{ "id": 4727766, "name": "TOWN OF HAZELWOOD v. TOWN OF WAYNESVILLE", "name_abbreviation": "Town of Hazelwood v. Town of Waynesville", "decision_date": "1987-07-07", "docket_number": "No. 43PA87", "first_page": "89", "last_page": "96", "citations": [ { "type": "official", "cite": "320 N.C. 89" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "351 S.E. 2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "opinion_index": -1 }, { "cite": "83 N.C. App. 670", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359270 ], "year": 1987, "opinion_index": -1, "case_paths": [ "/nc-app/83/0670-01" ] }, { "cite": "233 S.E. 2d 569", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "573" } ], "opinion_index": 0 }, { "cite": "292 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570022 ], "year": 1977, "pin_cites": [ { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/nc/292/0437-01" ] }, { "cite": "304 S.E. 2d 199", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1983, "pin_cites": [ { "page": "203" }, { "page": "203" } ], "opinion_index": 0 }, { "cite": "308 N.C. 759", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4710017 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "765" }, { "page": "765" } ], "opinion_index": 0, "case_paths": [ "/nc/308/0759-01" ] }, { "cite": "328 S.E. 2d 274", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "280" } ], "opinion_index": 0 }, { "cite": "313 N.C. 230", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4718465 ], "year": 1985, "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/nc/313/0230-01" ] }, { "cite": "162 S.E. 2d 481", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1968, "pin_cites": [ { "page": "483" }, { "page": "484" } ], "opinion_index": 0 }, { "cite": "274 N.C. 256", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559737 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "260" }, { "page": "260" } ], "opinion_index": 0, "case_paths": [ "/nc/274/0256-01" ] }, { "cite": "314 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1984, "pin_cites": [ { "page": "538" }, { "page": "537" }, { "page": "538", "parenthetical": "citations omitted" }, { "page": "538-39" }, { "page": "537" } ], "opinion_index": 0 }, { "cite": "310 N.C. 723", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2397848 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "729" } ], "opinion_index": 0, "case_paths": [ "/nc/310/0723-01" ] }, { "cite": "351 S.E. 2d 558", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1987, "pin_cites": [ { "page": "559" }, { "page": "672-73" }, { "page": "559" }, { "page": "560" } ], "opinion_index": 0 }, { "cite": "83 N.C. App. 670", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8359270 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "672" }, { "page": "673" } ], "opinion_index": 0, "case_paths": [ "/nc-app/83/0670-01" ] } ], "analysis": { "cardinality": 669, "char_count": 15964, "ocr_confidence": 0.807, "pagerank": { "raw": 3.2050827993380534e-07, "percentile": 0.8661118852875206 }, "sha256": "afbd647bd1f6a789293dcc282cc5f7abb4ced9e8afd6f0e71b88d2d30e3407f0", "simhash": "1:220db4161b69207a", "word_count": 2507 }, "last_updated": "2023-07-14T20:33:25.134905+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "TOWN OF HAZELWOOD v. TOWN OF WAYNESVILLE" ], "opinions": [ { "text": "WHICHARD, Justice.\nThis appeal involves an interpretation of the North Carolina statutes governing annexation of unincorporated areas by municipalities. Specifically, the question is which of two municipalities simultaneously attempting to annex the same territory \u2014 one by voluntary means under N.C.G.S. \u00a7 160A-31, the other by involuntary means under N.C.G.S. \u00a7 160A-37 \u2014 has the statutory right to complete annexation. The answer lies in a scrutiny of the statutory procedures governing these two modes of annexation as well as in the circumspect application of prior case law.\nAnnexation by petition, the voluntary procedure, requires each owner of real property in an area contiguous to the boundaries of the municipality to sign a petition requesting annexation. N.C.G.S. \u00a7 160A-31(a) (1982). Once the petition has been received by the governing body of the annexing municipality, the clerk is directed to investigate and certify the sufficiency of the petition. N.C.G.S. \u00a7 160A-31(c) (1982). Thereafter the governing body must fix a date for a public hearing on the question of annexation, causing notice to be published at least ten days prior to the hearing. Id. After the hearing, the governing board may pass an annexation ordinance effective immediately or on any specified date within six months of the date of its passage. N.C.G.S. \u00a7 160A-31(d) (1982).