The Annexation of Shaw Heights: Part Deux

By: Andrew Porter

First, I want to thank everyone for their comments and feedback. It’s your feedback that makes part two possible. Second, I want to recognize the immutable fact that I am human and may not get everything 100% correct. With these two things in mind, it appears that Shaw Heights does not qualify for the impoverished, or distressed, area exceptions for annexation by petition. I want to thank Senator Kirk deViere for providing the statistics below:

Census Tracks 24.01 and 24.02 make up Shaw Heights.

Census Tract 24.01
In this area, there are 1,742 people for whom poverty is determined.
Of those, 670 are below the Federal poverty line (38.5%).
265 are children (<18) in poverty.

Census Tract 24.02
In this area, there are 3,598 people for whom poverty is determined.
Of those, 1,105 are below the Federal poverty line (30.7%).
356 are children (<18) in poverty.”

2012-2017 ACS (American Community Survey) – 5-year data released on December 6, 2018 by the Census Bureau

Based on the numbers provided by Senator deViere, Shaw Heights has an average poverty rate of 34.6%; a significant rate, but below the 51% threshold to meet the two exceptions. Moreover, the numbers provided do not distinguish the level of poverty, so we do not have a clear picture of how far Shaw Heights is from the threshold. In short, it appears that voluntary annexation is not the best option for Shaw Heights, however, does this mean Rep. Floyd’s bill is the best option? Again, it’s not.

Annexation by a Municipality

As I said in the previous post, involuntary annexation by the NCGA is the fastest and simplest way to annex, however, it bypasses the will of the people. Nevertheless, annexation by a municipality is quite the opposite. The power to annex by a municipality is granted by N.C. Gen. Stat. § 160A-58.52:

“The governing board of any municipality may extend the corporate limits of such municipality under the procedure set forth in this Part.”

The aforementioned procedure can found in N.C. Gen. Stat. § 160A-58.55. The procedure in order is:

  1. Resolution of Consideration – A resolution passed by the Council identifying the area to be annexed; good for 2 years.
  2. Notice of Resolution of Consideration – Resolution of Consideration is published in the newspaper and mailed to all real property owners in Shaw Heights.
  3. Resolution of Intent – At least ONE YEAR after the Resolution of Consideration, the Council can adopt a Resolution of Intent to annex, which authorizes…
  4. Public Informational Meeting, Public Hearing, Notice(s), and Other Governmental Processes – All the Government minutiae that makes annexation possible.
  5. Referendum – The residents of Shaw Heights vote FOR or AGAINST annexation at the next municipal election that is at least 45 days after the Resolution of Intent.

In addition to procedure, the area to be annexed must meet the requirements set forth under N.C. Gen. Stat. § 160A-58.53 and § 160A-58.54. There are several requirements that must be met, but for the sake of efficiency let’s say Shaw Heights meets them. I honestly believe it meets all the requirements, but this is a blog, not a law review article.

Have you done the math yet? Under this process, the earliest the residents of Shaw Heights can vote on annexation is at the 2021 municipal election. Nonetheless, this is the most democratic method of annexation. Annexation by a municipality respects the will of the people, although time consuming, and is the only way I can see Shaw Heights being annexed in the near future.

*Side note: The Council passed a resolution on April 10, 2017 calling for the annexation of Shaw Heights. If the resolution passed meets the description of the Resolution of Consideration, and the Council met the Notice requirements of N.C. Gen. Stat. § 160A-58.55, then it might be possible for the Council to pass a Resolution of Intent; placing the Referendum on November’s ballot.  

Annexation of Shaw Heights

By: Andrew Porter

Understanding the law is tough. I’ve spent the last three years studying it. However, it frustrates me to no end to witness a 7-term legislator misunderstand the law, then promulgate these misunderstandings to the masses. Moreover, our wonderful paper (it truly is a blessing to have a local paper) doesn’t bother to do their homework and correct the aforementioned statements of said legislator. Representative Elmer Floyd, the editors of the Fayetteville Observer, Mayor Colvin and members of the City Council, my words are for you. It’s my hope that you will learn that voluntary annexation of Shaw Heights is not only feasible, but the only real option of incorporating Shaw Heights into Fayetteville.

