Appeal by petitioner from order entered 16 October 2000 by
Judge James L. Baker, Jr. in Superior Court, Buncombe County.
Heard in the Court of Appeals 29 November 2001.
Dungan & Mitchell, P.A., by Robert E. Dungan, for petitioner-
appellant.
Roberts & Stevens, P.A., by Carl W. Loftin and Christopher Z.
Campbell, for respondent-appellee.
McGEE, Judge.
The Weaverville Town Council (Town) unanimously adopted an
ordinance extending the Town's corporate boundaries to include
property owned by Sonopress, Inc. (petitioner) on 18 May 1998.
Petitioner filed a Petition of Review and Appeal in Superior Court,
Buncombe County on 16 June 1998. The trial court entered an order
affirming the annexation on 5 October 1998. Petitioner appealed,
and this Court issued an opinion on 1 August 2000 concluding that
the trial court applied an improper standard of review, vacating
the order of the trial court, and remanding the case for
reconsideration under the correct standard of review. Sonopress,
Inc. v. Town of Weaverville, 139 N.C. App. 378, 533 S.E.2d 537
(2000). Upon remand, the trial court entered an order dated 16 October
2000 upholding the annexation ordinance, except as to the issue of
sanitation services, which the trial court remanded to the
Weaverville Town Council. Petitioner appeals this order.
"Where the record upon judicial review of an annexation
proceeding demonstrates substantial compliance with statutory
requirements by the municipality, the burden is placed on
petitioners to show by competent evidence a failure to meet those
requirements or an irregularity in the proceedings which resulted
in material prejudice[.]" Scoville Mfg. Co. v. Town of Wake
Forest, 58 N.C. App. 15, 17-18, 293 S.E.2d 240, 243 (1982), disc.
review denied, 306 N.C. 559, 294 S.E.2d 371 (1982); see also,
Conover v. Newton and Allman v. Newton and In re Annexation
Ordinance, 297 N.C. 506, 256 S.E.2d 216 (1979) (because public
officials act in the public interest, there is a rebuttable
presumption of regularity, and that presumption will prevail until
the petitioner puts forth sufficient evidence to the contrary).
When reviewing an annexation ordinance, the trial court's findings
of fact are conclusive on appeal if supported by competent
evidence, even if evidence to the contrary exists. Amick v. Town
of Stallings, 95 N.C. App. 64, 69, 382 S.E.2d 221, 225 (1989)
(citing Hyuck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 15,
356 S.E.2d 599, 609 (1987), aff'd per curiam, 321 N.C. 589, 364
S.E.2d 139 (1988)). However, the trial court's conclusions of law
based upon these findings are reviewable de novo. Id.
I.
Petitioner contends by its first assignment of error that the
trial court erred in affirming the Town's annexation ordinance
because the Town violated N.C.G.S. §§ 160A-35, -36 & -37. Because
this assignment of error is simply a summary of petitioner's entire
argument, we proceed to petitioner's remaining assignments of
error.
II.
By its second assignment of error, petitioner contends that
the trial court erred in its findings and conclusion that the Town
complied with N.C.G.S. § 160A-35, except with respect to plans for
providing sanitation services to properties located within the
annexed area.
N.C. Gen. Stat. § 160A-35 (Cum. Supp. 1998), entitled
"Prerequisites to annexation; ability to serve; report and
plans[,]" requires that prior to annexation a municipality "shall
make plans for the extension of services to the area proposed to be
annexed and shall . . . prepare a report setting forth such plans
to provide services to [the annexed] area." Petitioner argues that
the Town failed to meet the report requirements in three ways.
A. Map Requirement
First, petitioner contends the Town failed to comply with the
map requirements of N.C.G.S. § 160A-35(1). N.C. Gen. Stat. § 160A-
35(1)a., b. (Cum. Supp. 1998) requires that the report shall
include
(1) A map or maps of the municipality and
adjacent territory to show the following
information:
a. The present and proposed boundaries of
the municipality.
b. The proposed
extensions of water mains
and sewer outfalls to serve the annexed area,
if such utilities are operated by the
municipality. The water and sewer map must
bear the seal of a registered professional
engineer or a licensed surveyor.
(emphasis added).
The trial court's findings of fact included
11. That the report prepared by the Town
. . . pursuant to Section 160A-35 with
reference to the proposed annexation of the
property of [petitioner] and adjacent
property, entitled "Standards of Service
Report" . . . contained a legible map and
legal description of the property to be
annexed. The report was amended . . . to
include a legible map of the municipal
boundaries of the Town . . . as required by
G.S. Sec. 160A-35(1).
