If a writ is issued, costs in the action, including reasonable attorneys' fees for such aggrieved property owner, shall be charged to the municipality.
  15. Reports to the Local Government Commission. - The municipality shall report to the Local Government Commission as follows:
    1. As to whether police protection, fire protection, solid waste services, and street maintenance services were provided in accordance with G.S. 160A-58.53(3)a., within 30 days after the effective date of the annexation. Such report shall be filed no more than 30 days following the expiration of the 30-day period. If the Local Government Commission determines that the municipality failed to deliver police protection, fire protection, solid waste services, or street maintenance services as provided for in G.S. 160A-58.53(3)a. within 30 days after the effective date of the annexation, the Local Government Commission shall notify the municipality that the municipality may not count any of the residents as part of the population of the municipality for the purpose of receiving any State, federal, or county dollars distributed based on population until all of the services are provided.
    2. As to whether the extension of water and sewer lines was completed within the time period specified in G.S. 160A-58.53(3), within six months after the effective date of the annexation ordinance, and again within three and one-half years of the effective date of the annexation ordinance or upon the completion of the installation, whichever occurs first. If the municipality failed to deliver either water or sewer services, or both, as provided for in G.S. 160A-58.53(3)b. within three and one-half years after the effective date of the annexation, the municipality shall stop any other annexations in progress and may not begin any other annexation until the water and sewer services are provided. The municipality shall adopt a resolution of consideration to begin again any annexation that is stopped due to this subdivision.

History

(2011-396, s. 9; 2012-11, s. 2.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Effect of Amendments. - Session Laws 2012-11, s. 2, effective July 1, 2012, in the second sentence of subsection (c), deleted "and" preceding "fix", inserted "annexation, and fix a date for the referendum on", and added the last sentence; in sub-subdivision (d)(1)g., inserted "the opportunity to vote in the referendum and", and deleted "for denying and" following "remedies"; rewrote subdivision (e)(5); in the fourth sentence of subsection (f) substituted "opportunity to vote in the referendum and available statutory remedies for" for "available statutory remedies for denying and"; in subsection (h), in the introductory paragraph, substituted "certification of the election held under G.S. 160A 58.64" for "public hearing and not later than 90 days following the public hearing", in subdivision (h)(5), deleted "and petition to deny and", deleted subdivision (h)(7), which read: "Be summarized, and sent in accordance with subsection (i) of this section, to the list of the property owners within the area described in the annexation ordinance to which a notice was mailed under subsection (d) of this section together with a blank petition form, preprinted with name and address of the property owner," and rewrote subdivision (h)(8); and rewrote subsection (i).

CASE NOTES

This section provides two different procedural methods for beginning the involuntary annexation process under G.S. 160A-33 to 160A-42 and former G.S. 160A-43 and 160A-44. A municipality may either pass a resolution of consideration one year prior to adopting its resolution of intent, or it may immediately adopt the resolution of intent and postpone the effective date of annexation for at least a year after the ordinance is passed. Town of Hazelwood v. Town of Waynesville, 83 N.C. App. 670, 351 S.E.2d 558, rev'd on other grounds, 320 N.C. 89, 357 S.E.2d 686 (1987).

The trial court's order affirming a town annexation ordinance had to be vacated where the court applied the material prejudice standard of review to the adequacy of maps contained in the town report as well as to the questions of solid waste collection and the financing of services instead of determining whether or not the town complied with this section in formulating and carrying out its annexation plan; procedural irregularities under this section are to be evaluated under a "material prejudice" standard, while violations of either G.S. 160A-35 or G.S. 160A-36 are to be viewed in light of compliance or lack thereof and, if necessary, result in appropriate amendment. Sonopress, Inc. v. Town of Weaverville, 139 N.C. App. 378, 533 S.E.2d 537 (2000).

Notice of Rescinded Ordinance Not Required. - There is no provision in this section or any other section in this chapter that would impose a duty on the town to give plaintiffs notice of the fact that the town had rescinded an earlier annexation ordinance. Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 493 S.E.2d 797 (1997).

Deliberate preference for voluntary annexation is incorporated into law. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 357 S.E.2d 686, rehearing denied, 320 N.C. 639, 360 S.E.2d 106 (1987).

Resolution of intent is "first mandatory public procedural step" for purposes of the prior jurisdiction rule. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 357 S.E.2d 686, rehearing denied, 320 N.C. 639, 360 S.E.2d 106 (1987).

The adoption of a resolution of intent is the critical date for determining whether a municipality utilizing involuntary annexation procedures has prior jurisdiction over the same territory being considered for voluntary annexation by a different municipality. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 357 S.E.2d 686, rehearing denied, 320 N.C. 639, 360 S.E.2d 106 (1987).

Sections 160A-31(d), 160A-49(e) and subsection (e) of this section are in pari materia. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

The legislature has empowered municipal governing boards to amend the report required by G.S. 160A-35, to accommodate changes in the plans for serving the area proposed to be annexed, so long as such changes meet the requirements of G.S. 160A-35. Gregory v. Town of Plymouth, 60 N.C. App. 431, 299 S.E.2d 232, cert. denied, 308 N.C. 544, 304 S.E.2d 237 (1983).

Subsection (e) contains no provision requiring a second public hearing before the annexation report may be amended; to hold that a public hearing is always necessary when an annexation report is amended would result in a proliferation of unnecessary hearings. Williams v. Town of Grifton, 22 N.C. App. 611, 207 S.E.2d 275 (1974).

There is no requirement in subsection (e) that a second public hearing be held on the report as amended. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

There is no requirement that a second public hearing be held on an amended annexation proposal, when that amendment is adopted to achieve compliance with G.S. 160A-35, pursuant to the authority granted in subsection (e) of this section. Gregory v. Town of Plymouth, 60 N.C. App. 431, 299 S.E.2d 232, cert. denied, 308 N.C. 544, 304 S.E.2d 237 (1983).

Nor Any Provision as to Duration of Public Inspection of Amended Reports. - There is no requirement in subsection (e) that the amended report be available for public inspection for any particular amount of time before final action is taken on the annexation proposal. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Newly annexed territory is subject to municipal taxes levied for the fiscal year following the effective date of annexation under subsection (f) of this section. A taxpayer's right to recover taxes paid under protest for a fiscal year depends upon the date the annexation ordinance became effective under G.S. 160A-38(i). Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147, 187 S.E.2d 704 (1972), decided under this section as it stood before the 1975 amendment.

Effect of Appeal on Effective Date of Annexation for Tax Purposes. - Where an appeal from an annexation ordinance was pending in the Court of Appeals on the effective date of annexation specified in the ordinance, May 15, 1969, and the decision of the Court of Appeals was filed and certified in September, 1969, property within the area being annexed was not subject to municipal ad valorem taxes for the fiscal year beginning July 1, 1969, since (1) newly annexed territory is subject to municipal taxes levied for the fiscal year following the effective date of annexation, under subsection (f) of this section, and (2) under G.S. 160A-38(i), the appeal postponed the effective date of the ordinance until the date of the final judgment of the appellate court. Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147, 187 S.E.2d 704 (1972), decided under this section as it stood before the 1975 amendment.

Annexed Areas Need Not Be Contiguous to Each Other. - If the areas to be annexed meet the standards prescribed, it does not matter whether they be contiguous. Subsection (g) of this section simply alleviates the necessity for separate annexation proceedings where areas to be annexed are adjacent to the municipality but not adjacent to each other, and specifically provides that annexation procedures may be simultaneously instituted and carried forward. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681 (1969).

But Contiguous Areas Are Not Excluded from Annexation. - Subsection (g) of this section is not interpreted to exclude annexation of areas contiguous to the municipality which are also contiguous to each other. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681 (1969).

Fact that the metes and bounds description in a resolution of intent to annex failed to close because one small piece of property owned by a person who did not join the petition for review was not included within the resolution of intent was not fatal to the validity of the annexation ordinance, where the resolution of intent and the published notice of public hearing made full reference to a map, filed in the office of the clerk of the city, and available for public inspection of the area proposed to be annexed, and this map and a map published in the newspaper notice of the public hearing showed all the property proposed to be annexed. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Property Owner Not Materially Prejudiced by Illegible Map. - Although the public notice provided by town for public hearing on annexation and printed in newspaper included an illegible map, the property owner was not materially prejudiced, since the public notice adequately described the property at issue; further, the property owner was not materially prejudiced by the denial of its request for a postponement of the public hearing because it had ample notice of the proposed annexation and an opportunity to be heard. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, cert. denied, 355 N.C. 751, 565 S.E.2d 671 (2002).

Where annexation is completed without being challenged in the manner prescribed by G.S. 160A-38, it becomes an accomplished fact, and the remedies of property owners and citizens within the annexed areas are those provided in subsection (h) of this section. Gaskill v. Costlow, 270 N.C. 686, 155 S.E.2d 148 (1967).

Remedy Where Municipality Has Not Carried Out Service Plans. - The statutory remedy for owners of property in annexed territory where the municipality has not followed through on its service plans adopted under the provisions of subdivision (3) of G.S. 160A-35 and subsection (e) of this section is by writ of mandamus. Safrit v. Costlow, 270 N.C. 680, 155 S.E.2d 252 (1967).

Time for Bringing Action for Mandamus. - The owner of property within territory annexed by a municipality may bring an action for mandamus after the expiration of one year from the effective date of annexation and prior to the expiration of 15 months from such date to compel the municipality to follow through on its plans for furnishing essential municipal services to the area annexed in accordance with the plans filed in the proceedings. Safrit v. Costlow, 270 N.C. 680, 155 S.E.2d 252 (1967).

Annexation ordinance and annexation report met the requirements of G.S. 160A-35 and this section. Williams v. Town of Grifton, 22 N.C. App. 611, 207 S.E.2d 275 (1974).

Town Not Required to Provide Service. - Language in annexation ordinances to the effect that since water service then provided to the annexed areas by plaintiff was comparable to that provided by the town, the town would not be required to appropriate funds to extend water and sewer lines to the annexed area was required by subdivision (e)(3) and G.S. 160A-35(3)b to insure that residents of the area to be annexed would have access to comparable water service; in no way did this serve as a promise to be rightfully relied upon that the town would not in the future construct its own water lines within the annexed area or that plaintiff had the exclusive right to furnish water service there. Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317 (1995).

New Public Hearing Not Required - Although town's annexation report failed to fully set forth the town's policies regarding sanitation services, the trial court did not have to order a new public hearing, but could remand the issue to the town to more fully and adequately set forth the town's policy, and the proposed extension of such services into the area of annexation; a municipal governing board has the authority to amend an annexation report to make changes in the plans for serving the area proposed to be annexed without another public hearing as long as the changes meet the statutory requirements and were part of the original notice of public hearing. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, cert. denied, 355 N.C. 751, 565 S.E.2d 671 (2002).

Informational Meeting. - Land owners failed to demonstrate how they had suffered material injury as a result of a village's failure to answer one question at the informational meeting, the answer to which could have no effect on the validity of the proposed annexation, and the annexation was proper. Nolan v. Village of Marvin, 172 N.C. App. 84, 615 S.E.2d 898 (2005).

Annexation Proper. - Village essentially complied with the requirements of G.S. 160A-37 because, while it would have been impermissible for the village to annex property that it had not included in its original report, it was permitted to omit property described in its original report from the property it ultimately annexed, which was exactly what occurred. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

.

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195 (1984), cert. denied and appeal dismissed, 313 N.C. 514, 329 S.E.2d 392 (1985).

Challenges to annexations generally are not actionable under U.S. Const., Amend. XIV. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625 (W.D.N.C. 1982), aff'd sub nom. Baldwin v. City of Winston-Salem, 710 F.2d 132 (4th Cir. 1983).

Absolute and literal compliance with this section is unnecessary; only substantial compliance is required. McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, cert. denied, 308 N.C. 544, 302 S.E.2d 885 (1983).

The respondent city was not required to file a new services plan under this section although the annexation area changed during subsequent revisions to the annexation ordinance, where the only significant change to the services plan was the scope of its coverage - the services for petitioners remained the same - and where the city was bound by the terms of the services plan as amended under principles of equitable estoppel. Bowers v. City of Thomasville, 143 N.C. App. 291, 547 S.E.2d 68, cert. denied, 353 N.C. 723, 550 S.E.2d 769 (2001).

Metes and Bounds Description. - Property descriptions in annexation ordinances were not metes and bounds descriptions, where the property descriptions did not include courses and distances but made reference to "lots" that were not identified in the property descriptions. Blackwell v. City of Reidsville, 129 N.C. App. 759, 502 S.E.2d 371, cert. denied, 349 N.C. 352, 517 S.E.2d 886 (1998).

Identification - Annexation resolution which identified the area under consideration for annexation as a certain township by the official mapping of the county fulfilled the requirement of G.S. 160A-49(i) to identify the area under consideration for annexation. Anthony v. City of Shelby, 152 N.C. App. 144, 567 S.E.2d 222 (2002).

Minimum requirements of the annexation 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. If such services are not provided, the residents of the annexed area would be entitled to a writ of mandamus requiring the municipality to live up to its commitments. Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Purpose of subsection (a), requiring resolution stating intent to consider annexation, is to record the town board's decision and to mark the formal beginning of the municipality's actions. This resolution expresses the intent of the governing board and it has little significance to the public. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648 (1977).

Subsection (a) does not specifically require a written resolution, nor is such requirement implicit in the fact that the resolution must describe the land under consideration. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648 (1977).

Form for Extension. - This section, which specifically describes the procedure of annexation and the information that is required to be provided to residents of an area to be annexed, does not require that the city furnish the form described in G.S. 160A-47 without a request. Barnhardt v. City of Kannapolis, 116 N.C. App. 215, 447 S.E.2d 471, cert. denied, 338 N.C. 514, 452 S.E.2d 807 (1994).

Reading Report at Public Hearing in Compliance with Subsection (d). - Reading report of proposed annexation in its entirety at a public hearing is a more detailed explanation of the report than a shorter summary explanation prepared by a representative of the municipality would have been. In this manner, those who attend the meeting are made aware of each and every provision and statement in the report and are then given an opportunity to be heard. This is sufficient compliance with the requirements of subsection (d) of this section. In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980).

The proper forum for attacking the accuracy of projected costs and other items in the report not required by statute is the hearing before the city council provided under this section. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204 (1996).

Right of the general public to sufficient notice of proposed annexation is protected by subsections (b) and (e). Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648 (1977).

The notice of the public hearing must be published in a newspaper, or by other means, and must contain a clear description of the land under consideration. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648 (1977).

Where materials delivered to the court did not include a certificate that notice of the public hearing was mailed to all the property owners in the affected area as required by subsection (b), but there was ample evidence that the notices were actually mailed and no contention that the property owners did not receive the mailed notices, this irregularity was so slight that it could not have prejudiced petitioner, and it did not require remand of the ordinance. Thrash v. City of Asheville, 115 N.C. App. 310, 444 S.E.2d 482 (1994).

Public Informational Meeting - City substantially complied with the requirement of G.S. 160A-49(c1) that property owners be given the opportunity to ask questions and receive answers regarding a proposed annexation, when the trial court found all persons attending a public informational meeting were given the opportunity to ask one or more questions to which city representatives responded. Anthony v. City of Shelby, 152 N.C. App. 144, 567 S.E.2d 222 (2002).

When a city proposing a certain annexation amended the annexation ordinance by excluding a certain parcel from the ordinance, no second public hearing was required, under G.S. 160A-49(e), because, with the only change to the ordinance being the deletion of one lot and no change in the subsections of G.S. 160A-48 under which the city sought annexation, there was no substantial change to the ordinance, necessitating notice. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40 (2007), review denied, 362 N.C. 354, 663 S.E.2d 312 (2008).

Extension of Fire and Police Service. - Although city did not need to provide the details of how it intended to extend fire and police service to the annexed area, the city did provide this information to petitioners at the hearing; further, if the city failed to provide the services as promised within the statutory time limits, petitioners could apply for a writ of mandamus. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204 (1996).

By virtue of subsection (e), the governing board is prohibited from annexing any land except that described in the notice of the public hearing. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648 (1977).

Sections 160A-37(e), 160A-31(d) and subsection (e) of this section are in pari materia. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Remand Was Appropriate Remedy for Alleged Notice Irregularity. - Trial court did not err in refusing to declare an involuntary annexation ordinance null and void where, assuming arguendo that any alleged procedural irregularities pursuant to G.S. 160A-49(b)(3) had prejudiced a landowner, the remedy under G.S. 160A-50(g)(1) was a remand to the municipal governing board for further proceedings. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415 (2003).

Extension of sewer lines and other services into the annexed area, pursuant to the plan of annexation, is not a condition precedent to annexation, the statutory remedy for failure to extend such services being an application, by a person owning property in the annexed territory, for a writ of mandamus to compel such performance of the plan. Dale v. City of Morganton, 270 N.C. 567, 155 S.E.2d 136 (1967).

In reviewing the procedure followed by a municipal governing board in an annexation proceeding, the question whether the municipality is then providing services pursuant to the plan of annexation is not before the court, and the extension of services into an annexed area in accordance with the promulgated plan is not a condition precedent to annexation. In re City of New Bern, 278 N.C. 641, 180 S.E.2d 851 (1971).

Time for Implementing Extension of Services. - It would appear from a reading of subsection (h) of this section that a city annexing territory has one year, and possibly 15 months, to implement its plan for extending services to an annexed area. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Increase in Voters Through Annexation Requires Preclearance Under 42 U.S.C. § 1973c. - The increase in the number of voters in the municipality resulting from annexation is a charge of a voting qualification, prerequisite, standard, practice, or procedure requiring preclearance as contemplated by 42 U.S.C. § 1973c. Moore v. Swinson, 58 N.C. App. 714, 294 S.E.2d 381 (1982).

Elections Held Before Preclearance Under 42 U.S.C. § 1973c. - Until the city obtains clearance of its annexations in accordance with 42 U.S.C. § 1973c, all future elections must be conducted on the basis of the city boundaries as they existed before the unprecleared annexations were made, and citizens residing in such annexed areas may not participate in future municipal elections, either as electors or as candidates. This relief applies only to the right to vote and be a candidate. It does not, of course, constitute de-annexation, and it does not affect the rights of citizens residing in the annexed areas in any other way. Moore v. Swinson, 58 N.C. App. 714, 294 S.E.2d 381 (1982).

Persons in Annexed Areas May Be Denied Vote During 60-Day Approval Period. - Although those in annexed areas become citizens of the annexing jurisdiction upon annexation, under 42 U.S.C. § 1973c, it is proper to deny such persons the right to vote on a bond referendum held within 60 days of the annexation since that section gives the United States Attorney General 60 days within which to approve an annexation expanding the number of voters. 42 U.S.C. § 1973c was designed, in part, to enforce U.S. Const., Amend. XV, and it preempts all other provisions regarding the right to vote in such referenda. Moore v. Swinson, 58 N.C. App. 714, 294 S.E.2d 381 (1982).

Failure of Resolution of Intent to State Effective Date. - City's failure to state effective date of annexation in its resolution of intent was not an omission of an essential requirement of the statute but was only a "slight irregularity," which would not invalidate annexation proceedings if there has been substantial compliance with all essential elements of the law. City of Kannapolis v. City of Concord, 326 N.C. 512, 391 S.E.2d 493 (1990).

Subsection (g) - "Simultaneous Annexation Proceedings." - North Carolina annexation statutes do not permit municipality to annex by voluntary means tract of land that is contiguous with its municipal boundaries only by virtue of second tract of land being annexed simultaneously. City of Kannapolis v. City of Concord, 326 N.C. 512, 391 S.E.2d 493 (1990).

City Charter Superseded by State Statute. - Summary judgment was properly awarded to a city and its officials in an action by property owners challenging an annexation because, pursuant to G.S. 160A-3(c), the statutory provision establishing involuntary annexations, G.S. 160A-49, superseded a city charter provision permitting only voluntary annexations. Brown v. City of Winston-Salem, 171 N.C. App. 266, 614 S.E.2d 599 (2005).


§ 160A-58.56. Provision of water and sewer service.

  1. The municipality shall provide water and sewer service to the annexed area as required by plans for extension under G.S. 160A-58.53(3) within three and one-half years of the effective date of the annexation ordinance except as provided in subdivision (b)(4) of this section. If (i) the residents in the existing city boundaries are served by a public water or sewer system, or by a combination of a public water or sewer system and one or more nonprofit entities providing service by contract with the public system, (ii) the annexing municipality does not provide that service within the existing city boundaries, (iii) the area to be annexed is in an area served by the public water or sewer system, and (iv) the municipality has no responsibility through an agreement with the public water or sewer system to pay for the extension of lines to areas annexed to the city, the city shall have no financial responsibility for the extension of water and sewer lines under this section. For purposes of this provision, "public water or sewer system" means a water or sewer authority formed under Article 1 of Chapter 162A of the General Statutes; a metropolitan water or sewerage district formed under Article 4 or Article 5 of Chapter 162A of the General Statutes; a county water or sewer district formed under Article 6 of Chapter 162A of the General Statutes; a sanitary district formed under Article 2 of Chapter 130A of the General Statutes; a county-owned water or sewer system; a municipal-owned water or sewer system; a water or sewer utility created by an act of the General Assembly; or a joint agency providing a water or sewer system by interlocal agreement under Article 20 of Chapter 160A of the General Statutes.
  2. Prior to the adoption of the annexation ordinance, the municipality shall offer to each eligible property owner of real property located within the area proposed to be annexed an opportunity to obtain water or sewer service, or both, at no cost other than periodic user fees based upon usage as follows:
    1. After passage of the resolution of intent, the property owner of real property located within the area proposed to be annexed shall be notified in writing, as provided in G.S. 160A-58.55(d), within five business days of the passage of the resolution of intent, of the opportunity to have water and sewer lines and connections installed at no cost to the property owner. The notice shall state that a request for extending water and sewer lines does not waive the right to contest the annexation. The property owners of real property located within the area proposed to be annexed shall be allowed 65 days from the date of the passage of the resolution of intent to respond yes or no to the opportunity. Any property owner of a parcel that is an existing customer of the municipality's water or sewer, whether provided by the municipality or by a third party under contract with the municipality, shall be deemed to respond yes to the opportunity, whether or not the property owner returns the notification.
    2. At the close of the 65-day period, the municipality shall determine if the eligible property owners of a majority of the parcels to be annexed have responded favorably. A majority of the property owners of a single parcel of real property must respond favorably before the municipality may count that parcel of real property as responding favorably.
    3. If the property owners of a majority of the parcels located within the area proposed to be annexed respond favorably, the municipality shall do all of the following:
      1. Provide water and sewer lines, service lines, and connections at no cost other than periodic user fees to all real property for which an owner responded favorably if the annexation ordinance is adopted. The right to receive water and sewer lines shall run with the land.
      2. Notify, within five days of the close of the 65-day period under subdivision (2) of this subsection, those property owners of real property located within the area proposed to be annexed who failed to respond or responded negatively that the property owners of a majority of the parcels located within the area proposed to be annexed responded favorably and offer a second opportunity for that property owner to respond favorably within 30 days.
    4. If the property owners of a majority of the parcels located within the area proposed to be annexed fail to respond favorably to the offer to obtain water and sewer services made under this section, the municipality may nevertheless proceed with the annexation. If the municipality proceeds with the annexation when the property owners of a majority of the parcels located within the area proposed to be annexed fail to respond favorably to the offer to obtain water and sewer services, the municipality is not required to provide water and sewer services to any property owners in the area that is annexed. If the municipality does provide water and sewer services, and if a property owner requests those services, the municipality may charge the property owner for the connection to a residential lot as provided in subsection (d) of this section during the first five years following the effective date of the annexation. After five years, and only if connection is requested by a property owner in accordance with subsection (e) of this section, the municipality may charge for the connection according to the municipality's policy.
  3. The process required by subsection (b) of this section shall be completed by the municipality at least 30 days prior to the public hearing. The report required by G.S. 160A-58.53 shall include the results of the process required by subsection (b) of this section.
  4. Any property owner of the real property located within the area described in the annexation ordinance may apply to participate in the water and sewer system after the completion of the process required by subsection (b) of this section. For a property owner of real property located within the area described in the annexation ordinance applying within the first year, that property owner may be charged an amount not to exceed fifty percent (50%) of average cost of the installation of the water and sewer for a residential lot. For a property owner of real property located within the area described in the annexation ordinance applying within the second year, that property owner may be charged an amount not to exceed sixty percent (60%) of average cost of the installation of the water and sewer for a residential lot. For a property owner of real property located within the area described in the annexation ordinance applying within the third year, that property owner may be charged an amount not to exceed seventy percent (70%) of average cost of the installation of the water and sewer for a residential lot. For a property owner of real property located within the area described in the annexation ordinance applying within the fourth year, that property owner may be charged an amount not to exceed eighty percent (80%) of average cost of the installation of the water and sewer for a residential lot. For a property owner of real property located within the area described in the annexation ordinance applying within the fifth year, that property owner may be charged an amount not to exceed ninety percent (90%) of average cost of the installation of the water and sewer for a residential lot. Charges pursuant to this section shall be made when the water and sewer connection is operable.
  5. Notwithstanding Article 16 of this Chapter, the municipality may not charge, for any reason, any property owner within the area described in the annexation ordinance, for the installation or use of the water or sewer system unless that property owner is, or has requested to become, a customer of the water or sewer system.
  6. The initial installation of water or sewer connection lines to property shall be completed without charge to the property owner. Title to water or sewer connection lines shall vest in the property owner following completion of the initial installation. The property owner shall be responsible for maintenance and repair of water and sewer connection lines on the owner's property following the initial installation.
  7. If the municipality is unable to provide water or sewer service within three and one-half years, as required by this section, due to permitting delays that are caused through no fault of the municipality, the municipality may petition the Local Government Commission for a reasonable time extension.
  8. For purposes of this section, the following definitions apply:
    1. "At no cost other than periodic user fees." - The municipality may not charge the property owner who responded favorably under subdivision (b)(3) of this section for any costs associated with the installation of the water or sewer system. The municipality may not charge a property owner who applies to participate in the water and sewer system under subsection (d) of this section prior to the first periodic user fee charge, and on that bill the owner may be charged no more then as provided in subsection (d) of this section.
    2. "Average installation of a connection for a residential lot." - The average of the cost for residential installations from curb to residence, including connection and tap fees, in the area described in the annexation ordinance.

History

(2011-396, s. 9.)

Editor's Note. - Subsections (e1) through (f), as enacted by 2011-396, s. 9, were redesignated (f) through (h) at the direction of the Revisor of Statutes.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."


§ 160A-58.57. Contract with rural fire department.

