Appeal by petitioners from judgment entered 21 October 2004 by
Judge Kenneth F. Crow in Wayne County Superior Court. Heard in the
Court of Appeals 10 May 2006.
Eldridge Law Firm, P.C., by James E. Eldridge, for petitioner-
Everett, Womble, Finan, Lawrence & Brown, L.L.P., by W.
Harrell Everett, Jr. and Darrell K. Brown, for respondent-
William R. Burnette, et al., (petitioners) appeal from an
order granting partial summary judgment entered 21 October 2004.
For the reasons state herein, we affirm the trial court's order of
partial summary judgment.
On 17 June 2004, petitioners petitioned for review of the
actions of the City of Goldsboro (respondent) in adopting an
involuntary annexation ordinance on 19 April 2004. An amended
petition for review was filed on 30 August 2004.
On 7 October 2004, respondent moved for partial summary
judgment on four of the claims alleged in petitioners' petition.
Specifically, respondent moved for summary judgment on petitioners'
claims that: (1) respondent failed to deliver a required statement
to the Clerk of the Wayne County Board of Commissioners as
required; (2) the proposed annexation area did not meet the
requirements for annexation under N.C. Gen. Stat. § 160A-48(b), in
that the annexation area was not adjacent or contiguous to the
City's municipal borders due to another annexation being declared
null and void; (3) respondent failed to comply with the procedural
requirements set forth in N.C. Gen. Stat. § 160A-49 in failing to
set a date for the required public information hearing in adopting
the resolution of intent and that an attempt to set a date in a
later adopted resolution of intent was not adopted by a two-third's
majority of the City Council's voting members; and (4) respondent
lacked authority to issue bonds sufficient to finance the
construction of the major sewer lines. Petitioners filed a Partial Voluntary Dismissal without
Prejudice as to the first claim that respondent failed to deliver
the required statement to the clerk of the county board of
commissioners. In an order entered 21 October 2004, the trial
court granted partial summary judgment to respondent on the
remaining issues. Following a trial on the merits of the remaining
claims, petitioners appeal from the order of partial summary
Petitioners first contend that the trial court committed
reversible error in granting partial summary judgment, as
petitioners had standing to collaterally attack respondent's
voluntary annexation. We disagree.
Summary judgment is properly granted when (1) the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, show that there is no genuine issue
as to any material fact; and (2) the moving party is entitled to
judgment as a matter of law. N.C.R. Civ. P. 56(c), see also Gaunt
, 139 N.C. App. 778, 784, 534 S.E.2d 660, 664 (2000).
N.C. Gen. Stat. § 160A-50(a) (2005) establishes the criteria
for appeal from an annexation. The statute states that:
(a) Within 60 days following the passage
of an annexation ordinance under authority of
this Part, any person owning property in the
who shall believe that he
will suffer material injury by reason of the
failure of the municipal governing board to
comply with the procedure set forth in this
Part or to meet the requirements set forth in
G.S. 160A-48 as they apply to his property mayfile a petition in the superior court of the
county in which the municipality is located
seeking review of the action of the governing
. (emphasis added).
In Town of Ayden v. Town of Winterville
, 143 N.C. App. 136,
544 S.E.2d 821 (2001), this Court addressed the issue of standing
to challenge an alleged void voluntary annexation. In passing on
the validity of an annexation or zoning ordinance, one of the
court's first concerns is whether the plaintiff has standing to
bring the action. Id
. at 138, 544 S.E.2d at 823. Ayden
noted that in Taylor v. City of Raleigh
, 290 N.C. 608, 227 S.E.2d
576 (1976), where the plaintiffs challenged annexation and zoning
ordinances in an area where the plaintiffs did not own property,
the North Carolina Supreme Court held that, without actual
ownership of annexed property, the plaintiffs lacked standing to
challenge the annexation ordinance, notwithstanding any injury to
them occasioned by [a] proposed sewer easement. Ayden
, 143 N.C.
