1. Cities and Towns--annexation--requirements--burden of proof
Reports and annexation ordinances reflecting adherence to the applicable requirements of
N.C.G.S. § 160A-45 et seq. establish prima facie that an annexing authority has substantially
complied with the statute and the burden lies with an annexation challenger to demonstrate the
contrary.
2. Cities and Towns--annexation--requirements--residential purposes--mobile homes
An area being annexed qualified as being developed for urban purposes under N.C.G.S. §
160A-53(2) where petitioners maintained that some of the lots relied upon by the City were not
used for residential purposes as required by the statute because they were occupied by mobile
homes which were not "constructed" on the lots. The testimony of the City's consultant provided
support for the court's findings that the mobile homes required necessary construction and
improvements on-site after delivery.
3. Cities and Towns--annexation--requirements--residential purposes--condemned
home
The trial court did not err when affirming an annexation in its finding regarding
residential purposes where petitioners contended that the City included a condemned home as a
"habitable" residence. The trial court properly noted in its judgment that the structure had been
destroyed by fire, but provided that deletion of that structure from the calculation of the "urban
purposes" percentage under N.C.G.S. § 160A-48(c)(3) did not affect the City's compliance with
the section.
4. Cities and Towns--annexation--requirements--use of topographic features
There was no error in an annexation challenge where petitioners contended that the City
neglected to utilize topographic features in fixing interior boundaries contrary to N.C.G.S. §
160A-48(e). The statute speaks of municipal boundaries rather than interior boundaries and the
record shows that the properties taken as a whole form exterior municipal boundaries properly
denominated by topographic features wherever practical.
5. Cities and Towns--annexation--requirements--police and fire protection
An annexation plan satisfied the requirements of N.C.G.S. § 160A-47(3)(a) where
petitioners contended that the plan was defective in failing to provide additional police and fire
services, but the court found that petitioners would receive services on a basis at least
substantially equal to the current inhabitants and the record sustains the court's findings. The
precise details of the extension of police and fire protection are not required.
Appeal by petitioners from judgments filed 4 December 1997
by Judge J. Marlene Hyatt in Cleveland County Superior Court.
Heard in the Court of Appeals 19 November 1998.
Kilpatrick Stockton, L.L.P., by Jackson N. Steele,
Charles H. Rabon, Jr. and Spencer H. Kelly, for
petitioner-appellants.
Corry, Cerwin & Luptak, by Clayward C. Corry, Jr. and
Todd R. Cerwin, for respondent-appellee.
JOHN, Judge.
Petitioners appeal the trial court's essentially identical
judgments “denying the[ir] petition seeking review of annexation
and affirming the Annexation Ordinance” (the Ordinance) adopted
by the Governing Board of respondent City of Kings Mountain (the
City). According to petitioners, the trial court erred in that:
1) annexation Area 97-A (Area 97-A) was not “developed for urban
purposes” as defined in N.C.G.S. § 160A-48(c)(1994), 2) the City
failed to use topographic features in fixing interior boundaries
of annexation Area 97-B (Area 97-B), and 3) the City's Annexation
Services Plan (the Plan) failed to demonstrate “that municipal
services can and will be provided to the annexation area” in thesame manner as to the remainder of the City prior to annexation.
We affirm the trial court.
Pertinent facts and relevant procedural history include the
following: Petitioners Bali Company (Bali), a division of Sara
Lee Corporation, Commercial Intertech Corporation (Commercial),
Firestone Fibers and Textiles Corporation (Firestone), a division
of Bridgestone/Firestone, Inc., H & W Systems Corporation, d/b/a
Turbo Conveyor (H & W), and Metal Fabricating Leasing, Inc.
(Metal), each own real property in Kings Mountain, North
Carolina. On 28 May 1996, the City, a municipal corporation with
a population greater than 5,000, adopted the Ordinance providing
for annexation of two property areas designated as Area 97-A,
comprising two hundred nineteen acres, and Area 97-B, comprising
five hundred fifty-five acres. Under the Plan, each Area was
divided into portions categorized as an “urban area” under G.S. §
160A-48(c)(3) and a “non-urban area” under N.C.G.S. § 160A-
48(d)(1)&(2)(1994). In adopting the Ordinance, the City
considered and relied upon a report (the Report), analyzing in
detail the effects of annexation prepared by the City's
consultant, F. Richard Flowe (Flowe).
