Judge: Some parts of new annexation law unconstitutional

Washington is exploring the possibility of reducing its extraterritorial jurisdiction in some areas.

The city’s Planning Board will conduct a public hearing on the issue at its April 24 meeting. It’s likely the City Council will take up the matter at its May 14 meeting.

In a related matter, a Wake County Superior Court judge ruled Tuesday that major sections of a new law designed to make it more difficult for municipalities in North Carolina to conduct involuntary annexations were unconstitutional.

The ETJ is a zoning overlay that allows a municipality to impose its zoning regulations outside its corporate limits to help it prepare for future growth. It’s also the legal ability of a government to exercise its authority beyond its normal boundaries.

Because of special legislation approved by the N.C. General Assembly, Washington’s ETJ is allowed extend 1.5 miles outside the city limits. State law allows an ETJ to extend up to three miles outside, or one mile for smaller municipalities.

“Staff has been asked to investigate the procedure for possible reduction of the Extraterritorial Jurisdiction (ETJ) in the Washington area as requested. … The adjustment will more accurately reflect the potential for future growth patterns and utility service areas of the City of Washington,” reads a memorandum from John Rodman, director of the city’s Planning and Development Department, to the mayor and City Council.

“Some of the reasons we started looking at it is because some of the annexation laws have changed in the state of North Carolina,” Rodman said Wednesday. “What an ETJ does, and what you presume it’s going to do, is that sooner or later that portion of property that’s in your ETJ at some point in time is going to become part of the city. That’s the premise behind it all. Now that the annexation laws have become a lot tougher, the likelihood of us annexing any of that property in the future is probably very slim. With that in mind, the city would like to start cutting down on some of its response area and concentrate in areas that may need our time a little more. So, we’re trying to get down on some of our service area.”

Councilman Bobby Roberson supports reducing the city’s ETJ, basically because it probably would save the city money.

“I definitely think we need to look at reducing the area based on the new legislative changes,” Roberson said Wednesday.

Roberson, a former city planning director, said understands why municipalities are allowed to put an ETJ in place and why some residents and property owners in an ETJ have concerns about being annexed, eventually, by a municipality.

“Because the annexation laws have changed, one of the primary purposes of the ETJ … was to govern those areas in close proximity to the city because once you annexed them it had to have a lot of cash up front to make those improvements to the are you were actually bringing in,” Roberson said. “Subsequently, what cities were saying was that if we had some land-use controls, particularly when it came to streets and water and sewer and curb and gutter and those kinds of amenities that normally are the responsibility of a municipality, if they were in the ETJ, then the transition from outside to inside the city wouldn’t be that costly for cities. In addition to that, they (property owners and residents in the ETJ) would have representation on a planning board.”

Washington’s Planning Board includes people who live in the city’s ETJ.

Rodman said when a municipality includes an area in its ETJ, that’s an indication that area is being targeted for involuntary annexation.

“We haven’t had any large, involuntary annexation since 1995,” Rodman said. “So, the City Council is not moving in that direction. They are looking at smaller areas. A large annexation is probably not anytime in the future. The cost benefit is just not there right now. So, we were trying to look at reducing some of the area along our fringe areas that we were pretty certain were not going to become part of the city at any point in time. The City Council is trying to look at any ways we can reduce some of our expenses.”

The three areas proposed to be removed from the city’s ETJ include an area south of the Pamlico River what includes Whichard’s Beach Road, an area on U.S. Highway 17 north of the city near the Hunter’s Pointe Sporting Clays complex and an area that’s mostly farmland along Cherry Road between Market Street Extension and Slatestone Road.

“As far as involuntary annexation, it really takes those areas off the table,” Rodman said.

Some areas where growth is expected will remain in the ETJ, he noted.

“Our major growth areas are probably going to be out (U.S. Highway) 264 west and 264 east, so we hadn’t bothered to look at that (for removal from the ETJ) because we think that’s going to have some growth and we want to be able to make sure that growth is appropriate,” Rodman said.

As for the annexation ruling by Judge Shannon Joseph on Tuesday, the judge agreed with arguments made by five North Carolina towns, which contend the Republican-led N.C. General Assembly overstepped its authority by passing the law that made voluntary annexations possible only if a majority of affected landowners agreed to annexation.

Those who supported that legislation are expected to appeal Joseph’s ruling.

In the past year or so, several of the state’s municipalities said annexation provides an avenue for them to grow and reducing their ability to annex could result in them stagnating, or “dying.” Those supporting annexation reform have said they want people living in an area targeted for involuntary annexation to have a say in that process, which they don’t want to completely ban.

Roberson addressed the involuntary annexation issue.

“One of the things you hear all the time about people, they want to live in close proximity (to a municipality) because of the services and things that municipalities provide,” Roberson said, “and yet they feel like when you go out to annex them without a vote of the people, that’s taxation without representation, but the interesting thing about that is that when we do go out to annex an area, we have to go through a series of reports to be in compliance with state law. So, I think there will be some additional changes as we move ahead in the future.”