SUPERIOR COURT DIVISION

STATE OF NORTH CAROLINA COUNTY OF BLADEN IN THE GENERAL COURT OF JUSTICE SUPERIOR COURT DIVISION FILE NO.: MARLOWE FARM, LLC, BLADEN S ) BLOOMIN AGRI-INDUSTRIAL, INC., SIOUX ) HONEY COOPERATIVE ASSOCIATION, ) HARRY A. KEATING, IV, CHARLES M. ) HARDEE, JR., JEFFREY S. and PATRICIA ) SMITH, STEPHEN and BEVERLY BRIDGERS, ) NATHAN and ASHLY DOWLESS, JASON H. ) and MARY HALL, STEPHEN D. and GAYLE ) GODWIN, DAVID R. and TIFFANY T. ALLEN, ) LAC BELLE AMIE VINEYARD AND ) WINERY, LLC., ) ) Plaintiffs ) Vs. ) ) STATE OF NORTH CAROLINA and ) TOWN OF ELIZABETHTOWN, a body ) Politic and Corporate, ) ) Defendants ) ) COMPLAINT Plaintiffs, complaining of the Defendants, allege and say: NATURE OF ACTION 1. This is an action seeking a Declaratory Judgment, pursuant to N.C.G.S. 1-253, et. seq., that HB 845 ( Annexation Reform Act of 2011, Session Law 2011-396), HB 56 ( Local Annexations Subject to 60% Petition, Session Law 2011-177) and SB 27 ( Local Annexations Subject to 60% Petition, Session Law 2011-173) are unconstitutional in violation of Article 1, Sections 1, 19 and 35 of the Constitution of the State of North Carolina, and that HB 56 and SB 27 are unconstitutional in violation of Article II, Section 24(2) of the Constitution of the State of North Carolina, and by reason thereof, seeking injunctive relief. Alternatively, the Plaintiffs pray this Court, pursuant to the provisions of N.C.G.S. 160A-38, to review the

-2- actions of the Town Council for the Town of Elizabethtown, a municipal corporation, located in Bladen County, North Carolina, in adopting Ordinance No. 2011-09 (Area J) and Ordinance No. 2011-10 (Area N) (hereinafter collectively Annexation Ordinances J and N ), and Ordinance No. 2011-04 (Area A), Ordinance NO. 2011-05 (Area B), Ordinance No. 2011-06 (Area C), Ordinance No. 2011-07 (Area D), and Ordinance No. 2011-11 (Area Q) (hereinafter collectively Annexation Ordinances A, B, C, D, and Q ), on or about June 6, 2011, to June 9, 2011, and declare those ordinances null and void. 2. Each of the above-cited ordinances is entitled An Ordinance to Extend the Corporate Limits of the Town of Elizabethtown Under the Authority Granted By Chapter 160A, Article 4A, Part 2 of the General Statues of North Carolina (hereinafter sometimes collectively the Ordinances ) and, in accordance with their terms, are to be effective from and after June 30, 2012, which Ordinances purport to annex lands, including the land and property owned by or belonging to the Plaintiffs. 3. The Plaintiffs are informed and believe, and therefore allege, that they will suffer material injury by reason of the unconstitutionality of HB 845, HB 56 and/or SB 27, and by reason of the failure of the Town of Elizabethtown and its municipal governing board to comply with the procedures set forth in the North Carolina General Statutes, Chapter 160A, Article 4A, Part 2, and the Constitution of the State of North Carolina and the United States as the same apply to the areas purported to be annexed and the property of the Plaintiffs, and by reason of the failure of the areas purported to be annexed to meet the mandatory requirements of N.C.G.S. 160A-36. PARTIES 4. Plaintiff Marlowe Farm, LLC, is a Limited Liability Company organized and