Image result for shaw heights cumberland county

Representative Floyd has introduced legislation to involuntarily annex Shaw Heights. You can read more about his legislation here: https://www.fayobserver.com/news/20190311/proposed-shaw-heights-annexation–bill-could-be-effective-june-30

Involuntary annexation by the NC General Assembly is the fastest and simplest way to annex, however, it bypasses the will of the people; whether they be renters or owners. I can’t speak for Rep. John Szoka, but he has opposed involuntary annexation in the past under similar premises. In short, it is highly unlikely Representative Floyd’s bill will pass; leaving only voluntary annexation as the only real option for Shaw Heights to be incorporation. However, Rep. Floyd doesn’t think voluntary annexation is a likely solution:

“The current law allows property owners and residents to petition the city for annexation. ‘It’s the whole community,’ Floyd said of the current petition process. ‘Renters would also have a say.’ But in reality, it’s not likely that any voluntarily annexation would come to fruition, he said. ‘It’s difficult because you would still have to find absentee landlords and all the (owners of) vacant properties, and all that may be multiple heirs,’ he said.'”

Fortunately for Shaw Heights, Rep. Floyd is wrong. I don’t think Rep. Floyd is intentionally misleading or malicious in his comments, but it seems that Rep. Floyd has mixed together two different parts of NC voluntary annexation law. So, lets see if we can untangle this mess by looking at the relevant parts of the statute:

§ 160A-31. Annexation by petition.

“Part (a): The governing board of any municipality may annex by ordinance any area contiguous to its boundaries upon presentation to the governing board of a petition signed by the owners of all the real property located within such area. The petition shall be signed by each owner of real property in the area and shall contain the address of each such owner.”

Part (a) is the traditional manner in which an area can be annexed. Under this part, every owner of real property in the area to be annexed would have to sign a petition requesting annexation. The city council would have to adopt the petition with a majority vote. Under part (a), Rep. Floyd’s points are accurate; it would be unlikely to track down every real property owner in Shaw Heights and have them sign the petition, but if we read a little further…

“Part (b1): Notwithstanding the provisions of subsections (a) and (b) of this section, if fifty-one percent (51%) of the households in an area petitioning for annexation pursuant to this section have incomes that are two hundred percent (200%) or less than the most recently published United States Census Bureau poverty thresholds, the governing board of any municipality shall annex by ordinance any area the population of which is no more than ten percent (10%) of that of the municipality and one-eighth of the aggregate external boundaries of which are contiguous to its boundaries, upon presentation to the governing board of a petition signed by the owners of at least seventy-five percent (75%) of the parcels of real property in that area.”

Generally, a petition must be signed by all real property owners. However, under the impoverished area exception, only 75% of the real property owners have to sign the petition. Shaw Heights may qualify for this exception if 51% of the households in Shaw Heights have incomes at or below 200% of the poverty line. Furthermore, under this petition, the City Council SHALL annex by ordinance; making annexation effective upon certification of the petition. But didn’t Rep. Floyd say something about renters….?

“Part (j): Using the procedures under this section, the governing board of any municipality may annex by ordinance any distressed area contiguous to its boundaries upon presentation to the governing board of a petition signed by at least one adult resident of at least two-thirds of the resident households located within such area. For purposes of this subsection, a “distressed area” is defined as an area in which at least fifty-one percent (51%) of the households in the area petitioning to be annexed have incomes that are two hundred percent (200%) or less than the most recently published United States Census Bureau poverty thresholds. The municipality may require reasonable proof that the petitioner in fact resides at the address indicated.”

The residents, renters included, of Shaw Heights may be able to submit a petition under the distressed area exception. Shaw Heights may qualify for this exception based on the aforementioned poverty in the area. To meet this exception, a petition must be signed by one adult resident from at least two-thirds (66%) of the resident households located within the area and reasonable proof of residency may be required. Therefore, renters would also have a say in whether the area is annexed. Moreover, the City Council would have to approve the measure.

In conclusion, there are three different ways to voluntarily annex Shaw Heights. A traditional voluntary annexation petition is unlikely, but I believe the Shaw Heights area qualifies to petition the Council under the impoverished area and distressed area exceptions. I believe the low threshold of the distressed area exception, 66% of residents, is the best way to achieve annexation. So, who wants to canvass Shaw Heights?

Reading the Absentee Leaves

By: Andrew Porter

There is a concept in criminal law know as the fruit of the poisonous tree doctrine. Under this doctrine, any evidence obtained in violation of the Constitution is inadmissible in court. Moreover, any obtained evidence stemming from a violation is also inadmissible, hence the “fruit of the poisonous tree” analogy. I never thought it applicable to politics, but Bladen county may have opened the proverbial can of worms, and we all know worms love fruit.

