NC's 22 Largest Cities Try To Influence State Supreme Court

[Rono]

Below is a copy of StopNCAnnexation.com news release

NOTE: This is not really a local issue as per this forum , and it is not a national issue either. Since it has long term effects on local citizens, I chose to post it here

FOR IMMEDIATE RELEASE

July 24th 2004

NORTH CAROLINA’S BIG CITIES ARE BEING BANDED TOGETHER TO INFLUENCE THE STATE SUPREME COURTS STAY ON FAYETTEVILLES ANNEXATION!!

A conference call was held yesterday, Friday July 23 at 10:30 am by the North Carolina Metropolitan Coalition about the below attached letter that they want all municipalities to sign and send to the State Supreme Court.

Below is an urgent alert that the North Carolina Metropolitan Coalition (NCMC) sent to all of its members. The NCMC is the North Carolina League of Municipalities big cities group…10,000 + in population! Read its organization and by-laws:

http://www.ncmetros.org/adv060904.htm

About the North Carolina Metropolitan Coalition

(http://www.ncmetros.org) The Coalition, an affiliate of the NC League of Municipalities, is comprised of 22 of the largest cities in North Carolina. It was formed by the mayors to encourage the continued development of the North Carolina’s urban areas as livable, environmentally sound, and economically viable centers."
http://www.ncmetros.org/bylaws.html

NAME, ORGANIZATION AND OBJECTIVES:

Section 1. Name. This organization shall be known as the "North Carolina Metropolitan Coalition," to be sometimes hereinafter referred to as the "Coalition."

Section 2. Organization. The Coalition shall operate as a nonprofit corporation under the laws of the State of North Carolina and within Section 501(c)(4) of the Internal Revenue Code. It shall have such powers and authority as may be provided by law and shall further operate as an affiliate organization of the North Carolina League of Municipalities (the "League"), subject to the limitations and privileges thereof. The Coalition may submit issues and make recommendations directly to the Board of Directors of the League or to any of the League

Here is the urgent memo they distributed:

The North Carolina Supreme Court recently took an unprecedented action by effectively de-annexing urban land adjacent to the city of Fayetteville in response to two last-minute law suits filed to stop the annexation. The suits were filed by attorneys from the Yarborough law firm in Fayetteville and the Brough law firm in Chapel Hill

The Supreme Court action took place after the Superior Court ruled that the participants in the law suit did not have legal standing. The Court of Appeals initially stayed the annexation a mere seven hours before the effective date. However, it later dissolved the stay, thereby allowing the annexation to proceed. The city then commenced with its annexation and for one week provided police fire, street repair, garbage collection, and other municipal services before the Supreme Court ordered the city to stop and pull back.

Fayetteville Mayor Marshall Pitts has asked that members of the NC Metropolitan Coalition participate in an important conference call on Friday at 10:30 a.m. The call in number is 919.733.2490. We encourage that city managers and city attorneys also participate.

Among the items of discussion is the attached letter to the NC Supreme Court. It is essential that municipal leaders become aware of this fiscally damaging action by the NC Supreme Court and the consequences this action can have on other municipalities in North Carolina, especially if lawsuits can be filed within days of the effective annexation date and thereby delay or reverse the annexation.

Please review the letter and participate in Friday’s conference call.

Thank you for your participation and concern.

Here is the letter they proposed to have signed by all of its members to try to influence the State Supreme Court!!!

I respectfully join this letter to the North Carolina Supreme Court in support of the City of Fayetteville’s Motion for Reconsideration. If this Court does not reconsider and dissolve its July 13, 2004 writ of supersedeas, that ruling will seriously damage the statutory process that has guided North Carolina annexations for almost 50 years by destroying the finality necessary for that process to occur.

