NORTH CAROLINA GENERAL ASSEMBLY

1959 SESSION

 

 

CHAPTER 1010

HOUSE BILL 508

 

 

AN ACT PROVIDING A PROCEDURE FOR THE EXTENSION OF MUNICIPAL CORPORATE LIMITS IN MUNICIPALITIES HAVING A POPULATION OF LESS THAN 5,000 PERSONS.

 

The General Assembly of North Carolina do enact:

 

Section 1. Declaration of Policy. It is hereby declared as a matter of State policy:

(a)       That sound urban development is essential to the continued economic development of North Carolina;

(b)       That municipalities are created to provide the governmental services essential for sound urban development and for the protection of health, safety and welfare in areas being intensively used for residential, commercial, industrial, institutional and government purposes or in areas undergoing such development;

(c)       That municipal boundaries should be extended, in accordance with legislative standards applicable throughout the State, to include such areas and to provide the high quality of governmental services needed therein for the public health, safety and welfare; and

(d)       That new urban development in and around municipalities having a population of less than 5,000 persons tends to be concentrated close to the municipal boundary rather than being scattered and dispersed as in the vicinity of larger municipalities, so that the legislative standards governing annexation by smaller municipalities can be simpler than those for large municipalities and still attain the objectives set forth in this Section;

(e)       That areas annexed to municipalities in accordance with such uniform legislative standards should receive the services provided by the annexing municipality as soon as possible following annexation.

Sec. 2. Authority to Annex. The governing board of any municipality having a population of less than 5,000 persons according to the last Federal decennial census may extend the corporate limits of such municipality under the procedure set forth in this Act.

Sec. 3. Prerequisites to Annexation: Ability to Serve. A municipality exercising authority under this Act shall make plans for the extension of services to the area proposed to be annexed and shall, prior to the public hearing provided for in Section 5 of this Act, prepare a report setting forth such plans to provide services to such area. The report shall include:

(a)       A map or maps of the municipality and adjacent territory to show the following information:

(1)       The present and proposed boundaries of the municipality.

(2)       The proposed extensions of water mains and sewer outfalls to serve the annexed area, if such utilities are operated by the municipality.

(b)       A statement showing that the area to be annexed meets the requirements of Section 4 of this Act.

(c)       A statement setting forth the plans of the municipality for extending to the area to be annexed each major municipal service performed within the municipality at the time of annexation. Specifically, such plans shall:

(1)       Provide for extending police protection, fire protection, garbage collection and street maintenance services to the area to be annexed on the date of annexation on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. If a water distribution system is not available in the area to be annexed, the plans must call for reasonably effective fire protection services until such time as water lines are made available in such area under existing municipal policies for the extension of water lines.

(2)       Provide for extension of water mains and sewer lines into the area to be annexed so that property owners in the area to be annexed will be able to secure public water and sewer service according to the policies in effect in such municipality for extending water and sewer lines to individual lots or subdivisions. If the municipality must, at its own expense, extend water and/or sewer mains into the area to be annexed before property owners in the area can, according to municipal policies, make such connection to such lines, then the plans must call for contracts to be let and construction to begin on such lines within one year following the effective date of annexation.

(3)       Set forth the method under which the municipality plans to finance extension of services into the area to be annexed.

Sec. 4. Character of Area to be Annexed. (a)  A municipal governing board may extend the municipal corporate limits to include any area which meets the general standards of subsection (b), and which meets the requirements of subsection (c).

(b)       The total area to be annexed must meet the following standards:

(1)       It must be adjacent or contiguous to the municipality's boundaries at the time the annexation proceeding is begun.

(2)       At least one-eighth of the aggregate external boundaries of the area must coincide with the municipal boundary.

(3)       No part of the area shall be included within the boundary of another incorporated municipality.

(c)       The area to be annexed must be developed for urban purposes. An area developed for urban purposes is defined as any area which is so developed that at least sixty per cent (60%) of the total number of lots and tracts in the area at the time of annexation are used for residential, commercial, industrial, institutional or governmental purposes, and is subdivided into lots and tracts such that at least sixty per cent (60%) of the total acreage, not counting the acreage used at the time of annexation for commercial, industrial, governmental or institutional purposes, consists of lots and tracts five acres or less in size.