-3- existing under the laws of North Carolina, having its principal place of business in Bladen County, and is the owner of property, real and personal, located in Area D which was purported to be annexed by the Town of Elizabethtown by the Ordinances. 5. Plaintiff Bladen s Bloomin Agri- Industrial, Inc., is a corporation organized and existing under the laws of North Carolina, having its principal place of business in Bladen County, and is the owner of property located in Area A & C which was purported to be annexed by the Town of Elizabethtown by the Ordinances. 6. Plaintiff Sioux Honey Cooperative Association, is a foreign non-profit corporation organized and existing under the laws of the State of Iowa, having its principal office in Woodbury County, Iowa, and is the owner of property located in Area D which was purported to be annexed by the Town of Elizabethtown by the Ordinances. 7. Plaintiff Harry A. Keating, IV, is a citizen and resident of Bladen County, North Carolina, and the owner of property located in Area J which was purported to be annexed by the Town of Elizabethtown by the Ordinances. 8. Plaintiff Charles Matthew Hardee, Jr., is a citizen and resident of Bladen County, North Carolina, and the owner of property located in Area N which was purported to be annexed by the Town of Elizabethtown by the Ordinances. 9. Plaintiffs Jeffrey S. and Patricia Smith are citizens and residents of Bladen County, North Carolina, and the owners of property located in Area N which was purported to be annexed by the Town of Elizabethtown by the Ordinances. 10. Plaintiffs Stephen and Beverly Bridgers are citizens and residents of Bladen County, North Carolina, and the owners of property located in Area N which was purported to be annexed by the Town of Elizabethtown by the Ordinances.

-4-11. Plaintiffs Nathan and Ashly Dowless are citizens and residents of Bladen County, North Carolina and the owners of property located in Area N which was purported to be annexed by the Town of Elizabethtown by the Ordinances. 12. Plaintiffs Jason H. and Mary Hall are citizens and residents of Bladen County, North Carolina, and the owners of property located in Area N which was purported to be annexed by the Town of Elizabethtown by the Ordinances. 13. Plaintiffs Stephen D. and Gayle Godwin are citizens and residents of Bladen County, North Carolina, and the owners of property located in Area N which was purported to be annexed by the Town of Elizabethtown by the Ordinances. 14. Plaintiffs David R. and Tiffany T. Allen are citizens and residents of Bladen County, North Carolina, and the owners of property located in Area N which was purported to be annexed by the Town of Elizabethtown by the Ordinances. 15. Lac Belle Amie Vineyard & Winery, LLC, is a North Carolina Limited Liability Company organized and existing under the laws of North Carolina, having its principal place of business in Bladen County, and is the owner of property located in Area B which was purported to be annexed by the Town of Elizabethtown by the Ordinances. 16. Defendant Town of Elizabethtown (herein Elizabethtown ) is a municipal corporation organized and existing under the laws of the State of North Carolina. 17. Defendant State of North Carolina is a sovereign state of the United States. FACTUAL ALLEGATIONS 18. The involuntary annexation of property by municipal corporations in the State of North Carolina has been the subject matter of much debate, both politically and legally, for many years.

-5-19. Municipalities, being creatures of statute in North Carolina, have been granted the authority, pursuant to the provisions of Chapter 160A, Article 4A, to extend the corporate limits of such municipality under the procedure set forth in the General Statutes, depending upon whether the municipality has a population of more or less than 5,000 persons. 20. Elizabethtown is a town of less than Five Thousand (5,000) persons in population as recorded in the last preceding decennial census of the United States of America. 21. On or about January 3, 2011, the Town Council of Elizabethtown determined that certain areas met the Town s long term growth objectives so that Benchmark can begin working on an Annexation Services Plan, and determined that Cromartie Road, Hayfield Subdivision and the Industrial Park would meet long-term growth objectives; therefore, Benchmark could being working on those areas for the Annexation Services Plan. 22. On April 6, 2011, HB 845, The Annexation Reform Act of 2011, was introduced in the North Carolina Legislature, in its House of Representatives, with much public fanfare, which Act purported to provide a method for property owners that were the subject matter of an involuntary annexation effort by a municipality to oppose and defeat such an effort if 60% of the property owners within an area proposed for annexation objected. 23. On May 3, 2011, at a Special Called Meeting of the Town Council of Elizabethtown, the Town Council conducted a Public Informational meeting regarding proposed annexation of 8 areas and set a date of May 23, 2011, for a public hearing on the proposed annexation of eight (8) annexation areas and descriptions, including: a) Area A Industrial Park Acreage 10.580 +/- b) Area B Industrial Park 10.673 +/- c) Area C Industrial Park 5.300 Acres +/-

