Armento v. City of Fayetteville

PARKER, Judge. But for the proviso enacted by Sec. 2 of Ch. 1058 of the 1969 Session Laws, defendant City could extend its boundaries without regard to the wishes of the residents in the areas to be annexed. It could accomplish this by following the procedures and complying with the requirements of Part 3 of Article 4A of G.S. Ch. 160A, particularly G.S. 160A-47, 160A-48, and 160A-49. See In re Annexation Ordinances, 253 N.C. 637, 117 S.E. 2d 795 (1961). The parties have stipulated that the annexation proceedings here involved complied with the requirements of those statutes. The proviso enacted by Sec. 2, Ch. 1058, 1969 Session Laws, applicable only to Cumberland County, gave the residents in each of the areas to be annexed under the proceedings involved in this case power to prevent defendant City from annexing the areas simply by filing a timely petition signed by a majority of the registered voters residing in each area, “stating that the signers are opposed to annexation.” (Emphasis added.) No such petition was filed. The petitions which were filed asked only for referendums. They contained no statement that the signers were opposed to annexation. The two are not equivalent. To join in a request for a referendum is not to say how one intends to vote, and persons holding divergent views on a public issue may well join together in asking that the matter be submitted to the voters for determination. Moreover, the petitions filed in the present case did not become converted into something which they were not merely because those signing “believed that their signatures expressed opposition.” Whatever the signers believed, they failed to sign any petition “stating that [260] the signers are opposed to annexation.” Absent such petition, defendant City could proceed with the annexation and the trial court was correct in so ruling. In passing, we note that the petitions for referendums which were filed in the present case would have been appropriate under the alternative annexation procedure set forth in what is now codified as G.S. 160A-25 (formerly G.S. 160-446), which statute is included in Part 1, Art. 4A, G.S. Ch. 160A. However, defendants here, as they had a right to do, had already begun proceedings under Part 3, Art. 4A, G.S. Ch. 160A, and they were not required to follow the alternative procedure provided in Part 1. See Plemmer v. Matthewson, 281 N.C. 722, 190 S.E. 2d 204 (1972). The annexation ordinances were passed on 27 October 1975, which was 14 days prior to the expiration date, 10 November 1975, for filing of petitions “stating that the signers are opposed to annexation.” Plaintiffs contend that this action by defendants constituted such an irregularity in the annexation proceedings as to materially prejudice their substantive rights, and they challenge the following conclusion of the trial court: “3. The annexation by the defendants of the two areas prior to the expiration of the 30 day period set forth in Sec. 2 of Chapter 1058 did not prohibit the plaintiffs from filing a valid petition of objection within the 30 day period.” Passage of the annexation ordinances before expiration of the 30 day period provided by the statute could not result in shortening that period, and the trial court was correct in so concluding. When the ordinances were passed, plaintiffs still had 14 days remaining in which to file proper petitions stating their opposition. This, if done, would have had the effect of nullifying the city council’s action. The burden is on the plaintiffs to prove that they were prejudiced by the early passage of the ordinances. Dunn and Brown and DeGroot v. City of Charlotte, 284 N.C. 542, 201 S.E. 2d 873 (1974). Plaintiffs have failed to carry this burden. The ordinances did not become effective in any event until 1 January 1976. The judgment appealed from is Affirmed. Chief Judge Brock and Judge Hedrick concur.