The below document was sent to me by James Lore. Please take the time to read this as it is a well written and thought out presentation of the many issues with the Fuquay ETJ expansion.
Why I Oppose Approval of the Fuquay Varina ETJ Expansion Application
R. James Lore, Attorney at law
1. The Town of Fuquay Varina’s application cannot meet the requirements
of the County’s Land Use Plan.
Wake County’s Land Use Plan states that an ETJ expansion request should
“only be granted for areas anticipated to be substantially developed and annexed
within ten (10) years.”
Prior to 2011, ETJ status was intended as a transitional state from full county to full municipal control, allowing the municipality time to extend the required set of services to that area, and then the city or town could involuntary annex that area if voluntary annexation was not requested. However, in 2011 the law changed and cities and towns can no longer involuntarily annex property. It is therefore impossible for the Town of Fuquay Varina (hereinafter referred to as “Town”) to satisfy the current criteria in the Wake County Land Use Plan. We believe that the County should postpone any action regarding the Town’s current request until there is an update of the Wake County Land Use Plan.
2. Because a city or town can no longer involuntarily annex land, if the ETJ Expansion application from the Town is approved, citizens living in this new ETJ have everything to lose and nothing to gain.
The Wake County Land Use Plan states that an ETJ expansion request should “only be granted for areas anticipated to be substantially developed and annexed within ten (10) years.” Not wanting to wait for an update of the Wake County Land Use Plan, the Town leadership has decided, on their own, that it is OK to “reinterpret” the current approved standard for ETJ expansion. Without any authorization, the Town says the standard highlighted above only requires that the Town be ready and willing to accept voluntary annexation applications in the future.
Here is the problem. Right now, everyone living in the proposed ETJ has direct access, with their vote, to you, our County Commissioners. You are the elected officials who develop the land use standards for our land, including the rules for businesses on our land, zoning, livestock, etc. County staff then enforces those ordinances. When land is taken into an ETJ, the landowner becomes subject to the rules that are established by the Town’s council, not the County. As landowners in the County, we will not have direct access to the Town Council with our vote. We cannot support them if we agree with their decisions and we cannot vote against them when we do not. We are in limbo, and because there is no longer any involuntary annexation some of us may be in limbo forever. Do you think that is not possible? There are landowners who were taken into ETJ areas by the Town 36 years ago, and in other areas 16 years ago, who are still in this ETJlimbo!!
1 In its current ETJ expansion application, Fuquay admits that only 34% of the ETJ area added
16 years ago was annexed while not disclosing what percentage of the area added 34 years ago
Practically speaking, the population of the affected area would be permanently deprived of their right to vote for those who govern their land use.
3. And there is a constitutional issue here.
There is language in the North Carolina Constitution referred to as the Equal Protection Clause. You can see the specific citations in the footnote, but basically this clause guarantees that all North Carolina citizens have equal voting rights.
2 Article I, Section 19 of the North Carolina Constitution provides in relevant part that “[n]o
person shall be denied the equal protection of the laws.” North Carolina’s Equal Protection
Clause affords broader protections to its citizens in the voting rights context than the U.S.
Constitution’s equal protection provisions. See Stephenson v. Bartlett, 562 S.E.2d 377, 393-95
& n.6 (N.C. 2002); Blankenship v. Bartlett, 681 S.E.2d 759, 763 (N.C. 2009). Irrespective of its
federal counterpart, North Carolina’s Equal Protection Clause protects the right to
“substantially equal voting power.” Stephenson, 562 S.E.2d at 394. “It is well settled in this
State that the right to vote on equal terms is a fundamental right.” Id. at 393 (internal quotation
marks omitted).There is nothing “equal” about the “terms” on which North Carolinians
absorbed into a municipal ETJ can vote for a governing town council.
North Carolina’s Constitution also commands that “all elections shall be free”—a provision that
has no counterpart in the federal constitution. Elections to the governing town council are not
“free” when only its citizens within an ETJ are precluded from voting by state statute.
It seems pretty clear that citizens who are taken into an ETJ without annexation in their future do not, and really cannot, be “equal” under our own State Constitution! They lose the right to vote for the elected officials who make the decisions about their land.
4. The Town does not have a track record of responsible planning and land
The Town has a history of irresponsible management of land development within its current jurisdiction, which in turn has significantly contributed to some of the worst traffic congestion in Wake County.
Examples we can easily point to include:
- Serious traffic problems at the intersection of Sunset Lake Road
and Main St.
- Serious traffic problems around the Walmart shopping center
Providing municipal services to an area allows for increased density of development. In other words, a new subdivision with Town water and sewer services can have many more houses on the same amount of land than if the subdivision offers well and septic. The Town is enthusiastic about this increased density in the proposed ETJ expansion areas, while at the same time acknowledging that there are no funds available for the widening of the secondary roads in these areas.
The Town is also trying to artificially expand its ETJ by using a narrow corridor along Highway 401, adding to future traffic woes where traffic capacity is already limited. Using such a narrow road corridor as a means to extend primary corporate limits and municipal jurisdiction was specifically disapproved by the Legislature for annexations in 2011 and implicitly disapproved for proposed ETJ expansions.
N.C.Gen.Stat. 160A-58.51(1) [“A connecting corridor consisting solely of the length of a street
or street right-of-way may not be used to establish contiguity.”]