  1. If the area to be annexed described in a resolution of intent passed under G.S. 160A-58.55(c) includes an area in an insurance district defined under G.S. 153A-233, a rural fire protection district under Article 3A of Chapter 69 of the General Statutes, or a fire service district under Article 16 of Chapter 153A of the General Statutes, and a rural fire department was on the date of adoption of the resolution of intent providing fire protection in the area to be annexed, then the city (if the rural fire department makes a written request for a good faith offer, and the request is signed by the chief officer of the fire department and delivered to the city clerk no later than 15 days before the public hearing) is required to make a good faith effort to negotiate a five-year contract with the rural fire department to provide fire protection in the area to be annexed.
  2. If the area is a rural fire protection district or a fire service district, then an offer to pay annually for the term of the contract the amount of money that the tax rate in the district in effect on the date of adoption of the resolution of intent would generate based on property values on January 1 of each year in the area to be annexed which is in such a district is deemed to be a good faith offer of consideration for the contract.
  3. If the area is an insurance district but not a rural fire protection district or fire service district, then an offer to pay annually over the term of the contract the amount of money which is determined to be the equivalent of the amount which would be generated by multiplying the fraction of the city's general fund budget in that current fiscal year which is proposed to be expended for fire protection times the tax rate for the city in the current year, and multiplying that result by the property valuation in the area to be annexed which is served by the rural fire department is deemed to be a good faith offer of consideration for the contract; Provided that the payment shall not exceed the equivalent of fifteen cents (15›) on one hundred dollars ($100.00) valuation of annexed property in the district according to county valuations for the current fiscal year.
  4. Any offer by a city to a rural fire department which would compensate the rural fire department for revenue loss directly attributable to the annexation by paying such amount annually for five years, is deemed to be a good faith offer of consideration for the contract.
  5. Under subsections (b), (c), or (d) of this section, if the good faith offer is for first responder service, an offer of one-half the calculated amount under those subsections is deemed to be a good faith offer.
  6. This section does not obligate the city or rural fire department to enter into any contract.
  7. The rural fire department may, if it feels that no good faith offer has been made, appeal to the Local Government Commission within 30 days following the passage of an annexation ordinance. The rural fire department may apply to the Local Government Commission for an order staying the operation of the annexation ordinance pending the outcome of the review. The Commission may grant or deny the stay in its discretion upon such terms as it deems proper, and it may permit annexation of any part of the area described in the ordinance concerning which no question for review has been raised, provided that no other appeal under G.S. 160A-58.60 is pending.
  8. The Local Government Commission may affirm the ordinance, or if the Local Government Commission finds that no good faith offer has been made, it shall remand the ordinance to the municipal governing board for further proceedings, and the ordinance shall then not become effective unless the Local Government Commission finds that a good faith offer has been made.
  9. Any party to the review under subsection (h) may obtain judicial review in accordance with Chapter 150B of the General Statutes.

History

(1983, c. 636, s. 21; 1987, c. 827, s. 1; 2011-396, ss. 2, 9.)

Cross References. - As to effective date of annexation ordinances adopted under Article 4A of Chapter 160A, see G.S. 160A-58.9A.

Editor's Note. - This section was formerly G.S. 160A-49.1. It was recodified as G.S. 160A-58.57 by Session Laws 2011-396, s. 2, effective July 1, 2011.

Session Laws 1983, c. 636, which amended this section, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25." The act was ratified June 29, 1983.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

CASE NOTES

Editor's Note. - Some of the cases annotated below were decided prior to the recodification of G.S. 160A-49.1 as this section by Session Laws 2011-396, s. 2.

Section Required to Be Followed Only Where Annexation Achieved Under Chapter 160A, Art. 4A, Part 3. - G.S. 160A-47, dealing with the submission of plans by the municipality for the extension of municipal services (including police and fire protection, solid waste collection, and street maintenance), this section and G.S. 160A-49.3, dealing with contracting for fire protection and sewage services, are required to be followed by a municipality only where the annexation is to be achieved under Chapter 160A, Art. 4A, Part 3. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988), rev'd on other grounds, 324 N.C. 499, 380 S.E.2d 107 (1989).

Local act requiring city to extend municipal services, including services relating to health and sanitation, in a manner not authorized except when annexation is accomplished under general law was in contravention of N.C. Const., Art. II, § 24(a), and therefore void. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988), rev'd on other grounds, 324 N.C. 499, 380 S.E.2d 107 (1989).

Cited in Piedmont Ford Truck Sale, Inc. v. City of Greensboro, 324 N.C. 499, 380 S.E.2d 107 (1989); Chapel Hill Country Club, Inc. v. Town of Chapel Hill, 97 N.C. App. 171, 388 S.E.2d 168 (1990).


§ 160A-58.58. Assumption of debt.

  1. If the city has annexed any area which is served by a rural fire department and which is in an insurance district defined under G.S. 153A-233, a rural fire protection district under Article 3A of Chapter 69 of the General Statutes or a fire service district under Article 16 of Chapter 153A of the General Statutes, then upon the effective date of annexation if the city has not contracted with the rural fire department for fire protection, or when the rural fire department ceases to provide fire protection under contract, then the city shall pay annually a proportionate share of any payments due on any debt (including principal and interest) relating to facilities or equipment of the rural fire department, if the debt was existing at the time of adoption of the resolution of intent, with the payments in the same proportion that the assessed valuation of the area of the district annexed bears to the assessed valuation of the entire district on the date the annexation ordinance becomes effective or another date for valuation mutually agreed upon by the city and the fire department.
  2. The city and rural fire department shall jointly present a payment schedule to the Local Government Commission for approval and no payment may be made until such schedule is approved.

History

(1983, c. 636, s. 23; 1998-150, s. 16; 2011-396, s. 3.)

Editor's Note. - This section was formerly G.S. 160A-49.2. It was recodified as G.S. 160A-58.58 by Session Laws 2011-396, s. 3, effective July 1, 2011.

Session Laws 1983, c. 636, which amended this section, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: "The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections."

Section 38 of Session Laws 1983, c. 636 provided: "This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25."

The act was ratified June 29, 1983.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."


§ 160A-58.59. Contract with private solid waste collection firms.

  1. If the area to be annexed described in a resolution of intent passed under G.S. 160A-58.55(c) includes an area where a firm (i) meets the requirements of subsection (b) of this section, (ii) on the ninetieth day preceding the date of adoption of the resolution of intent or resolution of consideration was providing solid waste collection services in the area to be annexed, (iii) on the date of adoption of the resolution of intent is still providing such services, and (iv) by reason of the annexation the firm's franchise with a county or arrangements with third parties for solid waste collection will be terminated, the city shall do one of the following:
    1. Contract with the firm for a period of two years after the effective date of the annexation ordinance to allow the firm to provide collection services to the city in the area to be annexed for sums determined under subsection (f) of this section.
    2. Pay the firm for the firm's economic loss, with one-third of the economic loss to be paid within 30 days of the termination and the balance paid in 12 equal monthly installments during the next succeeding 12 months. Any remaining economic loss payment is forfeited if the firm terminates service to customers in the annexation area prior to the effective date of the annexation.
    3. Make other arrangements satisfactory to the parties.
  2. To qualify for the options set forth in subsection (a) of this section, a firm must have done one of the following:
    1. Subsequent to receiving notice of the annexation in accordance with subsection (d) of this section, filed with the city clerk at least 10 days prior to the public hearing a written request to contract with the city to provide solid waste collection services containing a certification, signed by an officer or owner of the firm, that the firm serves at least 50 customers within the county at that time.
    2. Contacted the city clerk pursuant to public notice published by the city, pursuant to G.S. 160A-58.55(d), at least 10 days before the hearing and provided to the city clerk a written request to contract with the city to provide solid waste collection services. The request must contain a certification signed by an officer or owner of the firm that the firm serves at least 50 customers within the county at that time.
  3. Firms shall file notice of provision of solid waste collection service with the city clerk of all cities located in the firm's collection area or within five miles thereof.
  4. At least four weeks prior to the date of the informational meeting, the city shall provide written notice of the resolution of intent to all firms serving the area to be annexed. The notice shall be sent to all firms that filed notice in accordance with subsection (c) of this section by certified mail, return receipt requested, to the address provided by the firm under subsection (c) of this section.
  5. The city may require that the contract contain:
    1. A requirement that the firm post a performance bond and maintain public liability insurance coverage;
    2. A requirement that the firm agree to service customers in the annexed area that were not served by that firm on the effective date of annexation;
    3. A provision that divides the annexed area into service areas if there were more than one firm being contracted within the area, such that the entire area is served by the firms, or by the city as to customers not served by the firms;
    4. A provision that the city may serve customers not served by the firm on the effective date of annexation;
    5. A provision that the contract can be cancelled in writing, delivered by certified mail to the firm in question with 30 days to cure substantial violations of the contract, but no contract may be cancelled on these grounds unless the Local Government Commission finds that substantial violations have occurred, except that the city may suspend the contract for up to 30 days if it finds substantial violation of health laws;
    6. Performance standards, not exceeding city standards existing at the time of notice published pursuant to G.S. 160A-49(b) [160A-58.55(d)] with provision that the contract may be cancelled for substantial violations of those standards, but no contract may be cancelled on those grounds unless the Local Government Commission finds that substantial violations have occurred;
    7. A provision for monetary damages if there are violations of the contract or of performance standards.
  6. If the services to be provided to the city by reason of the annexation are substantially the same as rendered under the franchise with the county or arrangements with the parties, the amount paid by the city shall be at least ninety percent (90%) of the amount paid or required under the existing franchise or arrangements. If such services are required to be adjusted to conform to city standards or as a result of changes in the number of customers and as a result there are changes in disposal costs (including mileage and landfill charges), requirements for storage capacity (dumpsters and/or residential carts), and/or frequency of collection, the amount paid by the city for the service shall be increased or decreased to reflect the value of such adjusted services as if computed under the existing franchise or arrangements. In the event agreement cannot be reached between the city and the firm under this subsection, the matters shall be determined by the Local Government Commission.
  7. The firm may, if it contends that no contract has been offered, appeal to the Local Government Commission within 30 days following passage of an annexation ordinance. The firm may appeal to the Local Government Commission for an order staying the operation of the annexation ordinance pending the outcome of the review. The Commission may grant or deny the stay upon such terms as it deems proper. If the Local Government Commission finds that the city has not made an offer which complies with this section, it shall remand the ordinance to the municipal governing board for further proceedings, and the ordinance shall not become effective until the Local Government Commission finds that such an offer has been made. Either the firm or the city may obtain judicial review in accordance with Chapter 150B of the General Statutes.
  8. A firm which has given notice under subsection (a) of this section that it desires to contract, and any firm that the city believes is eligible to give such notice, shall make available to the city not later than 30 days following a written request of the city, sent by certified mail return receipt requested, all information in its possession or control, including but not limited to operational, financial and budgetary information, necessary for the city to determine if the firm qualifies for the benefits of this section and to determine the nature and scope of the potential contract and/or economic loss. The firm forfeits its rights under this section if it fails to make a good faith response within 30 days following receipt of the written request for information from the city, provided that the city's written request so states by specific reference to this section.
  9. As used in this section, the following terms mean:
    1. Economic loss. - A sum equal to 15 times the average gross monthly revenue for the three months prior to the passage of the resolution of intent or resolution of consideration, as applicable under subsection (a) of this section, collected or due the firm for residential, commercial, and industrial collection service in the area annexed or to be annexed; provided that revenues shall be included in calculations under this subdivision only if policies of the city will provide solid waste collection to those customers such that arrangements between the firm and the customers will be terminated.
    2. Firm. - A private solid waste collection firm.

History

(1985, c. 610, s. 4; 1987, c. 827, s. 1; 1989, c. 598, s. 9; 1998-150, s. 17; 2006-193, s. 2; 2006-259, s. 53; 2011-396, ss. 4, 9.)

Cross References. - As to effective date of annexation ordinances adopted under Article 4A of Chapter 160A, see G.S. 160A-58.9A.

Editor's Note. - This section was formerly G.S. 160A-49.3. It was recodified as G.S. 160A-58.59 by Session Laws 2011-396, s. 4, effective July 1, 2011.

The bracketed reference in subdivision (e)(6) to "[G.S. 160A-58.55(d)]" was added at the direction of the Revisor of Statutes as former G.S. 160A-49 was repealed by Session Laws 2011-396, s. 7, effective July 1, 2011.

Session Laws 2006-193, s. 2, which rewrote the section, was made applicable to annexations for which a resolution of intent was adopted on or after January 1, 2007.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Effect of Amendments. - Session Laws 2006-193, s. 2, applicable to annexations for which a resolution of intent is adopted on or after January 1, 2007, rewrote subsections (a) and (b); added subsections (a1), (a2) and (i); deleted "private" preceding "firm" and "firms" throughout subsections (c), (d) and (g); substituted "in writing, delivered by certified mail to the firm in question with 30 days to cure" for "for" in subdivision (c)(5); inserted "existing at the time of notice published pursuant to G.S. 160A-49(b)" in subdivision (c)(6); substituted "the" for "such" near the end of subsection (d); deleted subsections (e) and (f); and substituted "30 days" for "10 business days" twice in subsection (h).

Session Laws 2006-259, s. 53, effective August 23, 2006, substituted "file" for "fill" near the beginning of subsection (a2).

Session Laws 2011-396, s. 9, effective July 1, 2011, in the introductory paragraph of subsection (a) and in subdivision (b)(2), updated the section reference. For applicability, see editor's note.

CASE NOTES

Editor's Note. - Some of the cases annotated below were decided prior to the recodification of G.S. 160A-49.3 as this section by Session Laws 2011-396, s. 4.

Section Required to Be Followed Only Where Annexation Achieved Under Chapter 160A, Art. 4A, Part 3. - G.S. 160A-47, dealing with the submission of plans by the municipality for the extension of municipal services (including police and fire protection, solid waste collection, and street maintenance), and G.S. 160A-49.1 and this section, dealing with contracting for fire protection and sewage services, are required to be followed by a municipality only where the annexation is to be achieved under Chapter 160A, Art. 4A, Part 3. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988), rev'd on other grounds, 324 N.C. 499, 380 S.E.2d 107 (1989).

Local act requiring city to extend municipal services, including services relating to health and sanitation, in a manner not authorized except when annexation is accomplished under general law was in contravention of N.C. Const., Art. II, § 24(a), and therefore void. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262 (1988), rev'd on other grounds, 324 N.C. 499, 380 S.E.2d 107 (1989).

Cited in Piedmont Ford Truck Sale, Inc. v. City of Greensboro, 324 N.C. 499, 380 S.E.2d 107 (1989).


§ 160A-58.60. Appeal.

  1. Within 60 days following the adoption of the annexation ordinance, any property owner of real property located within the area described in the annexation ordinance who believes that property owner will suffer material injury by reason of the failure of the municipal governing board to comply with the procedure or to meet the requirements set forth in this Part as they apply to the annexation may file a petition in the superior court of the county in which the municipality is located seeking review of the action of the governing board.
  2. Such petition shall explicitly state what exceptions are taken to the action of the governing board and what relief the petitioner seeks. Within 10 days after the petition is filed with the court, the person seeking review shall serve copies of the petition by registered mail, return receipt requested, upon the municipality.
  3. Within 15 days after receipt of the copy of the petition for review or within such additional time as the court may allow, the municipality shall transmit to the reviewing court both of the following:
    1. A transcript of the portions of the municipal journal or minute book in which the procedure for annexation has been set forth.
    2. A copy of the report setting forth the plans for extending services to the annexed area as required in G.S. 160A-58.53.
  4. If two or more petitions for review are submitted to the court, the court may consolidate all such petitions for review at a single hearing, and the municipality shall be required to submit only one set of minutes and one report as required in subsection (c) of this section.
  5. At any time before or during the review proceeding, any petitioner or petitioners may apply to the reviewing court for an order staying the operation of the annexation ordinance pending the outcome of the review. The court may grant or deny the stay in its discretion upon such terms as it deems proper, and it may permit annexation of any part of the area described in the ordinance concerning which no question for review has been raised.
  6. The court shall fix the date for review of annexation proceedings under this Part, which review date shall be expeditious and without unnecessary delays. The review shall be conducted by the court without a jury. The court may hear oral arguments and receive written briefs and may take evidence intended to show one or more of the following:
    1. That the statutory procedure was not followed.
    2. That the provisions of G.S. 160A-58.53 were not met.
    3. That the provisions of G.S. 160A-58.54 have not been met.
    4. That the provisions of G.S. 160A-58.50 have not been met.
  7. The court may affirm the action of the governing board without change, or it may order any of the following:
    1. Remand the ordinance to the municipal governing board for further proceedings if procedural irregularities are found to have materially prejudiced the substantive rights of any of the petitioners.
    2. Remand the ordinance to the municipal governing board for amendment of the boundaries to conform to the provisions of G.S. 160A-58.54 if it finds that the provisions of G.S. 160A-58.54 have not been met; provided, that the court cannot remand the ordinance to the municipal governing board with directions to add area to the municipality which was not included in the notice of public hearing and not provided for in plans for service.
    3. Remand the report to the municipal governing board for amendment of the plans for providing services to the end that the provisions of G.S. 160A-58.53 are satisfied or to correct errors in [the] municipal governing board's estimates that fall below the standards in G.S. 160A-58.63.
    4. Declare the ordinance null and void, if the court finds that the ordinance cannot be corrected by remand as provided in subdivisions (1), (2), or (3) of this subsection.
  8. Any party to the review proceedings, including the municipality, may appeal to the Court of Appeals from the final judgment of the superior court under rules of procedure applicable in other civil cases. The superior court may, with the agreement of the municipality, permit annexation to be effective with respect to any part of the area concerning which no appeal is being made and which can be incorporated into the municipality without regard to any part of the area concerning which an appeal is being made.
  9. If part or all of the area annexed under the terms of an annexation ordinance is the subject of an appeal to the superior court, Court of Appeals, or Supreme Court on the effective date of the ordinance, then the ordinance shall be deemed amended to make the effective date with respect to such area the first June 30th at least six months following the date of the final judgment of the superior court or appellate division, or the first June 30 th at least six months from the date the municipal governing board completes action to make the ordinance conform to the court's instructions in the event of remand. For the purposes of this subsection, a denial of a petition for rehearing or for discretionary review shall be treated as a final judgment.
  10. If a petition for review is filed under subsection (a) of this section or an appeal is filed under G.S. 160A-58.57(g) or G.S. 160A-58.59(g) and a stay is granted, then the time periods of three and one-half years or G.S. 160A-58.55(n) are each extended by the lesser of the length of the stay or one year for that annexation.
  11. The provisions of subsection (i) of this section shall apply to any judicial review authorized in whole or in part by G.S. 160A-58.57(i) or G.S. 160A-58.57(g).
  12. In any proceeding related to an annexation ordinance appeal under this section, a municipality shall not state a claim for lost property tax revenue caused by the appeal. Nothing in this Article shall be construed to mean that as a result of an appeal a municipality may assert a claim for property tax revenue lost during the pendency of the appeal.
  13. Any settlement reached by all parties in an appeal under this section may be presented to the superior court in the county in which the municipality is located. If the superior court, in its discretion, approves the settlement, it shall be binding on all parties without the need for approval by the General Assembly.
  14. If a final court order is issued against the annexing municipality, costs in the action, including reasonable attorneys' fees for such aggrieved person having a freehold interest in the real property located within the area described in the annexation ordinance, may be charged to the municipality.

If any municipality shall fail to take action in accordance with the court's instructions upon remand within 90 days following entry of the order embodying the court's instructions, the annexation proceeding shall be deemed null and void.

History

(2011-396, s. 9 2012-11, s. 5; 2013-410, s. 15.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

Session Laws 2012-11, s. 5, provided that "G.S. 160A-60(a) reads as rewritten" when, in fact, the text that was set out in the act matched that of G.S. 160A-58.60(a). At the direction of the Revisor of Statutes, the amendment was not implemented. Subsequently, Session Laws 2013-410, s. 15, amended the introductory language of Session Laws 2012-11, s. 5, so that it now identifies G.S. 160A-58.60 as the section being amended, and the amendment has now been implemented.

Effect of Amendments. - Session Laws 2012-11, s. 5, as amended by Session Laws 2013-410, s. 15, effective July 1, 2012, substituted "following the adoption of the annexation ordinance" for "following the close of the signature period under G.S. 160A-58.55(i)" near the beginning of subsection (a). For applicability, see Editor's note.

CASE NOTES

Reason for Judicial Review. - The difficulties of applying the standards of G.S. 160A-36 in extreme cases are the reason the Municipal Government Study Commission recommended a provision for court review, set out in this section, to determine whether the agency making the decision made a reasonable decision in accord with statutory standards. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

Scope of Superior Court Re-
view - The superior court's review of an involuntary annexation proceeding, pursuant to this section, is limited in scope to the following: (1) Did the municipality comply with the statutory procedures? (2) If not, will petitioners "suffer material injury" by reason of the municipality's failure to comply? (3) Does the character of the area specified for annexation meet the requirements of G.S. 160A-36 as applied to petitioners' property? Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).

Subsection (f) of this section and G.S. 160A-50(f) limit the court's inquiry on review of an annexation ordinance to a determination of whether applicable annexation statutes have been substantially complied with. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

In determining the validity of an annexation ordinance, the court's review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioner suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A-36 or G.S. 160A-48? Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

Section Provides Only Procedure Available to Property Owners to Prevent Annexation. - The statutory remedy provided by this section is the only procedure available to property owners to prevent the annexation provided by an annexation ordinance. Gaskill v. Costlow, 270 N.C. 686, 155 S.E.2d 148 (1967).

Remedy Under G.S. 160A-37 Exclusive Where Annexation Not Challenged Under This Section. - Where annexation is completed without being challenged in the manner prescribed by this section, it becomes an accomplished fact, and the remedies of property owners and citizens within the annexed areas are those provided in subsection (h) of G.S. 160A-37. Gaskill v. Costlow, 270 N.C. 686, 155 S.E.2d 148 (1967).

Independent Action to Have Ordinance Declared Void Ab Initio May Not Be Maintained. - An owner of land in an area annexed by a municipality may attack the validity of the annexation ordinance only by filing a petition within 30 days following the passage of the ordinance seeking a review of the action of the municipal board of commissioners, in accordance with the procedure provided by this section, and an independent action instituted some 22 months after the adoption of the ordinance and seeking to have it declared void ab initio will be dismissed. Gaskill v. Costlow, 270 N.C. 686, 155 S.E.2d 148 (1967).

Who May Appeal. - Any person owning property in annexed territory has a right, within 30 days following the passage of the annexation ordinance, to challenge its validity by petition for review filed in the superior court. Gaskill v. Costlow, 270 N.C. 686, 155 S.E.2d 148 (1967).

Subsection (a) allows persons owning property in the area to be annexed to appeal if such property owners believe that they will suffer material injury. Taylor v. City of Raleigh, 22 N.C. App. 259, 206 S.E.2d 401 (1974), aff'd, 290 N.C. 608, 227 S.E.2d 576 (1976).

Fact that city was proceeding under a local act which did not set forth the persons who could appeal, rather than under this Chapter, did not extend the right to challenge the annexation to persons outside the annexed area who did not own property within it. Taylor v. City of Raleigh, 22 N.C. App. 259, 206 S.E.2d 401 (1974), aff'd, 290 N.C. 608, 227 S.E.2d 576 (1976).

The only persons given authority by this Chapter to challenge an annexation ordinance are those who own property in the annexed area. Davis v. City of Archdale, 81 N.C. App. 505, 344 S.E.2d 369 (1986).

Plaintiff town had no standing to challenge annexations of contiguous properties by nearby village. Town of Seven Devils v. Village of Sugar Mt., 125 N.C. App. 692, 482 S.E.2d 39, cert. denied, 346 N.C. 185, 486 S.E.2d 219 (1997).

The consolidation of two or more petitions for review in a single hearing referred to in subsection (d) refers to the consolidation of two or more petitions which involve a single annexation area and ordinance. Dunn v. City of Charlotte, 284 N.C. 542, 201 S.E.2d 873 (1974).

Failure to Allege Material Injury Not Fatal. - While the better practice would be to allege specifically that the petitioner will suffer material injury by reason of the failure of respondent to comply with the statutory procedures regarding annexation, the failure to do so is not fatal, particularly if the petition contains allegations from which material injury can be implied. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681 (1969).

Effect of Appeal on Effective Date of Annexation for Tax Purposes. - Where an appeal from an annexation ordinance was pending in the Court of Appeals on the effective date of annexation specified in the ordinance, May 15, 1969, and the decision of the Court of Appeals was filed and certified in September 1969, property within the area being annexed was not subject to municipal ad valorem taxes for the fiscal year beginning July 1, 1969, since (1) newly annexed territory is subject to municipal taxes levied for the fiscal year following the effective date of annexation, G.S. 160A-37(f), and (2) under subsection (i) of this section the appeal postponed the effective date of the ordinance until the date of the final judgment of the appellate court. Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147, 187 S.E.2d 704 (1972).

Findings of fact of the superior court are binding on appeal if supported by competent evidence, even though there is evidence to the contrary. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, cert. denied, 306 N.C. 559, 294 S.E.2d 371 (1982).

Record Must Show Prima Facie Compliance. - Upon review in the superior court of a municipal annexation ordinance enacted pursuant to this Article, the record of the proceedings, including the report and annexation ordinance, must show prima facie complete and substantial compliance with this Article as a condition precedent to the right of the municipality to annex the territory. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961); In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

Burden on Petitioners to Prove Prejudicial Irregularity Where Prima Facie Compliance Shown. - Where, upon review in the superior court of an annexation ordinance, the record of the proceeding shows prima facie that there has been substantial compliance with the requirements and provisions of the annexation statute, the burden is upon petitioners 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 the proceedings which materially prejudices the substantive rights of petitioners. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961); In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961); Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, cert. denied, 306 N.C. 559, 294 S.E.2d 371 (1982); Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

The burden is upon petitioners in such case by reason of the presumption that public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Trial court erred in striking down a village's annexation ordinances because the village substantially complied with the essential statutory provisions in annexing the property owners' land and the property owners failed to produce competent evidence demonstrating that the village failed to meet the statutory requirements as a matter of fact or that an irregularity in the proceedings existed which materially prejudiced the owners' substantive rights so that the owners suffered a material injury. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

Nothing to Review on Issue of Availability If Compliance Is Clear. - If a municipality clearly complies with the standards of subsection (c) of G.S. 160A-36, there is nothing to review with respect to the availability of an area proposed for annexation. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

Where compliance is in doubt, the determination must be made upon the facts in the particular case with respect to the availability of an area proposed for annexation under subsection (c) of G.S. 160A-36. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964).

Court May Not Amend Record. - The superior court itself is without authority to amend the report, ordinance or other part of the record. This is true even if evidence is presented which justifies amendment. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Remand Where Compliance Not Shown by Record. - Under this section, if the record of annexation proceedings on its face fails to show substantial compliance with any essential provision of this Article, the superior court upon review must remand to the governing board for amendment with respect to such noncompliance. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Remand of Ordinance for Amendment. - Trial court, pursuant to G.S. 160A-38(g)(2), instead of striking a village ordinance should have simply remanded the ordinance to the village to amend the annexation boundaries so as to conform with G.S. 160A-36. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

Public Hearing on Remand. - Neither subdivision (g)(2) of this section nor any other provisions of the annexation statute requires the municipal governing board upon remand to hold a second public hearing unless it adds an area not included in the original notice of public hearing and not provided for in the plans for service. Rexham Corp. v. Town of Pineville, 26 N.C. App. 349, 216 S.E.2d 445 (1975).