On 27 June 1996, Bali, a property owner in Area 97-A, filed
a “Petition Seeking Review of Annexation” referencing Area 97-A.
On that same date, Bali, Commercial, Firestone, H & W and Metal,
all property owners in Area 97-B, filed a similar petition forpurposes of jointly appealing annexation of Area 97-B. The two
petitions were consolidated for trial and heard at the 27 October
1997 Civil Session of Cleveland County Superior Court, whereupon
the trial court entered judgments affirming the Ordinance.
Petitioners timely appealed.
[1]Initially, we note that reports and annexation
ordinances reflecting adherence to the applicable requirements of
N.C.G.S. § 160A-45 et seq. (1994), establish prima facie that an
annexing authority, the City herein, has substantially complied
with the statute, and that the burden lies with an annexation
challenger to demonstrate the contrary. In re Annexation
Ordinance, 255 N.C. 633, 642, 122 S.E.2d 690, 697 (1961).
Further, the trial court's findings of fact are binding on appeal
if supported by evidence, notwithstanding evidence to the
contrary, but “[c]onclusions of law drawn . . . from [those]
findings of fact are reviewable de novo.” Food Town Stores v.
City of Salisbury, 300 N.C. 21, 25-26, 265 S.E.2d 123, 126-27
(1980). We hold the trial court's findings sub judice are, in
each instance challenged by petitioners, supported by competent
evidence and that the court did not err in concluding petitioners
had failed “to overcome the presumption that the [City] . . .
complied with the statutory procedures or that the statutory
requirements were not met.”
[2]In their first argument, petitioners contend Area 97-Adid not qualify as being “developed for urban purposes” under
G.S. § 160A-48(c)(3). Petitioners maintain that eleven lots
relied upon by the City were not “used for residential purposes”
as required by N.C.G.S. § 160A-53(2)(1994).
G.S. § 160A-48(c)(3) requires part of an annexed area to
have been developed for “urban purposes,” and that
(3) . . . at least sixty percent (60%) of the
total number of lots and tracts in the area
at the time of annexation are used for
residential, commercial, industrial,
institutional or governmental purposes. . . .
In addition:
(2) “Used for residential purposes” shall
mean any lot or tract five acres or less in
size on which is constructed a habitable
dwelling unit.
G.S. § 160A-53(2).
Petitioners insist the mobile homes at issue fail the
statutory test in that they were not “constructed” on lots, but
rather were built in factories. We believe the City has the
better of this argument and, upon review of the record and the
Ordinance, conclude that it established prima facie substantial
compliance with applicable statutory provisions, including G.S. §
160A-48(c)(3).
The term “constructed” is not defined under G.S. § 160A-53,
but Black's Law Dictionary sets forth the following definition:
[t]o build; erect; put together; make ready
for use. To adjust and join materials, orparts of, so as to form a permanent whole.
Black's Law Dictionary 312 (6th ed. 1990).
In its findings of fact, the trial court provided that the
manufactured homes sub judice, upon delivery to the lots in
question,
were not . . . habitable, and that . . .
construction [including utility connections
and a foundation, would be] necessary . . .
to make them habitable.
The court further noted the mobile homes not only required
necessary construction on the lots for habitability purposes, but
that many also underwent additional construction to add porches,
additional rooms and other permanent improvements.
Flowe was the City's sole witness before the trial court.
He testified there was no analytical distinction between
structures built completely on-site and those built partially
off-site, and that determination of whether a dwelling is
“constructed” on a lot under G.S. § 160A-53(2) is based upon
whether the structure is habitable at delivery. According to
Flowe, the mobile homes herein were not habitable upon delivery,
but required at a minimum construction of: footings and support
systems for a foundation effect, anchoring systems, a closure
system to shut off movement of air beneath the unit, ingress or
egress to the unit, and connections to a water supply, waste
disposal system and electrical supply. Flowe's testimony provided support in the record for the
trial court's findings that the mobile homes required necessary
construction and improvements on-site after delivery, and that
“G.S. § 160A-53(2) does not require one hundred (100%) percent
construction of a habitable dwelling unit to occur on-site.”