(d)       In fixing new municipal boundaries, a municipal governing board shall, wherever practical, use natural topographic features such as ridge lines and streams and creeks as boundaries, and if a street is used as a boundary, include within the municipality developed land on both sides of the street.

Sec. 5. Procedure for Annexation. (a)  Notice of Intent. Any municipal governing board desiring to annex territory under the provisions of this Act shall first pass a resolution stating the intent of the municipality to consider annexation. Such resolution shall describe the boundaries of the area under consideration and fix a date for a public hearing on the question of annexation, the date for such public hearing to be not less than thirty days and not more than sixty days following passage of the resolution.

(b)       Notice of Public Hearing. The notice of public hearing shall

(1)       Fix the date, hour and place of the public hearing.

(2)       Describe clearly the boundaries of the area under consideration.

(3)       State that the report required in Section 3 of this Act will be available at the office of the municipal clerk at least fourteen days prior to the date of the public hearing. Such notice shall be given by publication in a newspaper having general circulation in the municipality once a week for at least four successive weeks prior to the date of the hearing. The period from the date of the first publication to the date of the last publication, both dates inclusive, shall be not less than twenty-two days including Sundays, and the date of the last publication shall be not more than seven days preceding the date of public hearing. If there be no such newspaper, the municipality shall post the notice in at least five public places within the municipality and at least five public places in the area to be annexed for thirty days prior to the date of public hearing.

(c)       Action Prior to Hearing. At least fourteen days before the date of the public hearing, the governing board shall approve the report provided for in Section 3 of this Act, and shall make it available to the public at the office of the municipal clerk. In addition, the municipality may prepare a summary of the full report for public distribution.

(d)       Public Hearing. At the public hearing a representative of the municipality shall first make an explanation of the report required in Section 3 of this Act. Following such explanation, all persons resident or owning property in the territory described in the notice of public hearing, and all residents of the municipality, shall be given an opportunity to be heard.

(e)       Passage of the Annexation Ordinance. The municipal governing board shall take into consideration facts presented at the public hearing and shall have authority to amend the report required by Section 3 of this Act to make changes in the plans for serving the area proposed to be annexed so long as such changes meet the requirements of Section 3. At any regular or special meeting held no sooner than the seventh day following the public hearing and not later than sixty days following such public hearing, the governing board shall have authority to adopt an ordinance extending the corporate limits of the municipality to include all, or such part, of the area described in the notice of public hearing which meets the requirements of Section 4 of this Act and which the governing board has concluded should be annexed. The ordinance shall:

(1)       Contain specific findings showing that the area to be annexed meets the requirements of Section 4 of this Act. The external boundaries of the area to be annexed shall be described by metes and bounds. In showing the application of Section 4(c) and 4(d) to the area, the governing board may refer to boundaries set forth on a map of the area and incorporate same by reference as a part of the ordinance.

(2)       A statement of the intent of the municipality to provide services to the area being annexed as set forth in the report required by Section 3 of this Act.

(3)       A specific finding that on the effective date of annexation the municipality will have funds appropriated in sufficient amount to finance construction of any water and sewer lines found necessary in the report required by Section 3 to extend the basic water and/or sewer system of the municipality into the area to be annexed, or that on the effective date of annexation the municipality will have authority to issue bonds in an amount sufficient to finance such construction. If authority to issue such bonds must be secured from the electorate of the municipality prior to the effective date of annexation, then the effective date of annexation shall be no earlier than the day following the statement of the successful result of the bond election.

(4)       Fix the effective date of annexation. The effective date of annexation may be fixed for any date within twelve months from the date of passage of the ordinance.

(f)        Effect of Annexation Ordinance. From and after the effective date of the annexation ordinance, the territory and its citizens and property shall be subject to all debts, laws, ordinances and regulations in force in such municipality and shall be entitled to the same privileges and benefits as other parts of such municipality. The newly annexed territory shall be subject to municipal taxes levied for the fiscal year following the effective date of annexation. If the effective date of annexation falls between January 1 and June 30, the municipality shall, for purposes of levying taxes for the fiscal year beginning July 1 following the date of annexation, obtain from the county a record of property in the area being annexed which was listed for taxation as of said January 1. If the effective date of annexation falls between June 1 and June 30, and the effective date of the privilege license tax ordinance of the annexing municipality is June 1, then businesses in the area to be annexed shall be liable for taxes imposed in such ordinance from and after the effective date of annexation.