When Court May Permit Annexation of Part of Area. - The superior court may permit, under subsection (h) of this section, an annexation ordinance to be effective with respect to a part of the area proposed only when there is no appeal in regard to such part and the municipality agrees to the order for such partial annexation. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Where an order is issued restraining the operation of an annexation ordinance as to the entire area pending review, subsection (e) of this section has no application, since the statute permits the court to approve the annexation of a part of the proposed area only when no question for review has been raised as to such part. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961).

Voiding of Town Ordinance Rather Than Remanding - When a town adopted an ordinance proposing to annex certain land, it was proper for the trial court to declare the ordinance void, under G.S. 160A-38(g)(4), rather than remanding the matter to the town for amendment of the boundaries, because there was no evidence that the annexation area could be corrected on remand to comply with the applicable statutes. Hughes v. Town of Oak Island, 158 N.C. App. 175, 580 S.E.2d 704, aff'd, 357 N.C. 653, 588 S.E.2d 467 (2003).

Findings of fact of the superior court are binding on appeal if supported by competent evidence, even though there is evidence to the contrary. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, cert. denied, 306 N.C. 559, 294 S.E.2d 371 (1982).

Jurisdiction of Court of Appeals. - An appeal from an order of the superior court affirming an annexation ordinance was properly taken to the Court of Appeals, notwithstanding that by clear legislative oversight subsections (h) and (i) of this section were not amended to include the Court of Appeals as one of the appellate courts, since G.S. 7A-27 gives initial appellate jurisdiction of such cause to the Court of Appeals, and the Court of Appeals, therefore, is deemed to be included in subsections (h) and (i). Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147, 187 S.E.2d 704 (1972).

Filing of Petition Necessary to Perfect Appellate Jurisdiction in Superior Court. - An appeal from the passage of an annexation ordinance by a municipality having a population of less than 5,000 must be taken within 30 days following such passage by filing a petition in the superior court of the county in which the municipality is located. Compliance with this provision is a condition precedent to perfecting appellate jurisdiction in the superior court for the review of an annexation ordinance. Ingles Markets, Inc. v. Town of Black Mt., 98 N.C. App. 372, 390 S.E.2d 688, cert. denied, 327 N.C. 429, 395 S.E.2d 679 (1990).

Entry of Remand Order Divested Superior Court of Jurisdiction. - Superior court's entry of order of remand of appeal of adoption of 1988 ordinance for the limited purpose of including specific findings of fact that the area to be annexed was developed for urban purposes divested that court of appellate jurisdiction to conduct further review of those aspects of the petition brought forward, but not addressed by the order, such that petitioner was required to appeal anew from the action of the town taken pursuant to remand in adopting an amended 1989 ordinance in order to obtain the right to a review of the 1989 ordinance in the superior court. Ingles Markets, Inc. v. Town of Black Mt., 98 N.C. App. 372, 390 S.E.2d 688, cert. denied, 327 N.C. 429, 395 S.E.2d 679 (1990).

Further Appellate Review After Remand. - In order to obtain further review of an annexation ordinance after infirmities have been corrected by the municipality pursuant to an order of remand, whether such order of remand addresses all or merely some of the issues raised in the initial petition, appellate jurisdiction in the superior court must be perfected anew by filing a separate petition in accordance with the provisions of G.S. 160A-38(a). Ingles Markets, Inc. v. Town of Black Mt., 98 N.C. App. 372, 390 S.E.2d 688, cert. denied, 327 N.C. 429, 395 S.E.2d 679 (1990).

Effective date of an ordinance adopted pursuant to superior court's order of remand is neither postponed nor amended absent further appeal, which must be taken within the required 30 days; i.e., the ordinance becomes an accomplished fact, subject only to further appeal. Ingles Markets, Inc. v. Town of Black Mt., 98 N.C. App. 372, 390 S.E.2d 688, cert. denied, 327 N.C. 429, 395 S.E.2d 679 (1990).

Appeal Dismissed. - Where the thirty days afforded by this section expired before plaintiff filed its petition for review of the ordinance, the trial court was within jurisdiction and properly dismissed the action. Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 493 S.E.2d 797 (1997).

Property owners did not show that a town was unreasonable in relying upon an actual survey, as allowed by G.S. 160A-36; thus, the reviewing court did not err in concluding that one property consisted of two separate lots for the purposes of the subdivision test. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717 (2004), cert. denied, 359 N.C. 410, 612 S.E.2d 320 (2005).

Substantial Compliance With Statute Shown. - Trial court erred in concluding that the usage of disputed acres affected the classification of a golf course tract as a whole when the golf course was annexed by a town ordinance, because the golf course tract was properly designated as commercial by the town in its original calculations, and the entire acreage should have been included as commercial acreage for purposes of calculations under the use test; based on the new calculations, the annexation area met the 60 percent minimum required under the subdivision test of G.S. 160A-36(c)(1), and, given that the town substantially complied with the provisions of G.S. 160A-36, the ordinance was properly affirmed without amendment pursuant to G.S. 160A-38. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717 (2004), cert. denied, 359 N.C. 410, 612 S.E.2d 320 (2005).

Annexation Properly Affirmed. - Trial court properly found that a village provided independent administrative, engineering, auditing, legal, and planning services to its residents, and that the village was exploring options for obtaining additional police patrol services, and had committed itself to providing its current and future levels of such services to its residents in a non-discriminatory manner; the trial court found that the village was going to provide some additional services to the area to be annexed, notwithstanding land owners' claim they would receive no additional services whatsoever, and the trial court's order affirming the annexation was proper. Nolan v. Village of Marvin, 172 N.C. App. 84, 615 S.E.2d 898 (2005).

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I. IN GENERAL.

.

Limited Scope of Review. - Section 160A-38(f) and subsection (f) of this section limit the court's inquiry on review of an annexation ordinance to a determination of whether applicable annexation statutes have been substantially complied with. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

In determining the validity of an annexation ordinance, the court's review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioner suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A-36 or G.S. 160A-48? Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

Supreme Court Appeals Not Included. - There is no evidence to support a conclusion that the General Assembly intended the automatic stay of an annexation ordinance to include appeals to the United States Supreme Court. Biltmore Square Assocs. v. City of Asheville, 129 N.C. App. 101, 497 S.E.2d 121 (1998).

If a party desires to stay the effective date of an annexation while a petition for certiorari is pending before the United States Supreme Court, a stay can be requested from the Court pursuant to a motion under Rule 23 of the Rules of the Supreme Court of the United States. Biltmore Square Assocs. v. City of Asheville, 129 N.C. App. 101, 497 S.E.2d 121 (1998).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195 (1984), cert. denied and appeal dismissed, 313 N.C. 514, 329 S.E.2d 392 (1985).

The central purpose behind the annexation procedure is to assure that, in return for the added financial burden of municipal taxation, the residents of the annexed area receive the benefits of all the major services available to municipal residents. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

The minimum requirements of the annexation 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. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Subsection (g) Time Requirement. - A city annexation ordinance was valid where the city complied with the 3-month requirement of subsection (g) although it acted more than six months after the Court of Appeals' opinion was filed; the city could act only after the case was remanded two times; first to the superior court, and then to the city council because only then did the city have the power to revise the annexation ordinance. Bowers v. City of Thomasville, 143 N.C. App. 291, 547 S.E.2d 68, cert. denied, 353 N.C. 723, 550 S.E.2d 769 (2001).

As to the different appellate forums formerly prescribed for appeals under this section and G.S. 160A-38(h), see In re Annexation Ordinance, 300 N.C. 337, 266 S.E.2d 661 (1980), decided prior to the 1981 amendment to this section.

Who May Challenge Annexation Ordinance. - The only persons given the authority by this chapter to challenge an annexation ordinance are those who own property in the annexed area. Davis v. City of Archdale, 81 N.C. App. 505, 344 S.E.2d 369 (1986).

Where the record of the annexation proceedings showed substantial compliance with the requirements of Chapter 160A, the burden was on petitioners to prove failure to meet those requirements or an irregularity in the proceedings which materially prejudiced their substantive rights. Thrash v. City of Asheville, 115 N.C. App. 310, 444 S.E.2d 482 (1994).

Plaintiff town had no standing to challenge annexations of contiguous properties by nearby village. Town of Seven Devils v. Village of Sugar Mt., 125 N.C. App. 692, 482 S.E.2d 39, cert. denied, 346 N.C. 185, 486 S.E.2d 219 (1997).

Denial of Motion to Intervene Was Proper. - Denial of a corporation's motion to intervene in a case seeking review of an annexation ordinance was proper, since the corporation failed to comply with G.S. 160A-50 procedures by moving to intervene six months after the ordinance was adopted; intervention was also improper under G.S. 1A-1-24, due to the facts that the motion was filed after judgment approving a settlement was entered and that the proposed intervention would have prejudiced the original parties by destroying their settlement. Gates Four Homeowners Ass'n v. City of Fayetteville, 170 N.C. App. 688, 613 S.E.2d 55 (2005).

No Jurisdiction Over Plans Concerning Transportation. - Since plans and procedures concerning transportation are not required by law, a reviewing court has no jurisdiction to hear evidence on this issue. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204 (1996).

Order compelling discovery was generally not immediately appealable; while G.S. 160A-50 contemplated an expedited hearing procedure, where the challengers in an annexation case did not appear concerned with an expedited hearing, and the most significant portion of the delay in the matter was due to the challengers' refusal to answer discovery, and in getting the matter before the appellate court, the challengers failed to show that a substantial right was affected, and an order compelling discovery was not immediately appealable. Arnold v. City of Asheville, 169 N.C. App. 451, 610 S.E.2d 280 (2005).

II. REVIEW BY SUPERIOR COURT.

.

Annexation statutes are not unconstitutional in providing that review by the superior court is without a jury. In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

Provisions for Nonjury Trial in Subsection (f) Not Superseded by Rules of Civil Procedure. - The provisions of subsection (f) authorizing review of annexation proceedings by the court without a jury have not been superseded by the N.C. Rules of Civil Procedure. In re Annexation Ordinance, 284 N.C. 442, 202 S.E.2d 143 (1974).

This section specifies the inquiries to which the courts are limited. In re Annexation Ordinance, 284 N.C. 442, 202 S.E.2d 143 (1974).

Constitutional Challenges Restricted. - Attacks on state annexation procedures on either due process or equal protection grounds are specifically foreclosed. Baldwin v. City of Winston-Salem, 544 F. Supp. 123 (M.D.N.C. 1982), aff'd, 710 F.2d 132 (4th Cir. 1983).

Challenges to annexations generally are not actionable under U.S. Const., Amend. XIV. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625 (W.D.N.C. 1982), aff'd sub nom., Baldwin v. City of Winston-Salem, 710 F.2d 132 (4th Cir. 1983).

Limited Scope of Review. - The judicial review afforded in annexation proceedings is limited in scope and serves as a safeguard against unreasonable and arbitrary action by the annexing municipality. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

Judicial review of an annexation ordinance is limited to determination of whether the annexation proceedings substantially comply with the requirements of the applicable annexation statute. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

The clear intent of the legislature under this section was to provide an expedited judicial review, limited in scope, and avoiding unnecessary procedural delays. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Section 160A-38(f) and subsection (f) of this section limit the court's inquiry on review of an annexation ordinance to a determination of whether applicable annexation statutes have been substantially complied with. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

In determining the validity of an annexation ordinance, the court's review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioner suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A-36 or G.S. 160A-48? Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

A court's review of an annexation ordinance is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioners "suffer material injury" by reason of the municipality's failure to comply? (3) Does the character of the area specified for annexation meet the requirement of G.S. 160A-48 as applied to petitioners' property? In re Annexation Ordinance No. 1219, 62 N.C. App. 588, 303 S.E.2d 380, cert. denied and appeal dismissed, 309 N.C. 820, 310 S.E.2d 351 (1983).

There is no test of "reasonableness" which must be considered upon judicial review of an annexation proceeding. In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

On review of an annexation, a superior court may only hear claims based upon the grounds set out in subsection (f) of this section. There is no separate test of "reasonableness" within the limited scope of judicial review permitted in annexation cases. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625 (W.D.N.C. 1982), aff'd sub nom. Baldwin v. City of Winston-Salem, 710 F.2d 132 (4th Cir. 1983).

Reasonableness Is Considered Under Subsection (f). - A separate test of the reasonableness of an annexation is not included within the limited scope of judicial review; however, subsection (f) of this section and the provisions incorporated therein amount to a requirement that the courts determine whether an annexation is reasonable. Forsyth Citizens Opposing Annexation v. City of Winston-Salem, 67 N.C. App. 164, 312 S.E.2d 517, cert. denied and appeal dismissed, 310 N.C. 743, 315 S.E.2d 701, appeal dismissed, 469 U.S. 802, 105 S. Ct. 57, 83 L. Ed. 2d 8 (1984).

Subsection (f) of this section and the provisions incorporated therein amount to a requirement that the superior court determine whether an annexation is reasonable. The language of the provisions does not speak in terms of arbitrariness, capriciousness or unreasonableness, but, the effect of the statute is to give substantial protection against arbitrary, capricious and unreasonable acts by the city. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625 (W.D.N.C. 1982), aff'd sub nom., Baldwin v. City of Winston-Salem, 710 F.2d 132 (4th Cir. 1983).

Statutory procedure referred to in subdivision (f)(1) is set out in G.S. 160A-49. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625 (W.D.N.C. 1982), aff'd sub nom. Baldwin v. City of Winston-Salem, 710 F.2d 132 (4th Cir.)

Section 160A-45 Policy Not Part of "Procedure". - The statement of state policy with regard to annexation set forth in G.S. 160A-45 is not part of the "procedure" of annexation under subsection (a) and subdivision (f)(1) of this section. In re Annexation Ordinance No. D-21927, 303 N.C. 220, 278 S.E.2d 224 (1981).

Issue on Review Is Substantial Compliance. - The basic question presented by a petition for review under this section is whether the procedure followed in adopting the ordinance was in substantial compliance with the applicable statutes. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984); Forsyth Citizens Opposing Annexation v. City of Winston-Salem, 67 N.C. App. 164, 312 S.E.2d 517, cert. denied and appeal dismissed, 310 N.C. 743, 315 S.E.2d 701, appeal dismissed, 469 U.S. 802, 105 S. Ct. 57, 83 L. Ed. 2d 8 (1984).

Record Must Show Prima Facie Compliance. - Upon review in the superior court of a municipal annexation ordinance enacted pursuant to this Article, the record of the proceedings, including the report and annexation ordinance, must show prima facie complete and substantial compliance with this Article as a condition precedent to the right of the municipality to annex the territory. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961).

When a power company challenged the annexation of certain of its land, pursuant to G.S. 160A-50, the city properly annexed land which was not developed for urban purposes, under G.S. 160A-48(d)(2), along with its annexation of land which was developed for urban purposes, even though the undeveloped land was not contiguous with the city's pre-annexation boundaries, because at least 60 percent of the land's external boundaries were contiguous with the developed land which was being annexed. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490 (2003).

Burden on Petitioners to Prove Noncompliance or Irregularity. - The burden is upon plaintiffs who appeal from annexation ordinance to show by competent evidence that city in fact failed to meet the statutory requirements or that there was irregularity in the proceedings which materially prejudiced their substantive rights. In re City of New Bern, 278 N.C. 641, 180 S.E.2d 851 (1971).

The party challenging the annexation has the burden of showing error. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Where appeal is taken from an annexation ordinance and a petition has been filed requesting review of the annexation proceedings, and the proceedings show prima facie that there has been substantial compliance with the requirements and provisions of this Article, the burden is upon the petitioners 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 the proceedings which materially prejudice their substantive rights. In re Annexation Ordinance, 255 N.C. 633, 122 S.E.2d 690 (1961); Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

Where the record of the annexation proceedings demonstrates prima facie substantial compliance with the applicable statutes, the burden is on the petitioner to show by competent evidence that the city has failed to meet the statutory requirements or that there was some irregularity in the proceedings that resulted in material prejudice to petitioners' rights. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984); Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, aff'd, 321 N.C. 589, 364 S.E.2d 139 (1988).

Under subsection (f) of this section, a party challenging an annexation action of a governing body must show (1) that the statutory procedure was not followed, or (2) that the provisions of G.S. 160A-47 were not met, or (3) that the provisions of G.S. 160A-48 were not met. The party challenging the ordinance has the burden of showing error. Knight v. City of Wilmington, 73 N.C. App. 254, 326 S.E.2d 376 (1985).

Slight irregularities will not invalidate annexation proceedings if there has been substantial compliance with all essential provisions of the law. In re City of New Bern, 278 N.C. 641, 180 S.E.2d 851 (1971).

Absolute and literal compliance with a statute describing the conditions of annexation is unnecessary; substantial compliance only is required, because 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 City of New Bern, 278 N.C. 641, 180 S.E.2d 851 (1971); McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, cert. denied, 308 N.C. 544, 302 S.E.2d 885 (1983).

Adverse Effect upon Financial Interests Not Grounds for Attacking Annexation Proceedings. - A property owner can attack annexation proceedings only upon the grounds specified in the statutes; he cannot successfully resist annexation because a city ordinance will adversely affect his financial interest. In re City of New Bern, 278 N.C. 641, 180 S.E.2d 851 (1971); Cockrell v. City of Raleigh, 306 N.C. 479, 293 S.E.2d 770 (1982).

Time Limit for Seeking Review Not Extended by Settlement Agreement. - As petitioners failed to seek judicial review of an annexation ordinance within 60 days as required by G.S. 160A-50(a), their action was time-barred. A prior settlement between the city and another party that did timely file for review did not require a remand to city council or allow petitioners a new 60-day period to seek review. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521 (2005).

Remand for Amendment of Record. - If the record of annexation proceedings on its face fails to show substantial compliance with any essential provision of the statute, the superior court upon review must remand to the governing board for amendment with respect to such noncompliance. The court itself is without authority to amend the report, ordinance or other part of the record, even if evidence is presented which justifies amendment. Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961); Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

Remand on City's Motion. - While this section does not explicitly empower a superior court judge to remand an annexation ordinance upon a city's motion to exclude a landowner who originally was covered by it, such remand occasioned no material injury to the petitioners, where the end result was that petitioners were not made part of the city by the ordinance at issue. Southern Glove Mfg. Co. v. City of Newton, 63 N.C. App. 754, 306 S.E.2d 466 (1983).

Remand Appropriate Remedy. - Trial court did not err in refusing to declare an involuntary annexation ordinance null and void where, assuming arguendo that any alleged procedural irregularities had prejudiced a landowner, the remedy under the G.S. 160A-50(g)(1) was a remand to the municipal governing board for further proceedings. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415 (2003).

Applicability of Rules of Civil Procedure. - Since judicial review of an annexation ordinance is manifestly a "proceeding of a civil nature," the Rules of Civil Procedure clearly apply to it, unless a different procedure is provided by statute, but only to the extent necessary to process the proceeding according to its nature. A different procedure for this proceeding from that provided in the Rules of Civil Procedure is provided to some extent by this section. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

Intervention in Petition for Review. - Petitioners' motion under G.S. 1A-1-24(a) to intervene in another party's petition for review of an annexation ordinance was properly denied, because G.S. 1A-1-24(a) does not apply to appeals of annexation ordinances under G.S. 160A-50(a). Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521 (2005).

Appellants' motion to intervene in another party's petition for review of an annexation ordinance was properly denied because, even assuming G.S. 1A-1-24(a) applied to appeals of annexation ordinances under G.S. 160A-50(a), judgment had already entered, intervention would have prejudiced the city and the other party, and appellants did not offer a legitimate reason for the delay. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521 (2005).

Discovery. - Judicial review of an annexation ordinance is a limited judicial review, with few similarities to ordinary civil actions which are initiated, tried and adjudicated in a different manner and for which the Rules of Civil Procedure were mostly devised. Nevertheless, since the court reviewing annexation proceedings is explicitly authorized to receive evidence as to the city's compliance with the various procedures prescribed, as to its annexation plan meeting the requisites of G.S. 160A-47, and as to the area involved being eligible for annexation under G.S. 160A-48, in those instances where discovery may illuminate these issues that it is authorized under the Rules of Civil Procedure. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

Power to Require Production of Evidence. - Absent an explicit statutory restriction to the contrary, a judge having the duty to receive evidence on and decide certain issues has the power, within his discretion, to require that evidence on those issues be produced. In the exercise of that power other factors require consideration, however, including the information already available through the documents required by subsection (c) of this section and the mandate contained in this section that these reviews be accomplished expeditiously and without unnecessary delays. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, cert. denied and appeal dismissed, 312 N.C. 492, 322 S.E.2d 553 (1984).

Settlement of Annexation Disputes. - Settlements of annexation disputes under G.S. 160A-50(m) are not "actions having the effect of an ordinance" under G.S. 160A-75, but are a method of dispute resolution in the annexation process; therefore, there is no need to send the matter back to city council after a settlement is reached. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521 (2005).

III. REVIEW BY COURT OF APPEALS.

.

On appeal, the findings of fact made below are binding on the Supreme Court (now the Court of Appeals) if supported by the evidence, even when there may be evidence to the contrary. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980).

Conclusions of Law Are Reviewable De Novo. - Conclusions of law drawn by the trial judge from the findings of fact are reviewable de novo on appeal. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980).

Right to Appeal. - When a city proposed the involuntary annexation of certain real property, the owners of that property were entitled to seek review of the annexation ordinance passed by the city in the superior court and in the Court of Appeals. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400 (2003), aff'd, 358 N.C. 216, 593 S.E.2d 584 (2004).

Trial court properly granted the city's motion to dismiss the military servicemembers' challenge to the annexation of approximately 28 square miles of land and over 40,000 residents as time-barred because the federal Servicemembers Civil Relief Act, specifically 50 U.S.C.S. app. § 525, did not contain a plain statement showing an unmistakably clear intent to intrude upon North Carolina's state sovereignty in the area of annexations, where: (1) the word "annexation" appeared nowhere in the statute; (2) the Act's fundamental purpose was to address personal financial claims, not large-scale government action; and (3) the servicemembers failed to cite a single case which applied the Act to non-personal claims challenging large-scale government action. Kegley v. City of Fayetteville, 170 N.C. App. 656, 613 S.E.2d 696, review denied, 359 N.C. 852, 619 S.E.2d 508 (2005), cert. denied, 546 U.S. 1138, 126 S. Ct. 1147, 163 L. Ed. 2d 1001 (2006).

Remand Required. - Because a trial court failed to make the appropriate finding that a city's annexation ordinance was not subject to correction upon remand before declaring it null and void, an appellate court remanded the case to the trial court for it to make the appropriate findings to support one of the statutory grounds under G.S. 160A-50(g). Fix v. City of Eden, 175 N.C. App. 1, 622 S.E.2d 647 (2005).

Improper Purpose and Public Policy Arguments. - When the owners of property which a village proposed to involuntarily annex contested the village's annexation ordinance, pursuant to G.S. 160A-50(f), and appealed a trial court's judgment in favor of the village, the court of appeals could not consider the owners' arguments that the village's annexation plan revealed an improper purpose for the annexation or that the annexation was contrary to public policy because these were not issues the court of appeals could consider, under the statutory limits of the court of appeals' review. Pinewild Project Ltd. P'ship v. Vill. of Pinehurst, 198 N.C. App. 347, 679 S.E.2d 424 (2009), review denied, 363 N.C. 856, 691 S.E.2d 17, N.C. LEXIS 110 (2010).

Sufficiency of Annexation Report. - City's annexation report was appropriate to the extent which (1) it contained a statement setting forth the plans of the city for the extension of street maintenance services to the annexation area in compliance with G.S. 160A-47(3)(a); (2) it complied with G.S. 160A-47 regarding the sewer service installation fee; (3) it provided a sufficient statement in an annexation report showing the financial impact of the annexation as required by G.S. 160A-47(5); and (4) it complied with G.S. 160A-47.1 regarding the extension of water and sewer services. However, the city's setting of an annexation boundary parallel to a road within a mobile home park property did not comply with the requirements of G.S. 160A-48(e). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, review denied, 365 N.C. 362, 719 S.E.2d 22, 2011 N.C. LEXIS 964 (2011).

IV. EFFECTIVE DATE.

.

Effect of Appeal. - Where petitioner appealed an annexation ordinance to the superior court within the time limits of subsection (a) of this section, but not before the ordinance's effective date of December 31, 1979, and the superior court on February 18, 1980, remanded the annexation plan report to the town board for a more specific statement of the services to be provided and the sources of revenues to finance such services, and where the infirmities in the report were cured by a revised plan adopted on February 26, 1980, this date became the effective date of the annexation ordinance, subject to further appeal to the superior court. Where such appeal was taken and the superior court entered an order on March 4, 1980, approving the revised annexation plan report and affirming the annexation, the effective date of the annexation became March 4, 1980, subject to further appeal to the North Carolina Supreme Court (now to the Court of Appeals). When petitioner appealed from that judgment to the Supreme Court, the effective date of the ordinance was again postponed by the language of subsection (i) of this section, until the date the final judgment of the Supreme Court was certified to the clerk of the superior court. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), rehearing denied, 301 N.C. 728, 274 S.E.2d 230 (1981).

The effective date of annexation ordinance was July 11, 1983, the date the judgment of the Court of Appeals holding the ordinance to be valid was certified, and not December 6, 1983, the date of the Supreme Court's order dismissing plaintiffs' appeal and denying discretionary review of the judgment of the Court of Appeals, as the final judgment in the annexation case was the judgment of the Court of Appeals. Hunter v. City of Asheville, 80 N.C. App. 325, 341 S.E.2d 743 (1986).

Act which decreased the corporate boundaries of town was constitutional and plaintiffs were time-barred from asserting any further challenges. Bethania Town Lot Comm. v. City of Winston-Salem, 126 N.C. App. 783, 486 S.E.2d 729 (1997).


§ 160A-58.61. Annexation recorded.

Whenever the limits of a municipality are enlarged in accordance with the provisions of this Part, it shall be the duty of the mayor of the municipality to cause an accurate map of such annexed territory, together with a copy of the ordinance duly certified, to be recorded in the office of the register of deeds of the county or counties in which such territory is situated and in the office of the Secretary of State. The documents required to be filed with the Secretary of State under this section shall be filed not later than 30 days following the effective date of the annexation ordinance. All documents shall have an identifying number affixed thereto and shall conform in size in accordance with rules prescribed by the Secretary. Failure to file within 30 days shall not affect the validity of the annexation. Any annexation shall be reported as part of the Boundary and Annexation Survey of the United States Bureau of the Census.