As Fayetteville’s motion explains, the statutory annexation process needs finality to function effectively. Annexations can occur only if municipalities can budget and plan during the months preceding the effective date. They must confidently be able to hire new employees, buy new equipment, and incur costs and obligations, all while budgeting how annexations will affect both their short- and long-term finances. They must be able to commit their resources and ready for expansion without fear that a late challenge will undo the entire process. Consequently, North Carolina law insists upon annexation finality by establishing deadlines beyond which an annexation’s validity becomes certain. Now, however, to the peril of annexation law, this Court has undermined two bedrock components of this finality

First, property owners may not challenge an annexation more than 60 days past adoption of the annexation ordinance. N.C.G.S. § 160A-50(a). Once that deadline passes, a municipality may prepare with confidence that a last-minute challenge will not waste all this preparation and throw the process into chaos. Such waste and chaos, however, will occur nonetheless when even time-barred annexation challenges can trigger a last minute stay. Once a stay descends, whether the municipality ultimately will prevail becomes secondary. Even if it will prevail, opponents still have arrested the annexation at the eleventh hour and delayed it for a prolonged, uncertain appeal. The municipality must grapple with the resulting uncertainty and absorb the financial obligations it has incurred. Consequently, even the prospect of a stay alone, with all its negative consequences, sufficiently discourages annexation to undermine the statutory process.

Second, this Court’s writ also unsettles another source of finality, the effective date. Upon arrival of the effective date, an annexation takes effect under the statutes automatically. Once effective, no constitutional or statutory provision permits any entity other than the General Assembly to reverse it. Consequently, once an annexation is done, a municipality can devote resources to annexed areas without hesitation, confident that only legislative action can reverse the annexation. This Court, however, reversed Fayetteville’s annexation after it already had taken effect. In light of this precedent, even when an effective date arrives, a municipality now might view its annexed areas with skepticism, and it might even hesitate to devote resources to such areas. Again, the statutory process for annexation will cease to work as the General Assembly intended.

I also concur with Fayetteville’s conclusion that the writ of supersedeas finds no support in the annexation statutes. Although N.C.G.S. §160A-50(i) can stay some annexations during appeal, the General Assembly intended it to trigger a stay only for timely filed petitions. By contrast, if a petition is untimely, the annexation statutes disregard it entirely. After the 60-day window closes, petitions are banned absolutely and do not even confer jurisdiction upon the lower court to review an annexation. Without the jurisdiction created by a timely petition, a court his no statutory authority to stay an annexation.

Further, the General Assembly did not intend a single provision, N.C.G.S. § 1 60A- 50(i), to defeat the entire annexation process. As described above, the entire annexation process will be defeated if even time-barred petitions trigger a stay.

This Court’s writ of supersedeas will have a long and profound reach. Rather than just delaying Fayetteville’s annexation, it will frustrate every annexation contemplated in North Carolina. The statutory annexation process, crafted by the General Assembly a half-century ago, will be rendered unworkable and ineffective.

I urge this Court to grant Fayetteville’s Motion and dissolve its writ of supersedeas.


The bottom line is this. IT IS THE LEAGUE OF MUNICIPALITIES THAT IS DESPRERATELY TRYING TO KEEP THE INVOLUNTARY ANNEXATION LAWS IN NORTH CAROLINA!!

THEY CALLED THIS MEETING!! You don’t see anywhere in this urgent memo a list of communities (members of the “coalition”) that were calling it do you? (Just the Fayetteville Mayor looking for help!)

THIS URGENT MEMO WAS E-MAILED AND FAXED TO ALL OF THESE CITIES BY THE LEAGUE OF MUNICIPALITIES. It makes us wonder who directed the association to lead this effort. (this means the “coalition” has directed the league to alert the cities when in reality “ THE LEAGUE” THINKS AND IS TELLING THE CITIES THAT THERE IS A THREAT) The truth of the matter is that WITH SUCH BROAD LATITUDE OF DIRECTION GIVEN BY THE ABOVE BY-LAWS the REALITY IS THAT THE LEAGUE SETS THE DIRECTION not the cities and YOUR TAX DOLLARS ARE PAYING FOR “THE LEAGUE” TO “DO IT” (STEAL TAX DOLLARS) TO YOU!!!!!

The issue of annexation gives the North Carolina League of Municipalities a broad power to advocate RAISING TAXES FROM PLACES OTHER THAN THE CITIZENS WHO LIVE IN THE CITIES THEY REPRESENT!! So obviously, the Leagues interest is to get money from the people, who live outside the city limits. The only reason for this is so that the cities have money to do WHATEVER THEY WANT TO DO!!

WHAT EVER HAPPENED TO GOVERNMENT THAT LIVES WITHIN ITS OWN BUDGET?