-6- d) Area D Industrial Park 28.785 Acres +/- e) Area F Hwy. 87 and Gibson Dairy Road 10.894 Acres +/- f) Area J Cromartie Road 4.129 Acres +/- g) Area N Hayfield Subdivision 16.151 Acres +/- h) Area Q Peanut Road 13.65 Acres - +/- 24. On May 23, 2011, the Town Council of Elizabethtown conducted a Public Hearing regarding annexation of the 8 Areas. 25. On June 6, 2011, the Town Council of Elizabethtown adopted six ordinances each entitled An Ordinance to Extend the Corporate Limits of the Town of Elizabethtown Under the Authority Granted By Chapter 160A, Article 4A, Part 2 of the General Statues of North Carolina purporting to annex the 6 Areas to the Town of Elizabethtown. At a special called meeting on June 9, 2011 the Town Council adopted a seventh ordinance purporting to annex (Area N) into the Town of Elizabethtown. 26. On June 18, 2011, HB 56, entitled Local Annexations Subject to 60% Petition was adopted by the North Carolina Legislature, and became law effective that date, which Act required that specified local pending or completed involuntary annexations be subject to a Petition to Deny the Annexation by property owners of at least sixty percent of the parcels located in the Area, and provided that designated involuntary annexations are suspended effective June 1, 2011 and shall not become effective until completion of a petition to disallow the annexation process, and thereafter designated annexations efforts by Kinston; Lexington; Rocky Mount; Wilmington; Asheville/Biltmore Lake; Village of Marvin; Southport to be suspended, and that the annexation already enacted and effective by Goldsboro shall be subject to a petition by residents to disallow and repeal the annexation in accordance with the

-7- provisions of HB 845. 27. On June 18, 2011, SB 27, entitled Local Annexations Subject to 60% Petition was adopted by the North Carolina Legislature, and became law effective that date, which Act required that specified local pending involuntary annexations be subject to a Petition to Deny the Annexation by property owners of at least sixty percent of the parcels located in the Area, and provided that designated involuntary annexations are suspended effective June 1, 2011 and shall not become effective until completion of a petition to disallow the annexation process, and thereafter designated annexations efforts by Kinston; Lexington; Rocky Mount; Wilmington; Asheville/Biltmore Lake; Village of Marvin; Southport; Fayetteville to be suspended, and that those annexations shall be subject to a petition by residents to disallow and repeal the annexation in accordance with the provisions of HB 845. 28. The Plaintiffs are informed and believe and therefore allege that Elizabethtown, through its Town Council, sought to insure that its already enacted Ordinances would be exempted from the provisions of HB 56 and SB 27, thereby denying the Plaintiffs and other similarly situated property owners within the 7 Annexed Areas the opportunity to petition to disallow and repeal the annexation in accordance with the provisions of HB 845. 29. HB 845 was finally passed by the North Carolina Legislature, and became law effective July 1, 2011, declaring as a matter of public policy that it is essential for citizens to have an effective voice in annexations initiated by municipalities and therefore, as to annexations initiated by municipalities on or after that date made substantial revisions to Chapter 160A, Article 4A of the North Carolina General Statutes, including enactment of N.C.G.S. 160A-58.55(i), entitled Petition to Deny Annexation Ordinance, when, upon receipt of the resolution of intent and a list of property owners of the real property located within

-8- the area (to be annexed), the county tax assessor shall prepare a list of the real property parcels within the area, and forward it to the board of elections in the county where a majority of the parcels proposed for annexation are located, and the board of elections is thereby required to prepare petitions for property owners of the real property located within the area described in the resolution of intent to sign opposing the annexation ordinance. For a period of 130 days after adoption of an annexation ordinance, the board of elections is required to accept signatures on the petition, and if the board of elections delivers to the municipal governing board petitions signed by eligible property owners of at least sixty percent (60%) of the parcels located within the area described in the annexation ordinance the annexation shall be terminated and the municipality may not adopt a resolution of consideration for the area described in the annexation ordinance for at least 36 months. 30. The Plaintiffs are informed and believe, and therefore allege, that they are the owners of property within the areas designated by Elizabethtown as Areas A, B, C, D, J, and N. 31. Upon information and belief, the Plaintiffs and other similarly situated property owners within the 7 Annexed Areas in Elizabethtown do not enjoy the opportunity to petition to disallow and repeal the annexation in accordance with the provisions of HB 845, unlike identical and similarly situated property owners in Kinston; Lexington; Rocky Mount; Wilmington; Asheville/Biltmore Lake; Village of Marvin; Southport and Goldsboro, who, by reason of the provisions of HB 56, enjoy that statutory right and privilege, as provided in HB 845. 32. Upon information and belief, the Plaintiffs and other similarly situated property owners within the 7 Annexed Areas in Elizabethtown do not enjoy the opportunity to petition to disallow and repeal the annexation in accordance with the provisions of HB 845,