History

(1959, c. 1009, s. 7; 1973, c. 426, s. 74; 1987, c. 715, s. 8; c. 879, s. 3; 1989, c. 440, s. 9; 1991, c. 586, s. 3; 2011-396, s. 5.)

Cross References. - As to effective date of certain annexation ordinances adopted from January 1, 1987, to August 3, 1987, see G.S. 160A-58.9.

Editor's Note. - This section was formerly G.S. 160A-51. It was recodified as G.S. 160A-58.61 by Session Laws 2011-396, s. 5, effective July 1, 2011.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

CASE NOTES

Recordation of Map and Ordinance Not Condition Precedent to Annexation. - The requirement in this section that a map of the annexed territory, together with a certified copy of the ordinance, be recorded in the office of the register of deeds and in the office of the Secretary of State is not a condition precedent to the effective annexation of the territory, but is the imposition of a duty to be performed after the annexation is complete. Dale v. City of Morganton, 270 N.C. 567, 155 S.E.2d 136 (1967).


§ 160A-58.62. Authorized expenditures.

Municipalities initiating annexations under the provisions of this Part are authorized to make expenditures for surveys required to describe the property under consideration or for any other purpose necessary to plan for the study and/or annexation of unincorporated territory adjacent to the municipality. In addition, following final passage of the annexation ordinance, the annexing municipality shall have authority to proceed with expenditures for construction of water and sewer lines and other capital facilities and for any other purpose calculated to bring services into the annexed area in a more effective and expeditious manner prior to the effective date of annexation.

History

(1959, c. 1009, s. 8; 1973, c. 426, s. 74; 2011-396, s. 6.)

Editor's Note. - This section was formerly G.S. 160A-52. It was recodified as G.S. 160A-58.62 by Session Laws 2011-396, s. 6, effective July 1, 2011.

Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."


§ 160A-58.63. Population and land estimates.

In determining population and degree of land subdivision for purposes of meeting the requirements of G.S. 160A-58.54, the municipality shall use methods calculated to provide reasonably accurate results. In determining whether the standards set forth in G.S. 160A-58.54 have been met on appeal to the superior court under G.S. 160A-58.60, the reviewing court shall accept the estimates of the municipality unless the actual population, total area, or degree of land subdivision falls below the standards in G.S. 160A-58.54:

  1. As to population, if the estimate is based on the number of dwelling units in the area multiplied by the average family size in such area, or in the township or townships of which such area is a part, as determined by the last preceding federal decennial census; or if it is based on a new enumeration carried out under reasonable rules and regulations by the annexing municipality; provided, that the court shall not accept such estimates if the petitioners demonstrate that such estimates are in error in the amount of ten percent (10%) or more.
  2. As to total area, if the estimate is based on an actual survey, or on county tax maps or records, or on aerial photographs, or on some other reasonably reliable map used for official purposes by a governmental agency, unless the petitioners on appeal demonstrate that such estimates are in error in the amount of five percent (5%) or more.
  3. As to degree of land subdivision, if the estimates are based on an actual survey, or on county tax maps or records, or on aerial photographs, or on some other reasonably reliable source, unless the petitioners on appeal show that such estimates are in error in the amount of five percent (5%) or more.

History

(2011-396, s. 9.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."

CASE NOTES

Determining What Is a "Lot". - In making an appraisal of an area to be annexed, there are several methods which can be used in determining what is a lot. One is to count each numbered lot separately. Another is to consider a landlocked lot as part of the lot in front of it and group the two lots, i.e., the landlocked lot and the one providing it with access to a street, as being a single lot. A third method would be to consider a group of lots in single ownership and used for a single purpose as being a tract within the meaning of the statute, and count tracts rather than lots. Any one of these methods would be "calculated to provide reasonably accurate results," as required by this section. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681 (1969).

Property owners did not show that a town was unreasonable in relying upon an actual survey, as allowed by G.S. 160A-36; thus, the reviewing court did not err in concluding that one property consisted of two separate lots for the purposes of the subdivision test. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717 (2004), cert. denied, 359 N.C. 410, 612 S.E.2d 320 (2005).

Recorded Plat. - Recorded plat was not a "reasonably reliable" source for purposes of showing subdivision where: (1) property shown on plat had never actually been developed; (2) county tax office had exceeded its statutory authority in classifying property as "subdivision," because it was not divided into lots and there were no streets (G.S. 105-287); (3) the property had never been surveyed; and (4) no lots had ever been sold. Further, aerial photographs showed no road while recorded plat did. When accuracy of record evidence proffered by city to meet requisites for annexation is belied by evidence of actual condition of property, such records are not "reasonably reliable" for the purposes of this section. Thrash v. City of Asheville, 327 N.C. 251, 393 S.E.2d 842 (1990).

Use of Planimeter to Calculate Acreage. - See Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, cert. denied, 306 N.C. 559, 294 S.E.2d 371 (1982).

Annexation Proper. - Village essentially complied with the requirements of G.S. 160A-42 because the village used methods calculated to provide reasonably accurate results to determine the degree of land subdivision for purposes of G.S. 160A-36. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524 (2008), review denied, review dismissed, as moot, 363 N.C. 582, 682 S.E.2d 386 (2009).

.

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195 (1984), cert. denied and appeal dismissed, 313 N.C. 514, 329 S.E.2d 392 (1985).

Tests as to Urban Development to Be Applied to Whole Annexation Area. - The tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1, 249 S.E.2d 698 (1978).

Micro Approach Calculations Meet Urbanization Test. - Town met the urbanization test for annexation, where the town used a "micro approach" whereby it determined the number of dwelling units in each census block within the area to be annexed, then determined the average family size therein, then multiplied the number of dwelling units in each census block by the average family size to calculate the estimated population of each block, and finally added the block numbers together to produce the population estimate. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, cert. denied, 349 N.C. 241, 516 S.E.2d 611 (1998).

Evidence Not Admissible to Challenge City's Methodology. - Where petitioners challenged a city annexation ordinances, the trial court properly ruled that their spreadsheets could not be offered to show that the city's methodology was not calculated to provide reasonably accurate results, as required by G.S. 160A-54, because they presented no expert testimony about the spreadsheets, and testimony of the city's principal planner was insufficient to establish a foundation for their admissibility. Brown v. City of Winston-Salem, 176 N.C. App. 497, 626 S.E.2d 747 (2006).

Census figures are more reliable than any formula that alters the figures by arbitrarily assuming vacancy rates and adjusting for dwelling unit size. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

This section contains no requirement regarding the use of final census data and there is no judicially imposed requirement. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Although this statute specifies the use of federal census data, it does not require the use of final rather than preliminary census data. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898 (1984).

Applicability of Error Margins to Calculations Under § 160A-48(c). - The five percent error margins allowed in subdivisions (2) and (3) of this section apply exclusively to calculations made by the municipality for purposes of establishing compliance with the population and subdivision tests contained within the alternative standards prescribed by G.S. 160A-48(c). Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

The language of this section is free from ambiguity and represents a legislative determination that margins of error should be allowed with respect to the calculations made by a municipality to establish compliance with the population and subdivision tests of G.S. 160A-48(c), but not with respect to the calculations made to establish compliance with the use test of G.S. 160A-48(c). Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

Method of Calculating Number of Lots. - A municipality is not tied to any particular method of calculating the number of lots so long as the method utilized is calculated to provide reasonably accurate results. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

The fact that different methods of lot calculation have been used by the city in past annexations is of no import where the record establishes that the method utilized in the annexation under scrutiny complies with the requirements of this section. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

It is eminently reasonable for the city to follow actual use and ownership patterns instead of artificial patterns of subdivision in determining the number of lots in the area to be annexed. Such method of lot counting was calculated to provide reasonably accurate results as required by this section. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

Petitioners Failed to Meet Burden to Show Inaccuracy of City's Methodology. - Petitioners challenging a city's annexation ordinances failed to show the city misclassified the lots to be annexed or that the county tax maps it relied on were inaccurate. As they offered no reliable evidence that the city's methodology was inaccurate and not calculated to provide reasonably accurate results, as required by G.S. 106A-54, the ordinances were properly deemed valid. Brown v. City of Winston-Salem, 176 N.C. App. 497, 626 S.E.2d 747 (2006).


§ 160A-58.64. Referendum prior to involuntary annexation ordinance.

  1. After the adoption of the resolution of intent under this Part, the municipality shall place the question of annexation on the ballot. The municipal governing board shall notify the appropriate county board or boards of elections of the adoption of the resolution of intent and provide a legible map and clear written description of the proposed annexation area.
  2. In accordance with G.S. 160A-58.55, the municipal governing board shall adopt a resolution setting the date for the referendum and so notify the appropriate county board or boards of elections.
  3. The county board or boards of elections shall cause legal notice of the election to be published. That notice shall include the general statement of the referendum. The referendum shall be conducted, returned, and the results declared as in other municipal elections in the municipality. Only registered voters of the proposed annexation area shall be allowed to vote on the referendum.
  4. The referendum of any number of proposed involuntary annexations may be submitted at the same election; but as to each proposed involuntary annexation, there shall be an entirely separate ballot question.
  5. The ballots used in a referendum shall submit the following proposition:
  6. If less than a majority of the votes cast on the referendum are for annexation, the municipal governing body may not proceed with the adoption of the annexation ordinance or begin a separate involuntary annexation process with respect to that proposed annexation area for at least 36 months from the date of the referendum. If a majority of the votes cast on the referendum are for annexation, the municipal governing body may proceed with the adoption of the annexation ordinance under G.S. 160A-58.55.

"[ ] FOR [ ] AGAINST

The annexation of (clear description of the proposed annexation area)."

History

(2012-11, s. 1; 2014-115, s. 15.1.)

Effect of Amendments. - Session Laws 2014-115, s. 15.1, effective August 11, 2014, substituted "G.S. 160A-58.55" for "G.S. 163-58.55" in subsection (b).

§§ 160A-58.65 through 160A-58.89: Reserved for future codification purposes.

PART 8. RECORDING AND REPORTING.

§ 160A-58.90. Recording and Reporting.

  1. Annexations made under this Article shall be recorded and reported in the same manner as under G.S. 160A-29.
  2. To be enforceable, any written agreement with a person having a freehold interest in real property regarding annexation shall be recorded in the county register of deeds office in which the real property lies.

History

(2011-396, s. 11.)

Editor's Note. - Session Laws 2011-396, s. 12, provides: "Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners." Sections 10, 11.1, and 11.2 amended G.S. 160A-31, 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: "This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act."


ARTICLE 5. Form of Government.

Part 1. General Provisions.

Sec.

Part 2. Mayor and Council.

Part 3. Organization and Procedures of the Council.

Part 3A. Ethics Codes and Education Programs.

Part 4. Modification of Form of Government.

PART 1. GENERAL PROVISIONS.

§ 160A-59. Qualifications for elective office.

All city officers elected by the people shall possess the qualifications set out in Article VI of the Constitution. In addition, when the city is divided into electoral districts for the purpose of electing members of the council, council members shall reside in the district they represent. When any elected city officer ceases to meet all of the qualifications for holding office pursuant to the Constitution, or when a council member ceases to reside in an electoral district that he was elected to represent, the office is ipso facto vacant.

History

(1973, c. 609.)

Local Modification. - City of Roanoke Rapids: 1995, c. 34, s. 1; town of Tarboro: 1995, c. 73, s. 3.2.

§ 160A-60. Qualifications for appointive office.

Residence within a city shall not be a qualification for or prerequisite to appointment to any city office not filled by election of the people, unless the charter or an ordinance provides otherwise. City councils shall have authority to fix qualifications for appointive offices, but shall have no authority to waive qualifications for appointive offices fixed by charters or general laws.

History

(1870-1, c. 24, s. 3; Code, s. 3796; Rev., s. 2941; C.S., s. 2646; 1951, c. 24; 1969, c. 134, s. 1; 1971, c. 698, s. 1.)

Editor's Note. - Session Laws 2012-11, s. 5, effective July 1, 2012, and applicable to any annexation ordinance adopted under Part 7 of Article 4A of Chapter 160A of the General Statutes on or after July 1, 2012, provided that "G.S. 160A-60(a) reads as rewritten" when, in fact, the text that was set out in the act matched that of G.S. 160A-58.60(a). At the direction of the Revisor of Statutes, the amendment was not implemented. Subsequently, Session Laws 2013-410, s. 15, amended the introductory language of Session Laws 2012-11, s. 5, so that it now identifies G.S. 160A-58.60 as the section being amended.

CASE NOTES

Editor's Note. - Some of the cases below were decided under former similar provisions.

Former G.S. 160-25 dealt merely with the qualification of the appointee and not with the character of the office. State v. Hord, 264 N.C. 149, 141 S.E.2d 241 (1965).

Vacating Office for Preexisting Impediment. - While there can be no serious doubt of the right of a corporate body to vacate the seat of a corporate officer for adequate causes arising subsequent to taking his seat, there has been no precedent for depriving a member of his place by the action of a municipal body of which he is a member for any preexisting impediment affecting his capacity to hold the office. Ellison v. Aldermen of Raleigh, 89 N.C. 125 (1883).

Right to Declaratory Judgment. - When the rights of parties were affected by provisions similar to this section and other statutes, to the end that they might be relieved "from uncertainty and insecurity" such parties were entitled to have the applicable statutes construed and their rights declared, and a real controversy existed between the parties. Bland v. City of Wilmington, 278 N.C. 657, 180 S.E.2d 813 (1971).

City Charter Prescribing Qualifications of Firemen Not Repealed by Former Provisions. - Former G.S. 160-25 and 160-115.1 did not repeal the provisions of a city's charter prescribing the qualifications of its firemen. Bland v. City of Wilmington, 278 N.C. 657, 180 S.E.2d 813 (1971).


§ 160A-61. Oath of office.

Every person elected by the people or appointed to any city office shall, before entering upon the duties of the office, take and subscribe the oath of office prescribed in Article VI, § 7 of the Constitution. Oaths of office shall be administered by some person authorized by law to administer oaths, and shall be filed with the city clerk.

History

(R.C., c. 111, s. 12; Code, s. 3799; Rev., s. 2920; C.S., s. 2628; 1971, c. 698, s. 1.)

§ 160A-62. Officers to hold over until successors qualified.

All city officers, whether elected or appointed, shall continue to hold office until their successors are chosen and qualified. This section shall not apply when an office or position has been abolished, when an appointed officer or employee has been discharged, or when an elected officer has been removed from office.

History

(R.C., c. 111, s. 8; Code, s. 3792; Rev., s. 2943; C.S., s. 2648; 1971, c. 698, s. 1.)

CASE NOTES

Liability for Negligent Obstructions. - The city did not owe a special duty to a cable television repairman who was electrocuted by a fallen unmarked power line, and as plaintiff did not allege any intentional misconduct on the part of the city which would survive application of the public duty doctrine, the city was immune to liability. Vanasek v. Duke Power Co., 132 N.C. App. 335, 511 S.E.2d 41 (1999).

Cited in Pritchard v. Elizabeth City, 318 N.C. App. 417, 344 S.E.2d 821 (1986).


§ 160A-63. Vacancies.

A vacancy that occurs in an elective office of a city shall be filled by appointment of the city council. If the term of the office expires immediately following the next regular city election, or if the next regular city election will be held within 90 days after the vacancy occurs, the person appointed to fill the vacancy shall serve the remainder of the unexpired term. Otherwise, a successor shall be elected at the next regularly scheduled city election that is held more than 90 days after the vacancy occurs, and the person appointed to fill the vacancy shall serve only until the elected successor takes office. The elected successor shall then serve the remainder of the unexpired term. If the number of vacancies on the council is such that a quorum of the council cannot be obtained, the mayor shall appoint enough members to make up a quorum, and the council shall then proceed to fill the remaining vacancies. If the number of vacancies on the council is such that a quorum of the council cannot be obtained and the office of mayor is vacant, the Governor may fill the vacancies upon the request of any remaining member of the council, or upon the petition of any five registered voters of the city. Vacancies in appointive offices shall be filled by the same authority that makes the initial appointment. This section shall not apply to vacancies in cities that have not held a city election, levied any taxes, or engaged in any municipal functions for a period of five years or more.

In cities whose elections are conducted on a partisan basis, a person appointed to fill a vacancy in an elective office shall be a member of the same political party as the person whom he replaces if that person was elected as the nominee of a political party.

History

(R.C., c. 111, ss. 9, 10; Code, ss. 3793, 3794; Rev., ss. 2921, 2931; C.S., ss. 2629, 2631; 1971, c. 698, s. 1; 1973, c. 426, s. 11; 1983, c. 827, s. 1.)

Local Modification. - Wilmington/New Hanover County Consolidated Government: 1987, c. 643; city of Elizabeth City: 2001-227, s. 1; city of Lumberton: 1983 (Reg. Sess., 1984), c. 1009; city of Monroe: 2000-35, s.1; city of Roanoke Rapids: 1995, c. 34, s. 1; town of Carrboro: 2007-270, s. 1; 2013-113, s. 1; town of Connelly: 1989, c. 528, s. 1; town of Franklinton: 1993, c. 160, s. 1; town of Littleton: 2002-20, s. 1; town of Mills River: 2003-242, s. 3.5; town of Mount Gilead: 2015-234, s. 1; town of North Topsail Beach: 2021-49, s. 1; town of Norwood: 2018-106, s. 1; town of Tarboro: 1995, c. 73, s. 1.

Editor's Note. - Notwithstanding G.S. 160A-63 and Section 3.3 of the Charter of the Town of North Topsail Beach, being Chapter 100 of the 1989 Session Laws, for the 2021 municipal election, all five board of aldermen seats shall be on the ballot for election. The three candidates who receive the highest number of votes shall be elected for four-year terms, while the two candidates who receive the next highest number of votes shall be elected for two-year terms. In 2023 and thereafter, the board of aldermen shall be elected as provided for in the Charter and Chapter 163 of the General Statutes.

Opinions of Attorney General

This Section Provides for Filling Vacancy Created by Official's Departure. - Upon arriving at a determination that an elected town official has removed his residence to another electoral jurisdiction, a town council, pursuant to the provisions of this section, may fill the vacancy created by the official's departure. See opinion of Attorney General to Mr. John C. Wessell, III, Town Attorney, Surf City (Pender County), 58 N.C.A.G. 28 (1988).

§ 160A-64. Compensation of mayor and council.

  1. The council may fix its own compensation and the compensation of the mayor and any other elected officers of the city by adoption of the annual budget ordinance, but the salary of an elected officer other than a member of the council may not be reduced during the then-current term of office unless he agrees thereto. The mayor, councilmen, and other elected officers are entitled to reimbursement for actual expenses incurred in the course of performing their official duties at rates not in excess of those allowed to other city officers and employees, or to a fixed allowance, the amount of which shall be established by the council, for travel and other personal expenses of office; provided, any fixed allowance so established during a term of office shall not be increased during such term of office.
  2. All charter provisions in effect as of January 1, 1972, fixing the compensation or allowances of any city officer or employee are repealed, but persons holding office or employment on January 1, 1972, shall continue to receive the compensation and allowances then prescribed by law until the council provides otherwise in accordance with this section or G.S. 160A-162.

History

(1969, c. 181, s. 1; 1971, c. 698, s. 1; 1973, c. 426, s. 12; c. 1145; 1979, 2nd Sess., c. 1247, s. 1.)

§ 160A-64.1. Withholding compensation; money judgment against council member.

In addition to any other enforcement available, the finance officer of a city that obtains a final judgment awarding monetary damages against an elected or appointed member of the city council, either individually or jointly, may enforce that final judgment using any of the remedies set forth in G.S. 105-366(b) or the procedure for attachment and garnishment set forth in G.S. 105-368 as if final judgment awarding monetary damages were delinquent taxes and that finance officer were the tax collector. The provision of G.S. 105-368(a) that limits the amount of compensation that may be garnished to not more than ten percent (10%) for any one pay period shall not apply to this section.

History

(2014-40, s. 1.)

Cross References. - As to withholding of compensation to enforce money judgments against members of county boards of commissioners, see G.S. 153A-30.

Editor's Note. - Session Laws 2014-40, s. 3, made this section effective October 1, 2014, and applicable to final judgments awarding monetary damages that are unsatisfied or entered on or after that date.

§ 160A-65: Repealed by Session Laws 1975, c. 514, s. 17.

PART 2. MAYOR AND COUNCIL.

§ 160A-66. Composition of council.

Unless otherwise provided by its charter, each city shall be governed by a mayor and a council of three members, who shall be elected from the city at large for terms of two years.

History

(1971, c. 698, s. 1.)

§ 160A-67. General powers of mayor and council.

Except as otherwise provided by law, the government and general management of the city shall be vested in the council. The powers and duties of the mayor shall be such as are conferred upon him by law, together with such other powers and duties as may be conferred upon him by the council pursuant to law. The mayor shall be recognized as the official head of the city for the purpose of service of civil process, and for all ceremonial purposes.

History

(1971, c. 698, s. 1.)

CASE NOTES

City council, and not the city, was responsible for the government and general management of the city, and, thus, had final policymaking authority; accordingly, the city could not be held liable for its alleged retaliation against the storage business regarding the billing of it for water and sewer services as the entity liable had to be found liable for its policy or custom that violated the rights of another and the city was not responsible for making policy or customs. United States Cold Storage, Inc. v. City of Lumberton, 34 Fed. Appx. 429 (4th Cir. 2002).

Cited in Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317 (1995); Concrete Mach. Co. v. City of Hickory, 134 N.C. App. 91, 517 S.E.2d 155 (1999).


PART 3. ORGANIZATION AND PROCEDURES OF THE COUNCIL.

§ 160A-68. Organizational meeting of council.

  1. The council may fix the date and time of its organizational meeting. The organizational meeting may be held at any time after the results of the municipal election have been officially determined and published pursuant to Subchapter IX of Chapter 163 of the General Statutes but not later than the date and time of the first regular meeting of the council in December after the results of the municipal election have been certified pursuant to that Subchapter. If the council fails to fix the date and time of its organizational meeting, then the meeting shall be held on the date and at the time of the first regular meeting in December after the results of the municipal election have been certified pursuant to Subchapter IX of Chapter 163 of the General Statutes.
  2. At the organizational meeting, the newly elected mayor and councilmen shall qualify by taking the oath of office prescribed in Article VI, Section 7 of the Constitution. The organization of the council shall take place notwithstanding the absence, death, refusal to serve, failure to qualify, or nonelection of one or more members, but at least a quorum of the members must be present.
  3. All local acts or provisions of city charters which prescribe a particular meeting day or date for the organizational meeting of a council are hereby repealed.

History

(1971, c. 698, s. 1; 1973, c. 426, s. 13; c. 607; 1979, c. 168; 1979, 2nd Sess., c. 1247, s. 2; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Re-recodification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled 'Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "Article 27 of Chapter 163A" for "Subchapter IX of Chapter 163" twice in subsection (a).

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1, repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the change to the references in subsection (a).

Editor's Note. - Session Laws 2021-56, s.1(f), provides: "The individual certified as the winner of the 2022 election held in accordance with this act shall hold office until the expiration of the term under the municipal charter as if the election had been held in 2021. Notwithstanding G.S. 160A-68, the individual certified as the winner of the 2022 election may be sworn into office at any time after issuance of the certificate of election."

Session Laws 2021-56, s. 1.9, provides: "This act shall not apply to offices elected at large in any municipality where there is an election of municipal officers scheduled for 2021, where less than the entire jurisdiction is eligible to vote for candidates for one or more offices on the 2021, and that municipality has notified the county board of elections at least five business days prior to the opening of the 2021 filing period as provided in Article 23 or 24 of Chapter 163 of the General Statutes for the method of election for that municipality. If the county board of elections is so notified, the county board of elections shall open the filing period for the offices elected at large only for that municipality and conduct the election in 2021 in accordance with that municipality's charter and Chapter 163 of the General Statutes."

Opinions of Attorney General

For discussion of legal impediments which prohibit employers from disclosing personal information about their employees, see opinion of Attorney General to Bryan E. Beatty, Inspector General, North Carolina Department of Justice, 1998 N.C.A.G. 49 (12/1/98).

§ 160A-69. Mayor to preside over council.

The mayor shall preside at all council meetings, but shall have the right to vote only when there are equal numbers of votes in the affirmative and in the negative. In a city where the mayor is elected by the council from among its membership, and the city charter makes no provision as to the right of the mayor to vote, he shall have the right to vote as a council member on all matters before the council, but shall have no right to break a tie vote in which he participated.

History

(1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 3.)

Local Modification. - Town of Lewisville: 1991, c. 116, s. 1.

CASE NOTES

Power of Mayor to Vote. - Ordinarily, the office of mayor is of an executive or administrative character, and he is not permitted to vote except in cases where it is especially provided. Markham v. Simpson, 175 N.C. 135, 95 S.E. 106 (1918), decided under prior law.


§ 160A-70. Mayor pro tempore; disability of mayor.

At the organizational meeting, the council shall elect from among its members a mayor pro tempore to serve at the pleasure of the council. A councilman serving as mayor pro tempore shall be entitled to vote on all matters and shall be considered a councilman for all purposes, including the determination of whether a quorum is present. During the absence of the mayor, the council may confer upon the mayor pro tempore any of the powers and duties of the mayor. If the mayor should become physically or mentally incapable of performing the duties of his office, the council may by unanimous vote declare that he is incapacitated and confer any of his powers and duties on the mayor pro tempore. Upon the mayor's declaration that he is no longer incapacitated, and with the concurrence of a majority of the council, the mayor shall resume the exercise of his powers and duties. In the event both the mayor and the mayor pro tempore are absent from a meeting, the council may elect from its members a temporary chairman to preside in such absence.

History

(1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 4.)

Local Modification. - City of Reidsville: 1989 (Reg. Sess., 1990), c. 957, s. 1; 1993, c. 306, s. 1 (subject to preclearance); town of Autryville: 1991, c. 384, s. 1; town of Elkin: 1987, c. 740, s. 1; town of Franklinton: 1993, c. 160, s. 1; town of Mount Holly: 1995 (Reg. Sess., 1996), c. 620, s. 1; town of Walnut Cove: 1991, c. 447, s. 1.

§ 160A-71. Regular and special meetings; recessed and adjourned meetings; procedure.

