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Town of Spencer v. Town of East Spencer

June 16, 1998

TOWN OF SPENCER, PLAINTIFF-APPELLEE,
v.
TOWN OF EAST SPENCER, MAYOR RONNIE ROLLINGS, NAOMIE COWAN, THOMAS MITCHELL, JOHN G. NOBLE, III, JOHN R. RUSTIN, SR., CHRIS SHARPE AND DAVID R. WRAY, ALDERMEN, AND DIANA WILLIAMS COTTON, INTERIM TOWN ADMINISTRATOR DEFENDANTS-APPELLANTS.



The opinion of the court was delivered by: Wynn, Judge.

Appeal by defendants from order entered 19 May 1997 by Judge William H. Helms in Rowan County Superior Court. Heard in the Court of Appeals 18 March 1998.

In City of Raleigh v. R. R. Co., 275 N.C. 454, 464, 168 S.E.2d 389, 396 (1969), our Supreme Court held that construction of a proposed but not yet enacted ordinance presents no justiciable controversy under the Declaratory Judgment Act. In this case, the Town of Spencer sought a Declaratory Judgment to declare void the Town of East Spencer's Resolution of Intent to annex property that partially lay within the borders of Spencer. Because the relevant annexation statutes, N.C. Gen. Stat. §§ 160A-33 to -42 (1994), contextually use Resolution of Intent as the equivalent of a proposed ordinance, we hold that a municipal Resolution of Intent to annex land is not a justiciable controversy under the Declaratory Judgment Act.

Part 2 of Article 4A of Chapter 160A of the General Statutes authorizes towns with populations under five thousand, such as Spencer and East Spencer, to annex land. Of pertinence to this action, N.C. Gen. Stat. § 160A-36(b)(3), provides that "[n]o part of the area [to be annexed] shall be included within the boundary of another incorporated municipality."

Spencer brought this action in October 1996 against East Spencer and various town officials alleging that East Spencer adopted a Resolution of Intent to annex land that lay in part within the municipal boundaries of Spencer. About two weeks before filing its action, Spencer adopted a Resolution of Intent to annex a portion of the area included in East Spencer's original resolution. Spencer sought, and ultimately obtained from the trial court, a declaration that the resolution adopted by East Spencer was "invalid and void" and that the Spencer resolution was valid and had priority. East Spencer appeals.

I.

The deciding question is whether the validity of a Resolution of Intent to annex land is a justiciable issue under North Carolina's Declaratory Judgment Act. We answer: No.

Our Declaratory Judgment Act provides in pertinent part that: "Any person . . . whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder."

N.C. Gen. Stat. § 1-254 (1996) (emphasis added).

In City of Raleigh v. R. R. Co., our Supreme Court held that there is no justiciable controversy under the Declaratory Judgment Act for construction of a proposed but not yet enacted ordinance. 275 N.C. at 464, 168 S.E.2d at 396; see also id. at 463, 168 S.E.2d at 395 ("[I]t is well settled that the court will not entertain a declaratory action with respect to the effect and validity of a statute in advance of its enactment.") (quoting 2 Walter Anderson, Actions for Declaratory Judgments § 621, at 1415 (2d ed. 1951)) (emphasis in original). A more recent opinion of our Supreme Court indicates that an enactment is justiciable under the Declaratory Judgment Act where it has been "enacted or adopted," even though it had not yet gone into effect, where there is a "practical certainty" that litigation will occur. Charlotte- Mecklenburg Hospital Auth. v. N.C. Industrial Comm., 336 N.C. 200, 211- 14, 443 S.E.2d 716, 723-25 (1994).

In this case, Spencer challenged the resolution that East Spencer passed to satisfy the "Notice of Intent" requirements of N.C. Gen. Stat. § 160A-49(a). At the time of Spencer's action, East Spencer had not yet enacted the annexation ordinance contemplated by N.C. Gen. Stat. § 160A- 49(e). Thus, the Resolution of Intent passed by East Spencer was the equivalent of a proposed ordinance because the annexation statutes provide for later action to yield the final enacted ordinance.

The general understanding appears to be that a municipal resolution is not the equivalent of an ordinance. A leading treatise on municipal law summarizes this understanding by stating that:

A "resolution" is not an "ordinance," and there is a distinction between the two terms as they are commonly used in charters. A resolution ordinarily denotes something less solemn or formal than, or not rising to the dignity of, an ordinance. The term "ordinance" means something more than a mere verbal motion or resolution . . . . . . . [A] resolution deals with matters of a special or temporary character; an ordinance prescribes some permanent rule of conduct or government, to continue in force until the ordinance is repealed.

Beth A. Buday and Victoria A. Braucher, 5 McQuillian, The Law of Municipal Corporations § 15.02 (3rd Ed. 1996) (footnotes omitted).

Although the General Statutes do not explicitly define or distinguish the terms resolution and ordinance, the distinction between the two terms is evident in various contexts throughout the codified statutes. Numerous times the statutes explicitly state that municipal action may be by resolution or by ordinance; in other cases they specifically authorize the use of a resolution by a municipality. See, e.g, N.C. Gen. Stat. ยงยง 14-288.13(c) (1993) ("No ordinance enacted by a county under [this] section shall apply within the corporate limits of any municipality, or within any area of the county over which the municipality has jurisdiction to enact general police-power ordinances, unless the municipality by resolution consents to its application"); 14- 288.14(a) (1993) (similar); 14-409.40(b) (Supp. 1997) (prohibiting municipality from regulating firearms by "ordinance, resolution, or other enactment," except as permitted by statute); 63-53(2) (1985) (authorizing municipality to "adopt and amend all needful rules, regulations, and ordinances"); ...


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