 

The North Carolina State Board of Elections has refused to certify the election results from the 9th Congressional District due to absentee ballot irregularities in Bladen County. The irregularities are under investigation, however, it appears very likely that another election will be called for the 9th Congressional District. But what about the other races on those ballots? Will new elections be called for those as well? Moreover, how far do the roots of the poisonous tree go?

 

The 9th District extends multiple counties, therefore, any tainted, or missing, ballots in one county will trigger a new election for the entire district. Thankfully, there have been no irregularities found with the absentee ballots collected in Cumberland County. However, it appears that people are trying find some.

 

A point of interest raised recently on Facebook is the amount of absentee ballots submitted in Cumberland County this year compared to 2014; 2,336 ballots in 2018, 1,212 ballots in 2014. For those who like gaudy numbers, that’s a 96% increase. I’m also assuming that the absentee ballots were categorized and tallied in the same manner for both years, which may not be true. However, I am not surprised by the increase. There has been a concerted Get Out The Vote effort by state organizations encouraging folks to vote absentee. For instance, I, a registered Democrat, received an absentee ballot request form from the Center for Voter Information, and my unaffiliated ex-girlfriend, who still gets mail at my house for some God awful reason, received an absentee ballot request form from the Voter Participation Center. I’d bet my bottom dollar that these two organizations are affiliated with one another. Moreover, the former chair of the Cumberland County Democratic Party, Dr. Vikki Andrews, said she also received the same forms.

 

absentee.jpg

It’s not surprising that more folks decided to request absentee ballots when they were provided with the forms, especially those in rural areas. Unfortunately, this played right into the hands of those accused of creating the irregularities in Bladen county. If you received absentee ballots from a third party, then why can’t a third party pick them up and deliver them for you? I believe this honest misconception among voters is what poisoned the results in the 9th Congressional District. Hopefully, we should know soon how far the blight has spread, but it is my hope, and belief, that it stops at the county line.

“Train-ing Days”

By: Andrew Porter

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Fayetteville is loud. From every corner of the city, you can hear, and feel, Fort Bragg training. Motorcycles and cars, seemingly with outside speakers, don’t make it any better. Oh, and let’s not forget the occasional gunshots. My point being that it’s hard to regulate sound in an urban environment, but that’s what Councilman Dan Culliton wants to do in downtown. He wants to implement a “quiet zone” that will prevent trains from sounding their horns as they travel through downtown. Trains blast their horns to warn traffic and pedestrians of their impending arrival. A “quiet zone” will require the installation and maintenance of railroad crossing gates in lieu of the train horns. Culliton’s interest in a “quiet zone” has garnered the praise of some and the ire of others. It seems everyone has an opinion on Mr. Culliton’s project.

 

Dan Culliton

Mr. Culliton is in his first term on the Council, and I believe made a “rookie” mistake by bringing up the proposal without vetting it thoroughly. I do believe that Mr. Culliton has conducted a fair amount of research into the issue, however, an effective policy maker must have definitive answers to certain questions, such as funding. The source of funding at this point is unknown, but Mr. Culliton has expressed optimism that the “quiet zone” can be completely funded by a federal grant. Mr. Culliton should have waited until he had a better idea of how to fund the project before approaching the rest of the Council. As they say, hindsight is 20/20, and this can be a great learning experience for Mr. Culliton.

 

Additionally, what seems to have also caught the ire of the public, is that Fayetteville has many other issues that need addressing. It’s not to say that Mr. Culliton is not working on these issues, but this is the first issue that Mr. Culliton has gone out of his way as an individual member of the Council to address; obviously because it’s an issue that has been brought to his attention by his constituency. Moreover, this is a very easy issue to understand. People know why trains blow their horns. Mr. Culliton’s critics have admonished him for sacrificing the safety of the many for the convenience of a few. Another criticism that would have gone ungarnered if Mr. Culliton would have fleshed out the issue more. I am personally indifferent to the issue, but I do fear that Mr. Culliton may be forever known as “the train horn guy.”

 


Porter_Richard (1) (002)About the Author:  Andrew Porter is a resident of Fayetteville.  He has been an adviser and manager of several local and and state campaigns, with a W/L record of 11-2.  He is undefeated in “non-NCGA-gerrymandered districts,” believes proper BBQ is served with coleslaw and vinegar, and is in his 3rd year as a legal eagle at North Carolina Central.

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