{
  "id": 8359270,
  "name": "TOWN OF HAZELWOOD v. TOWN OF WAYNESVILLE",
  "name_abbreviation": "Town of Hazelwood v. Town of Waynesville",
  "decision_date": "1987-01-06",
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      "cite": "77 N.C. App. 318",
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  "last_updated": "2023-07-14T16:07:52.921422+00:00",
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  "casebody": {
    "judges": [
      "Judges Arnold and Johnson concur."
    ],
    "parties": [
      "TOWN OF HAZELWOOD v. TOWN OF WAYNESVILLE"
    ],
    "opinions": [
      {
        "text": "EAGLES, Judge.\nBecause the facts are not disputed and this case involves only a question of law, it is appropriate for summary judgment. Hamilton v. Travelers Indemnity Co., 77 N.C. App. 318, 335 S.E. 2d 228 (1985), disc. rev. denied, 315 N.C. 587, 341 S.E. 2d 25 (1986). We reverse the trial court, however, since application of the \u201cprior jurisdiction rule\u201d requires judgment for the plaintiff rather than the defendant.\nThe prior jurisdiction rule was held applicable to our annexation statutes in City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E. 2d 534 (1984). The rule operates on a \u201cfirst in time, first in right\u201d principle and states that, among equivalent proceedings, where two or more municipalities have concurrent jurisdiction to annex a particular area, the municipality which first institutes annexation proceedings has jurisdiction and subsequently commenced annexation proceedings by any other municipality have no effect. City of Burlington v. Town of Elon College, supra. Under the rule, annexation proceedings begin when a municipality takes \u201cthe first mandatory public procedural step in the statutory process\u201d of annexation. Id. at 728, 314 S.E. 2d at 537.\nIn City of Burlington, both parties were municipal corporations seeking to annex the same area. The City of Burlington instituted its annexation proceedings first, adopting a \u201cresolution of intent\u201d pursuant to the involuntary annexation procedures in G.S. 160A-49. About a month later, landowners in the area being considered for annexation, petitioned the Town of Elon College for voluntary annexation under G.S. 160A-31. The town completed its voluntary annexation before the City of Burlington had finished its involuntary annexation of the same area. The court held that the City of Burlington, by passing its resolution of intent, took the \u201cfirst mandatory public procedural step in the statutory process\u201d and thereby acquired jurisdiction, rendering the Town of Elon\u2019s attempted annexation of the area null and void.\nThe facts here are almost identical to those in City of Burlington. The only difference lies in the first procedural step taken by the respective plaintiffs. In City of Burlington, the plaintiff adopted a resolution of intent pursuant to the procedures of G.S. 160A-49 which applies to involuntary annexation by a municipality with a population greater than 5,000. Here, the Town of Hazelwood passed a resolution of consideration pursuant to the procedures of G.S. 160A-37 which applies to the involuntary annexation by a municipality with a population less than 5,000. The issue presented here is whether passage of a resolution of consideration pursuant to G.S. 160A-37 is \u201cthe first mandatory public procedural step in the statutory process\u201d of G.S. 160A-33 et seq. We hold that it is.\nG.S. 160A-37(a) provides that a municipality desiring to carry out involuntary annexation under G.S. 160A-33 et seq. must pass a resolution stating its intent to consider annexation. G.S. 160A-37(i) states that no resolution of intent may be passed without first having adopted, at least one year prior to the adoption of the resolution of intent, an additional resolution identifying the area being considered for annexation. G.S. 160A-37(j), however, states that subsection (i) does not apply if both the resolution of intent and the annexation ordinance itself provide that the effective date of annexation will be at least one year after passage of the annexation ordinance. The statute thus provides two different procedural methods for beginning the involuntary annexation process under G.S. 160A-33 et seq. A municipality may either pass a resolution of consideration one year prior to adopting its resolution of intent or it may immediately adopt the resolution of intent and postpone the effective date of annexation for at least a year after the ordinance is passed.