\nThe process of involuntary annexation by municipalities having a population of less than 5,000 is considerably more protracted and deliberate than annexation by petition. N.C.G.S. \u00a7 160A-37(a) mandates that the \u201cresolution stating the intent of the municipality to consider annexation\u201d fix a date for a public hearing on the question of annexation. A report including maps and detailing services to be provided the territory proposed for annexation, and the methods of financing those services, must be available at the office of the municipal clerk at least thirty days prior to the public hearing, which must be held not less than forty-five nor more than ninety days after the passing of the resolution. N.C.G.S. \u00a7 160A-35 (1982 & Cum. Supp. 1985); N.C.G.S. \u00a7 160A-37(a), (b)(1), (3) (Cum. Supp. 1985).\nIn addition, for all annexations for which resolutions of intent are adopted on or after 1 July 1984, the municipal governing body must either provide in the resolution of intent that the effective date of the annexation ordinance be at least one year from the date the ordinance is passed, or identify the area under consideration for annexation (with a resolution of consideration) at least one year prior to adopting a resolution of intent. N.C.G.S. \u00a7 160A-370) (Cum. Supp. 1985); N.C.G.S. \u00a7 160A-37(j) (Cum. Supp. 1985). A resolution of consideration may have a metes and bounds description or a map, and the area therein described must include but may be greater than the territory that is ultimately the subject of the resolution of intent and the report mandated by N.C.G.S. \u00a7 160A-35. N.C.G.S. \u00a7 160A-37\u00dc) (Cum. Supp. 1985).\nIn City of Burlington v. Town of Elon College, 310 N.C. 723, 729, 314 S.E. 2d 534, 538 (1984), this Court held that voluntary annexation proceedings under N.C.G.S. \u00a7 160A-31 and involuntary proceedings under N.C.G.S. \u00a7 160A-37 are \u201cequivalent proceedings\u201d for purposes of the \u201cprior jurisdiction rule.\u201d This rule posits that, among equivalent proceedings, the \u201cone which is prior in time is prior in jurisdiction to the exclusion of those subsequently instituted.\u201d Id. at 727, 314 S.E. 2d at 537, quoting 2 E. Mc-Quillin, The Law of Municipal Corporations Sec. 7.22a (3d ed. 1966). The Court emphasized that the preferences of the property owners and residents of the targeted territory are inconsequential: \u201cit appears to be the very essence of the involuntary annexation procedures that the affected landowners have no choice, as long as the annexing body complies with the applicable statutes.\u201d Id. at 729, 314 S.E. 2d at 538 (citations omitted). The Court in Burlington concluded that plaintiff-city had prior jurisdiction because its resolution of intent was the first mandatory public procedural step in the statutory process of involuntary annexation and because this step had preceded the submission of the property owners\u2019 petition. Id. at 730, 314 S.E. 2d at 538-39.\n\u201cThe time of commencement of proceedings, for purposes of the [prior jurisdiction] rule, is the \u2018taking of the first mandatory public procedural step in the statutory process for . . . annexation of territory.\u2019 \u201d Id. at 728, 314 S.E. 2d at 537. The critical question presented in this appeal is whether a resolution of intent or a resolution of consideration is the first mandatory public procedural step in the involuntary annexation process. The question arises from these facts:\nOn 5 November 1985 plaintiff Town of Hazelwood adopted a resolution of consideration identifying areas under consideration for annexation pursuant to N.C.G.S. \u00a7 160A-37. The area described included the Plott Creek subdivision, whose eleven property owners presented two annexation petitions to defendant Town of Waynesville on 18 and 25 November 1985. Receipt of the petition initiated the voluntary annexation procedure authorized by N.C.G.S. \u00a7 160A-31. Annexation pursuant to these provisions was completed by the adoption of an ordinance annexing the Plott Creek subdivision to defendant Town of Waynesville on 28 January 1986.\nShortly before the Waynesville annexation ordinance was passed, plaintiff Town of Hazelwood filed a complaint averring that its prior resolution of consideration, describing an area that included the Plott Creek subdivision, had constituted the \u201cfirst mandatory public procedural step\u201d of the two annexation procedures. Plaintiff averred that, on the authority of City of Burlington v. Town of Elon College, 310 N.C. 723, 314 S.E. 2d 534, it had prior jurisdiction over the Plott Creek area, thus foreclosing annexation of that territory by defendant Town of Waynesville. The trial court found no genuine issue of material fact and granted summary judgment to defendant Town of Waynesville.