(g)       Simultaneous Annexation Proceedings. If a municipality is considering the annexation of two or more areas which are all adjacent to the municipal boundary but are not adjacent to one another, it may undertake simultaneous proceedings under authority of this Act for the annexation of such areas.

(h)       If, not earlier than one year from the effective date of annexation, and not later than fifteen months from the effective date of annexation, any person owning property in the annexed territory shall believe that the municipality has not followed through on its service plans adopted under the provisions of Sections 3(c) and 5(e), such person may apply for a writ of mandamus under the provisions of Article 40, Chapter 1 of the General Statutes. Relief may be granted by the Judge of Superior Court (1) if the municipality has not provided the services set forth in its plan submitted under the provisions of Section 3(c) (1) on substantially the same basis and in the same manner as such services were provided within the rest of the municipality prior to the effective date of annexation, and (2) if at the time the writ is sought such services set forth in the plan submitted under the provisions of Section 3 (c)(1) are still being provided on substantially the same basis and in the same manner as on the date of annexation of the municipality. Relief may also be granted by the Judge of Superior Court (1) if the plans submitted under the provisions of Section 3(c)(3) require the construction of major trunk water mains and sewer outfall lines and (2) if contracts for such construction have not yet been let. It a unit is issued, costs in the action, including a reasonable attorney's fee for such aggrieved person, shall be charged to the municipality.

Sec. 6. Appeal. (a) Within thirty days following the passage of an annexation ordinance under authority of this Act, any person owning property in the annexed territory who shall believe that he will suffer material injury by reason of the failure of the municipal governing board to comply with the procedure set forth in this Act or to meet the requirements set forth in Section 4 of this Act as they apply to his property may file a petition in the Superior Court of the county in which the municipality is located seeking review of the action of the governing board.

(b)       Such petition shall explicitly state what exceptions are taken to the action of the governing board and what relief the petitioner seeks. Within five days after the petition is filed with the court, the person seeking review shall serve copies of the petition by registered mail, return receipt requested, upon the municipality.

(c)       Within fifteen days after receipt of the copy of the petition for review, or within such additional time as the court may allow, the municipality shall transmit to the reviewing court (1) a transcript of the portions of the municipal journal or minute book in which the procedure for annexation has been set forth and (2) a copy of the report setting forth the plans for extending services to the annexed area as required in Section 3 of this Act.

(d)       If two or more petitions for review are submitted to the court, the court may consolidate all such petitions for review at a single hearing, and the municipality shall be required to submit only one set of minutes and one report as required in subsection (c).

(e)       At any time before or during the review proceeding, any petitioner or petitioners may apply to the reviewing court for an order staying the operation of the annexation ordinance pending the outcome of the review. The court may grant or deny the stay in its discretion upon such terms as it deems proper, and it may permit annexation of any part of the area described in the ordinance concerning which no question for review has been raised.

(f)        The court shall fix the date for review of annexation proceedings under this Chapter, which review date shall preferably be within thirty days following the last day for receiving petitions to the end that review shall be expeditious and without unnecessary delays. The review shall be conducted by the court without a jury. The court may hear oral arguments and receive written briefs, and may take evidence intended to show either (1) that the statutory procedure was not followed or (2) that the provisions of Section 3 were not met, or (3) that the provisions of Section 4 have not been met.

(g)       The court may affirm the action of the governing board without change, or it may

(1)       Remand the ordinance to the municipal governing board for further proceedings if procedural irregularities are found to have materially prejudiced the substantive rights of any of the petitioners.

(2)       Remand the ordinance to the municipal governing board for amendment of the boundaries to conform to the provisions of Section 4 if it finds that the provisions of Section 4 have not been met; provided, that the court cannot remand the ordinance to the municipal governing board with directions to add area to the municipality which was not included in the notice of public hearing and not provided for in plans for service.

(3)       Remand the report to the municipal governing board for amendment of the plans for providing services to the end that the provisions of Section 3 of this Act are satisfied. If any municipality shall fail to take action in accordance with the court's instructions upon remand within three months from receipt of such instructions, the annexation proceeding shall be deemed null and void.

