City of Kannapolis v. City of Concord

391 S.E.2d 493, 326 N.C. 512, 1990 N.C. LEXIS 241
CourtSupreme Court of North Carolina
DecidedMay 10, 1990
Docket460A89
StatusPublished
Cited by7 cases

This text of 391 S.E.2d 493 (City of Kannapolis v. City of Concord) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
City of Kannapolis v. City of Concord, 391 S.E.2d 493, 326 N.C. 512, 1990 N.C. LEXIS 241 (N.C. 1990).

Opinions

WHICHARD, Justice.

This appeal involves attempts by two municipalities to annex the same area, Lake Concord and its watershed, which abuts the City of Kannapolis, and which, prior to annexation by the City of Concord of the intervening tract, was separated from that city by an intervening tract of land consisting of eight parcels. The issue presented by defendant Concord’s cross-appeal is whether the North Carolina annexation statutes permit a municipality to annex by voluntary means a tract of land that is contiguous with its municipal boundaries only by virtue of a second tract of land that is being annexed simultaneously. We hold that they do not. The issue presented by plaintiff Kannapolis’ appeal is whether its failure to specify in its initial resolution of intent to annex that the effective date of the annexation would be at least one year [514]*514from the date of passage of the annexation ordinance constituted substantial incompliance with the annexation statute, thus voiding the annexation. We hold that it did not. The result is that under the “prior jurisdiction rule” plaintiff Kannapolis prevails as the first to annex.

The City of Concord is separated from Lake Concord and its watershed, both of which it owns, by a tract of land whose owners filed a petition for voluntary annexation with the Concord Board of Aldermen on or about 16 September 1987. On 24 September 1987, in accordance with the provisions of N.C.G.S. § 160A-31(c), the Board of Aldermen adopted resolutions acknowledging the submittal of this petition, directing the city clerk to investigate its sufficiency, and fixing 8 October 1987 for the public hearing mandated by the statute. The Board also adopted a third resolution stating defendant Concord’s intent to annex its Lake Concord property and prescribing that the question of this annexation be addressed at the same public meeting as that set for the annexation of the first, privately-owned tract. This third resolution was adopted pursuant to N.C.G.S. § 160A-31(g), which provides that the governing board of a municipality “may initiate annexation of contiguous property owned by the municipality by adopting a resolution stating its intent to annex the property, in lieu of filing a petition.” N.C.G.S. § 160A-31(g) (1987).

Notice of the public hearing was properly published. On 8 October 1987, at the conclusion of the hearing, defendant Concord’s Board of Aldermen found that the landowners’ petition for annexation met the requirements of N.C.G.S. § 160.A-31, and it passed an ordinance annexing that eight-parcel tract to the City of Concord, to be effective 31 October 1987. The Board simultaneously passed an ordinance annexing the Lake Concord property, also to be effective 31 October 1987.

On 14 October 1987, plaintiff Kannapolis’ City Council adopted a “resolution of intent” to consider the annexation of certain properties contiguous with its boundaries, including the Lake Concord property. Plaintiff Kannapolis followed the procedure for involuntary annexation detailed in N.C.G.S. § 160A-49. This statute mandates that no resolution of intent may be adopted unless the municipality’s governing body has either identified the area under consideration for annexation at least one year prior to adopting [515]*515a resolution of intent, N.C.G.S. § 160A-49(i) (1987),1 or, for cities initiating annexation with a resolution of intent rather than a resolution of consideration, by providing in the resolution of intent and in the ordinance annexing the area “that the effective date of the annexation shall be at least one year from the date of passage of the annexation ordinance.” N.C.G.S. § 160A-49(j) (1987). See Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 90-91, 357 S.E.2d 686, 687, reh’g denied, 320 N.C. 639, 360 S.E.2d 106 (1987). Plaintiff Kannapolis’ resolution of intent to consider the annexation of the Lake Concord property, while otherwise in compliance with the statute, failed to specify the effective date of annexation. The annexation ordinance, adopted 30 March 1988, however, did specify an effective date of 31 March 1989.

In its complaint under the Declaratory Judgment Act, N.C.G.S. § 1-253 through -267 (1983), plaintiff Kannapolis averred that annexation of the Lake Concord property by defendant Concord was invalid because, at the time of adoption of defendant Concord’s resolution of intent to annex the Lake Concord tract, the property was not contiguous with that city’s boundaries. In its answer defendant Concord asserted that plaintiff Kannapolis also had failed to comply with the statutory procedures for involuntary annexation and thus had failed to acquire prior jurisdiction2 for annexation of the Lake Concord property.

Aware that its initial efforts to annex the Lake Concord property might have been procedurally flawed, defendant Concord attempted to repeat its annexation process properly. On 10 December 1987, the Board of Aldermen adopted a second resolution of intent to annex the Lake Concord property in accordance with N.C.G.S. § 160A-31(g). As the intervening privately-owned tract had been annexed effective 31 October 1987, the Lake Concord property was, by that date, contiguous with defendant Concord’s boundaries, as was statutorily required for the annexation of municipally owned property. N.C.G.S. § 160A-31(g) (1987).

[516]*516The trial court granted summary judgment for defendant Concord, and the Court of Appeals affirmed. City of Kannapolis v. City of Concord, 95 N.C. App. 591, 383 S.E.2d 402 (1989). The Court of Appeals held that because annexation by defendant Concord of the intervening tract — the subject of the landowners’ petition for voluntary annexation — was not effective until 31 October 1987, the Lake Concord property was not contiguous to defendant Concord at any time prior to that date, as required by N.C.G.S. § 160A-31(g) for annexation. Id. at 593-94, 383 S.E.2d at 403-04. The majority, however, held that the failure of plaintiff Kannapolis to comply with the requisite of N.C.G.S. § 160A-49(j) by providing in its initial resolution of intent that the annexation would take effect one year after the passage of the ordinance was fatal to its attempt to annex the property, despite plaintiff Kannapolis’ averment that such a “purely procedural” mistake did not materially prejudice anyone. Stating that the absence of prejudice does not in itself guarantee “substantial compliance,” the majority held that the statutory requisite is explicit and essential. Id. at 595, 383 S.E.2d at 404-05. Judge Phillips, dissenting, maintained that the absence of a specified effective annexation date from the resolution of intent was a minor defect and that accordingly summary judgment should have been entered for plaintiff Kannapolis. Id. at 596, 383 S.E.2d at 405. Plaintiff Kannapolis exercised its right to appeal. N.C.G.S. § 7A-30(2) (1989). Defendant Concord cross-appealed, and on 20 November 1989 we allowed its petition for discretionary review of the issue raised by the cross-appeal, viz, whether its 24 September 1987 resolution of intent to annex was invalid because the subject property was not contiguous to its boundaries at the time.

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City of Kannapolis v. City of Concord
391 S.E.2d 493 (Supreme Court of North Carolina, 1990)

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Bluebook (online)
391 S.E.2d 493, 326 N.C. 512, 1990 N.C. LEXIS 241, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-kannapolis-v-city-of-concord-nc-1990.