\nThe Court of Appeals reversed, holding that the resolution of consideration adopted by the Town of Hazelwood established its prior jurisdiction over the area in contention and that the annexation ordinance passed by the Town of Waynesville thus was without effect. The court noted the near identity of the facts in this case with those in Burlington, the only significant difference being that the first mandatory public procedural step in Burlington had been a resolution of intent. The court also noted that subsections 160A-37(i) and (j) provide \u201ctwo different procedural methods for beginning the involuntary annexation process under [N.C.JG.S. 160A-33 et seq.\u201d Town of Hazelwood v. Town of Waynesville, 83 N.C. App. at 672, 351 S.E. 2d at 559. It reasoned that \u201c[w]hile a resolution of consideration is not absolutely essential to accomplishing involuntary annexation pursuant to [N.C.]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.\u201d Id. The court consequently held that \u201cthe adoption of a resolution of consideration was the first mandatory public procedural step in the statutory process [plaintiff] chose to utilize.\u201d Id. at 672-73, 351 S.E. 2d at 559.\nWe acknowledge that the first mandatory public procedural step for a municipality choosing to proceed with involuntary annexation under N.C.G.S. \u00a7 160A-370) is a resolution of consideration. However, the procedure stated in subsection (i) is itself an option. The first mandatory public procedural step common to both means of initiating involuntary annexation is the passing of a resolution of intent. We therefore hold that the date of adoption of a resolution of intent is the critical date for determining whether a municipality utilizing involuntary annexation procedures has prior jurisdiction over the same territory being considered for voluntary annexation by a different municipality.\nOur holding is compelled by the logic of the procedure for involuntary annexation. The statute mandates a waiting period of at least one year before involuntary annexation may be completed, whether a municipality chooses to pass a resolution of consideration one year prior to its resolution of intent or whether it chooses simply to delay the effective date of the annexation ordinance at least one year after the passage of the resolution of intent. The statute does not require that involuntary annexation be initiated with a resolution of consideration; it does require a lengthy period of consideration preceding either the mandatory resolution of intent or the effective date of the annexation ordinance.\nIn either case, the resolution of intent \u2014 not the resolution of consideration \u2014 must be accompanied by a detailed report that is the product of deliberate planning. This annexation scheme manifests the legislature\u2019s intent to require towns and cities to consider carefully the consequences of involuntary annexation of a particular territory, and it indicates the legislature\u2019s desire to enable residents of the area under consideration to anticipate and adjust to the proposed annexation. If jurisdiction is asserted by a possibly precipitous resolution of consideration that, by doing lit-tie more than laying claim to general areas for possible annexation, precludes annexation of territory within these areas by other municipalities, these aims may be frustrated.\nNot only the logic, but also the plain language of the provisions governing procedure for involuntary annexation compels the conclusion that the resolution of intent is the \u201cfirst mandatory public procedural step\u201d for purposes of the prior jurisdiction rule. These provisions begin: \u201cAny municipal governing board desiring to annex territory under the provisions of this Part shall first pass a resolution stating the intent of the municipality to consider annexation.\u201d N.C.G.S. \u00a7 160A-37(a) (1985) (emphasis added). This language was neither changed nor affected by the 1983 amendment mandating a waiting period before involuntary annexation could be initiated under section 160A-37(i) or completed under section 160A-37(j).\nFinally, we note the Court of Appeals\u2019 concern that if it were to have held as we do now, it\nwould 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.\nTown of Hazelwood v. Town of Waynesville, 83 N.C. App. at 673, 351 S.E. 2d at 560. The Court of Appeals may have read the holding in Burlington that voluntary and involuntary annexation procedures were equivalent for purposes of the prior jurisdiction rule to mean that they were equivalent proceedings in every respect. We note again that, despite this Court\u2019s indication in Burlington that for purposes of determining jurisdiction the two means of annexation are equivalent, the statute itself has a built-in preference. The statute requires at least a year for completion of the process of involuntary annexation. Voluntary annexation, however, may be completed in less than two weeks. Thus, a deliberate preference for voluntary annexation is incorporated into the law. This statutory preference also informs our interpretation of the provisions before us.