1. Cities and Towns--annexation--motion to intervene--timeliness
A motion to intervene in an annexation was properly denied where the motion came
almost six months after the annexation was adopted by the city. The proposed intervenors failed
to comply with the time requirements of N.C.G.S. § 160A-50(a), which governs instead of
N.C.G.S. § 1A-1, Rule 24.
2. Cities and Towns--annexation--motion to intervene--timeliness--Rule 24
The trial court did not abuse its discretion by denying a motion to intervene in an
annexation. Even if N.C.G.S. § 1A-1, Rule 24 applies, the factors to be reviewed in determining
timeliness on a motion to intervene under that rule did not support the petitioners' position.
C. Wes Hodges, II, P.L.L.C., by C. Wes Hodges, II, for
petitioner appellees.
Parker, Poe, Adams, & Bernstein, L.L.P., by R. Bruce Thompson
II and Anthony Fox; and City Attorney Karen M. McDonald, for
respondent appellee.
The Brough Law Firm, by Robert E. Hornik, Jr., for proposed
intervenor appellants.
McCULLOUGH, Judge.
Proposed intervenors appeal from the trial court's order
denying its motion to intervene in the proceedings involving the
review of an annexation ordinance. On 24 November 2003, the Cityof Fayetteville adopted an ordinance annexing approximately 28
square miles and over 40,000 residents of Cumberland County. The
annexation was to become effective on 30 June 2004. In North
Carolina, an owner of annexed property can seek judicial review if
the owner files a petition “[w]ithin 60 days following the passage
of an annexation ordinance[.]” N.C. Gen. Stat. § 160A-50(a)
(2003).
Petitioners, who were members of the Gates Four community,
filed the only petition for judicial review within the statutory
period. No one else, including the proposed intervenors, filed a
petition within that period. The local media first reported the
Gates Four challenge on 30 January 2004.
On 25 March 2004, the Gates Four community and the City of
Fayetteville mediated this dispute. During the mediation, the
parties reached a tentative agreement in which the City agreed to
remove Gates Four from the area to be annexed and not to institute
any other involuntary annexation proceedings against Gates Four
before 30 June 2008. This agreement was subject to approval by the
Gates Four Homeowners Association and the Fayetteville City
Council. A superior court judge also had to approve the settlement
pursuant to N.C. Gen. Stat. § 160A-50(m) (2003).
On 4 April 2004, The Fayetteville Observer made public the
proposed settlement in a newspaper article entitled “Gates Four may
be excused.” The article noted that “[u]nder the proposed
settlement, Gates Four would not be annexed and the city would
proceed with taking in the rest of the [annexation area] territoryon June 30.” The proposed intervenors failed to take action at
that time.
On 12 May 2004, the Gates Four community and the City entered
into a formal settlement agreement that memorialized the agreement
the parties reached at mediation. The superior court entered a
consent judgment on that same date. The judgment was entered under
N.C. Gen. Stat. § 160A-50(m) which gives a superior court
discretion to resolve an annexation challenge by approving “[a]ny
settlement reached by all parties[.]” With the parties' consent,
the superior court excluded Gates Four from the annexation.
For about six weeks prior to the 12 May judgment, the local
media publicized the potential settlement of this action. There
were at least seven articles discussing the proposed settlement.
However, the proposed intervenors did not take any action.
On 14 June 2004, proposed intervenors made a motion to
intervene. This was six months after the city adopted the
ordinance, thirty-three days after the superior court entered final
judgment, and sixteen days before the annexation's effective date.
The superior court denied the motion to intervene. Proposed
intervenors appeal.
[1] On appeal, proposed intervenors argue that the trial court
erred by denying their motion to intervene. We disagree and affirm
the decision of the trial court.
Citing Rule 24(a) of the North Carolina Rules of Civil
Procedure, proposed intervenors contend that the trial court erred
in denying their motion to intervene. However, while the NorthCarolina Rules of Civil Procedure govern civil proceedings
generally, they do not apply “when a differing procedure is
prescribed by statute[.]” N.C. Gen. Stat. § 1A-1, Rule 1 (2003).
N.C. Gen. Stat. § 160A-50 (2003), outlines the procedure for
annexation, including the time limitations. Under subsection (a),
a property owner must petition for judicial review within 60 days
following the adoption of the annexation ordinance. N.C. Gen.
Stat. § 160A-50(a). Proposed intervenors have failed to comply
with the procedure set forth in the annexation provisions because
they moved to intervene almost six months after the city adopted
the annexation. Because Rule 24 intervention would have violated
the statutory procedure of N.C. Gen. Stat. § 160A-50, intervention
was not available. Therefore, the motion to intervene was properly
denied.
[2] Proposed intervenors' appeal fails for another reason.
Even if Rule 24 had applied, proposed intervenors cannot show that
the trial court abused its discretion in denying the motion to
intervene. Pursuant to N.C. Gen. Stat. § 1A-1, Rule 24 (2003),
[u]pon timely application anyone shall be permitted to
intervene in an action:
(1) When a statute confers an unconditional
right to intervene; or
(2) When the applicant claims an interest
relating to the property or transaction
which is the subject of the action and he
is so situated that the disposition of
the action may as a practical matter
impair or impede his ability to protect
that interest, unless the applicant's
interest is adequately represented by
existing parties.
The determination of the timeliness of the motion under this
rule is left to the sound discretion of the trial court. Taylor v.
Abernethy, 149 N.C. App. 263, 268, 560 S.E.2d 233, 236 (2002),
disc. review denied, 356 N.C. 695, 579 S.E.2d 102 (2003). Such
rulings are given great deference and will only be overturned upon
a showing that the ruling “'“was so arbitrary that it could not
have been the result of a reasoned decision.”'” Id. (citations
omitted).
When considering the issue of timeliness, North Carolina
Courts consider five factors:
“(1) the status of the case, (2) the
possibility of unfairness or prejudice to the
existing parties, (3) the reason for the delay
in moving for intervention, (4) the resulting
prejudice to the applicant if the motion is
denied, and (5) any unusual circumstances.”
State ex rel. Easley v. Philip Morris, Inc., 144 N.C. App. 329,
332, 548 S.E.2d 781, 783, (citation omitted), disc. review denied,
354 N.C. 228, 554 S.E.2d 831 (2001). While post-judgment
intervention is not impossible, the law disfavors it. Id. It will
only be allowed if there are extraordinary and unusual
circumstances. Id.
After evaluating all five factors, we must conclude that the
trial court did not abuse its discretion in denying the motion to
intervene.
With regard to the first factor, status of the case, proposed
intervenors tried to intervene 33 days after the court entered
final judgment. As we have indicated, post-judgment interventionis disfavored. Similarly, under the second factor dealing with
prejudice to the existing parties, intervention would prejudice the
City and the Gates Four community by destroying their settlement.
The final three factors do not support proposed intervenors'
position. Proposed intervenors have not offered a legitimate
reason for the delay, and their “reliance” on the Gates Four
community is meritless because there was no agreement, promise, or
representation that Gates Four would protect their interests.
Although denying the motion to intervene would prejudice proposed
intervenors, their own inaction has led to this result. Finally,
there are no unusual circumstances which lead us to conclude that
the trial court abused its discretion in denying the motion to
intervene.
After careful consideration of the record, briefs, and
arguments of the parties, we conclude that the trial court acted
appropriately in denying the motion to intervene. The decision of
the trial court is
Affirmed.
Judges HUNTER and LEVINSON concur.
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