  1. The council shall fix the time and place for its regular meetings. If no action has been taken fixing the time and place for regular meetings, a regular meeting shall be held at least once a month at 10:00 A.M. on the first Monday of the month.
    1. The mayor, the mayor pro tempore, or any two members of the council may at any time call a special council meeting by signing a written notice stating the time and place of the meeting and the subjects to be considered. The notice shall be delivered to the mayor and each councilman or left at his usual dwelling place at least six hours before the meeting. Only those items of business specified in the notice may be transacted at a special meeting, unless all members are present or have signed a written waiver of notice. In addition to the procedures set out in this subsection or any city charter, a person or persons calling a special meeting of a city council shall comply with the notice requirements of Article 33C of General Statutes Chapter 143. (b) (1)  The mayor, the mayor pro tempore, or any two members of the council may at any time call a special council meeting by signing a written notice stating the time and place of the meeting and the subjects to be considered. The notice shall be delivered to the mayor and each councilman or left at his usual dwelling place at least six hours before the meeting. Only those items of business specified in the notice may be transacted at a special meeting, unless all members are present or have signed a written waiver of notice. In addition to the procedures set out in this subsection or any city charter, a person or persons calling a special meeting of a city council shall comply with the notice requirements of Article 33C of General Statutes Chapter 143.
    2. Special meetings may be held at any time when the mayor and all members of the council are present and consent thereto, or when those not present have signed a written waiver of notice.
    3. During any regular meeting, or any duly called special meeting, the council may call or schedule a special meeting, provided that the motion or resolution calling or scheduling any such special meeting shall specify the time, place and purpose or purposes of such meeting and shall be adopted during an open session.
  3. Any regular or duly called special meeting may be recessed to reconvene at a time and place certain, or may be adjourned to reconvene at a time and place certain, by the council.
  4. The council may adopt its own rules of procedure, not inconsistent with the city charter, general law, or generally accepted principles of parliamentary procedure.

History

(1917, c. 136, subch. 13, s. 1; C.S., s. 2822; 1971, c. 698, s. 1; 1973, c. 426, s. 14; 1977, 2nd Sess., c. 1191, s. 7; 1979, 2nd Sess., c. 1247, s. 5; 1989, c. 770, s. 37.)

Local Modification. - City of Winston-Salem: 1927, c. 232, s. 13, as amended by 1963, c. 888; 2011-130.

Legal Periodicals. - For survey of 1978 administrative law, see 57 N.C.L. Rev. 831 (1979).

§ 160A-72. Minutes to be kept; ayes and noes.

Full and accurate minutes of the council proceedings shall be kept, and shall be open to the inspection of the public. The results of each vote shall be recorded in the minutes, and upon the request of any member of the council, the ayes and noes upon any question shall be taken.

History

(1917, c. 136, subch. 13, s. 1; C.S., s. 2822; 1971, c. 698, s. 1; 1973, c. 426, s. 15.)

CASE NOTES

Requirement that a full and accurate journal of the proceedings be kept is merely directory and not a condition precedent to the validity of a contract regularly entered into by the municipality. Town of Graham v. Karpark Corp., 194 F.2d 616 (4th Cir. 1952), decided under former § 160-269.

§ 160A-73: Repealed by Session Laws 1971, c. 896, s. 16.

Editor's Note. - The repealed section had been enacted by Session Laws 1971, c. 698, s. 1, and required public legislative sessions of the council and that the results of each vote be recorded in the minutes.

§ 160A-74. Quorum.

  1. A majority of the actual membership of the council plus the mayor, excluding vacant seats, shall constitute a quorum. A member who has withdrawn from a meeting without being excused by majority vote of the remaining members present shall be counted as present for purposes of determining whether or not a quorum is present.
  2. Any member present by means of simultaneous communication in accordance with G.S. 166A-19.24 shall be counted as present for the purposes of whether a quorum is present only during the period while simultaneous communication is maintained for that member.

History

(1917, c. 136, subch. 13, s. 1; C.S., s. 2821; 1971, c. 698, s. 1; 1975, c. 664, s. 5; 1979, 2nd Sess., c. 1247, s. 6; 2020-3, s. 4.31(f).)

Local Modification. - City of Roanoke Rapids: 1995, c. 34, s. 1.

Editor's Note. - Session Laws 2020-3, s. 4.31(j), made subsection (b) of this section, as added by Session Laws 2020-3, s. 4.31(f), effective May 4, 2020, and applicable throughout the duration of any declaration of emergency issued under G.S. 166A-19.20 in effect on or after that date, and further provides: "The actions of any public body in an open meeting conducted via simultaneous communication between March 10, 2020, and the effective date of this section are not deemed invalid due to the use of simultaneous communication to conduct that open meeting."

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2020-3, s. 4.31(f), added subsection (b). For effective date and applicability, see editor's note.

§ 160A-75. Voting.

  1. No member shall be excused from voting except upon matters involving the consideration of the member's own financial interest or official conduct or on matters on which the member is prohibited from voting under G.S. 14-234 or G.S. 160D-109. In all other cases except votes taken under G.S. 160D-601, a failure to vote by a member who is physically present in the council chamber, or who has withdrawn without being excused by a majority vote of the remaining members present, shall be recorded as an affirmative vote. The question of the compensation and allowances of members of the council is not a matter involving a member's own financial interest or official conduct.
  2. Notwithstanding subsection (a) of this section, a vote or failure to vote by any member present by means of simultaneous communication in accordance with G.S. 166A-19.24 shall be treated as if the member were physically present only during the period while simultaneous communication is maintained for that member.
  3. An affirmative vote equal to a majority of all the members of the council not excused from voting on the question in issue, including the mayor's vote in case of an equal division, shall be required to adopt an ordinance, take any action having the effect of an ordinance, authorize or commit the expenditure of public funds, or make, ratify, or authorize any contract on behalf of the city. In addition, no ordinance nor any action having the effect of any ordinance, except an ordinance on which a public hearing must be held pursuant to G.S. 160D-601 before the ordinance may be adopted, may be finally adopted on the date on which it is introduced except by an affirmative vote equal to or greater than two thirds of all the actual membership of the council, excluding vacant seats and not including the mayor unless the mayor has the right to vote on all questions before the council. For purposes of this section, an ordinance shall be deemed to have been introduced on the date the subject matter is first voted on by the council.

History

(1917, c. 136, subch. 13, s. 1; C.S., s. 2821; 1971, c. 698, s. 1; 1973, c. 426, s. 16; 1979, 2nd Sess., c. 1247, s. 7; 1983, c. 696; 2001-409, s. 9; 2005-426, s. 5.1(a); 2013-126, s. 11; 2015-160, s. 5; 2019-111, s. 2.5(n); 2020-3, ss. 4.31(h), 4.33(a); 2020-25, s. 51(a), (b), (d).)

Local Modification. - City of Burlington: 2014-74, s. 1; city of Mebane: 2017-82, s. 1; city of New Bern: 2016-41, s. 1; town of Elon College: 1985, c. 109.

Editor's Note. - Session Laws 2001-409, s. 10, provides that prosecutions for offenses committed before the effective dates of the provisions of the act [Session Laws 2001-409 is effective July 1, 2002] are not abated or affected by the act, and the statutes that would be applicable but for the act remain applicable to those prosecutions.

Session Laws 2015-160, s. 6, made the amendment to this section by Session Laws 2015-160, s. 5, applicable to zoning ordinance changes initiated on or after August 1, 2015.

Session Laws 2019-111, s. 2.8, is a severability clause.

Session Laws 2019-111, s. 3.2, as amended by Session Laws 2020-3, s. 4.33(a), made the amendment of this section by Session Laws 2019-111, s. 2.5(n), effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that: "Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date." Session Laws 2020-25, s. 51(a), (b), and (d), effective June 19, 2020, repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33(a), and provides: "Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

"(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

"(2) July 1, 2021."

Session Laws 2020-3, s. 4.31(j), made subsection (b) of this section and the subsection (a) and (c) designations, as added by Session Laws 2020-3, s. 4.31(h), applicable throughout the duration of any declaration of emergency issued under G.S. 166A-19.20 in effect on or after that date, and further provides: "The actions of any public body in an open meeting conducted via simultaneous communication between March 10, 2020, and the effective date of this section are not deemed invalid due to the use of simultaneous communication to conduct that open meeting."

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2005-426, s. 5.1(a), effective January 1, 2006, substituted "G.S. 14-234, 160A-381(d), or 160A-388(e1)" for "G.S. 14-234" in the first paragraph.

Session Laws 2013-126, s. 11, effective October 1, 2013, substituted "160A-388(e)(2)" for "160A-388(c1)" at the end of the first sentence in the first paragraph. For applicability, see Editor's note.

Session Laws 2015-160, s. 5, effective August 1, 2015, inserted "except votes taken under G.S. 160A-385" in the second sentence of the first paragraph. For applicability, see editor's note.

Session Laws 2019-111, s. 2.5(n), in the first paragraph, substituted "G.S. 14-234 or G.S. 160D-901" for "G.S. 14-234, 160A-381(d), or 160A-388(e)(2)" at the end of the first sentence, and substituted "G.S. 160D-601" for "G.S. 160A-385" near the beginning of the second sentence; and substituted "ordinance, except an ordinance on which a public hearing must be held pursuant to G.S. 160D-601 before the ordinance may be adopted, may" for "ordinance may" in the second sentence of the second paragraph. For effective date and applicability, see Editor's note.

Session Laws 2020-3, s. 4.31(h), effective January 1, 2021, added the subsections (a) and (c) designations to the existing provisions of the section; and added subsection (b). For applicability, see editor's note.

CASE NOTES

Personnel Policy Must Be Adopted with Formalities to Create Right. - In North Carolina to create property rights, a personnel policy must not merely be adopted, but must be adopted with the formalities necessary for it to rise to the level of an ordinance, and where plaintiff's only evidence as to personnel policy was an affidavit from the clerk of the board of commissioners stating that the personnel policy was "adopted" by the town board, the plaintiff was merely an at-will employee with no property interest in his employment and no procedural due process protections. Dunn v. Town of Emerald Isle, 722 F. Supp. 1309 (E.D.N.C. 1989), aff'd, 918 F.2d 955 (4th Cir. 1990).

Settlement of Annexation Disputes. - Settlements of annexation disputes under G.S. 160A-50(m) are not "actions having the effect of an ordinance" under G.S. 160A-75, but are a method of dispute resolution in the annexation process; therefore, there is no need to send the matter back to city council after a settlement is reached. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521 (2005).

Cited in Sherrill v. Town of Wrightsville Beach, 81 N.C. App. 369, 344 S.E.2d 357 (1986); County of Lancaster v. Mecklenburg County, 334 N.C. 496, 434 S.E.2d 604 (1993).


§ 160A-76. Franchises; technical ordinances.

  1. No ordinance making a grant, renewal, extension, or amendment of any franchise shall be finally adopted until it has been passed at two regular meetings of the council, and no such grant, renewal, extension, or amendment shall be made otherwise than by ordinance.
  2. Any published technical code or any standards or regulations promulgated by any public agency may be adopted in an ordinance by reference subject to G.S. 143-138(e). A technical code or set of standards or regulations adopted by reference in a city ordinance shall have the force of law within the city. Official copies of all technical codes, standards, and regulations adopted by reference shall be maintained for public inspection in the office of the city clerk.

History

(1917, c. 136, subch. 13; C.S., s. 2823; 1963, c. 790; 1971, c. 698, s. 1; 1973, c. 426, s. 17.)

Local Modification. - City of Kinston: 2012-139, s. 2(a).

CASE NOTES

Cited in County of Wake v. N.C. Dep't of Env't, 155 N.C. App. 225, 573 S.E.2d 572 (2002), cert. dismissed, 357 N.C. 62, 579 S.E.2d 387 (2003).


§ 160A-77. Code of ordinances.

  1. Not later than July 1, 1974, each city having a population of 5,000 or more shall adopt and issue a code of its ordinances. The code may be reproduced by any method that gives legible and permanent copies, and may be issued as a securely bound book or books with periodic separately bound supplements, or as a loose-leaf book maintained by replacement pages. Supplements or replacement pages should be adopted and issued annually at least, unless no additions to or modifications of the code have been adopted by the council during the year. The code may consist of two separate parts, the "General Ordinances" and the "Technical Ordinances." The technical ordinances may be published as separate books or pamphlets, and may include ordinances regarding the construction of buildings, the installation of plumbing and electric wiring, the installation of cooling and heating equipment, the use of public utilities, buildings, or facilities operated by the city, the zoning ordinance, the subdivision control ordinance, the privilege license tax ordinance, and other similar technical ordinances designated as such by the council. The council may omit from the code designated classes of ordinances of limited interest or transitory nature, but the code should clearly describe the classes of ordinances omitted therefrom.
  2. The council may provide that one or more of the following classes of ordinances shall be codified by appropriate entries upon official map books to be retained permanently in the office of the city clerk or some other city office generally accessible to the public:
    1. Establishing or amending the boundaries of zoning districts;
    2. Designating the location of traffic control devices;
    3. Designating areas or zones where regulations are applied to parking, loading, bus stops, or taxicab stands;
    4. Establishing speed limits;
    5. Restricting or regulating traffic at certain times on certain streets, or to certain types, weights or sizes of vehicles;
    6. Designating the location of through streets, stop intersections, yield-right-of-way intersections, waiting lanes, one-way streets, or truck traffic routes; and
    7. Establishing regulations upon vehicle turns at designated locations.
  3. The council may provide that the classes of ordinances described in paragraphs (2) through (6) of subsection (b) above, and ordinances establishing rates for utility or other public enterprise services, or ordinances establishing fees of any nature, shall be codified by entry upon official lists or schedules of the regulations established by such ordinances, or schedules of such rates or fees, to be maintained in the office of the city clerk.
  4. It is the intent of this section to make uniform the law concerning the adoption of city codes. To this end, all charter provisions in conflict with this section in effect as of January 1, 1972, are expressly repealed, except to the extent that the charter makes adoption of a code mandatory, and no local act taking effect on or after January 1, 1972, shall be construed to repeal or amend this section in whole or in part unless it shall expressly so provide by specific reference.

History

(1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, ss. 8, 9.)

Local Modification. - City of Williamston: 1975, c. 420.

CASE NOTES

Burden of Proof. - Because a town failed to comply with its obligations under local ordinances and state law by failing to keep official zoning maps on record for public inspection, the appropriate remedy was to place the burden back on the town to establish the location and classification of zoning districts when a landowner began a nonconforming use. Shearl v. Town of Highlands, 236 N.C. App. 113, 762 S.E.2d 877 (2014).

Applied in Johnson v. Town of Longview, 37 N.C. App. 61, 245 S.E.2d 516 (1978).

Cited in In re Jacobs, 33 N.C. App. 195, 234 S.E.2d 639 (1977); Pinehurst Area Realty, Inc. v. Village of Pinehurst, 100 N.C. App. 77, 394 S.E.2d 251 (1990), review denied and appeal dismissed, 328 N.C. 92, 402 S.E.2d 417.


§ 160A-78. Ordinance book.

Effective January 1, 1972, each city shall file a true copy of each ordinance adopted on or after January 1, 1972, in an ordinance book separate and apart from the council's minute book. The ordinance book shall be appropriately indexed and maintained for public inspection in the office of the city clerk. Effective July 1, 1973, true copies of all ordinances that were adopted before January 1, 1972, and are still in effect shall be filed and indexed in the ordinance book. If the city has adopted and issued a code of ordinances in compliance with G.S. 160A-77, its ordinances shall be filed and indexed in the ordinance book until they are codified.

History

(1971, c. 698, s. 1.)

CASE NOTES

Burden of Proof. - Because a town failed to comply with its obligations under local ordinances and state law by failing to keep official zoning maps on record for public inspection, the appropriate remedy was to place the burden back on the town to establish the location and classification of zoning districts when a landowner began a nonconforming use. Shearl v. Town of Highlands, 236 N.C. App. 113, 762 S.E.2d 877 (2014).

Applied in Johnson v. Town of Longview, 37 N.C. App. 61, 245 S.E.2d 516 (1978).

Cited in Lewis v. White, 287 N.C. 625, 216 S.E.2d 134 (1975).


§ 160A-79. Pleading and proving city ordinances.

  1. In all civil and criminal cases a city ordinance that has been codified in a code of ordinances adopted and issued in compliance with G.S. 160A-77 must be pleaded by both section number and caption. In all civil and criminal cases a city ordinance that has not been codified in a code of ordinances adopted and issued in compliance with G.S. 160A-77 must be pleaded by its caption. In both instances, it is not necessary to plead or allege the substance or effect of the ordinance unless the ordinance has no caption and has not been codified.
  2. Any of the following shall be admitted in evidence in all actions or proceedings before courts or administrative bodies and shall have the same force and effect as would an original ordinance:
    1. A city code adopted and issued in compliance with G.S. 160A-77, containing a statement that the code is published by order of the council.
    2. Copies of any part of an official map book maintained in accordance with G.S. 160A-77 and certified under seal by the city clerk as having been adopted by the council and maintained in accordance with its directions (the clerk's certificate need not be authenticated).
    3. A copy of an ordinance as set out in the minutes, code, or ordinance book of the council, certified under seal by the city clerk as a true copy (the clerk's certificate need not be authenticated).
    4. Copies of any official lists or schedules maintained in accordance with G.S. 160A-77 and certified under seal by the city clerk as having been adopted by the council and maintained in accordance with its directions (the clerk's certificate need not be authenticated).
  3. The burden of pleading and proving the existence of any modification or repeal of an ordinance, map, or code, a copy of which has been duly pleaded or admitted in evidence in accordance with this section, shall be upon the party asserting such modification or repeal. It shall be presumed that any portion of a city code that is admitted in evidence in accordance with this section has been codified in compliance with G.S. 160A-77, and the burden of pleading and proving to the contrary shall be upon the party seeking to obtain an advantage thereby.
  4. From and after the respective effective dates of G.S. 160A-77 and 160A-78, no city ordinance shall be enforced or admitted into evidence in any court unless it has been codified or filed and indexed in accordance with G.S. 160A-77 or 160A-78. It shall be presumed that an ordinance which has been properly pleaded and proved in accordance with this section has been codified or filed and indexed in accordance with G.S. 160A-77 or 160A-78, and the burden of pleading and proving to the contrary shall be upon the party seeking to obtain an advantage thereby.
  5. It is the intent of this section to make uniform the law concerning the pleading and proving of city ordinances. To this end, all charter provisions in conflict with this section in effect as of January 1, 1972, are expressly repealed, and no local act taking effect on or after January 1, 1972, shall be construed to repeal or amend this section in whole or in part unless it shall expressly so provide by specific reference.

History

(1917, c. 136, subch. 13, s. 14; C.S., s. 2825; 1959, c. 631; 1971, c. 698, s. 1; 1973, c. 426, s. 18; 1979, 2nd Sess., c. 1247, s. 10.)

Cross References. - As to application of this section to county ordinances, see G.S. 153A-50.

CASE NOTES

Editor's Note. - Some of the cases cited below were decided under former statutory provisions.

Judicial Notice Not Taken of Ordinance. - Courts of general jurisdiction and the Supreme Court will not take judicial notice of a municipal ordinance. High Point Surplus Co. v. Pleasants, 263 N.C. 587, 139 S.E.2d 892, rev'd on other grounds, 264 N.C. 650, 142 S.E.2d 697 (1965).

Warrant or Indictment to Set Out or Plead Ordinance. - Criminal prosecution for violation of a municipal ordinance cannot be maintained if the warrant or indictment on which it is based does not set out the ordinance or plead it in a manner permitted by statute. State v. Wiggs, 269 N.C. 507, 153 S.E.2d 84 (1967); State v. W.N.C. Pallet & Forest Prod. Co., 283 N.C. 705, 198 S.E.2d 433 (1973).

Excerpt of Ordinance in Indictment May Be Construed with Entire Ordinance. - The courts, when called upon to construe an excerpt from an ordinance set out in a bill of indictment, may interpret the excerpt correctly by construing it with the rest of the ordinance, certainly when the entire ordinance is before the court by stipulation of the parties. High Point Surplus Co. v. Pleasants, 263 N.C. 587, 139 S.E.2d 892, rev'd on other grounds, 264 N.C. 650, 142 S.E.2d 697 (1965).

Nonsuit for Variance Allowed. - Where a warrant charging disorderly conduct did not contain any allegations, specific or general, to the effect that the prosecution was for violation of a municipal ordinance, but the municipal ordinance was introduced in evidence and the trial proceeded as though defendant had been charged with violation of the ordinance, nonsuit for variance would be allowed. State v. Wiggs, 269 N.C. 507, 153 S.E.2d 84 (1967).

Best Evidence of Zoning Line's Location. - While an appellate court did not hold that the plain meaning of G.S. 160A-79 foreclosed other methods of proof, the court did agree that an official map or a copy thereof was the best evidence of a zoning line's location when a property owner began a nonconforming use. Shearl v. Town of Highlands, 236 N.C. App. 113, 762 S.E.2d 877 (2014).

Ordinance Properly Proved. - In a personal injury action for damages, the introduction of an ordinance of a town regulating the speed of trains backing upon the track, properly proven, would not be regarded as error on appeal, when it was proved that upon the evidence in the case the jury had found, upon a trial without legal error, that the negligence of defendant's employees proximately caused the personal injury for which damages were sought in the action. Parker v. Seaboard Air Line Ry., 181 N.C. 95, 106 S.E. 755 (1921).

Applied in In re Jacobs, 33 N.C. App. 195, 234 S.E.2d 639 (1977).

Cited in Johnson v. Town of Longview, 37 N.C. App. 61, 245 S.E.2d 516 (1978).


§ 160A-80. Power of investigation; subpoena power.

  1. The council shall have power to investigate the affairs of the city, and for that purpose may subpoena witnesses, administer oaths, and compel the production of evidence.
  2. If a person fails or refuses to obey a subpoena issued pursuant to this section, the council may apply to the General Court of Justice for an order requiring that its order be obeyed, and the court shall have jurisdiction to issue these orders after notice to all proper parties. No testimony of any witness before the council pursuant to a subpoena issued in exercise of the power conferred by this section may be used against him on the trial of any civil or criminal action other than a prosecution for false swearing committed on the examination. If any person, while under oath at an investigation by the council, willfully swears falsely, he is guilty of a Class 1 misdemeanor.
  3. Repealed by Session Laws 1991, c. 512, s. 1, effective July 2, 1991.

History

(1971, c. 698, s. 1; 1991, c. 512, s. 1; 1993, c. 539, s. 1083; 1994, Ex. Sess., c. 24, s. 14(c).)

CASE NOTES

Radio and Television Coverage. - Though radio and television coverage may not be necessary to the conduct of investigative hearings by municipalities, it does not follow that it is unreasonable to permit such coverage; conversely, radio and television coverage is reasonably consistent with the concept of a fully informed public, a concept which is receiving ever increasing support as the public becomes more fully informed. Leak v. High Point City Council, 25 N.C. App. 394, 213 S.E.2d 386 (1975).


§ 160A-81. Conduct of public hearings.

Public hearings may be held at any place within the city or within the county in which the city is located. The council may adopt reasonable rules governing the conduct of public hearings, including but not limited to rules (i) fixing the maximum time allotted to each speaker, (ii) providing for the designation of spokesmen for groups of persons supporting or opposing the same positions, (iii) providing for the selection of delegates from groups of persons supporting or opposing the same positions when the number of persons wishing to attend the hearing exceeds the capacity of the hall, and (iv) providing for the maintenance of order and decorum in the conduct of the hearing.

The council may continue any public hearing without further advertisement. If a public hearing is set for a given date and a quorum of the council is not then present, the hearing shall be continued until the next regular council meeting without further advertisement.

History

(1971, c. 698, s. 1.)

CASE NOTES

Application to Annexation Hearings. - Nothing in this section indicates that its application should be limited to public hearings not concerning annexation. Thrash v. City of Asheville, 115 N.C. App. 310, 444 S.E.2d 482 (1994).

Radio and Television Coverage. - Though radio and television coverage may not be necessary to the conduct of investigative hearings by municipalities, it does not follow that it is unreasonable to permit such coverage; conversely, radio and television coverage is reasonably consistent with the concept of a fully informed public, a concept which is receiving ever increasing support as the public becomes more fully informed. Leak v. High Point City Council, 25 N.C. App. 394, 213 S.E.2d 386 (1975).


§ 160A-81.1. Public comment period during regular meetings.

The council shall provide at least one period for public comment per month at a regular meeting of the council. The council may adopt reasonable rules governing the conduct of the public comment period, including, but not limited to, rules (i) fixing the maximum time allotted to each speaker, (ii) providing for the designation of spokesmen for groups of persons supporting or opposing the same positions, (iii) providing for the selection of delegates from groups of persons supporting or opposing the same positions when the number of persons wishing to attend the hearing exceeds the capacity of the hall, and (iv) providing for the maintenance of order and decorum in the conduct of the hearing. The council is not required to provide a public comment period under this section if no regular meeting is held during the month.

History

(2005-170, s. 3.)

§ 160A-82. Applicability of Part.

Nothing in this Part, except G.S. 160A-77, 160A-78 and 160A-79, shall be construed to repeal any portion of any city charter inconsistent with anything contained herein.

History

(1971, c. 698, s. 1.)

§§ 160A-83 through 160A-85: Reserved for future codification purposes.

PART 3A. ETHICS CODES AND EDUCATION PROGRAMS.

§ 160A-86. Local governing boards' code of ethics.

  1. Governing boards of cities, counties, local boards of education, unified governments, sanitary districts, and consolidated city-counties shall adopt a resolution or policy containing a code of ethics to guide actions by the governing board members in the performance of the member's official duties as a member of that governing board.
  2. The resolution or policy required by subsection (a) of this section shall address at least all of the following:
    1. The need to obey all applicable laws regarding official actions taken as a board member.
    2. The need to uphold the integrity and independence of the board member's office.
    3. The need to avoid impropriety in the exercise of the board member's official duties.
    4. The need to faithfully perform the duties of the office.
    5. The need to conduct the affairs of the governing board in an open and public manner, including complying with all applicable laws governing open meetings and public records.

History

(2009-403, s. 1.)

Editor's Note. - Session Laws 2009-403, s. 1, enacted this section as G.S. 160A-83. It has been renumbered as this section at the direction of the Revisor of Statutes.

§ 160A-87. Ethics education program required.

  1. All members of governing boards of cities, counties, local boards of education, unified governments, sanitary districts, and consolidated city-counties shall receive a minimum of two clock hours of ethics education within 12 months after initial election or appointment to the office and again within 12 months after each subsequent election or appointment to the office.
  2. The ethics education shall cover laws and principles that govern conflicts of interest and ethical standards of conduct at the local government level.
  3. The ethics education may be provided by the North Carolina League of Municipalities, North Carolina Association of County Commissioners, North Carolina School Boards Association, the School of Government at the University of North Carolina at Chapel Hill, or other qualified sources at the choice of the governing board.
  4. The clerk to the governing board shall maintain a record verifying receipt of the ethics education by each member of the governing board.

History

(2009-403, s. 1.)

Editor's Note. - Session Laws 2009-403, s. 1, enacted this section as G.S. 160A-84. It has been renumbered as this section at the direction of the Revisor of Statutes.

PART 4. MODIFICATION OF FORM OF GOVERNMENT.

§ 160A-101. Optional forms.