[3]In this first argument, petitioners also maintain the
City improperly included a condemned home as a “habitable”
residence. To comply with the residential use provision within
G.S. § 160A-48(c)(3), a structure must be habitable upon the date
an annexation report is submitted. Food Town Stores, 300 N.C. at
36-37, 265 S.E.2d at 133.
Flowe testified that one house incorporated into the “urban
purposes” calculation was indeed condemned on the date he
submitted the Report. The trial court properly noted in its
judgment that the structure had been destroyed by fire, but
provided that deletion of that single structure from calculation
of the “urban purposes” percentage under G.S. § 160A-48(c)(3) did
not affect the City's compliance with the section. The trial
court's finding is supported by the record and its mathematical
computation was accurate.
In short, petitioners failed to overcome the presumption
that the City substantially complied with G.S. § 160A-48(c)(3),
see In re Annexation Ordinance, 255 N.C. at 642, 122 S.E.2d at
697, and the trial court did not err in rejecting petitioners'first challenge to the Ordinance.
[4]Petitioners' second argument is that the City neglected
to utilize topographic features in fixing interior boundaries of
Area 97-B contrary to the policy underlying N.C.G.S. § 160A-
48(e)(1994). The trial court found as fact that
the external boundaries of the newly annexed
area do, wherever practical, use natural
topographic features . . . ; and wherever
such would be impractical, the external
boundary lines do follow property lines and
man-made physical barriers.
The foregoing findings, which refute petitioners' second
argument, were not assigned as error in the record on appeal and
thus will not be reviewed by this Court. See Bustle v. Rice, 116
N.C. App. 658, 659, 449 S.E.2d 10, 11 (1994)(“appellate review is
limited to the issues presented by assignments of error set out
in the record on appeal”). Petitioners' second argument is
therefore unavailing. Moreover, the record reveals petitioners'
contention is in any event unfounded.
G.S. § 160A-48(e) provides:
In fixing new municipal boundaries, a
municipal governing board shall, wherever
practical, use natural topographic features
such as ridge lines and streams and creeks as
boundaries, and may use streets as
boundaries.
Petitioners assert the
City arbitrarily divided Area 97-B into three
areas, identified as 97-B.c.1 -- the “urban
area”; and 97-B.d.1 and 97-B.d.2 -- the two“non-urban areas.” None of these areas would
qualify for annexation alone, but . . . the
City manipulated the boundaries of each, and
then applied different sections of the
Annexation Statute [G.S. § 160A-48(c)(3) and
G.S. § 160A-48(d)(1)or(2)] to qualify each
area
for annexation under G.S. § 160A-48(e).
It is well established
that in order to establish non-compliance
with N.C. Gen. Stat. § 160A-36(d) [now G.S. §
160A-48(e)], petitioners must show two
things: (1) that the boundary of the annexed
area does not follow natural topographic
features, and (2) that it would have been
practical for the boundary to follow such
features.
Weeks v. Town of Coats, 121 N.C. App. 471, 474, 466 S.E.2d 83, 85
(1996)(citations omitted).
The purpose of the non-urban/urban designation subsection is
to
permit municipal governing boards to extend
corporate limits to include all nearby areas
developed for urban purposes and where
necessary to include areas which at the time
of annexation are not yet developed for urban
purposes but which constitute necessary land
connections between the municipality and
areas developed for urban purposes or between
two or more areas developed for urban
purposes.
G.S. § 160A-48(d).
Petitioners' argument in the instant case is not that
exterior boundaries failed to follow topographic features, but
rather that the City did not use such features to establishinterior urban and non-urban boundaries. This contention is
inapposite. The statute, in addressing the division between
urban and non-urban areas does not speak to interior boundaries,
but rather speaks of “fixing municipal boundaries,” G.S. § 160A-
48(e), the exterior boundaries of the municipality as annexed.