App. at 138-39, 544 S.E.2d at 823. Ayden
noted that Taylor
on the case of Gaskill v. Costlow
, 270 N.C. 686, 155 S.E.2d 148
(1967), which held that challenges by private individuals to
annexations generally are limited to plaintiffs with specific
statutory authority to bring suit (e.g.
, owners of real property
within an area to be annexed). Ayden
, 143 N.C. App. at 139, 544
S.E.2d at 823. Ayden
noted the Gaskill
Court applied the general
[U]nless an annexation ordinance be
absolutely void (e.g.
, on the ground of lackof legislative authority for its enactment),
in the absence of specific statutory authority
to do so, private individuals may not attack,
collaterally or directly, the validity of
proceedings extending the corporate limits of
a municipality. Such an action is to be
prosecuted only by the State through its
, 143 N.C. App. at 139, 544 S.E.2d at 823 (emphasis omitted)
, 290 N.C. at 617-18, 227 S.E.2d at 581-82).
, our Courts have repeatedly held that
ownership of property within the annexed area, as required by
statute, is necessary to have standing to challenge an annexation
ordinance. See Town of Seven Devils v. Village of Sugar Mountain
125 N.C. App. 692, 693, 482 S.E.2d 39, 40 (1997); Joyner v. Town of
, 94 N.C. App. 588, 590, 380 S.E.2d 536, 537 (1989);
McKenzie v. City of High Point
, 61 N.C. App. 393, 400-01, 301
S.E.2d 129, 131 (1983).
, the plaintiffs alleged that not all property owners
had signed the voluntary annexation petition in question, thus
voiding the annexation. Ayden
, 143 N.C. App. at 140, 544 S.E.2d at
824. This Court found, however, that the question was not properly
before the trial court, as standing to sue was a jurisdictional
issue not concerning the ultimate merits of the lawsuit. Id
noted that this Court has previously held in Davis v. City of
, 81 N.C. App. 505, 508, 344 S.E.2d 369, 371 (1986), that
once a lack of standing was determined, the Court would not address
the plaintiff's assertions that an annexation was void for failure
to follow statutory procedures. Ayden
, 143 N.C. App. at 140, 544S.E.2d at 824. Ayden
concluded that, even if the alleged
irregularities would, if proved, render the annexation voidable by
an appropriate plaintiff, this does not eliminate the requirement
that plaintiff have standing. Id
Here, petitioners alleged the proposed annexation area (Area
II) did not meet the requirements for annexation under N.C. Gen.
Stat. § 160A-48(b) (2005), as Area II was adjacent and contiguous
to the City's municipal borders only through a previous annexation
(Area I). Petitioners contend that the Area I annexation was
void as all owners of real property within Area I did not sign the
petition for voluntary annexation.
However petitioners admit that they do not own property in
Area I, only in Area II. As our prior case law has clearly
established, petitioners must have standing to bring such a
challenge, and in this case, petitioners do not meet the statutory
requirement of N.C. Gen. Stat. § 160A-50(a) of property ownership
to challenge the Area I annexation. As petitioners lacked standing
to challenge the prior annexation, the trial court did not err in
finding summary judgment for respondents as a matter of law.
Petitioners next contend in a related assignment of error that
the trial court committed reversible error in granting partial
summary judgment as there were genuine issues of material fact with
regards to the claims. We disagree.
Petitioners contend that a material issue of fact existed as
to whether the petition for voluntary annexation for Area I wassigned by all property owners, as required by N.C. Gen. Stat. §
160-31 (2005). However, as discussed supra
, petitioners lacked
standing to bring this claim. Thus, even if material issues of
fact existed as to the prior annexation of Area I which might be
brought by an appropriate party, petitioners' lack of standing to
bring the claim bars the trial court's consideration of the claim
for lack of jurisdiction. See Ayden
, 143 N.C. App. at 140, 544
S.E.2d at 824. Therefore, the trial court, as a matter of law, did
not err in granting partial summary judgment to petitioners.
As petitioners lacked standing to bring an action challenging
respondent's prior annexation, the trial court did not err in
granting partial summary judgment as a matter of law to respondent
on the challenged claims.
Judges BRYANT and CALABRIA concur.
Report per Rule 30(e).
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