I suggest that if the Town is truly interested in practicing prudent land use planning, it should focus its planning on the development of centralized, high-density population nodes in the core of its primary Town limits. This would allow for the concurrent planning for mass transportation, smartly placed retail hubs as well as adequate greenspace. This is a much more reasonable approach compared to their current model, which decentralizes development through haphazard, satellite annexation of high density residential projects located in areas where secondary roads are already overloaded with traffic.
Fuquay new development map from the town’s website:
5. The Town’s plan to develop and enforce their land use ordinances in the
ETJ is not transparent.
The transition of land use ordinances from county to municipal control requires careful, honest planning so that the citizens who are substantially impacted can prepare to use their land as they do now, plan for a transition to a different set of rules, or move. Unfortunately, the Town has yet to disclose the final details of their proposed new ordinances for this area, including ordinances that effect land use for home-based businesses, livestock, pets, etc.
It is ironic, and really concerning, that the Town asks for citizen support but offers no solid proof that our current land uses will be allowed to continue. In fact, using their only example as stated in one of the public meetings, while they will try to grandfather existing land uses, including the number of allowed animals, they also admitted that as animals die they cannot be replaced until the number of animals drops to the Town’s allowed number, whatever that will be. According to the Town, grandfathering only lasts for the life of the preexisting animals. That is not how most of us think about grandfathering. Then, after assuring those in attendance at this particular meeting that every effort would be made to conform the Town’s animal ordinances to the current County ordinances, the Town quietly released their draft ordinances for livestock and poultry. It is very concerning to those who have read this proposal to find that the Town
planners propose, for example, that the number of chickens that can be owned by a landowner in the ETJ would be limited to 10 and fencing for non-domestic animals must be set back 8 feet from an owner’s property line. No logic, no rationale.
6. The Town mistakenly relies on expansion requests allowed for other cities
to support its request. However, there is no comparison in scope and
process between other applications and this one.
The Town cites the recent approvals of the ETJ expansion applications for Holly Springs and Garner as support for their current application. However, those approvals should have no bearing on the application proposed by this town. Those applications were dramatically smaller in scope and also required some revisions prior to approval.
It should also be noted that the development of their proposals started very differently than the one I am commenting on here. Their applications were developed in a very “bottom up” way, with a lot of interaction with their proposed broader communities about what is important, their common goals and their shared vision for the future. In contrast, the Town used a very insider-based, “top down” approach with no substantive communication with the proposed broader community and no recusal of those Town officials whose families or businesses will benefit from the effects of the expansion of the ETJ.
This open communication is still not welcomed! Even in their so-called public hearings, comments and discussion were absolutely not allowed – their meeting “rules” specifically forbade comments!! Attempts by citizens to comment were met with a police escort to the door. This unprecedented unwillingness to allow anyone from the public to do anything other than to ask a clarifying question about their ETJ application shows the heavy-handedness with which we can expect to be treated if the ETJ application is approved. The public hearing process that was used by the Town should clearly be deemed as insufficient to satisfy G. S. 160A-360, which entitles the affected landowners to be able to “participate in a public hearing”. Their requirement that the public comment only in writing, with no information about how those comments will be addressed or shared with the broader community, is clearly a process designed to suppress, not encourage, public input.
7. The Town has a poor history of integrating appropriate landscaping into
developments it allows.
The Town’s flawed landscaping policy has allowed unnecessary clear cutting of old growth trees on newly developed property just to save developers money. Most recently this occurred on an 80-acre tract that the Town satellite- annexed on Hilltop Needmore Road for the Stone Creek subdivision. The Town should have a heritage tree program that truly protects old growth trees. The reality is just the opposite. The Town allows the clear cutting of old growth trees while receiving little meaningful planting in return.
Obviously, for all the reasons above I stand opposed to the Town’s ETJ expansion application. Those who have been waiting for 16 to 36 years deserve to have their situations settled well before the Town can even consider submitting an application to you for an additional land grab. I thank you for the opportunity to share my thoughts with you and hope that you will reach out if you would like to further discuss any of these points.
What You Can Do to Help Defeat Fuquay’s Expansion of its Jurisdiction Over You and Your Property
The Wake County Commissioners, and not the Town of Fuquay Varina, determine whether the Town’s ETJ expansion application is granted, in whole or in part, or denied. They need to hear from us! Please focus your efforts to block or modify this ETJ expansion application by communicating your views to the Wake County officials listed below and by attending the meetings with Wake County officials that will begin in January, 2019.
Where to File Your Objections or Suggestions Regarding the Town of Fuquay Varina’s ETJ Expansion Application
Timothy W. Maloney, PLA, ASLA
Wake County Government
Planning Development & Inspections
P.O. Box 550
Raleigh, NC 27602
Commissioner Sig Hutchinson
2704 Snowy Meadow Court
Raleigh, NC 27614
Wake County: 919-856-5575
Commissioner Matt Calabria
Fuquay-Varina, NC 27526
Wake County: 919-856-5576
Commissioner Jessica Holmes, Chair
Wake County: 919-856-5579
Commissioner Susan Evans
2016 W. Sterling Place
Apex, NC 27502
Wake County: 919-856-5574
Commissioner James West
2401 Sanderford Road
Raleigh, NC 27610
Wake County: 919-856-5573
Commissioner Greg Ford, Vice Chair
10609 Firwood Lane
Raleigh, NC 27614
Wake County: 919-856-5566
Commissioner Vickie Adamson
1313 Shadyside Drive
Raleigh, NC 27612
Wake County: 919-856-5577
to Email all Wake County Commisioners simultaneously use