Rural Fire Protection Districts

Subject:

Requested By: Paul S. Messick, Jr. Chatham County Attorney

Questions: (1)

Does the phrase "adjoining territory", as used in G.S. 69-25.11(1) include area separated from an existing fire district by land and lake owned by the United States?

(2)

Does the word "owners", as used in G.S. 69-25.11(1) include non-resident owners and resident freeholders of the area to be included, and does the phrase "majority of the owners" mean a majority of the total number of persons or entities owning an interest in any property within the area?

Conclusions: (1)

No. Property completely separated from the existing fire district is not "adjoining territory" within the meaning of the statute.

(2)

We believe the legislative intent was to include non-resident property owners, and the word "owner" should be construed to mean "resident and non-resident owners" of the territory to be included. "Majority of the owners" refers to persons and entities owning real estate in the territory.

The facts indicate that there is an existing fire district created pursuant to G.S. 69-25.1. An area separated from the existing district by a lake and lands owned by the United States desires to become a part of the fire district pursuant to G.S. 69-25.11(1).

The words "adjoining territory" must be given their usual and ordinary meaning. "Adjoining" and "abutting" are used generally to mean to "touch", "attach to." Thus we conclude that property which is separated from the district is not adjoining territory since it does not physically abut the district boundaries. See: Heaton v. City of Charlotte, 277 N.C. 506. A fire district is created upon a petition signed by at least 15% of the "resident freeholders" living in the area. If the petition is proper, then an election is held wherein all qualified voters living in the area are eligible to vote, whether they own property or not. G.S. 69-25.1.

G.S. 69-25.11(1), et seq., was enacted five years after G.S. 69-25.1. G.S. 69-25.11(1) does not use the words "resident freeholders", but rather the words "owner or owners of the territory to be included."

When Article 3A, Chapter 69 was enacted in 1951, the petition for an election to create the district had to be signed by 15% of the resident freeholders of the area to be included in the district. This same condition remains in G.S. 69-25.1. (Emphasis added)

In 1953, G.S. 69-25.10 was enacted to provide for an election to abolish the district upon a petition signed by 15% of the resident freeholders (emphasis added.)

In both elections, any registered voter could vote, but the petitions were signed only by resident freeholders.

In 1955, G.S. 69-25.11 was enacted to provide a procedure whereby territory could be added to an existing fire district without a vote of the people. However, the owner, or a two-thirds majority of the owners of the territory to be added had to sign an application requesting that the area be included. Then the fire protection commissioners, the board of directors of the corporation furnishing fire protection to the district, and the county commissioners had to approve the addition to the district. A similar procedure was provided for removing an area from an existing fire district.

It is noted that G.S. 69-25.11 does not use the words "resident freeholders" as appears in G.S. 69

25.1 and G.S. 69-25.10.

Thus, on the face, non-resident, as well as resident, owners of the territory to be included may sign the application. Did the General Assembly use the word "owner" to mean resident freeholder? There is nothing in the statute to point to such a construction, although it could be argued that since a fire district can only be created or abolished pursuant to a petition signed by resident freeholders, the Legislature used the word owner in the same sense when territory was to added to or removed from an existing fire district upon application in G.S. 69-25.11. G.S. 69

25.12 and 13 uses the term "taxpayers and other residents." The words "other" preceding resident and following taxpayers, could indicate that the General Assembly was speaking of resident taxpayers and other residents. Yet all property owners must pay taxes, and are therefore taxpayers, whether they are residents of the area or not.

The General Assembly is presumed to be aware of the statutes existing and the provisions of statutes amended. Thus we conclude that the words "owner or a two-thirds majority of the owners of the territory to be included" set forth in G.S. 69-25.11(1), means any owner, whether or not resident.

See: G.S. 41-13, which defines freeholder, but which apparently is applicable only to petitions required as a condition precedent to ordering an election, and thus is not applicable to G.S. 6925.11(1).

The phrase "majority of the owners", means a majority of persons and entities owning the territory (land) to be added to the fire district.

Rufus L. Edmisten Attorney General

James F. Bullock Senior Deputy Attorney General