261 N.C. App. 747
N.C. Ct. App.2018Background
- Town of Pinebluff (in Moore County) adopted an ordinance annexing territory effective July 19, 2007, and on October 16, 2014 adopted a resolution to extend its extraterritorial jurisdiction (ETJ) up to two miles under N.C.G.S. § 160A-360 as modified by Session Law 1999-35 (S.L. 1999-35).
- Pinebluff notified Moore County and requested the county adopt a resolution authorizing Pinebluff to exercise ETJ over the described area, citing S.L. 1999-35.
- Moore County refused, relying on the general statute N.C.G.S. § 160A-360(e) (which bars municipal ETJ into areas where the county is enforcing zoning, subdivision regs, and the State Building Code) and treating S.L. 1999-35 as not eliminating that restriction.
- County planning board and commissioners held hearings and voted 5-0 to deny Pinebluff’s ETJ extension; Pinebluff then sued for a writ of mandamus seeking to compel the county to adopt the authorizing resolution.
- Trial court granted Pinebluff summary judgment and issued a writ of mandamus; county appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether S.L. 1999-35 removed county discretion to deny Pinebluff’s ETJ extension up to two miles | S.L. 1999-35 expressly authorizes Pinebluff to exercise ETJ up to two miles and, by amending § 160A-360(f), requires Moore County to adopt a resolution authorizing the ETJ upon presentation of proper evidence | § 160A-360(e) remains in force and prohibits municipal ETJ into areas where the county is enforcing zoning, subdivision regs, and the Building Code; thus county may deny Pinebluff’s request | Court held S.L. 1999-35, as the later and specific enactment, overrides § 160A-360(e) as to Pinebluff; Moore County lacked discretion to deny the extension and must adopt the resolution |
| Whether summary judgment and mandamus were appropriate remedies | Pinebluff: undisputed facts and controlling statutory construction entitled it to judgment as a matter of law and mandamus to compel ministerial action | County: factual record and statutory scheme leave discretion and factual issues for trial; denial should stand | Court affirmed summary judgment and issued writ of mandamus directing the county to adopt the authorizing resolution |
Key Cases Cited
- Forbis v. Neal, 361 N.C. 519 (2007) (standard for reviewing summary judgment)
- Ridge Cmty. Inv’rs, Inc. v. Berry, 293 N.C. 688 (1977) (presumption legislature acts with knowledge of existing law)
- Pine Knoll Shores v. Evans, 331 N.C. 361 (1992) (amendments presumed not without purpose)
- State ex rel. Comm’r of Ins. v. N.C. Fire Ins. Rating Bureau, 292 N.C. 70 (1977) (in pari materia canon; harmonize statutes on same subject)
- Town of Boone v. State, 369 N.C. 126 (2016) (§ 160A-360(e) limits municipal ETJ where county enforces zoning, subdivisions, and Building Code)
- Guilford County v. Estates Admin., Inc., 212 N.C. 653 (1937) (later enactment controls where reconciling statutes is impossible)