Any city may change its name or alter its form of government by adopting any one or combination of the options prescribed by this section:

  1. Name of the corporation:
  2. Style of the corporation:
  3. Style of the governing board:
  4. Terms of office of members of the council:
  5. Number of members of the council:
  6. Mode of election of the council:
    1. All candidates shall be nominated and elected by all the qualified voters of the city.
    2. The city shall be divided into single-member electoral districts; council members shall be apportioned to the districts so that each member represents the same number of persons as nearly as possible, except for members apportioned to the city at large, if any; the qualified voters of each district shall nominate and elect candidates who reside in the district for seats apportioned to that district; and all the qualified voters of the city shall nominate and elect candidates apportioned to the city at large, if any.
    3. The city shall be divided into single-member electoral districts; council members shall be apportioned to the districts so that each member represents the same number of persons as nearly as possible, except for members apportioned to the city at large; and candidates shall reside in and represent the districts according to the apportionment plan adopted, but all candidates shall be nominated and elected by all the qualified voters of the city.
    4. The city shall be divided into electoral districts equal in number to one half the number of council seats; the council seats shall be divided equally into "ward seats" and "at-large seats," one each of which shall be apportioned to each district, so that each council member represents the same number of persons as nearly as possible; the qualified voters of each district shall nominate and elect candidates to the "ward seats"; candidates for the "at-large seats" shall reside in and represent the districts according to the apportionment plan adopted, but all candidates for "at-large" seats shall be nominated and elected by all the qualified voters of the city.
    5. The city shall be divided into single-member electoral districts; council members shall be apportioned to the districts so that each member represents the same number of persons as nearly as possible, except for members apportioned to the city at large, if any; in a nonpartisan primary, the qualified voters of each district shall nominate two candidates who reside in the district, and the qualified voters of the entire city shall nominate two candidates for each seat apportioned to the city at large, if any; and all candidates shall be elected by all the qualified voters of the city.
  7. Elections:
    1. Partisan. - Municipal primaries and elections shall be conducted on a partisan basis as provided in G.S. 163-291.
    2. Nonpartisan Plurality. - Municipal elections shall be conducted as provided in G.S. 163-292
    3. Nonpartisan Election and Runoff Election. - Municipal elections and runoff elections shall be conducted as provided in G.S. 163-293.
    4. Nonpartisan Primary and Election. - Municipal primaries and elections shall be conducted as provided in G.S. 163-294.
  8. Selection of mayor:
    1. The mayor shall be elected by all the qualified voters of the city for a term of not less than two years nor more than four years.
    2. The mayor shall be selected by the council from among its membership to serve at its pleasure.
  9. Form of government:
    1. The city shall operate under the mayor-council form of government in accordance with Part 3 of Article 7 of this Chapter.
    2. The city shall operate under the council-manager form of government in accordance with Part 2 of Article 7 of this Chapter and any charter provisions not in conflict therewith.

The name of the corporation may be changed to any name not deceptively similar to that of another city in this State.

The city may be styled a city, town, or village.

The governing board may be styled the board of commissioners, the board of aldermen, or the council.

Members of the council shall serve terms of office of either two or four years. All of the terms need not be of the same length, and all of the terms need not expire in the same year.

The council shall consist of any number of members not less than three nor more than 12.

If either of options b, c, d or e is adopted, the council shall divide the city into the requisite number of single-member electoral districts according to the apportionment plan adopted, and shall cause a map of the districts so laid out to be drawn up and filed as provided by G.S. 160A-22 and 160A-23. No more than one half of the council may be apportioned to the city at large. An initiative petition may specify the number of single-member electoral districts to be laid out, but the drawing of district boundaries and apportionment of members to the districts shall be done in all cases by the council.

Under option a, the mayor may be given the right to vote on all matters before the council, or he may be limited to voting only to break a tie. Under option b, the mayor has the right to vote on all matters before the council. In both cases the mayor has no right to break a tie vote in which he participated.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1; c. 1076, s. 1; 1973, c. 426, s. 19; c. 1001, ss. 1, 2; 1975, c. 19, s. 64; c. 664, s. 6; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Local Modification. - (As to Part 4) Wilmington/New Hanover County Consolidated Government: 1987, c. 643; city of Bessemer City: 1991, c. 293; (as to Part 4) city of Greensboro: 2015-138, s. 2(b), as amended by 2015-264, s. 85.5.

Re-codification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "163A-1615" for "163-291" in sub-subdivision (7)a.; substituted "163A-1616" for "163-292" in sub-subdivision (7)b.; substituted "163A-1617" for "163-293" in sub-subdivision (7)c.; and substituted "163A-1618" for "163-294" in sub-subdivision (7)d.

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in subdivision (7).

Editor's Note. - Session Laws 1975, c. 664, which added references to option e. in subdivision (6), provided in s. 6(c): "Nothing contained in this section shall be construed to alter any existing form of government of any municipality."

CASE NOTES

Applied in Disher v. Weaver, 308 F. Supp. 2d 614 (M.D.N.C. 2004).

§ 160A-102. Amendment by ordinance.

By following the procedure set out in this section, the council may amend the city charter by ordinance to implement any of the optional forms set out in G.S. 160A-101. The council shall first adopt a resolution of intent to consider an ordinance amending the charter. The resolution of intent shall describe the proposed charter amendments briefly but completely and with reference to the pertinent provisions of G.S. 160A-101, but it need not contain the precise text of the charter amendments necessary to implement the proposed changes. At the same time that a resolution of intent is adopted, the council shall also call a public hearing on the proposed charter amendments, the date of the hearing to be not more than 45 days after adoption of the resolution. A notice of the hearing shall be published at least once not less than 10 days prior to the date fixed for the public hearing, and shall contain a summary of the proposed amendments. Following the public hearing, but not earlier than the next regular meeting of the council and not later than 60 days from the date of the hearing, the council may adopt an ordinance amending the charter to implement the amendments proposed in the resolution of intent.

The council may, but shall not be required to unless a referendum petition is received pursuant to G.S. 160A-103, make any ordinance adopted pursuant to this section effective only if approved by a vote of the people, and may by resolution adopted at the same time call a special election for the purpose of submitting the ordinance to a vote. The date fixed for the special election shall be the next date permitted under G.S. 163-287(a) that is more than 70 days after adoption of the ordinance.

Within 10 days after an ordinance is adopted under this section, the council shall publish a notice stating that an ordinance amending the charter has been adopted and summarizing its contents and effect. If the ordinance is made effective subject to a vote of the people, the council shall publish a notice of the election in accordance with G.S. 163-287, and need not publish a separate notice of adoption of the ordinance.

The council may not commence proceedings under this section between the time of the filing of a valid initiative petition pursuant to G.S. 160A-104 and the date of any election called pursuant to such petition.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1; 1973, c. 426, s. 20; 1979, 2nd Sess., c. 1247, s. 11; 2014-111, s. 18; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Local Modification. - City of Greenville: 1989, c. 359, s. 1.

Re-codification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "163A-1592(a)" for "163-287(a)" in the second paragraph; and substituted "163A-1592" for "163-287" in the next to last paragraph.

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to references in this section.

Effect of Amendments. - Session Laws 2014-111, s. 18, effective August 6, 2014, substituted "the next date permitted under G.S. 163-287(a) that is more than 70 days" for "not more than 90 days" in the last sentence of the second paragraph.


§ 160A-103. Referendum on charter amendments by ordinance.

An ordinance adopted under G.S. 160A-102 that is not made effective upon approval by a vote of the people shall be subject to a referendum petition. Upon receipt of a referendum petition bearing the signatures and residence addresses of a number of qualified voters of the city equal to at least 10 percent of the whole number of voters who are registered to vote in city elections according to the most recent figures certified by the State Board of Elections or 5,000, whichever is less, the council shall submit an ordinance adopted under G.S. 160A-102 to a vote of the people. The date of the special election shall be fixed on a date permitted by G.S. 163-287. A referendum petition shall be addressed to the council and shall identify the ordinance to be submitted to a vote. A referendum petition must be filed with the city clerk not later than 30 days after publication of the notice of adoption of the ordinance.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, ss. 13, 15; 2013-381, s. 10.27; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Local Modification. - City of Wilson: 1989, c. 107, s. 1; Town of Castle Hayne: 2011-166 (effective upon certification of election results as to incorporation); town of Duck: 2001-394, s. 1; town of Eastover: 2007-267, s. 1 (contingent on preclearance under Section 5 of the Voting Rights Act of 1965); town of Rougemont: 2011-114, s. 1 (effective upon certification of election results as to incorporation); town of St. James: 1999-241, s. 1.

Re-codification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "Bipartisan State Board of Elections and Ethics Enforcement" for "State Board of Elections" and "163A-1592" for "163-287."

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to the references in this section.

Effect of Amendments. - Session Laws 2013-381, s. 10.27, effective January 1, 2014, substituted "on a date permitted by G.S. 163-287" for "at not more than 120 nor fewer than 60 days after receipt of the petition" at the end of the third sentence of this section. For applicability, see Editor's note.


§ 160A-104. Initiative petitions for charter amendments.

The people may initiate a referendum on proposed charter amendments. An initiative petition shall bear the signatures and resident addresses of a number of qualified voters of the city equal to at least ten percent (10%) of the whole number of voters who are registered to vote in city elections according to the most recent figures certified by the State Board of Elections or 5,000, whichever is less. The petition shall set forth the proposed amendments by describing them briefly but completely and with reference to the pertinent provisions of G.S. 160A-101, but it need not contain the precise text of the charter amendments necessary to implement the proposed changes. The petition may not propose changes in the alternative, or more than one integrated set of charter amendments. Upon receipt of a valid initiative petition, the council shall call a special election on the question of adopting the charter amendments proposed therein, and shall give public notice thereof in accordance with G.S. 163-287. The date of the special election shall be fixed on a date permitted by G.S. 163-287. If a majority of the votes cast in the special election shall be in favor of the proposed changes, the council shall adopt an ordinance amending the charter to put them into effect. Such an ordinance shall not be subject to a referendum petition. No initiative petition may be filed (i) between the time the council initiates proceedings under G.S. 160A-102 by publishing a notice of hearing on proposed charter amendments and the time proceeding under that section have been carried to a conclusion either through adoption or rejection of a proposed ordinance or lapse of time, nor (ii) within one year and six months following the effective date of an ordinance amending the city charter pursuant to this Article, nor (iii) within one year and six months following the date of any election on charter amendments that were defeated by the voters.

The restrictions imposed by this section on filing initiative petitions shall apply only to petitions concerning the same subject matter. For example, pendency of council action on amendments concerning the method of electing the council shall not preclude an initiative petition on adoption of the council-manager form of government.

Nothing in this section shall be construed to prohibit the submission of more than one proposition for charter amendments on the same ballot so long as no proposition offers a different plan under the same option as another proposition on the same ballot.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1; 1973, c. 426, s. 21; 1979, 2nd Sess., c. 1247, ss. 12, 14; 2013-381, s. 10.28; 2017-6, s. 3; 2018-146, ss. 3.1(a), (b), 6.1.)

Local Modification. - City of Charlotte: 1998-212, s. 24.2(a).

Re-codification; Technical and Conforming Changes. - Session Laws 2017-6, s. 3, provides, in part: "The Revisor of Statutes shall recodify Chapter 138A of the General Statutes, Chapter 120C of the General Statutes, as well as Chapter 163 of the General Statutes, as amended by this act, into a new Chapter 163A of the General Statutes to be entitled `Elections and Ethics Enforcement Act,' as enacted by Section 4 of this act. The Revisor may also recodify into the new Chapter 163A of the General Statutes other existing statutory laws relating to elections and ethics enforcement that are located elsewhere in the General Statutes as the Revisor deems appropriate." The Revisor was further authorized to make additional technical and conforming changes to catchlines, internal citations, and other references throughout the General Statutes to effectuate this recodification, in consultation with the State Ethics Commission, the State Board of Elections, the Secretary of State, and the new Bipartisan State Board of Elections and Ethics Enforcement. Pursuant to this authority, the Revisor of Statutes substituted "Bipartisan State Board of Elections and Ethics Enforcement" for "State Board of Elections" and "163A-1592" for "163-287."

Session Laws 2018-146, ss. 3.1(a), (b) and 6.1 repealed Session Laws 2017-6, s. 3, and authorized the Revisor of Statutes to re-recodify Chapter 163A into Chapters 163, 138A, and 120C and to revert the changes made by the Revisor pursuant to Session Laws 2017-6, s. 3. Pursuant to this authority, the Revisor of Statutes reverted the changes to the references in this section.

Effect of Amendments. - Session Laws 2013-381, s. 10.28, effective January 1, 2014, substituted "on a date permitted by G.S. 163-287" for "at not more than 120 nor fewer than 60 days after receipt of the petition" at the end of the sixth sentence in the first paragraph. For applicability, see Editor's note.


§ 160A-105. Submission of propositions to voters; form of ballot.

A proposition to approve an ordinance or petition shall be printed on the ballot in substantially the following form:

"Shall the ordinance (describe the effect of the ordinance) be approved?

( ) YES

( ) NO"

The ballot shall be separate from all other ballots used at the election.

If a majority of the votes cast on a proposition shall be in the affirmative, the plan contained therein shall be put into effect as provided in this Article. If a majority of the votes cast shall be against the proposition, the ordinance or petition proposing the amendments shall be void and of no effect.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1.)

§ 160A-106. Amendment of charter provisions dependent on form of government.

The authority conferred by this Article to amend charter provisions within the options set out in G.S. 160A-101 also includes authority to amend other charter provisions dependent on the form of city government to conform them to the form of government amendments. By way of illustration and not limitation, if a charter providing for a five-member council is amended to increase the size of the council to seven members, a charter provision defining a quorum of the council as three members shall be amended to define a quorum as four members.

History

(1971, c. 698, s. 1.)

§ 160A-107. Plan to continue for two years.

Charter amendments adopted as provided in this Article shall continue in force for at least two years after the beginning of the term of office of the officers elected thereunder.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1.)

§ 160A-108. Municipal officers to carry out plan.

It shall be the duty of the mayor, the council, the city clerk, and other city officials in office, and all boards of election and election officials, when any plan of government is adopted as provided by this Article or is proposed for adoption, to comply with all requirements of this Article, to the end that all things may be done which are necessary for the nomination and election of the officers first to be elected under the new plan so adopted.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1.)

§ 160A-109. Effective date.

The council may submit new charter amendments proposed under this Article at any regular or special municipal election, or at a special election called for that sole purpose. Any amendment affecting the election of city officers shall be finally adopted and approved at least 90 days before the first election for mayor or council members held thereunder.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1.)

§ 160A-110. Charters to remain in force.

The charter of any city that adopts a new form of government as provided in this Article shall continue in full force and effect notwithstanding adoption of a new form of government, except to the extent modified by an ordinance adopted under the authority conferred and pursuant to the procedures prescribed by this Article.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1.)

§ 160A-111. Filing certified true copies of charter amendments.

The city clerk shall file a certified true copy of any charter amendment adopted under this Part with the Secretary of State, and the Legislative Library.

History

(1985 (Reg. Sess., 1986), c. 935, s. 2; 1989, c. 191, s. 2.)

CASE NOTES

Cited in Jackson v. Charlotte Mecklenburg Hosp. Auth., 238 N.C. App. 351, 768 S.E.2d 23 (2014).


§§ 160A-112 through 160A-115: Reserved for future codification purposes.

ARTICLE 6. Elections.

§§ 160A-116 through 160A-127: Repealed by Session Laws 1971, c. 1076, s. 2.

Cross References. - As to municipal elections, see Article 23 of Chapter 163, G.S. 163-279 et seq.


§§ 160A-128 through 160A-145: Reserved for future codification purposes.

ARTICLE 7. Administrative Offices.

Part 1. Organization and Reorganization of City Government.

Sec.

Part 2. Administration of Council-Manager Cities.

Part 3. Administration of Mayor-Council Cities.

Part 4. Personnel.

Part 5. City Clerk.

Part 6. City Attorney.

PART 1. ORGANIZATION AND REORGANIZATION OF CITY GOVERNMENT.

§ 160A-146. Council to organize city government.

The council may create, change, abolish, and consolidate offices, positions, departments, boards, commissions, and agencies of the city government and generally organize and reorganize the city government in order to promote orderly and efficient administration of city affairs, subject to the following limitations:

  1. The council may not abolish any office, position, department, board, commission, or agency established and required by law;
  2. The council may not combine offices or confer certain duties on the same officer when such action is specifically forbidden by law;
  3. The council may not discontinue or assign elsewhere any functions or duties assigned by law to a particular office, position, department, or agency.

History

(1971, c. 698, s. 1.)

Local Modification. - City of Charlotte: 1973, c. 330.

CASE NOTES

Board of Adjustment. - If a board of adjustment is created, then it must consist of at least five appointees, each with three-year terms. Such terms may not be reduced by the city council as long as the board of adjustment is in existence. However, the prohibition against the reduction of the length of the terms of the members of an existing board of adjustment does not diminish the authority of the city council to abolish the board. Board of Adjustment v. Town of Swansboro, 108 N.C. App. 198, 423 S.E.2d 498 (1992), aff'd, 334 N.C. 421, 432 S.E.2d 310, reh'g denied, 335 N.C. 182, 436 S.E.2d 369 (1993).

A town's board of commissioners authority to organize city government pursuant to this section includes the power to abolish a board of adjustment, appointed and created pursuant to G.S. 160A-388, and to thereafter create a new board of adjustment and make appointments thereto. Board of Adjustment v. Town of Swansboro, 334 N.C. 421, 432 S.E.2d 310, rehearing denied, 335 N.C. 182, 436 S.E.2d 369 (1993).

Cited in Town of Scotland Neck v. Western Sur. Co., 301 N.C. 331, 271 S.E.2d 501 (1980); Frank v. Savage, 205 N.C. App. 183, 695 S.E.2d 509 (2010).


PART 2. ADMINISTRATION OF COUNCIL-MANAGER CITIES.

§ 160A-147. Appointment of city manager; dual office holding.

  1. In cities whose charters provide for the council-manager form of government, the council shall appoint a city manager to serve at its pleasure. The manager shall be appointed solely on the basis of the manager's executive and administrative qualifications. The manager need not be a resident of the city or State at the time of appointment. The office of city manager is hereby declared to be an office that may be held concurrently with other appointive (but not elective) offices pursuant to Article VI, Sec. 9, of the Constitution.
  2. Notwithstanding the provisions of subsection (a), a city manager may serve on a county board of education that is elected on a non-partisan basis if the following criteria are met:
    1. The population of the city by which the city manager is employed does not exceed 10,000;
    2. The city is located in two counties; and
    3. The population of the county in which the city manager resides does not exceed 40,000.
  3. Notwithstanding the provisions of subsection (a) of this section, a city manager may serve on a county board of education that is elected on a nonpartisan basis if the population of the city by which the city manager is employed does not exceed 3,000.
  4. Notwithstanding the provisions of subsection (a), a city manager may hold elective office if the following criteria are met:
    1. The population of the city by which the city manager is employed does not exceed 3,000.
    2. The city manager is an elected official of a city other than the city by which the city manager is employed.
  5. For the purposes of this section, population figures shall be according to the latest United States decennial figures issued at the time the second office is assumed. If census figures issued after the second office is assumed increase the city or county population beyond the limits of this section, the city manager may complete the term of elected office that the city manager is then serving.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1; 1989, c. 49; 1997-25, s. 1; 2009-321, s. 1.)

Local Modification. - Town of Elon College: 1985, c. 109; (As to Part 2) town of Kernersville: 1989, c. 381, s. 12.

Editor's Note. - Session Laws 1989, c. 49, which amended this section, in s. 2 provided: "Whenever a city manager has served on a county board of education consistent with the requirements set forth in G.S. 160A-147(b) as enacted by Section 1 of this act, provided that such dual office holding commenced no earlier than January 1, 1984, that person may continue to serve in such dual capacity and shall not be deemed to have given up the first office upon assumption of the second office. Actions of neither the county board of education nor the city shall be invalid because of the dual office holding permitted or validated by this act."

Effect of Amendments. - Session Laws 2009-321, s. 1, effective July 17, 2009, added subsection (b1).

CASE NOTES

Severance Pay Not at Odds with "At Will" Employment. - An agreement providing severance pay to a town manager does not prohibit, although it may deter, a town from terminating the town manager "at will" in violation of this section. Myers v. Town of Plymouth, 135 N.C. App. 707, 522 S.E.2d 122 (1999).


§ 160A-148. Powers and duties of manager.

  1. The manager shall be the chief administrator of the city. The manager shall be responsible to the council for administering all municipal affairs placed in the manager's charge by the council, and shall have the following powers and duties:
    1. He shall appoint and suspend or remove all city officers and employees not elected by the people, and whose appointment or removal is not otherwise provided for by law, except the city attorney, in accordance with such general personnel rules, regulations, policies, or ordinances as the council may adopt.
    2. He shall direct and supervise the administration of all departments, offices, and agencies of the city, subject to the general direction and control of the council, except as otherwise provided by law.
    3. He shall attend all meetings of the council and recommend any measures that he deems expedient.
    4. He shall see that all laws of the State, the city charter, and the ordinances, resolutions, and regulations of the council are faithfully executed within the city.
    5. He shall prepare and submit the annual budget and capital program to the council.
    6. He shall annually submit to the council and make available to the public a complete report on the finances and administrative activities of the city as of the end of the fiscal year.
    7. He shall make any other reports that the council may require concerning the operations of city departments, offices, and agencies subject to his direction and control.
    8. He shall perform any other duties that may be required or authorized by the council.
    9. The manager shall receive a minimum of six clock hours of education upon the occurrence, or within six months of the occurrence, of any of the following:
      1. The Local Government Commission is exercising its authority under Article 10 of Chapter 159 of the General Statutes with respect to the city.
      2. The city has received a unit letter from the Local Government Commission due to a deficiency in complying with Chapter 159 of the General Statutes.
      3. The city has an internal control material weakness or significant deficiency in the most recently completed financial audit.
      4. The city is included on the most recently published Unit Assistance List issued by the Department of State Treasurer.
  2. The education shall incorporate fiscal management and the requirements of Chapter 159 of the General Statutes. The education may be provided by the Local Government Commission, the School of Government at the University of North Carolina, the North Carolina Community College System, the North Carolina League of Municipalities, the North Carolina Association of County Commissioners, or other qualified sources at the choice of the governing board and upon the prior approval of the Local Government Commission. The clerk to the governing board shall maintain a record verifying receipt of the education by the manager and shall provide this information, upon request, to the Secretary of the Local Government Commission.

History

(1969, c. 629, s. 2; 1971, c. 698, s. 1; 1973, c. 426, s. 22; 2021-124, s. 5.)

Local Modification. - Town of Tryon: 2013-261, s. 4 (as to subdivision (1)).

Effect of Amendments. - Session Laws 2021-124, s. 5, effective August 30, 2021, designated the previously existing provisions as subsection (a); in the second sentence of the introductory paragraph of subsection (a), substituted "the manager's charge” for "his charge” and substituted "the council" for "them"; added subdivision (a)(9); and added subsection (b).

Legal Periodicals. - For article, "Putting Amotion in Motion: Removal of an Elected Official by a Municipal Governing Body for Just Cause," see 32 Campbell L. Rev. 75 (2009).

CASE NOTES

Role of Manager Under Subdivision (1). - Subdivision (1) of this section prohibits the city manager from unilateral adoption of a policy establishing funding for stand-by and on-call duty for any city department. The manager's role is limited to recommending position classification and pay plans to the city council for their ultimate approval. Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125 (1986), cert. denied and appeal dismissed, 319 N.C. 225, 353 S.E.2d 402 (1987).

Liability of City for Malicious Prosecution of Employee by City Manager. - Action of the city manager in instigating the arrest and prosecution of a municipal employee for embezzlement was done in the performance of a governmental function imposed upon the city manager, and therefore the city could not be held liable in tort by such employee in an action for malicious prosecution. McDonald v. Carper, 252 N.C. 29, 112 S.E.2d 741 (1960), decided under former § 160-349.

Sufficiency of Complaint. - Plaintiff's complaint did not sufficiently alleged facts that would support a conclusion that defendant city manager acted in a manner that was contrary to his duty and which he intended to be prejudicial or injurious to another, or acted with a wrongful design to acquire some pecuniary profit or other advantage. Because the appellate court presumed that defendant discharged his duties in good faith and exercised his power in accordance with the spirit and purpose of the law, and plaintiff did not allege facts to the contrary, plaintiff's complaint failed to support a legal conclusion that defendant acted with malice or corruption. Green v. Howell, - N.C. App. - , - S.E.2d - (Nov. 3, 2020).

Cited in Disher v. Weaver, 308 F. Supp. 2d 614 (M.D.N.C. 2004).

§ 160A-149. Acting city manager.

By letter filed with the city clerk, the manager may designate, subject to the approval of the council, a qualified person to exercise the powers and perform the duties of manager during his temporary absence or disability. During this absence or disability, the council may revoke that designation at any time and appoint another to serve until the manager returns or his disability ceases.

History

(1971, c. 698, s. 1.)

§ 160A-150. Interim city manager.

When the position of city manager is vacant, the council shall designate a qualified person to exercise the powers and perform the duties of manager until the vacancy is filled.

History

(1971, c. 698, s. 1.)

§ 160A-151. Mayor and councilmen ineligible to serve or act as manager.

Neither the mayor nor any member of the council shall be eligible for appointment as manager or acting or interim manager.

History

(1971, c. 698, s. 1.)

§ 160A-152. Applicability of Part.

This Part shall apply only to those cities having the council-manager form of government. If the powers and duties of a city manager set out in any city charter shall differ materially from those set out in G.S. 160A-148, the council may by ordinance confer or impose on the manager any of the powers or duties set out in G.S. 160A-148 but not contained in the charter.

History

(1971, c. 698, s. 1.)

§§ 160A-153, 160A-154: Reserved for future codification purposes.

PART 3. ADMINISTRATION OF MAYOR-COUNCIL CITIES.

§ 160A-155. Council to provide for administration in mayor-council cities.

The council shall appoint, suspend, and remove the heads of all city departments, and all other city employees; provided, the council may delegate to any administrative official or department head the power to appoint, suspend, and remove city employees assigned to his department. The head of each department shall see that all laws of the State, the city charter, and the ordinances, resolutions, and regulations of the council concerning his department are faithfully executed within the city. Otherwise, the administration of the city shall be performed as provided by law or direction of the council.

History

(1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 16.)

§ 160A-156. Acting department heads.

By letter filed with the city clerk, the head of any department may designate, subject to the approval of the council, a qualified person to exercise the powers and perform the duties of head of that department during his temporary absence or disability. During his absence or disability, the council may revoke that designation at any time and appoint another officer to serve until the department head returns or his disability ceases.

History

(1971, c. 698, s. 1.)

§ 160A-157. Interim department heads.

When the position of head of any department is vacant, the council may designate a qualified person to exercise the powers and perform the duties of head of the department until the vacancy is filled.

History

(1971, c. 698, s. 1.)

§ 160A-158. Mayor and councilmen ineligible to serve or act as heads of departments.

Neither the mayor nor any member of the council shall be eligible for appointment as head of any city department or as acting or interim head of a department; provided, that in cities having a population of less than 5,000 according to the most recent official federal census, the mayor and any member of the council shall be eligible for appointment by the council as department head or other employee, and may receive reasonable compensation for such employment, notwithstanding any other provision of law.