-9- unlike identical and similarly situated property owners in Kinston; Lexington; Rocky Mount; Wilmington; Asheville/Biltmore Lake; Village of Marvin; Southport and Fayetteville, who, by reason of the provisions of SB 27, enjoy that statutory right and privilege, as provided in HB 845. 33. Upon information and belief, property owners in Kinston; Lexington; Rocky Mount; Wilmington; Asheville/Biltmore Lake; Village of Marvin; Southport; Goldsboro and Fayetteville are therefore subject to different restrictions and/or are given different privileges under the same conditions than the Plaintiffs and other similarly situated property owners within the 7 Annexed Areas in Elizabethtown. 34. HB 845, HB 56 and SB 27, taken together, create an unlawful and unconstitutional classification between different groups of people. 35. HB 845, HB 56, and SB 27, which purportedly seek to exempt the property owners within the 7 Annexed Areas in Elizabethtown from enjoying the opportunity to petition to disallow and repeal the annexation, bear no rational relationship to any conceivable legitimate governmental interest, and are not necessary to promote any compelling governmental interest. 36. There is no substantial difference between property owners within the 7 Annexed Areas in Elizabethtown and property owners in Kinston; Lexington; Rocky Mount; Wilmington; Asheville/Biltmore Lake; Village of Marvin; Southport; Goldsboro and Fayetteville. 37. By being specifically exempted from the opportunity to petition to disallow and repeal the annexation, the Plaintiffs and other similarly situated property owners within the 7 Annexed Areas in Elizabethtown have been deprived of a fundamental right created by HB 845, including the essential right to have an effective voice in annexations initiated by

-10- municipalities, declared by HB 845. 38. On August 5, 2011, the Bladen County Board of Elections advised the Plaintiffs that they could not avail themselves of the petition process. This action denied the Plaintiffs their constitutional right to petition their government for redress of grievances according to the same petition process afforded to those municipalities specified by HB 56 and SB 27, and thereby denied them the right to seek to disapprove of the annexations to be undertaken pursuant to the Ordinances. FIRST CLAIM FOR RELIEF (Declaratory Judgment -Violation of Article I, Sections 1, 19 and 35 of the North Carolina Constitution) 39. The Plaintiffs incorporate herein by reference the allegations contained in paragraphs 1 through 38 as if fully set forth herein. 40. Plaintiffs bring this action pursuant to N.C.G.S. 1-253. This Court has jurisdiction over the parties, and there is a justiciable case and/or controversy between the parties regarding the constitutionality of HB 845, HB 56 and SB 27 taken together. 41. Article I, Section 19 of the North Carolina Constitution provides No person shall be taken, imprisoned, or disseized of his life, liberty, or property, but by the law of the land. No person shall be denied equal protection of the laws The equal protection principle requires that all persons similarly situated be treated alike. 42. Article I, Section 1 of the North Carolina Constitution provides, We hold it to be self-evident that all persons are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, the enjoyments of the fruits and their own labor, and the pursuit of happiness. 43. Article I, Section 35 of the North Carolina Constitution provides, A frequent