If you have read this far, you are interested in all of this. I (Ron Thoreson) understand all to well much of our information is lengthy and could probably be edited for content, That being said, we only have volunteers that do this and adding more time to editing and revision only puts out less information, not more.

Please accept our apologies for being less that perfect. We are trying our best.

We will be following this up with more information on how we will react to the above effort. We think that it is an outrage that the Cities of North Carolina would even think to try to sway the highest court in this State! It looks as though instead of living within the law, they are trying to sway the law. Have you ever heard the statement that when “the law” (Cities establish law…ordinances etc) breaks the law, (the laws that guide the cities from both the state and federal level) then there is no respect for the law?.

The State Supreme Court is looking at the application of law (both State and Federal) in Fayetteville, and the NC League of Municipalities is trying to rally cities to sway the law! NOW DO YOU UNDERSTAND WHY THE LEAGUE OF MUNICIPALITIES IS, IN OUR OPINION, A TAXPAYER FUNDED LOBBY THAT WE THE PEOPLE HAVE NO SAY IN AND THAT ACTUALLY WORK AGAINST THE RIGHTS OF CITIZENS?

There will be more information to follow, Please stay tuned.

As Always and Sincerely I Am

Ron Thoreson

Ron@StopNCAnnexation.com

(919) 303 2666

[Rono]

For the sake of everyones understanding, the key issues in the Fayetteville case is this

Military personal, serving there country are protected by federal law. Included in that law is a "override" of statutes of limitations.

Annexation laws here in North Carolina only allow for 60 days from the time a Town Council aproves an annexation for formal protests to be filed in a court of law

So, simply put...If I was serving in Iraq between September of last year until now, and I lived in the area Fayetteville is trying to annex, Fayetteville, under existing state law could approve the annexation without my ability to file a protest with the court, given the fact that I was stationed in Iraq and could not be home during the 60 day limit of time I was able file a legal protest or objection in the courts.

But FEDERAL LAW PROTECTS MILITARY PERSONAL FROM STATES LAWS SUCH AS THESE

(Federal Law protects ALL ACTIVE DUTY MILITARY PERSONAL THIS WAY)

The bottom line of the Fayettevlle issue before the State Supreme Court is Federal Law Verses States Rights to Govern Themselves.

I ask this question to the people of this forum

SHOULD MILITARY PERSONAL BE PROTECTED THIS WAY?

SHOULD LOCAL AND STATE GOVERNMENT BE ABLE TO TAKE A MILITARY PERSONS PROPERTY BY ANNEXATION WITHOUT THEM HAVING THE ABILITY TO "HAVE THIER DAY IN COURT?"

[hollyL]

I would assume that the Soldiers and Sailors Civil Relief Act would cover such situations. I believe that in these situations they are applied 'after the fact' once they return from deployment and then file a petition with the courts for relief but there maybe a proactive way to do this. Since the annexation came up after they left I can't see how they could be proactive.

My personal opinion, influenced by being the daughter of a retired AF pilot I'm sure, is this type of treatment of military personnel is inexcusable. They've got a LOT more to worry about when being deployed (staying alive is a big one) to worry about what someone/gov't is going to behind their backs. Crap like this really makes me wonder how people sleep at night.

[Rono]

Below is the Section of the Federal Soldiers and Sailors Civil Relief Act that we at www.StopNCAnnexation.com believe is a part of the Fayetteville Supreme Court Annexation Stay Issue.

Please remember that a municipality acts as a "court" during involuntary annexation here in North Carolina. It enacts an "INVOLUNTARY LEGAL (by state statute) ACTION" UPON PROPERTIES.