History

(1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, s. 17.)

§ 160A-159. Applicability of Part.

This Part shall apply only to those cities having the mayor-council form of government.

History

(1971, c. 698, s. 1.)

§§ 160A-160, 160A-161: Reserved for future codification purposes.

PART 4. PERSONNEL.

§ 160A-162. Compensation.

  1. The council shall fix or approve the schedule of pay, expense allowances, and other compensation of all city employees, and may adopt position classification plans; any compensation or pay plan may include provisions for payments to employees on account of sickness or disability. In cities with the council-manager form of government, the manager shall be responsible for preparing position classification and pay plans for submission to the council and, after any such plans have been adopted by the council, shall administer them. In cities with the mayor-council form of government, the council shall appoint a personnel officer (or confer the duties of personnel officer on some city administrative officer); the personnel officer shall then be responsible for administering the pay plan and any position classification plan in accordance with general policies and directives adopted by the council.
  2. The council may purchase life, health, and any other forms of insurance for the benefit of all or any class of city employees and their dependents, and may provide other fringe benefits for city employees. In providing health insurance to city employees, the council shall not provide abortion coverage greater than that provided by the State Health Plan for Teachers and State Employees under Article 3B of Chapter 135 of the General Statutes.

History

(1923, c. 20; 1949, c. 103; 1969, c. 845; 1971, c. 698, s. 1; 1979, 2nd Sess., c. 1247, ss. 18, 19; 2013-366, s. 2(c).)

Effect of Amendments. - Session Laws 2013-366, s. 2(c), effective July 29, 2013, added the second sentence in subsection (b). For applicability, see Editor's note.

CASE NOTES

Policy as to Payment of Employees Must Have Council Approval. - This section makes ineffective any policy as to payment of city employees in the City of Wilmington, a city with the council-manager form of government, without the approval of the Wilmington City Council. Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125 (1986), cert. denied and appeal dismissed, 319 N.C. 225, 353 S.E.2d 402 (1987).

As the evidence before the trial court on a motion for summary judgment filed by a police department did not raise a genuine issue of material fact as to whether numerous current police officers were entitled to a pay increase, because the city council had not approved any pay raise for existing employees of the police department with post-secondary degrees, the trial court properly granted summary judgment in favor of the department and against the contesting officers. City of Asheville v. Bowman, 172 N.C. App. 586, 616 S.E.2d 669 (2005).

Stand-By and On-Call Duty Policy. - Administrative policy issued by city manager's office, which indicated in its initial sentence its purposes "to establish conditions for authorizing stand-by and on-call duty, to define them and to set rates for compensation," fell within the purview of this section and its mandate as to "schedule of pay." Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125 (1986), cert. denied and appeal dismissed, 319 N.C. 225, 353 S.E.2d 402 (1987).

Compensation When No Salary Specified. - Where a municipal corporation engaged a commissioner of its sinking fund under the provisions of its charter, by which the incumbent was employed for a term of years continuously, his employment was that of a public officer, which precluded compensation based upon a quantum meruit, and he could not recover for his services in the absence of express statutory provision. Borden v. City of Goldsboro, 173 N.C. 661, 92 S.E. 694 (1917), decided under former law.

Contract with Town Manager Not Ultra Vires. - The execution of an employment contract providing severance pay to an at-will town manager was not ultra vires. Myers v. Town of Plymouth, 135 N.C. App. 707, 522 S.E.2d 122 (1999).


§ 160A-163. Retirement benefits.

  1. The council may provide for enrolling city employees in the Local Governmental Employees' Retirement System, the Law-Enforcement Officers' Benefit and Relief Fund, the Firemen's Pension Fund, or a retirement plan certified to be actuarially sound by a qualified actuary as defined in subsection (d) of this section, and may make payments into any such retirement system or plan on behalf of its employees. The city may also supplement from local funds benefits provided by the Local Governmental Employees' Retirement System, the Law-Enforcement Officers' Benefit and Relief Fund, or the Firemen's Pension Fund.
  2. The council may create and administer a special fund for the relief of members of the police and fire departments who have been retired for age, or for disability or injury incurred in the line of duty, but any such funds established on or after January 1, 1972, shall be subject to the provisions of subsection (c) of this section. The council may receive donations and devises in aid of any such fund, shall provide for its permanence and increase, and shall prescribe and regulate the conditions under which benefits may be paid.
  3. No city shall make payments into any retirement system or plan established or authorized by local act of the General Assembly unless the plan is certified to be actuarially sound by a qualified actuary as defined in subsection (d) of this section.
  4. A qualified actuary means an individual certified as qualified by the Commissioner of Insurance, or any member of the American Academy of Actuaries.
  5. A city which is providing health insurance under G.S. 160A-162(b) may provide health insurance for all or any class of former employees of the city who are receiving benefits under subsection (a) of this section or who are 65 years of age or older. Such health insurance may be paid entirely by the city, partly by the city and former employee, or entirely by the former employee, at the option of the city.
  6. The council may provide a deferred compensation plan.  Where the council provides a deferred compensation plan, the investment of funds for the plan shall be exempt from the provisions of G.S 159-30 and G.S. 159-31.  Cities may invest deferred compensation plan funds in life insurance, fixed or variable annuities and retirement income contracts, regulated investment trusts, or other forms of investments approved by the Board of Trustees of the North Carolina Public Employee Deferred Compensation Plan.
  7. Should the council provide for a retirement plan, a plan which supplements a State-administered plan, or a special fund, any benefits payable from such plan or fund on account of the disability of city employees may be restricted with regard to the amount which may be earned by the disabled former employee in any other employment, but only to the extent that the earnings of disability beneficiaries in the Local Governmental Employees' Retirement System are restricted in accordance with G.S. 128-27(e)(1).

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1965, c. 931; 1971, c. 698, s. 1; 1981, c. 347, s. 2; 1991, c. 277, s. 2; 1995, c. 259, s. 3; 2011-284, s. 111.)

Effect of Amendments. - Session Laws 2011-284, s. 111, effective June 24, 2011, substituted "devises" for "bequests" in the last sentence of subsection (b).

§ 160A-164. Personnel rules.

The council may adopt or provide for rules and regulations or ordinances concerning but not limited to annual leave, sick leave, special leave with full pay or with partial pay supplementing workers' compensation payments for employees injured in accidents arising out of and in the course of employment, hours of employment, holidays, working conditions, service award and incentive award programs, other personnel policies, and any other measures that promote the hiring and retention of capable, diligent, and honest career employees.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1965, c. 931; 1971, c. 698, s. 1; 1979, c. 714, s. 2.)

CASE NOTES

Role of City Manager. - Section 160A-148(1) prohibits the city manager from the unilateral adoption of a policy establishing the funding for stand-by and on-call duty for any city department. The manager's role is limited to recommending position classification and pay plans to the city council for their ultimate approval. Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125 (1986), cert. denied and appeal dismissed, 319 N.C. 225, 353 S.E.2d 402 (1987).


§ 160A-164.1. Smallpox vaccination policy (see editor's note on condition precedent).

All municipalities that employ firefighters, police officers, paramedics, or other first responders shall, not later than 90 days after this section becomes law, enact a policy regarding sick leave and salary continuation for those employees for absence from work due to an adverse medical reaction resulting from the employee receiving in employment vaccination against smallpox incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No. 107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)).

History

(2003-169, s. 5.)

Cross References. - As to tort claims arising from certain smallpox vaccinations of State employees, see G.S. 143-300.1A.

Condition precedent to recovery. - Session Laws 2003-169, s. 7, provides: "In the event that federal regulatory or statutory provisions providing compensation and benefits to persons for infection with smallpox, infection with vaccinia, or any adverse medical reaction incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No. 107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)) are adopted, a condition precedent to recovery under this act shall be that the person claiming compensation and benefits under this act shall first seek compensation and benefits under the federal provisions, with those provisions constituting primary coverage and the person then being entitled to compensation and benefits under this act not exceeding a total recovery under the federal provisions and this act equal to the amount available under the applicable provisions of this act."

The Smallpox Emergency Personnel Protection Act of 2003, Public Law 108-20, 117, Sta. 638, authorizes the Secretary of Health and Human Services to establish a Smallpox Vaccine Injury Compensation Program, which covers individuals immunized through January 23, 2005 or vaccina contacts who show symptoms by February 22, 2005.

Editor's Note. - Session Laws 2003-169, s. 9, made this section effective June 12, 2003, and applicable to claims arising from infection or adverse medical reactions related to smallpox vaccinations incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No.107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)) whether the infection or adverse medical reactions occurred before, on, or after June 12, 2003.

Session Laws 2003-169, s. 8, is a severability clause.

§ 160A-164.2. Criminal history record check of employees permitted.

The council may adopt or provide for rules and regulations or ordinances concerning a requirement that any applicant for employment be subject to a criminal history record check of State and National Repositories of Criminal Histories conducted by the Department of Public Safety in accordance with G.S. 143B-945. The city may consider the results of these criminal history record checks in its hiring decisions.

History

(2003-214, s. 5; 2014-100, s. 17.1(nnn).)

Cross References. - As to criminal history record checks under the National Crime Prevention and Privacy Compact, see G.S. 143B-981.

Editor's Note. - This section was originally enacted as G.S. 160A-164.1 by Session Laws 2003-214, s. 5. It has been renumbered as G.S. 160A-164.2 at the direction of the Revisor of Statutes.

Session Laws 2014-100, s. 1.1, provides: "This act shall be known as 'The Current Operations and Capital Improvements Appropriations Act of 2014.'"

Session Laws 2014-100, s. 38.7, is a severability clause.

Effect of Amendments. - Session Laws 2014-100, s. 17.1(nnn), effective July 1, 2014, in the first sentence, substituted "Department of Public Safety" for "Department of Justice" and "G.S. 143B-945" for "G.S. 114-19.14."

§ 160A-165. Personnel board.

The council may establish a personnel board with authority to administer tests designed to determine the merit and fitness of candidates for appointment or promotion, to conduct hearings upon the appeal of employees who have been suspended, demoted, or discharged, and hear employee grievances.

History

(1917, c. 136, subch. 5, s. 1; 1919, cc. 136, 237; C.S., s. 2787; 1965, c. 931; 1971, c. 698, s. 1.)

§ 160A-166. Participation in Social Security Act.

The council may take any action necessary to allow city employees to participate fully in benefits provided by the federal Social Security Act.

History

(1949, c. 103; 1969, c. 845; 1971, c. 698, s. 1.)

§ 160A-167. Defense of employees and officers; payment of judgments.

  1. Upon request made by or in behalf of any member or former member of the governing body of any authority, or any city, county, or authority employee or officer, or former employee or officer, any soil and water conservation supervisor or any local soil and water conservation employee, whether the employee is a district or county employee, or any member of a volunteer fire department or rescue squad which receives public funds, any city, authority, county, soil and water conservation district, or county alcoholic beverage control board may provide for the defense of any civil or criminal action or proceeding brought against him either in his official or in his individual capacity, or both, on account of any act done or omission made, or any act allegedly done or omission allegedly made, in the scope and course of his employment or duty as an employee or officer of the city, authority, county or county alcoholic beverage control board. The defense may be provided by the city, authority, county or county alcoholic beverage control board by its own counsel, or by employing other counsel, or by purchasing insurance which requires that the insurer provide the defense. Providing for a defense pursuant to this section is hereby declared to be for a public purpose, and the expenditure of funds therefor is hereby declared to be a necessary expense. Nothing in this section shall be deemed to require any city, authority, county or county alcoholic beverage control board to provide for the defense of any action or proceeding of any nature.
  2. Any city council or board of county commissioners may appropriate funds for the purpose of paying all or part of a claim made or any civil judgment entered against any of its members or former members of the governing body of any authority, or any city, county, or authority employees or officers, or former employees or officers, or any soil and water conservation supervisor or any local soil and water conservation employee, whether the employee is a district or county employee, when such claim is made or such judgment is rendered as damages on account of any act done or omission made, or any act allegedly done or omission allegedly made, in the scope and course of his employment or duty as a member or former member of the governing body of any authority, or any city, county, district, or authority employee or officer of the city, authority, district, or county; provided, however, that nothing in this section shall authorize any city, authority, district, or county to appropriate funds for the purpose of paying any claim made or civil judgment entered against any of its members or former members of the governing body of any authority, or any city, county, district, or authority employees or officers or former employees or officers if the city council or board of county commissioners finds that such members or former members of the governing body of any authority, or any city, county, or authority employee or officer acted or failed to act because of actual fraud, corruption or actual malice on his part. Any city, authority, or county may purchase insurance coverage for payment of claims or judgments pursuant to this section. Nothing in this section shall be deemed to require any city, authority, or county to pay any claim or judgment referred to herein, and the purchase of insurance coverage for payment of any such claim or judgment shall not be deemed an assumption of any liability not covered by such insurance contract, and shall not be deemed an assumption of liability for payment of any claim or judgment in excess of the limits of coverage in such insurance contract.
  3. Subsection (b) shall not authorize any city, authority, or county to pay all or part of a claim made or civil judgment entered unless (1) notice of the claim or litigation is given to the city council, authority governing board, or board of county commissioners as the case may be prior to the time that the claim is settled or civil judgment is entered, and (2) the city council, authority governing board, or board of county commissioners as the case may be shall have adopted, and made available for public inspection, uniform standards under which claims made or civil judgments entered against members or former members of the governing body of any authority, or any city, county, or authority employees or officers, or former employees or officers, shall be paid.
  4. For the purposes of this section, "authority" means an authority organized under Article 1 of Chapter 162A of the General Statutes, the North Carolina Water and Sewer Authorities Act. "District" means a soil and water conservation district organized under Chapter 139 of the General Statutes.

History

(1967, c. 1093; 1971, c. 698, s. 1; 1973, c. 426, s. 23; c. 1450; 1977, c. 307, s. 2; c. 834, s. 1; 1983, c. 525, ss. 1-4; 2001-300, s. 2.)

Local Modification. - Mecklenburg: 1989, c. 151, s. 1; city of Charlotte: 1989 (Reg. Sess., 1990), c. 862.

Legal Periodicals. - For comment on the need for reform in North Carolina of local government sovereign immunity, see 18 Wake Forest L. Rev. 43 (1982).

For comment, "Waiving Local Government Immunity in North Carolina: Risk Management Programs Are Insurance," see 27 Wake Forest L. Rev. 709 (1992).

CASE NOTES

Action Under Section Does Not Waive Immunity. - G.S. 106A-485 provides that the only way a city may waive its governmental immunity is by the purchase of liability insurance. Action by the City under this section does not waive immunity. Blackwelder v. City of Winston-Salem, 332 N.C. 319, 420 S.E.2d 432 (1992).

When taxpayers sued county commissioners for entering into a contract that benefitted one of the commissioners, evidence of the amount spent by the county to defend the commissioners was admissible; the actions of one of the commissioners were unquestionably outside the scope of his office, due to his clear violation of the conflict of interest statute, G.S 14-234(a), so that he was not entitled to have his defense provided by the county, and, while the actions of the other commissioners did not rise to a violation of the conflict of interest law, their actions combined with their judgment and knowledge of the actions of the commissioner who was guilty of a conflict of interest raised questions as to whether their conduct was within the course and scope of their office. Gibbs v. Mayo, 162 N.C. App. 549, 591 S.E.2d 905, cert. denied, 358 N.C. 543, 599 S.E.2d 45 (2004).

Complaint Alleging Waiver of Governmental Immunity. - Dismissal of the complaint seeking reimbursement for costs incurred in defending lawsuits brought against the former chief of police during his tenure was not warranted because the former chief sufficiently pled waiver of governmental immunity by alleging the essence of a contract claim: that he had an employment relationship with the city that included an obligation on the part of the city to pay for his defense and that the city failed to do so. Wray v. City of Greensboro, 370 N.C. 41, 802 S.E.2d 894 (2017).

Applied in Gray v. Laws, 51 F.3d 426 (4th Cir. 1995).

§ 160A-168. Privacy of employee personnel records.

  1. Notwithstanding the provisions of G.S. 132-6 or any other general law or local act concerning access to public records, personnel files of employees, former employees, or applicants for employment maintained by a city are subject to inspection and may be disclosed only as provided by this section. For purposes of this section, an employee's personnel file consists of any information in any form gathered by the city with respect to that employee and, by way of illustration but not limitation, relating to his application, selection or nonselection, performance, promotions, demotions, transfers, suspension and other disciplinary actions, evaluation forms, leave, salary, and termination of employment. As used in this section, "employee" includes former employees of the city.
  2. The following information with respect to each city employee is a matter of public record:
    1. Name.
    2. Age.
    3. Date of original employment or appointment to the service.
    4. The terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the city has the written contract or a record of the oral contract in its possession.
    5. Current position.
    6. Title.
    7. Current salary.
    8. Date and amount of each increase or decrease in salary with that municipality.
    9. Date and type of  each promotion, demotion, transfer, suspension, separation, or other change in position classification with that municipality.
    10. Date and general description of the reasons for each promotion with that municipality.
    11. Date and type of each dismissal, suspension, or demotion for disciplinary reasons taken by the municipality. If the disciplinary action was a dismissal, a copy of the written notice of the final decision of the municipality setting forth the specific acts or omissions that are the basis of the dismissal.
    12. The office to which the employee is currently assigned.
  3. For the purposes of this subsection, the term "salary" includes pay, benefits, incentives, bonuses, and deferred and all other forms of compensation paid by the employing entity.
  4. The city council shall determine in what form and by whom this information will be maintained. Any person may have access to this information for the purpose of inspection, examination, and copying, during regular business hours, subject only to such rules and regulations for the safekeeping of public records as the city council may have adopted. Any person denied access to this information may apply to the appropriate division of the General Court of Justice for an order compelling disclosure, and the court shall have jurisdiction to issue such orders.
  5. All information contained in a city employee's personnel file, other than the information made public by subsection (b) of this section, is confidential and shall be open to inspection only in the following instances:
    1. The employee or his duly authorized agent may examine all portions of his personnel file except (i) letters of reference solicited prior to employment, and (ii) information concerning a medical disability, mental or physical, that a prudent physician would not divulge to his patient.
    2. A licensed physician designated in writing by the employee may examine the employee's medical record.
    3. A city employee having supervisory authority over the employee may examine all material in the employee's personnel file.
    4. By order of a court of competent jurisdiction, any person may examine such portion of an employee's personnel file as may be ordered by the court.
    5. An official of an agency of the State or federal government, or any political subdivision of the State, may inspect any portion of a personnel file when such inspection is deemed by the official having custody of such records to be inspected to be necessary and essential to the pursuance of a proper function of the inspecting agency, but no information shall be divulged for the purpose of assisting in a criminal prosecution (of the employee), or for the purpose of assisting in an investigation of (the employee's) tax liability. However, the official having custody of such records may release the name, address, and telephone number from a personnel file for the purpose of assisting in a criminal investigation.
    6. An employee may sign a written release, to be placed with his personnel file, that permits the person with custody of the file to provide, either in person, by telephone, or by mail, information specified in the release to prospective employers, educational institutions, or other persons specified in the release.
    7. The city manager, with concurrence of the council, or, in cities not having a manager, the council may inform any person of the employment or nonemployment, promotion, demotion, suspension or other disciplinary action, reinstatement, transfer, or termination of a city employee and the reasons for that personnel action. Before releasing the information, the manager or council shall determine in writing that the release is essential to maintaining public confidence in the administration of city services or to maintaining the level and quality of city services. This written determination shall be retained in the office of the manager or the city clerk, and is a record available for public inspection and shall become part of the employee's personnel file.
  6. Even if considered part of an employee's personnel file, the following information need not be disclosed to an employee nor to any other person:
    1. Testing or examination material used solely to determine individual qualifications for appointment, employment, or promotion in the city's service, when disclosure would compromise the objectivity or the fairness of the testing or examination process.
    2. Investigative reports or memoranda and other information concerning the investigation of possible criminal actions of an employee, until the investigation is completed and no criminal action taken, or until the criminal action is concluded.
    3. Information that might identify an undercover law enforcement officer or a law enforcement informer.
    4. Notes, preliminary drafts and internal communications concerning an employee. In the event such materials are used for any official personnel decision, then the employee or his duly authorized agent shall have a right to inspect such materials.
  7. The city council may permit access, subject to limitations they may impose, to selected personnel files by a professional representative of a training, research, or academic institution if that person certifies that he will not release information identifying the employees whose files are opened and that the information will be used solely for statistical, research, or teaching purposes. This certification shall be retained by the city as long as each personnel file examined is retained.
  8. Repealed by Session Laws 2016-108, s. 2(h), effective July 22, 2016.
  9. Even if considered part of an employee's personnel file, the following information regarding any sworn law enforcement officer shall not be disclosed to an employee or any other person, unless disclosed in accordance with G.S. 132-1.4, or in accordance with G.S. 132-1.10, or for the personal safety of that sworn law enforcement officer or any other person residing in the same residence:
    1. Information that might identify the residence of a sworn law enforcement officer.
    2. Emergency contact information.
    3. Any identifying information as defined in G.S. 14-113.20.
  10. The city council of a city that maintains personnel files containing information other than the information mentioned in subsection (b) of this section shall establish procedures whereby an employee who objects to material in his file on grounds that it is inaccurate or misleading may seek to have the material removed from the file or may place in the file a statement relating to the material.
  11. A public official or employee who knowingly, willfully, and with malice permits any person to have access to information contained in a personnel file, except as is permitted by this section, is guilty of a Class 3 misdemeanor and upon conviction shall only be fined an amount not more than five hundred dollars ($500.00).
  12. Any person, not specifically authorized by this section to have access to a personnel file designated as confidential, who shall knowingly and willfully examine in its official filing place, remove or copy any portion of a confidential personnel file shall be guilty of a Class 3 misdemeanor and upon conviction shall only be fined in the discretion of the court but not in excess of five hundred dollars ($500.00).

History

(1975, c. 701, s. 2; 1981, c. 926, ss. 1-4; 1993, c. 539, ss. 1084, 1085; 1994, Ex. Sess., c. 24, s. 14(c); 2007-508, s. 7; 2008-194, s. 11(e); 2010-169, s. 18(f); 2015-225, s. 2; 2016-108, s. 2(h).)

Local Modification. - City of Charlotte: 1997-305, s. 3; city of Durham: 1998-142, s. 1; city of Greensboro: 2001-20; 2018-105, s. 2(a); city of Wilmington: 2003-238, s. 1.

Effect of Amendments. - Session Laws 2007-508, s. 7, effective August 30, 2007, in subsection (b), inserted "the terms of any contract by which the employee is employed whether written or oral, past and current, to the extent that the city has the written contract or a record of the oral contract in its possession" in the first sentence and added the second sentence.

Session Laws 2008-194, s. 11(e), effective August 8, 2008, added subsection (c3).

Session Laws 2010-169, s. 18(f), effective October 1, 2010, subdivided subsection (b), adding the subdivision designations and making multiple stylistic changes; in subdivision (b)(8), substituted "each increase or decrease in salary with that municipality" for "most recent increase or decrease in salary"; in subdivision (b)(9), substituted "Date and type of each promotion" for "date of the most recent promotion," and added "with that municipality"; added subdivisions (b)(10) and (b)(11); and added the subsection (b1) and (b2) designations.

Session Laws 2015-225, s. 2, effective October 1, 2015, added subsection (c4).

Session Laws 2016-108, s. 2(h), effective July 22, 2016, repealed subsection (c3).

Legal Periodicals. - For comment, "You Can't Always Get What You Want: A Look at North Carolina's Public Records Law," see 72 N.C.L. Rev. 1527 (1994).

For article, "Fired by Liars: Due Process Implications in the Recent Changes to North Carolina's Public Disclosure Laws," see 89 N.C.L. Rev. 2228 (2011).

CASE NOTES

Subdivision (c)(4) of this section specifically authorizes disclosure by order of a court of competent jurisdiction. Hall v. Helms, 118 F.R.D. 51 (W.D.N.C. 1987).

The plain language of subdivision (c)(4) indicates that a superior court, being a court of competent jurisdiction, has the authority to allow inspection of the personnel files of police officers. In re Brooks, 143 N.C. App. 601, 548 S.E.2d 748 (2001).

This section does not create a civil cause of action. Houpe v. City of Statesville, 128 N.C. App. 334, 497 S.E.2d 82, cert. denied, 348 N.C. 72, 505 S.E.2d 871 (1998).

Trial Court Has No Authority to Disclose Confidential Personnel File to General Public. - Trial court erred in granting a city's petition for disclosure of transcripts contained in police officers' personnel files because the trial court was not granted authority under G.S. 160A-168(c)(4) to release portions of the officers' confidential personnel file to the general public; a court of competent jurisdiction does not have the authority under G.S. 160A-168(c)(4) to order the release of any portion of a city employee's confidential personnel file to the general public. Release of the Silk Plant Forest Citizen Review Committee's Report & Appendices v. Barker, 216 N.C. App. 268, 719 S.E.2d 54 (2011), review denied, 720 S.E.2d 670, 2012 N.C. LEXIS 58 (2012).

Plain language of G.S.160A-168(c)(4) allows, by order of the trial court, "examination" by "any person" the relevant "portion" of a city employee's personnel file, and the natural meaning of these terms indicate a clear intent to maintain the privacy of a city employee's personnel file except under limited circumstances where examination of only the relevant portion of the file is allowed; the use of the word "examine," as opposed to "copy" or another word pertaining to mass publication, indicates the legislature's intent to limit the exposure of personnel files. Release of the Silk Plant Forest Citizen Review Committee's Report & Appendices v. Barker, 216 N.C. App. 268, 719 S.E.2d 54 (2011), review denied, 720 S.E.2d 670, 2012 N.C. LEXIS 58 (2012).

Ex Parte Petitions for Disclosure Under Subdivision (c)(4). - An ex parte petition submitted pursuant to subdivision (c)(4) should be accompanied by sworn affidavits or similar evidence, including specific factual allegations detailing reasons justifying disclosure and stating the statutory grounds which allow disclosure, the court should docket petitions submitted and orders entered pursuant to subdivision (c)(4) per its rules for docketing special proceedings, and the Superior Court should make an independent determination that the interests of justice require disclosure of the confidential employment information. In re Brooks, 143 N.C. App. 601, 548 S.E.2d 748 (2001).

Ex parte orders releasing defendant's personnel and educational records were void ab initio because (1) the State presented insufficient evidence supporting a motion for the orders, and (2) no proceeding invoking a court's jurisdiction was initiated. State v. Santifort, 257 N.C. App. 211, 809 S.E.2d 213 (2017).