Moreover, careful examination of the record indicates the
non-urban divisions within Area 97-B connect the municipality to
urban areas, and the properties taken as a whole form an exterior
municipal boundary properly denominated by topographic features
wherever practical. See In re Annexation Ordinance, 255 N.C. at
643, 122 S.E.2d at 698 (“[w]here an area to be annexed, when
considered as a whole, meets the [statutory] requirements . . . a
portion of the area may not, as a matter of right, be excluded
from annexation merely because it, taken alone, does not meet
the[] requirements”).
[5]Lastly, petitioners contend the Plan violated N.C.G.S. §
160A-47(3)(a)(1994) in failing “to demonstrate that municipal
services can and will be provided” to the City's twenty-two
percent (22%) increased geographic area in the same manner as
provided prior to annexation. According to petitioners, the Plan
was defective by virtue of failing to provide for additional
police officers, firefighters, police or fire equipment, or
assurances that the City would contract volunteer fire
departments. We do not agree. G.S. 160A-47(3)(a) requires that police and fire protection
to an annexed area be on “substantially the same basis and in the
same manner as such services [we]re provided within the rest of
the municipality prior to annexation.” Id. At a minimum the
section mandates that
the City provide information which is
necessary to allow the public and the courts
to determine whether the municipality has
committed itself to provide a
nondiscriminatory level of service and to
allow a reviewing court to determine after
the fact whether the municipality has timely
provided such services.
In re Annexation Ordinance, 304 N.C. 549, 554, 284 S.E.2d 470,
474 (1981). The underlying legislative purpose is to assure that
annexed residents receive all major city services in return for
the additional burden of city taxes. Id.
The requisite information must include (1) the current level
of services within the City, (2) a commitment to provide
substantially the same level of services in the annexed areas,
and (3) the methodology for financing the extension of services.
Id. at 555, 284 S.E.2d at 474. Precise details of the extension
of police and fire protection, Parkwood Ass'n., Inc. v. City of
Durham, 124 N.C. App. 603, 607-08, 478 S.E.2d 204, 207 (1996),
disc. review denied, 345 N.C. 345, 483 S.E.2d 175 (1997), or the
exact number of additional personnel to be hired or equipment to
be purchased, In re Annexation Ordinance, 300 N.C. 337, 343, 266S.E.2d 661, 664 (1980)(report meets minimum statutory plan
requirements even absent number of additional personnel to be
hired), are not required. We conclude the Plan at issue
satisfied the foregoing requirements.
With respect to police protection services, the Plan recited
that the City would redefine patrol zones in consequence of the
twenty-two percent (22%) increase in geographic area and re-
assign existing police personnel to those new zones. Neither
additional officers nor equipment were deemed necessary because
the 1.4 per cent increase in population did not affect the City's
current officer to citizen ratio. Twenty-four hour patrol
protection provided within the existing City limits was likewise
to be afforded to the areas proposed for annexation, any
additional costs being paid from the City's General Fund.
Further, fire protection under the Plan was to be maintained
in the annexed areas initially through contracts with affected
volunteer fire districts, and, in the event such contracts could
not be obtained, service was to be provided by the City Fire
Department. Moreover, capital improvements for new water lines
were set out in the Plan, which also provided that funding for
such improvements was to take effect within two years of the
effective date of the Ordinance.
The trial court found that petitioners would receive
services on a basis “at least substantially equal to the currentinhabitants of the City . . . prior to . . . annexation,” and
that an increase in ad valorem taxes was an ordinary consequence
of annexation. The record sustains the court's findings, and the
court therefore properly concluded petitioners had not overcome
the presumption that the Plan complied with G.S. § 160A-47(3)(a).
See In re Annexation Ordinance, 255 N.C. at 642, 122 S.E.2d at
697-98.
Based on the foregoing, the judgment of the trial court is
affirmed.
Affirmed.
Judges WALKER and McGEE concur.
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