The simple proof that this is a challengable law is that North Carolina's own INVOLUNTARY annexation statutes provide LENGTHLY AND VERY SPECIFIC PORTIONS OF THIS STATUE for and about legal challenge. THIS LANGUAGE (in our opinion) SUGGESTS AND PERHAPS EVEN EXPECTS THAT MUNICIPALITIES WILL MAKE MISTAKES WHEN INACTING THIS INVOLUNTARY LAW UPON PROPERTY OWNERS

Normal 'laws' do not generally provide SUCH LENGTHY AND SPECIFIC STATUTORY LANGUAGE FOR LEGAL (COURT REVIEW AND DECSISION) "REDRESS" _a remedy DERIVED for a property owner BY MEANS OF LEGAL CHALLENGE. In particular, North Carolina's Involuntary annexation law LIMITS LEGAL ACTION SPECIFIC TO THIS LAW, GREATER THAN “STANDARD” statutes of limitations. THIS MAKE THIS (in our opinion) A “LOPSIDED” LAW. IT FAVORS THE MUNICIPALITY OVER THE SPECIFIC PROTECTION GUARNTEED AND GRANTED TO MILITARY PERSONNEL BY THE FEDERAL SOLDIERS AND SAILORS CIVIL RELIEF ACT

Simply put, the municipality begins the process of this "judgment" BY A RESOLUTION OF INTENT. In the process, legal notification by mail (this is required by law) is sent to the affected property owners (In this example involuntarily annexation of a military service persons property) The town then follows a proscribed procedure (as outlined by the law) leading up to the town councilors enacting (really voting on the possibility of enactment…Fayetteville DID ENACT) a "judgment" which sets a date for that judgment to be executed, possibly (for those of you who may argue that involuntary annexation may be wanted even though the word involuntary is part of the legal action by the town councilors) against said military personnel’s WILL AND/OR PROPERTY AND LEGAL RIGHTS, as a military servant away on active duty. The below act clearly states that as a military servant on active duty in a state or country other than their own, (anywhere outside of North Carolina) they (as a military servant under this protection) have the right to request a "Stay" (delay action in a court of law) up to 60 days AFTER their service has been completed. THIS IS IN ORDER TO BE ABLE TO BE ALLOWED PROPER ARGUMENT AND JUDGEMENT IN A COURT OF LAW BY MILITARY PROPERTY OWNERS WHO WERE AWAY SERVING THEIR COUNTRY AND COULD NOT BE PRESENT AND MAKE LEGAL APPEAL WHEN SUCH ACTION TOOK PLACE .

In our opinion [StopNCAnnexation] North Carolina municipal governments should never be able to impose this action on military service personal while they are away serving our country WITHOUT THEM BEING ABLE TO FILE LEGAL CHALLENGE, SUCH AS ALL AFFECTED OTHERS CAN.

This issue, now under stay by the North Carolina Supreme Court, sets up a battle of States rights verses Federal protection for our military service personnel.

THE NORTH CAROLINA SUPREME COURTS JUDGMENT ON THIS ISSUE WILL HAVE FAR REACHING IMPLICATIONS. ANNEXATION LAWS MAY BE SHREDDED DUE DUE TO THE FACT THAT MILITARY SERVICE AWAY FROM HOME CAN LAST MANY YEARS. It is going to be very interesting to watch how this plays out.

This could go all the way to the Federal Supreme Court if the NC Supreme Court rules in favor of Fayetteville in this case.

This is why the North Carolina League of Municipalities is SO CONCERNED.
IN A NUT SHELL, THEY WANT TO VIOLATE THE RIGHTS OF OUR MILITARY PERSONNEL!!!

Federal Soldiers and Sailors Civil Relief Act text:

Sec. 521. Stay of proceedings where military service affects conduct thereof

At any stage thereof any action or proceeding in any court in
which a person in military service is involved, either as plaintiff
or defendant, during the period of such service or within sixty
days thereafter may, in the discretion of the court in which it is
pending, on its own motion, and shall, on application to it by such
person or some person on his behalf, be stayed as provided in this
Act (sections 501 to 593 of this Appendix) unless, in the opinion
of the court, the ability of plaintiff to prosecute the action or
the defendant to conduct his defense is not materially affected by
reason of his military service.

STAY OF JUDICIAL PROCEEDINGS:

Pub. L. 102-12, Sec. 6, Mar. 18, 1991, 105 Stat. 37, provided
that:

"(a) Stay of Action or Proceeding. - In any judicial action or
proceeding (other than a criminal proceeding) in which a member of
the Armed Forces described in subsection (b) is involved (either as
plaintiff or defendant), the court shall, upon application by such
member (or some other person on the member's behalf) at any stage
before final judgment is entered, stay the action or proceeding
until a date after June 30, 1991.

