Kegley v. City of Fayetteville

613 S.E.2d 696, 170 N.C. App. 656, 2005 N.C. App. LEXIS 1073
CourtCourt of Appeals of North Carolina
DecidedJune 7, 2005
DocketNo. COA04-1123.
StatusPublished

This text of 613 S.E.2d 696 (Kegley v. City of Fayetteville) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kegley v. City of Fayetteville, 613 S.E.2d 696, 170 N.C. App. 656, 2005 N.C. App. LEXIS 1073 (N.C. Ct. App. 2005).

Opinion

McCULLOUGH, Judge.

Petitioner appellants appeal from an order granting respondent's motion to dismiss. On 24 November 2003, the City of Fayetteville adopted an ordinance annexing approximately 28 square miles of land and over 40,000 residents. The annexation was to become effective on 30 June 2004. In North Carolina, an owner of annexed property can seek judicial review if he or she files a 2 petition "[w]ithin 60 days following the passage of an annexation ordinance." N.C. Gen.Stat. § 160A-50(a) (2003).

A group of Cumberland County residents, the Gates Four community, filed the only timely petition for review. The City of Fayetteville and Gates Four settled their dispute, and pursuant to N.C. Gen.Stat. § 160A-50(m) (2003), the superior court entered *697a consent judgment on 12 May 2004. Thus, the Gates Four community was excluded from the annexation.

Petitioners filed this challenge on 14 June 2004. This was five months after the 60-day period had ended, two-and-a-half years after the annexation was first publicized, and sixteen days before the annexation's effective date.

Although they petitioned for review after the 60-day period ended, petitioners argued that the federal Servicemembers Civil Relief Act ("Act") tolled their time to seek review. The trial court rejected this contention and dismissed the action as time-barred on 28 June 2004. Petitioners appeal.

On appeal, petitioners argue that the trial court erred by dismissing their petition as time-barred. We disagree and affirm the decision of the trial court.

Petitioners contend that the trial court erred in dismissing their appeal. Although they acknowledge that they sought judicial review after the 60-day period ended, petitioners argue that the Act tolled their time to seek review. They rely on Section 206 of the Act which states that:

The period of a servicemember's military service may not be included in computing any period limited by law, regulation, or order for the bringing of any action or proceeding in a court, or in any board, bureau, commission, department, or other agency of a State (or political subdivision of a State) or the United States by or against the servicemember or the servicemember's heirs, executors, administrators, or assigns.

50 App. U.S.C. § 525 (as amended by Pub.L. 108-189, § 206(a) Dec. 19, 2003).

Petitioners suggest that since they were in the military during the 60-day period, the Act tolled the statutory period for them. We disagree.

As announced by the United States Supreme Court, the plain statement rule dictates that a federal statute cannot be interpreted to intrude upon state sovereignty unless the statute contains a plain statement showing an unmistakably clear intent to intrude. Gregory v. Ashcroft, 501 U.S. 452, 460-61, 111 S.Ct. 2395, 2400-01, 115 L.Ed.2d 410, 424 (1991). "This plain statement rule is nothing more than an acknowledgment that the States retain substantial sovereign powers under our constitutional scheme, powers with which Congress does not readily interfere." Id. at 461, 111 S.Ct. at 2401, 115 L.Ed.2d at 424. Therefore, the plain statement rule preserves the balance between state and federal power by ensuring that courts do not accidentally erode state power where Congress did not intend such a result.

Recently, the United States Supreme Court confirmed that the plain statement rule applies when a federal statute intends to interfere with a state's regulation of its municipalities. Nixon v. Missouri Municipal League, 541 U.S. 125, 124 S.Ct. 1555, 158 L.Ed.2d 291 (2004). In Nixon, the federal Telecommunications Act of 1996 prohibited the states from barring "any entity" from the telecommunications business. Id. at 128, 124 S.Ct. at 1559, 158 L.Ed.2d at 298. However, the State of Missouri adopted a statute prohibiting its own municipalities from providing telecommunications services. Id. at 129, 124 S.Ct. at 1559, 158 L.Ed.2d at 298. Municipalities in Missouri challenged the state statute arguing that they fell within the federal Act's broad "any entity" language; the municipalities also claimed that the federal statute preempted the state law and invalidated Missouri's attempt to bar them from the telecommunications business. Id.

The United States Supreme Court rejected the municipalities' claim and declined to inject a federal statute into a state's sovereign right to govern its municipal subdivisions:

Preemption [by the Federal Telecommunications Act] would come only by interposing federal authority between a State and its municipal subdivisions, which our precedents teach, "are created as convenient agencies for exercising such of the governmental powers of the State as may be entrusted to them in its absolute discretion."

Id. at 140, 124 S.Ct. at 1565, 158 L.Ed.2d at 305 (citation omitted).

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Related

Gregory v. Ashcroft
501 U.S. 452 (Supreme Court, 1991)
Nixon v. Missouri Municipal League
541 U.S. 125 (Supreme Court, 2004)
Smith v. City of Winston-Salem
100 S.E.2d 835 (Supreme Court of North Carolina, 1957)
Best v. Wayne Memorial Hospital, Inc.
556 S.E.2d 629 (Court of Appeals of North Carolina, 2001)

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613 S.E.2d 696, 170 N.C. App. 656, 2005 N.C. App. LEXIS 1073, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kegley-v-city-of-fayetteville-ncctapp-2005.