\nIn reversing the decision of the Court of Appeals, we also take judicial notice of recently ratified legislation that amends N.C.G.S. \u00a7\u00a7 160A-37(i) and -49(i) (governing involuntary annexation for cities of more than 5,000), so that they now provide that \u201cadoption of [a] resolution of consideration shall not confer prior jurisdiction over the area as to any other city.\u201d 1987 N.C. Sess. Laws ch. 44. The Act is effective from and after 29 June 1983, but does not affect litigation pending on the date of ratification. Its provisions thus do not resolve the question now before us.\nIt is presumed, however, that an amendment to a statute is generally designed either to change the law or to clarify it. Childers v. Parker\u2019s, Inc., 274 N.C. 256, 260, 162 S.E. 2d 481, 483 (1968). When the legislature amends an ambiguous statute, the presumption is not that its intent was to change the original act, but \u201cmerely to \u2018. . . clarify that which was previously doubtful.\u2019 \u201d Trustees of Rowan Tech. v. Hammond Assoc., 313 N.C. 230, 240, 328 S.E. 2d 274, 280 (1985), quoting Childers v. Parker\u2019s, Inc., 274 N.C. at 260, 162 S.E. 2d at 484. The recent legislation' amending sections 160A-37\u00dc) and -49(i) was clearly enacted in response to the Court of Appeals\u2019 decision in this case, and it bolsters our interpretation of the policies and reasoning behind the annexation statutes generally.\nPlaintiff contends, as an alternative basis for its challenge to defendant\u2019s annexation of the Plott Creek subdivision, that the absence of the signatures of a life tenant and of certain tenants by the entirety on the petitions certified as sufficient by the Waynesville Town Clerk indicates imperfect compliance with the requisites of N.C.G.S. \u00a7 160A-31 and therefore vitiates the validity of the ordinance. These contentions appear neither as allegations in plaintiffs complaint nor as objections or exceptions in the record of proceedings before the trial court nor as an assignment of error argued in plaintiffs brief before the Court of Appeals. \u201cThis Court will not decide questions which have not been presented in the courts below . . . .\u201d White v. Pate, 308 N.C. 759, 765, 304 S.E. 2d 199, 203 (1983); see also Sales Co. v. Board of Transportation, 292 N.C. 437, 443, 233 S.E. 2d 569, 573 (1977). We thus do not reach \u201cthis question which the [plaintiff] attempts] to raise for the first time here.\u201d White, 308 N.C. at 765, 304 S.E. 2d at 203.\nThe materials before the trial court presented \u201cno genuine issue of material fact,\u201d N.C.G.S. \u00a7 1A-1, Rule 56, but purely a question of law as to the validity of defendant Town of Waynesville\u2019s voluntary annexation of the Plott Creek subdivision. For the reasons set forth above, that annexation was valid, and it preempted any effort by plaintiff Town of Hazelwood to involuntarily annex the same territory. The trial court thus properly entered summary judgment for defendant Town of Waynesville, and the Court of Appeals erred in reversing that ruling. Accordingly, the decision of the Court of Appeals is\nReversed.\n. The effective date of the 1983 amendment to sections (i) and (j) of N.C.G.S. \u00a7 160A-37 and -49 postdated the litigation culminating in Burlington. Therefore the question whether the resolution of consideration might be the first mandatory procedural step did not arise in that case.", "type": "majority", "author": "WHICHARD, Justice." } ], "attorneys": [ "Havre & Bridgers, P.A., by E. Phillip Haire and James M. Spiro, and Timothy Finger, for plaintiff-appellee.", "Smith, Bonfoey & Queen, by Michael Bonfoey and Frank G. Queen, for defendant-appellant." ], "corrections": "", "head_matter": "TOWN OF HAZELWOOD v. TOWN OF WAYNESVILLE\nNo. 43PA87\n(Filed 7 July 1987)\nMunicipal Corporations \u00a7 2\u2014 annexation \u2014 prior jurisdiction rule \u2014 first mandatory public procedural step \u2014 resolution of intent\nThe adoption of a resolution of intent, not a resolution of consideration, is the critical date for determining whether a municipality utilizing involuntary annexation procedures has prior jurisdiction over the same territory being considered for voluntary annexation by a different municipality. N.C.G.S. \u00a7\u00a7 160A-31 and -37.\nOn discretionary review pursuant to N.C.G.S. \u00a7 7A-31 of a decision of the Court of Appeals, 83 N.C. App. 670, 351 S.E. 2d 558 (1987), reversing an order granting defendant\u2019s motion for summary judgment entered by Pachnowski J., at the 21 February 1986 Civil Session of Superior Court, Haywood County. Heard in the Supreme Court 8 June 1987.\nHavre & Bridgers, P.A., by E. Phillip Haire and James M. Spiro, and Timothy Finger, for plaintiff-appellee.\nSmith, Bonfoey & Queen, by Michael Bonfoey and Frank G. Queen, for defendant-appellant." }, "file_name": "0089-01", "first_page_order": 121, "last_page_order": 128 }