12/01/11 — Goldsboro sues over annexation

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Goldsboro sues over annexation

By Ty Johnson
Published in News on December 1, 2011 1:46 PM

Attorneys representing the city of Goldsboro have filed a lawsuit seeking an injunction against a number of state laws recently passed by the General Assembly making possible the removal of an area of the city from its jurisdiction.

Anthony Fox and other attorneys with the Parker Poe Adams and Bernstein law firm filed the suit on behalf of the cities of Goldsboro, Kinston, Lexington, Wilmington and Fayetteville Tuesday. The suit attests that the state laws allowing for the deannexation of properties from city limits are unconstitutional.

The suit lists the state, the state board of elections and each city's respective county board of elections as defendants, including the Wayne County Board of Elections.

County Attorney Borden Parker said he doesn't expect the county to be in court today when the motion is scheduled to be heard in Superior Court at 2 p.m. at the Wake County Courthouse.

"The matters being heard (Thursday) don't have anything to do with Wayne County," he said.

Parker said Wednesday that he had just received the court documents that day and had not had time to look through them thoroughly, although he noted there were no allegations directly attributed to the county board of elections.

"I have read it close enough to know that there are no allegations that the board of elections has done anything wrong -- state board or local. The allegations are that the state law is unconstitutional," he said.

Individuals listed as plaintiffs include Mayor Al King and six of seven Goldsboro City Council members, along with representatives from the other cities listed in the suit, as well.

City Manager Scott Stevens said he doubted any of those representatives, or a member of the city staff, would be in court today, saying the city's hired legal counsel would handle the motion.

State Law 2011-177, formerly known as House Bill 56 or the Deannexation Bill, reforms the manner by which municipalities can add areas of land to their jurisdiction limits, requiring a petition to be given to property owners in the area of question to determine the annexation attempt's merit. If 60 percent of petitioned property owners vote against the move, the annexation cannot occur, nor can it be attempted again for three years. The other laws, 2011-173 and 2011-396, impose similar requirements on the municipalities.

The law contains a provision for Goldsboro to allow residents of the Buck Swamp area, known as Phase 11, to remove themselves from the city limits by the same manner -- a 60 percent unfavorable return on the petition would result in the area's deannexation.

The lawsuit claims that the legislation violates sections 11, 19 and 35 of Article I of the North Carolina Constitution "because it bases the right to vote on property ownership and denies all other city and annexation area residents the fundamental right to vote." The suit later notes that not all of the residents of the annexation areas own land within the annexation areas, but stand to lose city services, such as police and fire protection and utilities.

The suit asks the court to enter a permanent injunction preventing the implementation and enforcement of the three laws reforming the annexation process and to declare the laws unconstitutional. It further asks that the results of the petition votes collected according to those laws to be illegal, null and void and seeks to have the state pay the court costs resulting from the suit as well as to award reasonable attorney fees to the plaintiffs.

According to the documents, Goldsboro's projected cost to extend service to the Phase 11 area was $7.8 million, but the actual costs have exceeded that projection.

City officials have said that, if the deannexation goes through, the remaining city residents will be on the hook to pay for the extension of services, since it would represent a loss of 475 acres of land, 1,123 residents and more than $64 million in property value -- a substantial loss for the city's tax base.

Still, those costs don't truly represent the amount of money the city has spent on the annexation. Four years of legal battles to annex the area after Phase 11 residents took the matter to court led to $180,720 in legal fees, and this time in court also promises to be costly.

The city entered a contract with Anthony Fox to provide legal advice at an advertised rate of $350 an hour, with the rates "subject to change from time to time, without notice."

At the council's Nov. 7 meeting, council members voted unanimously to take $110,000 worth of funds from the unappropriated portion of the general fund and to apply it to the line item for legal fees. The budget amendment said the city had already experienced $80,000 in unanticipated legal costs on top of the $130,000 paid to the Everett, Womble, Lawrence and Brown law firm to retain Jim Womble as the city attorney.

Stevens said the city would benefit from the group of municipalities acting together rather than in individual actions, but did say the city's legal costs would continue to increase and defended the city's decision to spend more in legal fees to keep Phase 11 in the city.

"It is absolutely not a waste of money and if we felt that way we wouldn't waste it -- spend it," he said.

As to the outcome of the lawsuit, which seeks to petition the court to declare a recently enacted North Carolina state law unconstitutional, Stevens said that was a question best reserved for Fox, though he said he felt convicted that the city was acting in the best interest of its residents.

"We believe we have merit in what we are pursuing," he said.