The trial court concluded that the maps included in the Town's
Standards of Service Report adequately complied with the statutory
map requirement.
Petitioner argues that the Town failed to meet the "present
and proposed boundaries" requirement because "both maps included in
the [Standards of Service] report are illegible, defective, and
deficient, and that even upon a strained attempt to read the maps,
[they] remain illegible[.]"
A review of the maps at issue, as reprinted in the record,
shows a map indicating the "Current Town Limits," the "Area of
Proposed Annexation" and the "Current Town Limits of Satellite
Annexation," as well as major roads and property boundaries clearly
marked. Petitioner offers no specific evidence to rebut the trialcourt's findings and conclusions, other than to argue that the maps
were confusing and illegible. The Town complied with the
requirements of the statute.
Petitioner also argues the Town did not meet the map
requirement because it did not submit a "sealed map from a
registered professional engineer or a licensed surveyor showing
water mains to serve the annexed area as required by N.C. Gen.
Stat. § 160A-35(1)b." This argument also fails because N.C.G.S. §
160A-35(1)b. requires a sealed map only if a municipality plans to
extend water and sewer into an annexed area. As the trial court
noted in its findings, petitioner already received water from the
Town and sewer services from the Metropolitan Sewerage District of
Buncombe County. Therefore, the Town did not need to submit a
sealed map because an extension of water and sewer services was not
required. We agree with the trial court that the Town sufficiently
met the statutory map requirement.
B. Statement
Petitioner next contends that the Town failed to meet the
requirement of N.C.G.S. § 160A-35(2) that the Town issue a
statement showing that the area to be annexed meets the
requirements of N.C.G.S. § 160A-36.
The trial court found that the Standards of Service Report
"contains a statement showing that the area to be annexed meets the
requirements of G.S. Sec. 160A-36." The trial court concluded that
this statement was supported by "sufficient data from which these
conclusions could be reached." Petitioner argues that the Town cannot comply with this
statutory requirement "simply by reciting the requirements of the
applicable statutory language[.]" Instead, petitioner contends the
Town must "include specific findings or a showing on the face of
the record that the area to be annexed is developed for urban
purposes."
As discussed below in Part IV, we agree with the trial court
that the Town met the substantive requirements of N.C.G.S. § 160A-
36.
C. Extension of municipal services
Petitioner further contends that the Town failed to
sufficiently set forth its plans to extend major municipal services
to the annexed property. Specifically, petitioner claims that the
Town's Standards of Service Report inadequately describes how
police protection and street maintenance will be provided, as well
as how the municipal services in the newly annexed areas will be
financed.
N.C. Gen. Stat. § 160A-35(3)a. (Cum. Supp. 1998) requires that
municipalities "[p]rovide for extending police protection, fire
protection, solid waste collection and street maintenance services
to the area to be annexed . . . on substantially the same basis and
in the same manner as such services are provided within the rest of
the municipality prior to annexation." Thus, at a minimum, the
municipality must provide information "sufficient to allow the
public and the courts to determine that the Town has committed
itself to provide a nondiscriminatory level of services to theannexed area."
Hyuck, 86 N.C. App. at 23, 356 S.E.2d at 599. This
information should include "(1) information with respect to the
current level of services within the Town, (2) a commitment to
provide substantially the same level of services in the annexation
area, and (3) information as to how the extension of services will
be financed."
Id.
1. Police protection
Petitioner argues that the Town's description of police
services to be provided to the annexed area is
prima facie
inadequate and the trial court erred in finding the Town's
Standards of Service Report complied with the statute. As to
police service, the Town's Standards of Service Report states that
The proposed annexed property will be provided
Police Service by the Weaverville Police
Department. This annexation will not require
additional officers. Currently, this area is
protected by the Buncombe County Sheriff
Department.
. . .
The Town of Weaverville will begin to provide
Police service to the area. While the Town of
Weaverville is currently in the process of
expanding the Police Department by two
officers in FY 1998-1999, we do not anticipate
a major increase of police activity due to
this annexation.
