Petitions require second look before mailing
By Ty Johnson
Published in News on July 30, 2011 11:26 PM
Despite Wayne County Board of Elections Director Vickie Reed saying Monday that her department was on schedule to mail out petitions, property owners in Phase 11 will not receive their letters from the board concerning the removal of their neighborhood from the city limits for some time.
State Law 2011-177, formerly known as House Bill 56, states that annexations by municipalities in North Carolina are subject to a petition by property owners which, if 60 percent of votes aren't in favor of the acquisition, could block an annexation from occurring. Residents in the neighborhoods near Buck Swamp and Salem Church roads will also be allowed to petition their annexation as part of the consolidation of several bills in the General Assembly into the law.
But that won't happen as soon as originally thought.
Mrs. Reed said Monday her department had received the list of property owners from the Wayne County Tax Office July 19, meaning the board had five days to mail out the petitions. She said the mailings were on schedule and that the law mandated they be sent out no later than July 26.
But Mrs. Reed failed to mention that her board scheduled to reconvene at her offices Monday evening to detail the petition-mailing process, particularly whether or not the mailings were allowed to go out without prior approval from the U.S. Department of Justice.
Wayne County Attorney Borden Parker sent a letter to the state attorney general's office July 13 asking if the bill needed to be pre-cleared by the U.S. Justice Department since the municipalities are covered by the Voting Rights Act of 1965. The act requires municipalities where there is a history of racial discrimination to have all changes concerning voting "precleared" by the Department of Justice. Forty-one of North Carolina's 100 counties are subject to this legislation.
Special Deputy Attorney General Tiare Smiley wrote back July 20 indicating that, in his opinion, Parker was correct and the deannexations would be subject to the act just as annexations are. The decision at Monday evening's reconvened Board of Elections meeting was to hold the petitions until preclearance was given from the DOJ.
City Attorney Jim Womble was copied on the response along with the municipality attorneys from Kinston, Rocky Mount and the Village of Marvin.
City Attorney Jim Womble said he received a copy of a letter from the state attorney general's office to County Attorney Borden Parker on July 21 and received a similar letter Friday, this time addressed from the state office to him.
The attorney general's decision to handle the deannexation in the same manner as an annexation will significantly lengthen the process toward a vote by the property owners.
Bob Pleasants, president of Good Neighbors United, an organization that has resisted the city's annexation of the Buck Swamp area since 2004, said the city must file the petition proposal with the Department of Justice and that Womble said during the meeting Monday he hoped to have it sent out by Aug. 14.
"Planning Director Randy Guthrie will be getting that information together and as soon as he can get that, we'll send it up there," Womble said.
The DOJ's receipt of the request will begin what Womble said is a 60-day review process, although that could be extended if needed.
Once preclearance is issued, the Board of Elections will be able to mail out its petitions to property owners, marking the start of a 130-day period during which owners may return their responses to the Board of Elections. The board will have 10 days to communicate the results of the petitions to the municipality.
The elections boards in Nash and Lenoir counties, however, had already sent their petitions out by the time the decision was communicated to the county attorneys.
Bob Griffin, the Lenoir County attorney, said the letter was a bit of a surprise, since he generally doesn't deal with city matters.
"Normally our Board of Elections doesn't have legal issues that requires them to have an attorney, and I'm not in a position to monitor, on an ongoing basis, what (the city is) up to," he said, adding that by the time he received the letter from the attorney general, the petitions had already been sent out three days prior.
Nash County Attorney Vince Durham said he was also a bit confused when he received the letter.
"It's an interesting issue. We as a county attorneys don't know anything. That's the municipality's annexation, so when I saw it, I scratched my head," Durham said.
Nash's board sent out the petitions before the attorney general decision was received as well. Durham said the city attorney had not applied for preclearance, but said he was seriously considering it.
"Even if it comes after the petition process, it would still be valid, so I think we probably will apply for preclearance," he said.
Griffin said the elections board will need to decide at its next meeting what to do, but said he will push for the city to contact the DOJ as well.
"Our board of elections has not met yet to decide what to do about this, but my recommendation is going to be freeze in place," he said. "The Board of Elections is just locking them up in a safe. The day for counting these petitions doesn't come until Nov. 25 anyway."
"They'll likely tell the city attorney to proceed with the (preclearance) process. There should be enough time between now and when the Justice Department makes its decision to stay on normal schedule."
And that's exactly the intent of the law, said Rep. Stephen LaRoque (R-Lenoir), the primary sponsor of an original bill to petition the annexation of an area into the Kinston city limits. The bill was combined into House Bill 56 along with other annexation bills from across the state.
LaRoque said Wayne County is in violation of the statute and could be exposing itself to a lawsuit by holding the petitions.
"That's very poor advice from the attorney general," he said. "Right now Wayne County is in violation of the statute that was passed. They should have mailed it out within 35 days of the bill becoming law. Wayne County may have a lawsuit on their hands because they are in direct violation of the bill that has been passed. The county attorney and attorney general are wrong. Their attorney needs to go back to law school. They can do the preclearance and the petition at the same time."
"Unfortunately what I think you have is a very partisan attorney general."
LaRoque said he would look to the General Assembly to persuade the attorney general's office to force Wayne County to issue the petition, perhaps through a lawsuit in which the county would be liable for the attorney fees.
"My advice is to follow the law," he said. "Someone needs to explain to him that he does not create the law. We do, as legislators. I've forgotten more about (the statute) than he knows."
Rep. Efton Sager (R-Wayne) had a different take on the law, basing his opinion on the fact that while the other municipalities are dealing with petitions to prevent annexations, the situation in Goldsboro would entail overturning a previous annexation.
The differing opinions from the county attorneys, the attorney general and the legislators have left the residents of Phase 11 unsure of their fate.
"It's very confusing for everybody," said Pleasants. "We were prepared to canvas the neighborhood. Now we have no idea how long it's going to take to get the preclearance."
The ordeal surrounding the Buck Swamp area began in 2004 when the city identified Phase 11 as part of its land acquisition plan. Legal fees in excess of $170,000 on both sides were spent in court as residents contested the annexation. The lawsuit ended when the state's Supreme Court refused to hear the case, upholding a decision by the appellate court that deemed the annexation legal. It went into effect Sept. 30, 2008.
Assuming all goes according to schedule, property owners should see petitions in their mailbox by mid- to late October. The petitions would be due to the Board of Elections in late February with a final decision on the deannexation expected by early March.
That likely won't end the deannexation debate for good, however, as the city has hired an attorney to help consider possible legal steps to challenge the deannexation.