Official Personnel Decision. - "Official personnel decision" is an authorized or authoritative judgment or conclusion of or pertaining to employed persons; since "personnel" is a collective noun, the plain meaning of this phrase as it is used in G.S. 160A-168(c1)(4), more specifically refers to authorized or authoritative judgments or conclusions of or pertaining to the employed person about whom the judgment or conclusion is rendered. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, aff'd, 367 N.C. 184, 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

"Official personnel decision," as it is used in G.S. 160A-168(c1)(4) need not be limited only to those determinations that result in a change to an employee's position of employment as under G.S. 160A-168(a), the information included in a city employee's personnel file is not limited to information that concerns only changes in employment like promotions, demotions, or transfers, but also concerns non-selection, performance, evaluation forms, and other information in any form gathered by the city with respect to that employee. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, aff'd, 367 N.C. 184, 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

Notes, Preliminary Drafts and Internal Communications. - Based on the common definitions of notes, preliminary drafts and internal communications when G.S. 160A-168(c1)(4) was promulgated, the North Carolina general assembly intends to allow a disclosure exemption under G.S. 160A-168(c1)(4) for written materials that are informal or provisional in character as a dictionary defines a draft as a rough or preliminary sketch of a piece of writing, and defines a note as a brief statement of a fact, experience, etc. written down for review, as an aid to memory, or to inform someone else. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, aff'd, 367 N.C. 184, 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

Improper Disclosure. - Plaintiff police officers stated a claim against defendant city councilor for tortious interference with prospective economic advantage because they plausibly alleged interference without justification as to the improper disclosure of information with respect to each officer and relating to each officer's performance, promotions, disciplinary actions, evaluation forms, or other aspects of employment with the city pursuant to G.S. 160A-168(a). Alexander v. City of Greensboro, 762 F. Supp. 2d 764 (M.D.N.C. 2011).

Disclosure Required. - As a city field to make any specific argument as to why the information should not be produced and as plaintiff In a retaliation and gender discrimination action asserted that the information was relevant to an analysis of how her qualifications for employment compared to other applicants hired by the city, the city was directed to provide information regarding the years of driving experience for individual's named in response to another interrogatory. Barnette v. City of Charlotte, - F. Supp. 2d - (W.D.N.C. Aug. 31, 2012).

Assuming that the internal affairs files in plaintiff's personnel file regarding complaints about plaintiff's conduct as a police officer were notes, preliminary drafts and internal communications concerning an employee under G.S. 160A-168(c1)(4), defendant could not refuse plaintiff's request to inspect the materials, even though the police chief's decisions did not result in a change in plaintiff's employment, as the materials were used by the police chief to make official personnel decisions with respect to plaintiff. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, aff'd, 367 N.C. 184, 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

When an informal, provisional, or otherwise preliminary or internal communication, note, or draft concerning an employee is included in his or her personnel file, that communication, note, or draft is subject to the disclosure requirement of G.S. 160A-168(c)(1) and (c1)(4) when such materials are used to make an authorized or authoritative judgment or conclusion with respect to that employee. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, aff'd, 367 N.C. 184, 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

In an action against city employees alleging violations of civil rights, sealing documents identified as personnel records was not warranted since the governmental interest in the confidentiality of the personnel records was not sufficiently compelling to overcome the constitutional public right of access to the records, and the employees' actions in the course of employment formed the very basis of the lawsuit. Johnson v. City of Fayetteville, - F. Supp. 2d - (E.D.N.C. Dec. 11, 2014).

Applied in Spell v. McDaniel, 591 F. Supp. 1090 (E.D.N.C. 1984).

Cited in Rowell v. City of Hickory, - F. Supp. 2d - (W.D.N.C. Oct. 8, 2008).

Opinions of Attorney General

Attorney-Client Communications to City on Personnel Matters. - Written attorney-client communications to a city (including the city manager and city council) on specific personnel matters related to an employee that are more than three years old, and which are confidential under G.S. 160A-168(a), are not public records; by its specific terms, G.S. 160A-168(a) supersedes the requirement in G.S. 132-1.1 that privileged attorney-client communications must be disclosed three years after they are received. See opinion of Attorney General to Mr. Grady Joseph Wheeler, Jr., Esq., Attorney, 2001 N.C. AG LEXIS 15 (5/30/2001).

§ 160A-169. City employee political activity.

  1. Purpose. The purpose of this section is to ensure that city employees are not subjected to political or partisan coercion while performing their job duties, to ensure that employees are not restricted from political activities while off duty, and to ensure that public funds are not used for political or partisan activities.
  2. Definitions. For the purposes of this section:
    1. "City employee" or "employee" means any person employed by a city or any department or program thereof that is supported, in whole or in part, by city funds;
    2. "On duty" means that time period when an employee is engaged in the duties of his or her employment; and
    3. "Workplace" means any place where an employee engages in his or her job duties.
  3. No employee while on duty or in the workplace may:
    1. Use his or her official authority or influence for the purpose of interfering with or affecting the result of an election or nomination for political office; or
    2. Coerce, solicit, or compel contributions for political or partisan purposes by another employee.
  4. No employee may be required as a duty or condition of employment, promotion, or tenure of office to contribute funds for political or partisan purposes.
  5. No employee may use city funds, supplies, or equipment for partisan purposes, or for political purposes except where such political uses are otherwise permitted by law.
  6. To the extent that this section conflicts with the provisions of any local act, city charter, local ordinance, resolution, or policy, this section prevails to the extent of the conflict.

It is not the purpose of this section to allow infringement upon the rights of employees to engage in free speech and free association. Every city employee has a civic responsibility to support good government by every available means and in every appropriate manner. Employees shall not be restricted from affiliating with civic organizations of a partisan or political nature, nor shall employees, while off duty, be restricted from attending political meetings, or advocating and supporting the principles or policies of civic or political organizations, or supporting partisan or nonpartisan candidates of their choice in accordance with the Constitution and laws of the State and the Constitution and laws of the United States of America.

History

(1991, c. 619, s. 2; 1993, c. 298, s. 2.)

Editor's Note. - The number of this section was assigned by the Revisor of Statutes. The number assigned by the enacting act, G.S. 160A-99, was apparently a typographical error.

Opinions of Attorney General

The provisions of this section and § 153A-99 are applicable to elected officials of counties and cities. See opinion of Attorney General to Mr. William R. Gilkeson, Staff Attorney, N.C. General Assembly, 1998 N.C.A.G. 1 (1/14/98).

§ 160A-169.1. Municipality verification of employee work authorization.

  1. Municipalities Must Use E-Verify. - Each municipality shall register and participate in E-Verify to verify the work authorization of new employees hired to work in the United States.
  2. E-Verify Defined. - As used in this section, the term "E-Verify" means the federal E-Verify program operated by the United States Department of Homeland Security and other federal agencies, or any successor or equivalent program used to verify the work authorization of newly hired employees pursuant to federal law.
  3. Nondiscrimination. - This section shall be enforced without regard to race, religion, gender, ethnicity, or national origin.

History

(2011-263, s. 5.)

§ 160A-170: Reserved for future codification purposes.

PART 5. CITY CLERK.

§ 160A-171. City clerk; duties.

There shall be a city clerk who shall give notice of meetings of the council, keep a journal of the proceedings of the council, be the custodian of all city records, and shall perform any other duties that may be required by law or the council.

History

(1917, c. 136, subch. 13, s. 1; C.S., s. 2826; 1941, c. 103; 1949, c. 14; 1971, c. 698, s. 1.)

CASE NOTES

Town Clerk. - Trial court did not err in denying the town's motion to dismiss the newspaper's amended complaint for lack of standing and for the alleged failure to join a necessary party, the town clerk, as the newspaper was a party to the action who sought the disclosure of the alleged public records at issue and, thus, the newspaper had standing to request the documents, and it was not necessary to join the town clerk to the action before all necessary parties to the action were before the trial court. Womack Newspapers, Inc. v. Town of Kitty Hawk, 181 N.C. App. 1, 639 S.E.2d 96 (2007).

Cited in Town of Scotland Neck v. Western Sur. Co., 46 N.C. App. 124, 264 S.E.2d 917 (1980); Town of Scotland Neck v. Western Sur. Co., 301 N.C. 331, 271 S.E.2d 501 (1980).


§ 160A-172. Deputy clerk.

The council may provide for a deputy city clerk who shall have full authority to exercise and perform any of the powers and duties of the city clerk that may be specified by the council.

History

(1917, c. 136, subch. 13, s. 1; C.S., s. 2826; 1941, c. 103; 1949, c. 14; 1971, c. 698, s. 1.)

PART 6. CITY ATTORNEY.

§ 160A-173. City attorney; appointment and duties.

The council shall appoint a city attorney to serve at its pleasure and to be its legal adviser.

History

(1971, c. 698, s. 1.)

ARTICLE 8. Delegation and Exercise of the General Police Power.

Sec.

§ 160A-174. General ordinance-making power.

  1. A city may by ordinance define, prohibit, regulate, or abate acts, omissions, or conditions, detrimental to the health, safety, or welfare of its citizens and the peace and dignity of the city, and may define and abate nuisances.
  2. A city ordinance shall be consistent with the Constitution and laws of North Carolina and of the United States. An ordinance is not consistent with State or federal law when:
    1. The ordinance infringes a liberty guaranteed to the people by the State or federal Constitution;
    2. The ordinance makes unlawful an act, omission or condition which is expressly made lawful by State or federal law;
    3. The ordinance makes lawful an act, omission, or condition which is expressly made unlawful by State or federal law;
    4. The ordinance purports to regulate a subject that cities are expressly forbidden to regulate by State or federal law;
    5. The ordinance purports to regulate a field for which a State or federal statute clearly shows a legislative intent to provide a complete and integrated regulatory scheme to the exclusion of local regulation;
    6. The elements of an offense defined by a city ordinance are identical to the elements of an offense defined by State or federal law.

The fact that a State or federal law, standing alone, makes a given act, omission, or condition unlawful shall not preclude city ordinances requiring a higher standard of conduct or condition.

History

(1971, c. 698, s. 1.)

Cross References. - As to waiver of certain dentistry and dental hygiene requirements under Articles 2 and 16 of Chapter 90 during state of emergency declarations, see G.S. 90-28.5.

As to limitations on enactment of Sunday-closing ordinances, see G.S. 160A-191.

Editor's Note. - Session Laws 2014-120, s. 32(b)-(d), provides: "(b) No later than November 1, 2014, and November 1, 2015, the Department of Agriculture and Consumer Services shall report to the Environmental Review Commission on any local government ordinances that impinge on or interfere with any area subject to regulation by the Department.

"(c) No later than November 1, 2014, and November 1, 2015, the Department of Environment and Natural Resources [now Department of Environmental Quality] shall report to the Environmental Review Commission on any local government ordinances that impinge on or interfere with any area subject to regulation by the Department.

"(d) In developing the reports pursuant to Sections 32(b) and 32(c) of this act, the Department of Environment and Natural Resources [now Department of Environmental Quality] and the Department of Agriculture and Consumer Services shall solicit and receive input from the public regarding any local government ordinances that impinge on or interfere with any area subject to regulation by the respective Department."

Legal Periodicals. - For article, "Regulating Obscenity Through the Power to Define and Abate Nuisances," see 14 Wake Forest L. Rev. 1 (1978).

For comment, "Municipal Tort Liability for Negligent Failure to Provide Adequate Police Protection," see 20 Wake Forest L. Rev. 697 (1984).

For note, "Preemption Hogwash: North Carolina's Judicial Repeal of Local Authority to Regulate Hog Farms in Craig v. County of Chatham," see 80 N.C.L. Rev. 2121 (2002).

For note, "A First Step in the Wrong Direction: Slavin v. Town of Oak Island and the Taking of Littoral Rights of Direct Beach Access," see 82 N.C.L. Rev. 1510 (2004).

For article, "Toward a Comprehensive Program for Regulating Vacant or Abandoned Dwellings in North Carolina: The General Police Power, Minimum Housing Standards, and Vacant Property Registration," see 32 Campbell L. Rev. 1 (2009).

For article, "Searching for the Right Approach: Regulating Short-Term Rentals in North Carolina," see 96 N.C.L. Rev. 1821 (2018).

For article, "Searching Everywhere for a Section 24(1)(A) Standard: City of Asheville, Town of Boone, and the Unclear Future of Local-State Relations in North Carolina," see 96 N.C.L. Rev. 1882 (2018).

CASE NOTES

I. IN GENERAL.

Editor's Note. - Many of the cases cited below were decided under former similar provisions.

Through this section and G.S. 160A-186 the legislature has delegated to the municipalities a part of its police power, which may be exercised to protect or promote the health, morals, order, safety and general welfare of society. Town of Atlantic Beach v. Young, 307 N.C. 422, 298 S.E.2d 686, appeal dismissed, 462 U.S. 1101, 103 S. Ct. 2446, 77 L. Ed. 2d 1328 (1983).

Power to Enact Ordinances. - Established municipal authorities may enact such ordinances as are promotive of the peace and good order of the town, the limitation being that the regulations may not be unreasonable or unduly discriminative nor manifestly oppressive and in derogation of common right. State v. Burbage, 172 N.C. 876, 89 S.E. 795 (1916).

The necessary implication of subdivision (b)(3) is that the General Assembly intended to allow the issuance of a preliminary injunction upon a showing by plaintiffs of a likelihood of success on the merits of a tort claim and some type of irreparable harm, even where an ordinance has not been enforced by local authorities or where an ordinance might permit one to pursue a course of action that otherwise would constitute a potential tort claim under State law. Kaplan v. Prolife Action League, 111 N.C. App. 1, 431 S.E.2d 828, appeal dismissed and discretionary review denied, 335 N.C. 175, 436 S.E.2d 379 (1993), cert. denied, 512 U.S. 1253, 114 S. Ct. 2783, 129 L. Ed. 2d 894 (1994).

It is not necessary now to aver authority conferred by a general and public law to pass an ordinance, as it was when that authority was derived under a special act of incorporation. State v. Merritt, 83 N.C. 677 (1880).

A municipal ordinance is presumed to be valid, and the burden is upon the complaining party to show its invalidity or inapplicability. Currituck County v. Willey, 46 N.C. App. 835, 266 S.E.2d 52, cert. denied, 283 S.E.2d 131 (1980).

A municipal ordinance promulgated in the exercise of the police power will not be declared unconstitutional unless it is clearly so, and every intendment will be made to sustain it. Currituck County v. Willey, 46 N.C. App. 835, 266 S.E.2d 52, cert. denied, 283 S.E.2d 131 (1980).

Doubt as to whether an ordinance is invalid, as conflicting with individual rights, should be resolved against the city. Slaughter v. O'Berry, 126 N.C. 181, 35 S.E. 241, 48 L.R.A. 442 (1900).

The courts will not inquire into the motives which prompt a municipality's legislative body to enact an ordinance which is valid on its face. Clark's Greenville, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5 (1966).

Courts Will Be Slow to Interfere. - By this section discretionary power is vested in the city authorities, and the courts will be slow to interfere when the ordinance is not contrary to the laws of the State and no fraud, dishonesty, or oppression is charged. State v. Austin, 114 N.C. 855, 19 S.E. 919 (1894).

Unless municipality's action is so clearly unreasonable as to amount to oppression and manifest abuse of discretion, courts will be slow to interfere, and then the power of the court will be exercised with great caution and only in a clear case. Jones v. Town of N. Wilkesboro, 150 N.C. 646, 64 S.E. 866 (1909).

Scope of Courts' Review. - Where town passed ordinance pursuant to its police power as provided under G.S. 160A-186 and expressly stated that its purpose was to protect the health, safety and welfare of the town, review of validity of such ordinance would be to determine if the police power had been exercised within the constitutional limitations imposed by both the state and federal Constitutions. Such review would not include an analysis of the motives which prompted the passage of the ordinance, because so long as an act is not forbidden, the wisdom of the enactment is exclusively a legislative decision. Town of Atlantic Beach v. Young, 307 N.C. 422, 298 S.E.2d 686, appeal dismissed, 462 U.S. 1101, 103 S. Ct. 2446, 77 L. Ed. 2d 1328 (1983).

As to stay of federal court action, see Brown v. Brannon, 399 F. Supp. 133 (M.D.N.C. 1975), aff'd, 535 F.2d 1249 (4th Cir. 1976).

Challenge to Constitutionality of Criminal Statute or Ordinance in Action to Enjoin Enforcement. - Notwithstanding the general rule that the constitutionality of a statute or ordinance purporting to create a criminal offense may not be challenged in an action to enjoin its enforcement, a well-established exception permits such action when injunctive relief is essential to the protection of property rights and the rights of persons against injuries otherwise irremediable. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 7 N.C. App. 289, 172 S.E.2d 276, aff'd, 276 N.C. 661, 174 S.E.2d 542 (1970).

Succeeding boards of commissioners are deemed to act subject to the provisions of previous ordinances passed by their predecessors in authority, until they see fit to repeal them. Hutchins v. Town of Durham, 118 N.C. 457, 24 S.E. 723 (1896).

General Laws Prevail over Ordinances. - Municipal bylaws and ordinances must be in harmony with the general laws of the State, and whenever they come in conflict with the general laws, the bylaws and ordinances must give way. Washington v. Hammond, 76 N.C. 33 (1877); State v. Stevens, 114 N.C. 873, 19 S.E. 861 (1894); State v. Williams, 283 N.C. 550, 196 S.E.2d 756 (1973).

Although the majority of cases dealing with a conflict between a municipal ordinance and a state statute have arisen in criminal actions, the same principles apply in civil causes. Greene v. City of Winston-Salem, 287 N.C. 66, 213 S.E.2d 231 (1975).

In determining whether the General Assembly intended to provide statewide regulation of the land application of biosolids to the exclusion of local regulation, the court must ascertain if the General Assembly has shown a clear legislative intent to provide a complete and integrated regulatory scheme. Granville Farms, Inc. v. County of Granville, 170 N.C. App. 109, 612 S.E.2d 156 (2005).

Legislative Classifications to Bear Reasonable Relation to Purpose. - So long as classification made by ordinance bears some reasonable relationship to the public welfare which the ordinance seeks to promote, the ordinance will not be rendered unconstitutional merely because persons in one class derive some incidental competitive advantage over those in another. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 7 N.C. App. 289, 172 S.E.2d 276, aff'd, 276 N.C. 661, 174 S.E.2d 542 (1970).

The equal protection clauses of the United States and North Carolina Constitutions impose upon law-making bodies the requirement that any legislative classification be based on differences that are reasonably related to the purposes of the act in which it is found. State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972).

Authority to abate nuisances is liberally construed by the courts for the benefit of the citizens. State v. Beacham, 125 N.C. 652, 34 S.E. 447 (1899).

No Liability for Failure to Enact or Enforce Ordinances. - A municipal corporation is not civilly liable for failure to pass ordinances to preserve the public health or otherwise promote the public good, nor for any omission to enforce the ordinances enacted under the legislative powers granted in its charter or to see that they are properly observed by its citizens or by those who may be resident within the corporate limits. Bunch v. Edenton, 90 N.C. 431 (1886); Hull v. Town of Roxboro, 142 N.C. 453, 55 S.E. 351 (1906); Harrington v. Town of Greenville, 159 N.C. 632, 75 S.E. 849 (1912).

City is liable in damages for failure to abate a nuisance that amounts to an obstruction in a street in a reasonable time. Dillon v. City of Raleigh, 124 N.C. 184, 32 S.E. 548 (1899).

When Owner Is Entitled to Compensation for Abatement of Nuisance. - An owner of property is not entitled to compensation for property rightfully destroyed or damaged by a city in abating a nuisance; the reason for this is that the destruction or damage is for public safety or health and is not a taking of private property for public use without compensation or due process in the constitutional sense. Rhyne v. Town of Mount Holly, 251 N.C. 521, 112 S.E.2d 40 (1960).

A municipality is liable for impairing, removing or destroying property, ostensibly in the abatement of a nuisance, where the thing or condition in question is not a nuisance per se, under statute or in fact, or where the thing or condition has not been declared to be a nuisance. Rhyne v. Town of Mount Holly, 251 N.C. 521, 112 S.E.2d 40 (1960).

As to legislative authority of board of aldermen of Winston-Salem, see Southern Ry. v. City of Winston-Salem, 275 N.C. 465, 168 S.E.2d 396 (1969).

Conflict Between Regulation Adopted by State Agency and Municipal Ordinance - Provision of the Gastonia (North Carolina) City Code that governed outdoor billboards conflicted with a regulation that was adopted by the North Carolina Department of Transportation (DOT) to implement North Carolina's Outdoor Advertising Control Act, G.S. 136-126 et seq., and was preempted by the DOT's regulation. Morris Communs. Corp. v. Bd. of Adjustment, 159 N.C. App. 598, 583 S.E.2d 419, appeal dismissed sub nom., 357 N.C. 658, 590 S.E.2d 269 (2003).

Judgment affirming a zoning board's decision upholding a zoning administrator's determination that a billboard violated a local zoning ordinance was error because the North Carolina Department of Transportation's outdoor advertising regulations authorized relocation of a billboard within certain limitations, and pursuant to G.S. 160A-174(b)(2) those regulations preempted the local zoning ordinance. Lamar OCI South Corp. v. Stanly County Zoning Bd. of Adjustment, 186 N.C. App. 44, 650 S.E.2d 37 (2007), aff'd, in part, review improvidently allowed, in part, 362 N.C. 670, 669 S.E.2d 322 (2008).

Ordinance for State-Owned Beach. - Because the renourishment projects undertaken by the town to restore ocean turtle habitat were publicly financed sand placement projects, title to the newly-created beach was vested in the State, and despite the protests of ocean front property owners, the appellate court could find nothing in the State Lands Act, codified at G.S. 146-1 et seq., which limited the authority of a town or city to enact regulations in order to protect a public beach located within its municipal limits. Slavin v. Town of Oak Island, 160 N.C. App. 57, 584 S.E.2d 100, notice of appeal dismissed, cert. denied, 357 N.C. 659, 590 S.E.2d 271 (2003).

Applied in State v. Underwood, 283 N.C. 154, 195 S.E.2d 489 (1973); Smith v. Keator, 21 N.C. App. 102, 203 S.E.2d 411 (1974); Craig v. County of Chatham, 143 N.C. App. 30, 545 S.E.2d 455 (2001), aff'd in part and rev'd in part, 356 N.C. 40, 565 S.E.2d 172, 2002 N.C. LEXIS 539 (2002).

Cited in Smith v. Keator, 285 N.C. 530, 206 S.E.2d 203 (1974); U.T., Inc. v. Brown, 457 F. Supp. 163 (W.D.N.C. 1978); Batch v. Town of Chapel Hill, 92 N.C. App. 601, 376 S.E.2d 22 (1989); Board of Adjustment v. Town of Swansboro, 108 N.C. App. 198, 423 S.E.2d 498 (1992); Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37, 442 S.E.2d 45 (1994); Moore v. City of Creedmoor, 120 N.C. App. 27, 460 S.E.2d 899 (1995); Lamar Outdoor Adver. v. City of Hendersonville Zoning Bd. of Adjustment, 155 N.C. App. 516, 573 S.E.2d 637 (2002); Williams v. Blue Cross Blue Shield, 357 N.C. 170, 581 S.E.2d 415 (2003); Barris v. Town of Long Beach, 208 N.C. App. 718, 704 S.E.2d 285 (2010); Town of Beech Mt. v. Genesis Wildlife Sanctuary, Inc., 247 N.C. App. 444, 786 S.E.2d 335 (2016); LMSP, LLC v. Town of Boone, 260 N.C. App. 388, 818 S.E.2d 314 (2018).

II. SUNDAY ORDINANCES.

Constitutionality Generally. - Ordinances prohibiting certain activities on Sunday, enacted pursuant to this section, are not in contravention of N.C. Const., Art. I, § 13. State v. McGee, 237 N.C. 633, 75 S.E.2d 783, appeal dismissed, 346 U.S. 802, 74 S. Ct. 50, 98 L. Ed. 334, rehearing denied, 346 U.S. 918, 74 S. Ct. 272, 98 L. Ed. 413 (1953).

Sunday observance ordinances, when they proscribe buying and selling, whether it be tangible merchandise or a ticket to an amusement or a sporting event, regulate trade under the broad definition of trade which has been adopted by the Supreme Court. Since, however, these city ordinances are passed under general laws, with reference to them there is no conflict between the exercise of the police power and N.C. Const., Art. II, § 24. State v. Smith, 265 N.C. 173, 143 S.E.2d 293 (1965).

The provisions of N.C. Const., Art. I, § 13 and 19, do not deprive the legislature of authority to prohibit by a statute, otherwise valid, the carrying on of and engaging in, on Sunday, any and all labor and the operation of industrial and commercial pursuits, except for works of necessity and acts which, themselves, are in exercise of the constitutional right to worship. The legislature may delegate this power to municipalities. Such legislation is within the police power of the State and, nothing else appearing, is not a violation of U.S. Const., Amends. I and XIV. Raleigh Mobile Home Sales, Inc. v. Tomlinson, 276 N.C. 661, 174 S.E.2d 542 (1970).

Enactment of Sunday regulations comes within the police power, and the General Assembly or a municipal governing board exercising delegated power may enact such regulations provided the classifications of those affected are based upon reasonable distinctions, affect all persons similarly situated, and have some reasonable relation to the public peace, welfare, and safety. Clark's Charlotte, Inc. v. Hunter, 261 N.C. 222, 134 S.E.2d 364 (1964).

Power to enact Sunday ordinances has been delegated to municipalities of the State. State v. Trantham, 230 N.C. 641, 55 S.E.2d 198 (1949).

Reasonable and Nondiscriminatory Ordinances Upheld. - When enacted by cities and towns under general laws, Sunday observance ordinances which are reasonable and do not discriminate within a class of competitors similarly situated have been upheld as a valid exercise of delegated police power. State v. Smith, 265 N.C. 173, 143 S.E.2d 293 (1965).

Ordinance regulating sale of merchandise on Sunday held valid. Clark's Greenville, Inc. v. West, 268 N.C. 527, 151 S.E.2d 5 (1966).

Sunday observance ordinances adopted in the exercise of the police power conferred by the General Assembly upon cities and towns have been upheld by the Supreme Court. Whitney Stores, Inc. v. Clark, 277 N.C. 322, 177 S.E.2d 418 (1970).

Validity of Ordinance Dependent on Reasonable Relation to Legitimate Objective. - The validity of a Sunday closing statute or ordinance depends upon its reasonable relation to the accomplishment of the State's legitimate objective, which, in this instance, is the promotion of the public health, safety, morals and welfare by the establishment of a day of rest and relaxation. Legislation for this purpose, like other legislation, may not discriminate arbitrarily either between persons, or groups of persons, or between activities which are prohibited and those which are permitted. State v. Greenwood, 280 N.C. 651, 187 S.E.2d 8 (1972).

The general rule is that the enactment of Sunday regulations is a legitimate exercise of the police power, and that the classification on which a Sunday law is based is within the discretion of the legislative branch of the government or within the discretion of the governing body of a municipality clothed with power to enact and enforce ordinances for the observance of Sunday, and will be upheld, provided the classification is founded upon reasonable distinctions, affects all persons similarly situated or engaged in the same business without discrimin