-11- recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty. 44. Plaintiffs and other similarly situated property owners within the 7 Annexed Areas in Elizabethtown are similarly situated with property owners in annexed areas, or areas proposed for annexation, in Kinston; Lexington; Rocky Mount; Wilmington; Asheville/Biltmore Lake; Village of Marvin; Southport; Goldsboro and Fayetteville. 45. HB 845, HB 56 and SB 27, taken together, are unconstitutional, in violation of Article I, Sections 1, 19 and 35 of the North Carolina Constitution, by denying Plaintiffs and other similarly situated property owners within the 7 Annexed Areas in Elizabethtown equal protection of the laws. 46. Given the special privileges granted to property owners in Kinston; Lexington; Rocky Mount; Wilmington; Asheville/Biltmore Lake; Village of Marvin; Southport; Goldsboro and Fayetteville, and denied to Plaintiffs and other similarly situated property owners within the 7 Annexed Areas in Elizabethtown, there are no circumstances under which HB 845, HB 56 and SB 27, taken together, would be constitutional. 47. HB 845, HB 56 and SB 27, by specifically excluding Plaintiffs and other similarly situated property owners within the 7 Annexed Areas in Elizabethtown from the right to petition and oppose annexation of their property is so punitive either in purpose or effect as to negate the express public policy of the State of North Carolina, contained in HB 845, namely, the right to have an effective voice in annexations initiated by municipalities. 48. Plaintiffs have the right, therefore, to have this Court issue a declaratory judgment on these and any other issues that may arise during the course of this litigation.

-12- SECOND CLAIM FOR RELIEF (Declaratory Judgment Violation of Article II, Section 24(2) of the North Carolina Constitution) 49. The Plaintiffs incorporate herein by reference the allegations contained in paragraphs 1 through 48 as if fully set forth. 50. Plaintiffs bring this action pursuant to N.C.G.S. 1-253. This Court has jurisdiction over the parties, and there is a justiciable case and/or controversy between the parties regarding the constitutionality of HB 845, HB 56 and SB 27, taken together. 51. Plaintiffs allege that the county boards of elections are governed by Chapter 163, Article 4 of the North Carolina General Statutes and derive all of their duties, obligations and authorities from the provisions of G.S. 163-33. 52. The duties, obligations and authorities of county boards of elections statewide are limited to those enumerated in Chapter 163, Article 4, Section 33 of the General Statutes or provided for under G.S. 163-33(12). 53. HB 56 and SB 27 were enacted as local, private, or special acts which imposed upon specified county boards of elections certain duties, obligations and authorities not found in Chapter 163, Article 4, Section 33 of the General Statutes. 54. Article II, Section 24(2) of the North Carolina Constitution provides that the General Assembly shall not enact any such local, private, or special act by the partial repeal of a general law; but the General Assembly may at any time repeal local, private, or special laws enacted by it. 55. HB 56 and SB 27 both conflict with and effect a partial repeal of the limitations on duties and authorities vested in county boards of elections statewide by a general statute, in that they impose upon those specified boards of elections duties and authorities not authorized by

-13- the applicable Chapter of the general statutes. 56. This partial repeal of a general statute by local, private or special acts violates Article II, Section 24(2) of the North Carolina Constitution by partially repealing and conflicting with G.S. 163-33, a general law, and renders HB 56 and SB 27 void pursuant to Article II, Section 24(4). 57. Plaintiffs have the right, therefore, to have this Court issue a declaratory judgment on these and any other issues that may arise during the course of this litigation. ALTERNATIVE THIRD CLAIM FOR RELIEF (Petition for Review N.C.G.S. 160A-38) 58. The Plaintiffs incorporate herein by reference the allegations contained in paragraphs 1 through 57 as if fully set forth. 59. The Plaintiffs are informed and believe and therefore allege that the Annexation Ordinances adopted by Elizabethtown is invalid in that said Ordinances and the 7 Areas proposed for annexation therein fail to meet the requirements of N.C.G.S. 160A-36 in that: a) In connection with Annexation Ordinances J and N, the proposed annexation areas do not qualify for annexation in that they are not developed for urban purposes as defined in N.C.G.S. 160A-36(c)(1) because, upon information and belief, less than sixty percent (60%) of the total number of lots and tracts in the area at the time of the annexation were used for residential, commercial, industrial, institutional or governmental purposes and the area was not subdivided into lots and tracts such that at least sixty percent (60%) of the total acreage, not counting acreage used at the time of annexation for commercial, industrial, governmental or institutional purposes, consisted of lots and tracts three (3) acres or less in size. b) In connection with Annexation Ordinances A, B, C, D and Q, the proposed annexation areas do not qualify for annexation in that they are not developed for urban purposes as