(h)       Any party to the review proceedings, including the municipality, may appeal to the Supreme Court from the final judgment of the Superior Court under rules of procedure applicable in other civil cases. The appealing party may apply to the Superior Court for a stay in its final determination, or a stay of the annexation ordinance, whichever shall be appropriate, pending the outcome of the appeal to the Supreme Court; provided, that the Superior Court may, with the agreement of the municipality, permit annexation to be effective with respect to any part of the area concerning which no appeal is being made and which can be incorporated into the city without regard to any part of the area concerning which an appeal is being made.

(i)        If part or all of the area annexed under the terms of an annexation ordinance is the subject of an appeal to the Superior or Supreme Court on the effective date of the ordinance, then the ordinance shall be deemed amended to make the effective date with respect to such area the date of the final judgment of the Superior or Supreme Court, whichever is appropriate, or the date the municipal governing board completes action to make the ordinance conform to the court's instructions in the event of remand.

Sec. 7. Annexation Recorded. Whenever the limits of a municipality are enlarged in accordance with the provisions of this Act, it shall be the duty of the mayor of the municipality to cause an accurate map of such annexed territory, together with a copy of the ordinance duly certified, to be recorded in the office of the register of deeds of the county or counties in which such territory is situated and in the office of the Secretary of State.

Sec. 8. Authorized Expenditures. Municipalities initiating annexations under the provisions of this Act are authorized to make expenditures for surveys required to describe the property under consideration or for any other purpose necessary to plan for the study and/or annexation of unincorporated territory adjacent to the municipality. In addition, following final passage of the annexation ordinance, the annexing municipality shall have authority to proceed with expenditures for construction of water and sewer lines and other capital facilities and for any other purpose calculated to bring services into the annexed area in a more effective and expeditious manner prior to the effective date of annexation.

Sec. 9. Definitions. The following terms where used in this Act shall have the following meanings, except where the context clearly indicates a different meaning:

(a)       "Contiguous area" shall mean any area which, at the time annexation procedures are initiated, either abuts directly on the municipal boundary or is separated from the municipal boundary by a street or street right of way, a creek or river, the right of way of a railroad or other public service corporation, lands owned by the municipality or some other political subdivision, or lands owned by the State of North Carolina.

(b)       "Used for residential purposes" shall mean any lot or tract five acres or less in size on which is constructed a habitable dwelling unit.

Sec. 10. Land Estimates. In determining degree of land subdivision for purposes of meeting the requirements of Section 4 of this Act, the municipality shall use methods calculated to provide reasonably accurate results. In determining whether the standards set forth in Section 4 have been met on appeal to the Superior Court under Section 6 of this Act, the reviewing court shall accept the estimates of the municipality:

(a)       As to total area if the estimate is based on an actual survey, or on county tax maps or records, or on aerial photographs, or on some other reasonably reliable map used for official purposes by a governmental agency unless the petitioners on appeal demonstrate that such estimates are in error in the amount of five per cent (5%) or more.

(b)       As to degree of land subdivision, if the estimates are based on an actual survey, or on county tax maps or records, or on aerial photographs, or on some other reasonably reliable source, unless the petitioners on appeal show that such estimates are in error in the amount of five per cent (5%) or more.

Sec. 11. Effect on Other Laws. From and after July 1, 1959, this Act shall be in full force and effect with respect to all municipalities having a population of less than 5,000 persons according to the last preceding Federal decennial census. The provisions of Article 36 of Chapter 160 of the General Statutes of North Carolina shall remain in full force and effect with respect to such municipalities as an alternative procedure until June 30, 1961. From and after July 1, 1961, all the provisions of Article 36 of Chapter 160 of the General Statutes of North Carolina, with the exception of Section 160-452 as it exists at the time of the passage of this Act or as it may be amended at this Session of the General Assembly, shall be repealed. Insofar as the provisions of this Act are inconsistent with the provisions of any other law, the provisions of this Act shall be controlling.

Sec. 12. The provisions of this Act shall not apply to the following counties: Alleghany, Cumberland, Edgecombe, Franklin, Halifax, Harnett, Iredell, Nash, Pender, Perquimans, Person and Randolph.

Notwithstanding any other provisions of this Act, Article 36 of Chapter 160 of the General Statutes of North Carolina and specifically G. S. 160-452, as the same may be rewritten or amended, shall remain in full force and effect as to the counties herein named.

In the General Assembly read three times and ratified, this the 16th day of June, 1959.