\nDefendant argues that passage of a resolution of consideration under G.S. 160A-37(i) is not a \u201cmandatory\u201d procedural step since a resolution of intent will suffice if the date of annexation is properly postponed. We disagree. While a resolution of consideration is not absolutely essential to accomplishing involuntary annexation pursuant to G.S. 160A-33 et seq., it is essential if the municipality does not wish, for whatever reason, to postpone the date of annexation for a year after the annexation ordinance is passed. Plaintiffs adoption of a resolution of consideration was the first mandatory public procedural step in the statutory process it chose to utilize. The fact that there was an alternative procedure available to plaintiff is of no consequence here.\nWere our holding otherwise, we would be arbitrarily preferring voluntary annexation over involuntary annexation since, once a resolution of consideration is passed, property owners in the area under consideration could, under similar circumstances, do what was done here, i.e. choose another municipality and petition for voluntary annexation by them. Defendant recognizes this but argues that for public policy reasons, it is desirable to allow the citizens of the disputed area to choose which municipality they will join. The court in City of Burlington, however, rejected that very argument, holding that voluntary and involuntary proceedings were \u201cequivalent\u201d for purposes of the prior jurisdiction rule and that the property owners in the area should have no choice of municipality once an annexation proceeding has been instituted. 310 N.C. at 729, 314 S.E. 2d at 538.\nPlaintiff instituted valid annexation proceedings and acquired jurisdiction over the area when it adopted a resolution of consideration pursuant to G.S. 160A-37(i). Accordingly, defendant\u2019s subsequent actions are without effect. We reverse and remand for entry of judgment consistent with this opinion.\nReversed and remanded.\nJudges Arnold and Johnson concur.",
        "type": "majority",
        "author": "EAGLES, Judge."
      }
    ],
    "attorneys": [
      "Haire & Bridgers, by R. Phillip Paire and James M. Spiro, for the plaintiff-appellant.",
      "Smith, Bonfoey & Queen, by Frank G. Queen and Michael Bonfoey, for the defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "TOWN OF HAZELWOOD v. TOWN OF WAYNESVILLE\nNo. 8630SC694\n(Filed 6 January 1987)\nMunicipal Corporations 8 2\u2014 annexation \u2014 prior jurisdiction rule \u2014 first mandatory public step \u2014 resolution of consideration\nSummary judgment should have been entered for plaintiff rather than defendant in an action in which plaintiff had begun involuntary annexation procedures with the passage of a resolution of consideration but defendant subsequently completed voluntary annexation of the disputed area before plaintiff completed its involuntary annexation. The passage of a resolution of consideration pursuant to N.C.G.S. \u00a7 160A-37 is the first mandatory public procedural step in the statutory process for purposes of the prior jurisdiction rule.\nAPPEAL by plaintiff from Pachnowski, Judge. Order entered 21 February 1986 in Superior Court, HAYWOOD County. Heard in the Court of Appeals 29 October 1986.\nThe case involves the applicability of the \u201cprior jurisdiction rule\u201d to our municipal annexation statutes. The facts are not is dispute. Both parties are municipal corporations located in Haywood County. On 5 November 1985, plaintiff, the Town of Hazel-wood, adopted a \u201cresolution of consideration\u201d pursuant to the involuntary annexation procedures of G.S. 160A-37. Shortly thereafter, property owners in the area being considered for annexation petitioned defendant, the Town of Waynesville, for voluntary annexation pursuant to G.S. 160A-31. Defendant initiated annexation proceedings on 26 November 1985 and completed its voluntary annexation of the disputed area on 28 January 1986.\nPrior to defendant\u2019s completion of its annexation, plaintiff, on 15 January 1986, filed this action to have defendant\u2019s action declared null and void and to enjoin defendant from further annexation proceedings. Both parties moved for summary judgment pursuant to Rule 56 of the North Carolina Rules of Civil Procedure. On 21 February 1986, after a hearing on the motions, the court granted summary judgment for the defendant.\nHaire & Bridgers, by R. Phillip Paire and James M. Spiro, for the plaintiff-appellant.\nSmith, Bonfoey & Queen, by Frank G. Queen and Michael Bonfoey, for the defendant-appellee."
  },
  "file_name": "0670-01",
  "first_page_order": 698,
  "last_page_order": 701
}