-14- defined in N.C.G.S. 160A-36(c)(2) because, upon information and belief, at the time of the approval of the annexation report, all tracts in the area to be annexed were not used for commercial, industrial, governmental, or institutional purposes. c Upon information and belief, the boundary of the 7 proposed annexation areas, as defined and proposed by Elizabethtown, has not, wherever practical, used natural topographic features or streets as boundaries as required by N.C.G.S. 160A-36(d). 60. The Plaintiffs are informed and believe and, therefore, allege that the Ordinances are invalid in that Elizabethtown, in the adoption of said Ordinances, failed to follow the mandatory requirements of N.C.G.S. 160A-37 in that: a) Upon information and belief, at least 30 days before the date of the public informational meeting held by Elizabethtown, the Town Council had not approved the reports provided for in N.C.G.S. 160A-35, and made them available to the public and had not prepared summaries of the full reports for public distribution. b) Upon information and belief, at the Public Hearing held by Elizabethtown, no explanation of the reports provided for in N.C.G.S. 160A-35 was provided in advance of anyone being permitted to ask questions and receive answers regarding the proposed annexations. c) No adequate presentation was made at the public hearing with respect to how Elizabethtown characterized the 7 Areas designated for annexation as actually being used for residential, commercial, institutional or governmental purposes. 61. Plaintiffs are informed and believe and therefore allege that the Ordinances are invalid in that said Ordinances and the Annexation Reports of Elizabethtown fail to meet the requirements of N.C.G.S. 160A-35 in that they fail to contain an adequate statement showing that the areas to be annexed meet the requirements of N.C.G.S. 160A-36, by failing to specifically

-15- designate how the actual use of the property within the 7 Areas qualifies for annexation. 62. All Plaintiffs will suffer material injury by reason of the failure of the Town of Elizabethtown to comply with the procedures set forth in Part 2 of Chapter 160A of the General Statutes of North Carolina in that: a) Elizabethtown s failure to comply with the statutory requirements set forth in G.S. 160A-36, as they apply to annexation areas A, B, C, D, J, N, and Q, materially prejudiced Plaintiffs right to be annexed in accordance with legislative standards applicable throughout the State which are in place to provide high quality governmental services needed for the public health, safety and welfare in areas being intensively used for residential, commercial, industrial, institutional and government purposes; b) Elizabethtown s failure to make the Annexation Report available to Plaintiffs at least 30 days prior to the Public Hearing materially prejudiced Plaintiffs substantive right to be heard on the proposed annexation; and c) Elizabethtown s failure to first make an explanation of the report prior to Plaintiffs opportunity to ask questions and receive answers regarding the proposed annexation materially prejudiced said statutory right to ask questions and receive answers. 63. Plaintiffs have the right, therefore, to have this Court declare these Ordinances null and void and of no effect. WHEREFORE, the Plaintiffs pray the Court as follows: 1. That this Court issue its Declaratory Judgment, finding that HB 845, HB 56 and SB 27, taken together, are unconstitutional in violation of Article I, Sections 1, 19 and 35 of the North Carolina Constitution, by denying Plaintiffs and other similarly situated property owners within

-16- the 7 Annexed Areas in Elizabethtown equal protection of the laws. 2. That this Court issue its Declaratory Judgment, finding that HB 56 and SB 27 are unconstitutional in violation of Article II, Section 24(2) of the North Carolina Constitution, by partially repealing a general law by local, private, or special acts. 3. That alternatively, the Annexation Ordinances of Elizabethtown and all proceedings in connection therewith be declared null and void and of no effect. 4. That the Court declare that the 7 Areas purported to be annexed by Elizabethtown are not eligible for annexation. 5. That the costs of this action, including the Plaintiffs reasonable attorneys fees, be taxed by the Court against the Defendants, jointly and severally. 6. For such other and further relief as to the Court seems just and proper. This the 5th day of August, 2011. GARY K. SHIPMAN State Bar Number: 9464 W. CORY REISS State Bar Number: 41549 Attorneys for Plaintiffs 575 Military Cutoff Road, Suite 106 Wilmington, NC 28405 (910) 762-1990