The trial court found as fact:
22. That the Standards of Service Report
. . . sets forth . . . plans for extending
police protection to the area to be annexed on
substantially the same basis and in the same
manner as police protection is provided in the
Town[.] The "Service Plan" states that police
service can be provided by the Town
. . . without any additional officers. The
"Service Plan" regarding police protection, tobe furnished to the annexed area at no
additional cost to the Town, meets the
requirements of G.S. Sec. 160A-35(3)(a).
The trial court concluded that the Town's statement in the
Standards of Service Report regarding police protection was
adequate to satisfy the statutory requirements.
Petitioner contends that the statements by the Town in the
Standards of Service Report are insufficient to support the
findings of the trial court. Petitioner relies on a number of
cases where our courts approved annexation reports that included
more information than what was provided in this case by the Town in
its Standards of Service Report. Petitioner contends that the
Town's report is "fatally lacking" simply because our courts have
approved annexation reports that give more information than what
the statute mandates. Petitioner, however, fails to cite any case
law or statute that establishes the minimum requirements for
descriptions of how police services will be provided to an annexed
area. Our Supreme Court has held that a report is not deficient
simply because it fails to specify "the number of additional
personnel and the amount of additional equipment which will be
required to extend services to the annexed area." Annexation
Ordinance, 304 N.C. at 554, 284 S.E.2d at 474.
Petitioner also argues that the record contains substantial
and competent evidence of a need for greater police protection than
what the Town proposed, and this evidence is sufficient to overcome
a finding that the Town's plan complies with the statute.
Petitioner contends that because it employs 850 people and the Townhas only 2,100 residents, that the annexation will increase the
"service area" of the Town by thirty-five percent. Petitioner
cites no authority for calculating service areas in this manner.
To the contrary, the Town stated at oral argument, and the map
reprinted in the Standards of Service Report shows, that
petitioner's property is actually located between the current Town
boundaries and an existing satellite annexation. Because Town
police officers already drive past petitioner's property to patrol
the satellite annexation area, the Town could reasonably claim in
its Standards of Service Report that no additional patrol officers
would be needed to protect the newly annexed areas.
As further support for its argument, petitioner cites a fifty-
nine percent increase in crime in 1998 from the previous year. The
crime statistic which amounts to forty additional crimes within one
year is, by itself, insufficient to demonstrate that the Standards
of Service Report is not adequate or that the Town did not comply
with the statute.
The record before us contains evidence supporting the Town's
statement that additional officers are not required due to the
proposed annexation, and petitioner has not directed us to
evidence in the record that the service would be inadequate.
Therefore, we find the evidence sufficient to support the trial
court's conclusion that the Town's statement was adequate.
2. Street maintenance
Petitioner next argues that the Standards of Service Report
inadequately describes how street maintenance will be provided inthe annexed areas. The report states that "[t]he property proposed
to be annexed is located on Alexander Road and Monticello Road,
which are State of North Carolina roads with maintenance being
provided by North Carolina Department of Transportation. This will
not change."
The trial court found that the provision of the Service Plan
contained in the Standards of Service Report relating to street
maintenance met the provisions of N.C.G.S. § 160A-35(3)a. The
trial court then concluded that "[t]here was no necessity for the
Town to provide for street maintenance as the roadways serving the
property are State maintained."
Petitioner argues that
In re Annexation Ordinance, 255 N.C.
633, 122 S.E.2d 690 (1961), states that a town has the primary
responsibility for street maintenance and that it cannot delegate
that duty to the N.C. Department of Transportation (NCDOT).
However, in that case, our Supreme Court found that the statute in
question required only that the municipality must in good faith
provide services "on substantially the same basis and in the same
manner as such services are provided within the rest of the
municipality prior to annexation."
Id. at 645, 122 S.E.2d at 699
(discussing N.C. Gen. Stat. § 160-453.15 which has been repealed
and transferred.
See now N.C. Gen. Stat. § 160A-47 discussing
preparation of an annexation report for cities of 5,000 or more).
In the case before us, the Standards of Service Report states that
NCDOT has and will continue to have responsibility for street
maintenance. We find sufficient evidence to support the trialcourt's conclusion that the Town's statement regarding street
maintenance satisfies the statutory requirements.
3. Method of Financing
Further, petitioner argues that the method of financing
proposed in the Standards of Service Report
is inadequate to meet
the statutory requirements. N.C. Gen. Stat. § 160A-35(3)c. (Cum.
