10/22/04 — Judge mulls sending annexation plan back to city

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Judge mulls sending annexation plan back to city

By Barbara Arntsen
Published in News on October 22, 2004 2:02 PM

A judge said Thursday he is considering requiring that Goldsboro redo its controversial annexation after concerns about the process were raised this week at trial.

Closing arguments in the annexation lawsuit were completed Thursday.

Superior Court Judge Kenneth Crow said that he was inclined to send the annexation case back to the City Council and ask for a new annexation report, two public hearings and a new vote on the matter.

But the question is, does he have the legal authority to do that?

The city says he does not. The annexation opponents say he does.

Judge Crow asked the lawyers for the city and the annexation opponents to give him legal briefs by Wednesday on their views.

Crow will decide whether enough detailed information was provided in the city's annexation report to allow the council or the citizens to make an informed decision regarding the annexation.

Those details include fire protection, the additional cost of water service to the residents and financial details of the annexation.

Harrell Everett, the city's lawyer, said he didn't think that the law allowed the judge the authority to request a new hearing and vote. Jim Eldridge, the plaintiff's lawyer, said he didn't see anything in the law that would prevent the judge from issuing that order.

The case revolves around a decision, and the process that led to that decision, by the City Council last April to annex the east and west sides of Salem Church Road and the north and south sides of Buck Swamp Road.

The city wrapped up its case early Thursday morning, after calling Assistant Planning Director James Rowe to the stand.

Rowe went through the annexation process conducted by the city and said that he received calls from some of the residents in the annexation area after the notices of intent were mailed to property owners in February.

Rowe said that some of them asked about services, and he tried to answer "the best I could." Copies of the annexation report were available for viewing at the city clerk's office and at the public library, he said.

Rowe remembered William Burnette, a resident in the area, citing a concern about the water services during the March 25 informational meeting.

The city stipulated Wednesday that the residents in the annexed area would have to pay more for water, as outlined in the city's annexation report. Everett suggested that the court send that one issue back to the City Council to address.

City's argument

In his closing argument, Everett said the city had followed the legal requirements of the general statutes and had committed to provide the same services to the annexed area as were in the city.

"One exception is the water rates, and we ask the court to remand that one issue to the council," Everett said.

Everett said that the council was given the authority to annex under North Carolina law.

"And there's no evidence that a citizen living in Goldsboro appeared before the council and said you shouldn't do that," Everett said. "No one made that argument."

Everett said that the courtroom was the wrong forum for the annexation opponents. Instead he said they needed to express themselves to the state Legislature and ask it to change the annexation laws.

He also said that there was "no predisposition on the part of the City Council" to annex this area.

"I do not believe the financial analysis is an issue except for the" higher water rates, Everett said. "The report sets forth method for services and how it will finance those services."

Everett said that City Manager Richard Slozak and Finance Director Richard Durham left "no questions in my mind that the city has sufficient revenues on hand to handle the finances."

Everett said the only issue he saw before the court was whether a written agreement for the water service and the fire hydrants was necessary. He didn't believe the city had to have that degree of specificity in its report.

Opponents' argument

Crow asked Eldridge what would be gained by voiding the annexation, because the city could start the annexation process again.

"It saves two to three years of taxes for the people," replied Eldridge. He also explained that the politics of the existing council, or a new council, could change if it was given a longer period to consider the annexation.

Eldridge said he believed the annexation report left out essential details.

"The city intends to put 64 fire hydrants, but the report is silent on that," Eldridge said.

The extension of services is a cornerstone of an annexation, Eldridge said, and case law says as much detail as possible should be provided in the report.

"They gave information, notice and the opportunity to be heard," Eldridge said.

But, he said, neither the city nor the petitioners had all the information.

Eldridge said that his understanding, based on testimony from city staff, was that two documents had to be cross-referenced to understand the services. Those documents were the original annexation report and a later addition to that report detailing expenditures and revenues.

"But the sheet with the numbers on it did not exist prior to the night the ordinance was adopted," he said. "If the plan required cross-reading, it wasn't available until the night of the report."

Eldridge said he understood that the city was in a hurry, and that it wasn't uncommon to make mistakes when you hurried.

"But these are significant, if not substantive errors," he said.

He requested that the judge set aside the annexation, making it null and void.

"The ordinance is defective," Eldridge said. "The city needs to start all over again."

The judge wondered if the lack of those specific details affected the council's vote.

"It could have had an impact on the voting members," Crow said. "Maybe we should send it back, detail it more, ask for more input and put it to another vote."

Everett said he thought it was beyond Crow's authority to decide whether the city should hold an additional hearing, but said he'd be glad to research it further.