"(b) Members Covered. - A member of the Armed Forces is covered
by subsection (a) if at the time of application for the stay of a
judicial action or proceeding the member -

"(1) is on active duty; and

"(2) is serving outside the State in which the court having
jurisdiction over the action or proceeding is located.

"(c) Definition. - For purposes of this section, the term
'State' includes the District of Columbia, the Commonwealth of
Puerto Rico, the Virgin Islands, and Guam."

CARY POLITICS PEOPLE….WHAT DO YOU THINK???

[hollyL]

"(1) is on active duty; and

"(2) is serving outside the State in which the court having
jurisdiction over the action or proceeding is located.


Was he deployed out of the state? I can't tell from the articles. Do you know was he the plantiff or just a party?

[Rono]

I don't understand the question Holly, The above posts do not reference anyone in particular, but I believe that the Fayetteville case has military who have signed on who meet the criteria

[johnb]

Pointless technicalities rono. The Soldiers and Sailors Relief Act does nothing to prevent actions by a government entity. It may, in certain cases, delay the action but trying to stretch that to cover a munincipality is a reach. I've just sat through a rather long and boring briefing on the Act at the Naval Reserve Center and have gone through the computer based Guidance for Mobilization training and there is absolutely nothing there to assume you guys have a point.

I know you guys gotta keep hope alive and something, something, something, but that's not too realistic.

[johnb]

Besides, who do you think the state legislature is going to listen to, other politicians or their victims? The mayors, et al, have the ability to spend tax money on state legislators in all sorts of ways. Earlier this year the Cary City Council took Minor, et al, out to Ruth's Chris Steak House, on our nickle. What did you guys do for Mr Minor? :twisted:

Jack told me in an email that that is an effective use of city tax money. I kid you not.

[hollyL]

Kegley filed suit using the Civil Relief Act as a premise. I just didn't know the details of him citing CFA. Based on what I've read it doesn't seem the ruling was based on that aspect anyway. Seems he also cited: "city failed to provide adequate notice of annexation meetings, failed to make an annexation report available in a timely manner and failed to clearly describe the area to be annexed". I was just confused on the portion the ruling came from and what his standing was to use the CRA. It's an interesting legal question. Certainly doesn't seem ethical though.

In the Kegley case, I don't think he was deployed so it wasn't applicable regardless. Guess I answered my own, confusing question :~)

[Rono]

Holly

There are two issues, one is the Gates Four getting removed after annexation approval and the other is the SSCRA. The SSCRA does nothing to stop the annexation, except for allow a longer time period than the 60 days allowed by state statute. Unfortunately, the annexation will probably go forward eventually.

You see the big concern its the ability for anyone using SSCRA to delay the annexation at any point along the wayand perhaps even after annexation has occured and services have been provided. Read again the letter the league wants all cities to sign. The concern is the lengthly delays, years, instead of months. The annexation law is still solid enough to pass after all challanges are exhausted, but look at the problem. Say If I was military and out of the State for 2 years, and I came back to a involuntary annexed property, could I (within 60 days as SSCRA allows) file for a "stay" and battle in court against the whole annexation (which has already taken place) or just the annexation of my porperty for which I could not have a say due to deployment. The seriousness of this question is of grave concern to the League of Municapilities.

Don't forget, this is not about whether or not the annexation was performed legally, this is just about the right to have a chance to "question" by use of a "stay" the annexation process. So I say again if I was miilitary and out of the State for 2 years, and I came back to a involuntarally annexed property, could I (within 60 days as SSCRA allows) file for a "stay" and battle in court against the whole annexation (which has already taken place) or just the annexation of my property for which I could not have a say due to deployment. Don't forget, services have probably been provide for the past year by the annexing municiapality.

Are you beginning to see the picture here Holly. This is one reason that Annexation only exists in 6 states and why this question has not been addressed before. Another fact is that Fayetteville was exempt from annexation up until I think 1983 or 4. It is my gut feeling that those who changed the law in 1959 knew that military would be problem. But then more greedy people in the 80's ignored this possibility. That is why a question like this has not come up before.

I know Johnb thinks all government is corrupt, but things like this have a habit of getting news recoginision and public awareness. The more of that, the less coruption and the better the results for the people.