Supp. 1998) requires that the plan "[s]et forth the method under
which the municipality plans to finance
extension of services into
the area to be annexed." (emphasis added). The trial court found
as fact:
34. That the Standards of Service Report
includes specific findings that additional
funding will not be necessary for the
annexation of the property of [petitioner]
. . . in that the report details the revenue
to be realized and shows as follows:
a) Fire service will be extended to the
property on substantially the same basis and
in the same manner as fire service is provided
in the Town . . . at no additional cost to the
Town;
b) Police service will be extended to
the property on substantially the same basis
and in the same manner as police service is
provided in the Town . . . at no additional
cost to the Town;
c) Water service will be extended to
the property on substantially the same basis
and in the same manner as water service is
provided in the Town . . . at no additional
cost to the Town;
d) Sanitation pick-up service will be
extended to the property on substantially the
same basis and in the same manner as
sanitation pick-up service is provided in the
Town . . . at no additional cost to the Town;
e) Sewer service will be provided bythe Metropolitan Sewerage District of Buncombe
County at no cost to the Town; and
f) Street maintenance will be
[provided] by the North Carolina Department of
Transportation at no cost to the Town.
Therefore, the Town does not need to set forth
the method under which the municipality plans
to finance the extension of services into the
area to be annexed in accordance with G.S.
Sec. 160A-35(3)(c). The Town has complied
with G.S. Sec. 160A-35(3)(c).
The trial court concluded that the Town "was under no obligation to
set forth any method by which it proposed to finance any extension
of services into the area since the Town adequately demonstrated
that each of the services to be performed could be provided at no
additional cost to the Town."
Petitioner argues this conclusion is in error because "the
abundance of case law directly contradicts" the trial court's
finding that the Town need not set forth the method by which it
plans to finance the extension of services. Further, petitioner
argues that it has offered competent and substantial evidence to
rebut the Town's claims that there is no need to extend services.
Petitioner contends that by not explaining how the Town will
fund extending street and police services into an area as large as
the annexed area, relative to the overall size of the Town, without
additional funding or additional personnel "defies all mathematical
probability" and, therefore, the Town has failed to show any real
financing methodology.
We disagree. The trial court's findings that the Town does
not need to set out a method for financing is supported bycompetent evidence in the record that no extension of services will
be required due to the annexation. The statute clearly requires a
financing statement if there is "extension" of services, and
because there is no "extension" in this case, the trial court did
not err in finding that no financing statement is required.
The trial court's findings of fact pursuant to N.C.G.S. §
160A-35 are supported by competent evidence in the record and
support the trial court's conclusions of law. Petitioner's second
assignment of error is overruled.
III.
Petitioner argues by its third assignment of error that the
trial court erred in concluding that the Town's failure to comply
with N.C.G.S. § 160A-35 on the issue of sanitation services can be
remedied upon remand without further public hearing and comment.
In referring to sanitation services, the Standards of Service
Report stated incorrectly that "[t]he Town does not provide
sanitation services to industrial or commercial properties
[anywhere] within the municipal boundaries of the Town." The trial
court concluded that:
[T]he Standards of Service Report and the
"Service Plan" contained therein sets forth an
incorrect statement regarding the proposed
extension of sanitation services into the area
to be annexed. The Standards of Service
Report does not adequately set forth that the
Town would and does pick up garbage and refuse
from commercial and industrial establishments
provided that such refuse is placed in not
more than six (6) receptacles or in
polyethylene bags[.]
Although the Standards of Service Report "failed to fully set forththe Town's policies regarding sanitation" services, the trial court
did not order a new public hearing but instead remanded this issue
to the Town "to more fully and adequately set forth the Town's
policy regarding sanitation services and the proposed extension of
such services into the area of annexation." A municipal governing
board has the "authority to amend the report required by G.S. 160A-
35 to make changes in the plans for serving the area proposed to be
annexed so long as such changes meet the requirements of G.S. 160A-
35." N.C. Gen. Stat. § 160A-37(e) (Cum. Supp. 1998). "There is no
requirement that a second public hearing be held on an amended
annexation proposal, when that amendment is adopted to achieve
compliance with G.S. 160A-35[.]"
Gregory v. Town of Plymouth, 60
N.C. App. 431, 432-33, 299 S.E.2d 232, 234,
disc. review denied,
308 N.C. 544, 304 S.E.2d 237 (1983). However, if "substantial
changes are made in the amended plan that are not a part of the
original notice of public hearing and are not provided for in the
plans for service[,]" another public hearing is required.
