Judge rules annex suit can proceed
By Barbara Arntsen
Published in News on July 20, 2004 2:00 PM
A judge denied a motion Monday by Goldsboro to dismiss an annexation lawsuit, but did say the city was entitled to more specific information about the allegations.
Harrell Everett, former city attorney, filed the motion to dismiss the annexation lawsuit brought by citizens in the Northbrook area of the county, saying the plaintiffs had not complied with state law when filing the suit.
Everett retired from his position as city attorney at the end of June, but continues to represent Goldsboro in the annexation lawsuit, which has been filed in Wayne County Superior Court.
He said that state law gave the people the right to file a protest against the annexation within 60 days, but said that the petition had to state specific exceptions to the annexation and define what relief they wanted.
"The respondent has the burden, even though the complaint is deemed sufficient, to have an adequate factual allegation," Everett said.
The property the city voted to annex is on the east and west sides of Salem Church Road and on the north and south sides of Buck Swamp Road. Some subdivisions, or parts of subdivisions, have been included. They are Ashby Hills, Fallingbrook Estates, Morgan Trace, Buck Run, Pineview Acres, Tarklin Acres and Canterbury Village.
Last month the group filed a "petition for review" in Wayne County Superior Court, asking the court to throw out the city's annexation ordinance, saying it failed to meet state requirements. A court order was then issued that delayed the June 30 effective date of the annexation, relieving the city of its obligation to provide services or negotiate and budget for those services until the matter is decided in court.
Jim Eldridge, a Wilmington lawyer specializing in annexation laws, was hired by Good Neighbors United, composed of residents in the targeted area, to fight the annexation.
Eldridge said he had never heard of the argument brought up by Everett, and he has represented citizens across the state in five or six similar cases.
Everett acknowledged that there wasn't case law on the argument, but said that his interpretation of the state statute required that Eldridge file a more detailed and specific lawsuit.
"The petition to set aside involuntary annexation has unique qualities," Everett said. "The petitioners must show they have suffered material injury and explicitly state the exception and relief sought."
The annexation foes' petition says the annexation ordinance that the City Council approved in April failed to show:
*How the city will provide required services to the area in the same way that they are provided in the rest of the city.
*How the city will pay for those services.
*And how the annexation will affect the city's finances and services.
Everett said that list was too general and that the state law prohibited the petitioners from generalizing in an annexation lawsuit.
He said that he believed the law was intended to move the annexation cases through the courts swiftly and that the city shouldn't have to go through extensive discovery to find out what the specific allegations against it were.
Eldridge said he thought he had complied with the statutes, but was agreeable to adding more detail in an amended petition.
He said he would also provide some additional charges, saying that the city didn't meet the state boundary requirements for involuntary annexations.
In addition, Eldridge said that he believed there was a jurisdictional argument over the area to be annexed.
"Whatever steps they have taken have been flawed at the get-go," he said. "All of the procedure is in error."
Judge Kenneth F. Crow said he wouldn't dismiss the case and intended to let the petitioners have their day in court.
But he did say that his interpretation of the statutes supported Everett's contention that more specific information was needed.
"My reading is that the law indicates that it goes beyond bare notice pleadings," Crow said.
Crow said that Eldridge would need to "show all the cards in his hand" to the city.
"It's incumbent of you to do that, to tell them what they did, what they didn't do and say and 'here's how it hurt us.'"
Crow said he realized that it was a high bar to cross and that Eldridge would be given additional time to get the petition amended.
The judge also said that the city should be detailed in its filed responses and that he expected it to give more than a simple yes or no answer to the allegations.
"What's good for the goose is good for the gander," Crow said.
The lawyers will work out a schedule for the amended petition and for depositions.
Everett said that the judge's decision was what the city wanted, if it couldn't get the case dismissed.
The case is tentatively scheduled to be heard in Wayne County on Oct. 18 before Judge Jerry Braswell.
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