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Annexation on hold as Gillis, Webster continue legal battle
By Derek Hodges and Carey Phillips
Though Webster officials finalized annexation of Rivercrest subdivision last summer, a February court ruling has placed that action in limbo.
Whether Rivercrest will become part of Webster won’t be known until the October outcome of a court case contesting the town’s annexation of about 43 acres.
Webster board members voted in August 2004 to annex, though the issue has been contentious from the start.
Ken Gillis, who owns about 7.8 acres in the proposed annexation area, including the former Jack the Dipper ice cream shop and some property within Rivercrest, filed a lawsuit in October 2004 to stop what he termed an illegal annexation. At the time Gillis cited Webster’s lack of accommodations for businesses as his reason for filing the suit. Gillis said then that he planned to locate a new business, perhaps a convenience store, at the intersection of South River Road and N.C. 107, and was also considering selling a portion of his property to a developer planning multi-family housing.
Gillis told Webster leaders before they voted to annex the area that tax revenue from his property would not cover fees incurred from legal battles the town would have to fight. Despite that threat, town officials proceeded with annexation.
In his first legal filing, Gillis cited a mistake in the annexation order that defined one of his property’s boundaries as the “banks of the Tuckaseigee River.” Tax records show the line is actually in the middle of the river. Gillis and his lawyer, Albert Sneed of Asheville, contend that means the property to be annexed does not share enough of a border with the town to meet state criteria for annexation. Those laws require at least 12.5 percent of the border be mutual.
In September 2005, Superior Court Judge Phil Ginn remanded the annexation ordinance to Webster’s board. He directed board members to correct the boundary mistake, which they did.
That ruling, however, did not negate the Rivercrest annexation, nor did it satisfy Gillis, who filed an amended petition in January.
Webster officials claim the new boundaries do not affect their ability to annex the property. Gillis, on the other hand, contends the shared boundary does not meet state requirements and said other complaints in his lawsuit, which is scheduled to be heard Oct. 30-31, have not been addressed.
Superior Court Judge Zoro Guice issued an order in February that stayed the annexation pending resolution of Gillis’ suit.
Gillis’ complaints also include several procedural rules he says Webster officials did not follow; the “material damage” he will suffer because of the annexation; and the town taxes he will have to pay without receiving services in exchange.
According to Gillis, Webster does not provide police or fire protection, street lights, solid waste removal, street maintenance, water and sewer, animal control, or parks and recreation.
In addition, Gillis contends that his property’s value will decrease if it becomes part of Webster, because it will be less attractive to potential businesses.
Webster Mayor Steve Gray, who is also publisher of The Sylva Herald, disagreed that Webster does not provide services to its residents. The town is patrolled by Jackson County Sheriff’s deputies and contracts with the Sylva Volunteer Fire Department, Gray said. The town also provides street lights and maintenance by cooperating with the N.C. Department of Transportation, water and sewer through the Tuckaseigee Water and Sewer Authority, and animal control and recreation opportunities through county agencies, Gray said.
Gillis said his property already receives those services without being part of any municipality.
In court documents, Gillis has cited an N.C. Supreme Court ruling, recently upheld by a state Appeals Court, in which the town of Marvin was stopped in a proposed annexation. The Court ruled since the town provides no services of its own, annexation would only be a tax burden with no benefit.
“The Supreme Court decision was very clear that the annexing municipality must provide services that are not already provided,” Gillis said. “The town of Webster basically provides the same services as the town of Marvin. There’s no benefit to being annexed into Webster. Towns like Webster simply shouldn’t be doing annexations.”
Gray challenged Gillis’ contention that his property will decrease in value if it is made part of Webster. According to Gray, Webster’s property values are second only to those in the Cashiers area. However, Webster’s zoning ordinance limits the type of commercial activity within the town.
Gillis said he has offered to voluntarily annex into Sylva, but was told by former Webster board member Louise Bedford his property could not become part of Sylva because it is closer to Webster.
Gillis has asked the court to void the annexation or remand it to the town board for correction. He is also requesting that the town pay court costs.
Both sides are hopeful they will prevail in October.
“We feel like we’ve met all the state’s requirements, and the annexation ordinance is correct now,” Gray said.
“I believe the legal position we have is very solid,” Gillis said. “I don’t think there’s much question a court will find the damages are significant.”
Though he filed the lawsuit, Gillis claims Webster is using litigation to penalize him.
“They’re using the experience of litigation as a club against me,” he said. “So far this suit has cost me almost $50,000. The town of Webster is not paying any legal fees. They’re getting all their legal services gratis.”
Gray said that statement is inaccurate, citing financial records showing the town has paid $5,000 on legal services this year alone.
With Webster’s restrictive zoning ordinances on businesses, the town board’s decision to annex the former Jack the Dipper site makes no sense, Gillis said.
“I don’t want to be a part of Webster at all, and there’s no rational reason why I should be,” he said. “I think, when you look at a map, there’s no question that this is just a land grab attempt to try to keep this property out of Sylva’s hands.”
Whatever the October outcome, the battle will not be over, Gillis said. He will appeal if the court rules against him, he said. If the ruling is in his favor, town leaders will rewrite the annexation ordinance in such a way to satisfy state laws and try to take his property again, he said.
With annexation up in the air, some have questioned the validity of Webster’s November town election, during which Rivercrest residents were allowed to vote.
After Webster’s board complied with Judge Ginn’s September order, elections board employees put notices on doors of Rivercrest residences indicating registered voters there were eligible to vote, according to Election Director Lisa Lovedahl-Lehman, and no one has challenged the outcome.
A challenge would not necessarily have to come from a candidate but could come from any Webster registered voter, she said.
If a challenge is received, election board members would have to see how many Rivercrest residents cast ballots to determine if any outcome might have been affected. Even if there were enough voters from Rivercrest to potentially cause a difference, the election would not automatically be overturned, she said.
Of the seats in contention, only two were close. Steve Gray defeated Sam Gray 74-60 in the contest for mayor, and Laura Spaulding won the fifth seat on the town board with 68 votes. Frances Berry and Sharon Myers followed with 60 apiece.
Since the annexation appeared legal at the time of the election, a decision on a new vote may have to come from the courts in the event Gillis prevails, Lovedahl-Lehman said.
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