If you follow North Carolina local government and land use issues you no doubt have been following the topic du jour, annexation reform.  But the depth of media coverage has been frustratingly shallow, and 95% of what you’ve read has been bill updates and pro/con sound bites.

             Join me as I present some perspectives you haven’t encountered in the state’s newspapers.  Following is governmental and political commentary, not a detailed description of the new annexation legislation.  

The First Battle

             If you can define the issue, you can control the debate, and when you can control the debate you can control or influence the outcome.  Thus, the first battle is conceptual.

             Major legislative revisions – when there are powerhouses on each side – require a framework of public understanding.  The framework must be simple and compelling and expressed in language that answers the same question it raises.

             What for decades has been called “involuntary annexation” recently acquired a new term: forced annexation.  It sounds bad.  It evokes images of land grabs and the invasion of sacred rights. 

             Involuntary annexation is a statutory term – a legal category.  Forced annexation is a political slogan. 

             When forced annexation is the accepted description it’s easy to say you’re opposed and conceptually and psychological hard to say you support it.  When you win the battle of words you’re half way to victory on the political battlefield.

 Municipal Arrogance

             Unchecked power breeds arrogance.  It’s a universal dynamic.

             Reform proponents had a huge gun to shoot at will, and it was handed to them by municipalities themselves – abuse of the power granted to cities to annex. 

             There have been a few cases – not many, but enough to show that it can happen – where municipalities had involuntarily annexed surrounding urbanized areas then failed to deliver the equivalent services required by statute. 

             And there have been cases, usually involving smaller municipalities, where it at least reasonably appeared that an annexation had nothing to do with planning and growth management and everything to do with grabbing an industry for its potential tax revenue.

             And if that wasn’t enough, there also were annexations where water and sewer lines already were constructed and paid for, but annexees were required to pay exorbitant tap-on fees in the range of thousands of dollars, fees that normally are required as capital contributions to pay for new lines serving a new subdivision.

             As a group, one could argue, quoting from the Book of Hosea, that municipalities had “sowed the wind” and were now “reaping the whirlwind.”  Or, as some parents like to say, “You should have considered the consequences when you did what you did.”

 Changing the Rules

             Changing the rules at half-time or, in this case, applying new rules after the game is over is another – and probably worse – form of governmental arrogance.

             Several municipalities played by the rules, following the statutes, and spent enormous sums of taxpayer dollars defending their actions in court.  But even after appellate court review and affirmation, this General Assembly exercised the strong arm of power and overturned several of those legal decisions ex post facto

             When our statutes grant cities specific powers, they should be left to use them responsibly without having to worry about what is essentially a General Assembly veto.  I question whether a “legislative veto” of a Court of Appeals’ decision is a violation of the doctrine of separation of powers.

 Counties are Sometimes the Real Culprits

             The new legislation is imbalanced for one key reason – it limits cities’ ability to expand borders to handle and manage urban growth, but it doesn’t take away from counties their ability to create urban areas adjacent to prevailing municipal limits.

             Growth must be studied and planned and managed.  Transportation, land use and utility studies can be worth their weight in gold. But unchecked urban growth beyond the reach of the governmental hubs where it originates is a big problem. The logical control of this growth should be from the hub, not the wheel’s rim.

             Ninety percent of the growth management problems stem from counties approving small lot subdivisions adjacent to cities and towns, often on substandard community water and sewer systems that fail in a few years. And as we have all seen more than once, when community utilities fail, subdivision residents will look to be bailed out by municipal systems.

 But It’s not Cities Versus Counties

             City versus county is a governmental services discussion.  To understand annexation, the better dichotomy is urban versus non-urban.

             [Sidebar: I intentionally use “non-urban” instead of “rural” because of the misplaced and errant ongoing discussion over the “loss of farmland,” which is really about loss of rural areas that for decades have not been, are not now and will never again be used for agricultural purposes.  Rural versus agricultural. There is a difference. End sidebar]

             When I traveled through Europe by monorail over 30 years ago I was both intrigued and surprised that cities often abruptly stopped and rural areas started at noticeable points.  There was no sprawl. You were rural or you were urban.

             As (previously) written, our annexation statutes allowed for involuntary annexation only when an area had become urbanized, a status that was statutorily defined.  The rationale has been that cities must be able to manage urban growth. 

             Without realizing it, our legislature’s one small step towards political point-scoring with “forced annexation” opponents has been a giant leap, over time, towards the redefinition of the roles of counties and cities.

 Is “Cry Baby” a Hyperbole?

             As Americans, we are a self-entitled group.  We demand perfect cell coverage but become indignant when a cell tower is placed in our neighborhood.  We expect to be able to consume goods indiscriminately, yet scream irrationally when a disposal solution is proposed for a location within fifty miles.  We demand more and better governmental services but vote for the politicians that seduce us with promises of lower taxes.

             It’s more than NIMBYism.  It’s self-entitlement.

             Many Americans lead lives that can only be described as urban.  Their job is in the city.  They buy groceries at Harris Teeter.  All of their restaurants are in the city.  Their church is in the city.  And their children’s soccer teams, their bridge clubs and their Rotary Clubs are all in the city.

             But they insist that they should be able to live in that most oxymoronic of land use categories – the rural subdivision – so that they should not be required to pay the municipal tax dollars that support the sewer line serving their workplace, the landfill that takes all of Harris Teeter’s cardboard boxes, the water lines to their favorite restaurants, the streets that connect all of these or the police and fire services that protect them.

             I’ve heard their voices many times at public hearings and read their statements in newspaper articles.  “I moved out of the city because I didn’t want to pay city taxes.” Most folks have no sympathy for someone whose tax free use of these services requires everyone else to pay a bit more.

 The New Legislation

             The recently ratified House Bill 845 is the most cumbersome and labyrinthine local government legislation I have ever read.  It does more than discourage municipalities from starting the process.  It also encourages denial of the municipality’s decision by property owners by providing for simple and convenient “voting” and new procedures for judicial review.

             I sympathize with the planners and city attorneys who now have to follow a mandated 87 step procedure to expand municipal boundaries.  And I sympathize with elected officials who will spend countless hours dealing with these issues, only to have property owners in the annexed area vote to deny the adopted petition.

             Local governments are established and granted powers for many reasons.  Where would we be if a city needed to expand a city street to accommodate regional traffic but the decision could be overturned by a percentage of those who lived on the street? 

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Tom Terrell

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes…

Terrell_TomMr. Terrell is widely regarded as one of North Carolina’s leading land use attorneys, representing both private and governmental entities in matters related to real estate development. His practice “footprint” covers the state from the mountain counties to the coast and occasionally includes parts of Virginia and South Carolina. His many clients are involved in commercial and residential real estate, solid waste hauling and disposal, telecommunications, quarries/asphalt and miscellaneous litigation related to permit denials, vested rights and rezonings.

He has published numerous articles and speaks regularly to legal, governmental and business groups on a variety of issues related to land use and zoning.

Mr. Terrell has served as a leader in numerous civic and legal endeavors, including Chairman of the Board of Trustees of the N.C. State Health Plan, Chairman of the Board of Trustees of Winston-Salem State University, and service on the Board of Directors of the UNC-CH General Alumni Association, Board of Directors of the High Point Chamber of Commerce, Board of Visitors of Guilford College and Board of Center Associates of the Center for Creative Leadership, and as a founding member of the N.C. Bar Association Zoning, Planning and Land Use Section.

More information can be found at https://www.foxrothschild.com/thomas-e-terrell-jr/.

Mr. Terrell can be contacted at mailto:tterrell@foxrothschild.com.