Rono

[Rono]

In this mornings Fayetteville Observer

Published on: 2004-07-26

City readies appeal

By Don Worthington
Staff writer

Fayetteville plans to appeal a state Supreme Court decision staying annexation, City Manager Roger Stancil said Sunday. The city plans to file its second appeal today or Tuesday, he said.

Details of the city's appeal have not been released.

On July 13, the state Supreme Court stayed Fayetteville's annexation of 27 square miles that brought 42,000 residents into the city.

The action came after the state Court of Appeals lifted its stay and Fayetteville proceeded with the annexation.

"I'm basically an optimist," Stancil said Friday. "Courts are about justice and fairness and this is an opportunity to get this right."

On Friday, mayors from the state's largest cities discussed Fayetteville's situation during a conference call held by the North Carolina Metropolitan Coalition. The state's 22 largest cities are members of the coalition.

The group shares ideas to make the state's urban regions good places to live, environmentally sound and economically viable.

Coalition members discussed how other cities could support Fayetteville, Stancil said.

Stancil said some cities, as well as counties, may join the fight.

The conference call was requested by Mayor Marshall Pitts Jr., a member of the coalition's executive committee.

Beau Mills, executive director of the coalition, said the group discussed sending a letter to the state Supreme Court but decided against it.

"We took no action as a coalition," Mills said Sunday. "We will closely monitor what's going on."

He said some coalition members were dismayed at the state Supreme Court's decision.

"We are concerned the orderliness of annexation is being questioned," Mills said.

Mills and Stancil said the League of Municipalities is assisting Fayetteville. The league has 530 members representing the state's cities, towns and villages. Fayetteville is a member of the league.

Historically, the league has been an advocate of the state's involuntary annexation laws.

Stop NC Annexation officials said the League of Municipalities overstepped its authority.

"It's insulting that the League of Municipalities wants other communities to join in a fight that's local," said Ron Thoreson, chairman of Stop NC Annexation. The nonprofit group has about 10,000 members statewide, he said.

Thoreson said his group is seeking support from military personnel throughout the state so it can file a court brief in the case filed by Keith Kegley, a soldier at Fort Bragg.

Kegley filed his petition for review of the annexation ordinance based on the Service Members Civil Relief Act. State law requires that any appeal to an annexation be filed within 60 days of the adoption of the ordinance. The Kegley suit argues that the relief act nullifies the 60-day appeals period for him because he is an active-duty soldier.

Federal relief

"This is federal law versus state's rights," Thoreson said.

He predicted the Kegley case would move to federal court if the state Supreme Court rules in the city's favor.

Two other challenges to annexation are being considered by the state Court of Appeals.

They are suits filed by the Homebuilders Association of Fayetteville and Cumberland County Citizens United.

The state Court of Appeals is considering whether the challenges were timely. A Cumberland County Superior Court judge ruled the suits were filed after the 60-day period.

The challenges followed a lawsuit by the Gates Four community. The city settled that lawsuit, removing Gates Four from the annexation.

While the city pursues its legal options, Stancil is dealing with the financial uncertainties caused by delaying annexation.

He has placed 4 percent employee raises on hold and instituted a freeze on hiring as well as capital projects.

Jeannette Council, chairwoman of the Cumberland County Board of Commissioners, said she is not aware of any problems related to the delay in annexation.


Uninterrupted services

"There's been no break in services for anyone," she said.

City employees hired because of annexation have not been laid off, Stancil said.

The city is studying ways to reclaim the 15,000 trash cans it distributed to residents in the annexed areas.

One of the problems the city anticipates is that the cans will be full, Stancil said.

"We also have to get people to roll out the carts," he said.

Stancil said the city will pay private trash haulers for the days they operated under city contracts. He said the city will determine those costs this week.

Stancil said if the legal challenges being considered by the Court of Appeals take more than 60 days to resolve, the city will have to make long-term financial decisions.

"The key is timing," he said. "When do you dismantle things?"

Stancil said the quandary is having people and resources available if the courts rule the annexation is valid.

Staff writer Don Worthington can be reached at worthingtond@fayettevillenc.com or 486-3511.

[johnb]

The more of that, the less coruption and the better the results for the people.

I hope you are right, I wouldn't bet on it though. :?