Id. at
433, 299 S.E.2d at 234.
Petitioner argues that because the Town's original report did
not even contemplate providing sanitation services to Petitioner,
that any change by the Town upon remand is a "one-hundred-eighty-
degree change" and therefore a substantial change to the original
annexation ordinance requiring a public hearing. Respondent, on
the other hand, contends the trial court did not err in remanding
the issue of sanitation services because the amendment is simply a
"clarification of the Town's policy" in order to comply withN.C.G.S. § 160A-35.
We agree the trial court did not err in remanding this issue
without a new public hearing because it simply remanded the issue
to "more fully and adequately" explain the Town's sanitation policy
in accordance with N.C.G.S. § 160A-35. The record shows that the
issue of sanitation services was included in the original Standards
of Service Report, albeit incorrectly, and was referred to in the
Notice of Public Hearing. Thus petitioner had sufficient notice
and an opportunity to be heard at the first public hearing on the
issue of sanitation services, and the clarification of the Town's
policy is not a "substantial change" because it does not raise new
issues not previously addressed by the parties. Petitioner's third
assignment of error is overruled.
IV.
By its fourth assignment of error, petitioner contends the
trial court erred in finding that the Town complied with N.C.G.S.
§ 160A-36 which states that
[t]he area to be annexed must be developed for
urban purposes. . . [which is] defined as:
(1) Any area which is so developed that 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, and is subdivided into
lots and tracts such that at least sixty
percent (60%) of the total acreage, not
counting the acreage used at the time of
annexation for commercial, industrial,
governmental or institutional purposes,
consists of lots and tracts three acres or
less in size.
N.C. Gen. Stat. § 160A-36(c)(1) (Cum. Supp. 1998). Although a townmust meet both the "use" and "subdivision" tests in the statute in
order to expand its corporate limits, in this case petitioner only
disputes the first, or "use" test; therefore we will only address
this issue on appeal.
Tar Landing Villas v. Town of Atlantic
Beach, 64 N.C. App. 239, 246, 307 S.E.2d 181, 186 (1983).
The Town stated in its "Determination of Eligibility" report
that:
(1) 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.
All (100%) [of] the property in the
area to be annexed is in use for residential
or industrial or commercial use.
The trial court found
[t]hat the "Determination of Eligibility" set
forth in the Standards of Service Report shows
that the property to be annexed is developed
for urban purposes in that the report contains
a specific finding that 100% of the property
of the area is in use for residential,
industrial or commercial use.
The trial court also found that petitioner "offered no evidence to
refute the specific findings, statistics, and information set forth
in the 'Determination of Eligibility' portion of the Standards of
Service Report." The trial court concluded that the Town properly
included a statement that it complied with N.C. Gen. Stat. § 160A-
36.
Petitioner argues that the Town did not make specific findings
to show its compliance with N.C.G.S. § 160A-36. Specifically,
petitioner claims (1) that the Town ordinance failed to refer tothe method it used to calculate the percentage of development, (2)
the map included in the record failed to show upon which lots or
tracts buildings are located, and (3) the map included in the
record failed to show acreage computations.
A mere recital of the statutory language by the municipality
is insufficient to meet the requirements of N.C.G.S. § 160A-36(c).
Huntley v. Potter, 255 N.C. 619, 629, 122 S.E.2d 681, 687-88
(1961). Rather, specific findings, a showing on the face of the
record as to the method used by the municipality in making its
calculations, or a showing as to the present use of a particular
tract, is required.
Id.
In the present case, the Town included in its Standards of
Service Report a map of the area to be annexed, as well as the
Buncombe County Tax Assessor's records for the properties being
annexed. Both the General Assembly and this Court have approved
the use of tax records and land use maps as accepted methods
designed to provide reasonably accurate results.
See N.C. Gen.
Stat. § 160A-42 (Cum. Supp. 1998) and
Tar Landing Villas, 64 N.C.
App. at 248, 307 S.E.2d at 187. "[I]n order for [a] Town to comply
with the statutory requirements, there must exist some 'actual,
minimum urbanization' of the proposed annexation property."
American Greetings Corp. v. Town of Alexander Mills, 128 N.C. App.
727, 731, 497 S.E.2d 108, 110 (1998) (quoting
Thrash v. City of
Asheville, 327 N.C. 251, 257, 393 S.E.2d 842, 846 (1990)).
The Town proposes extending its boundaries to incorporate
eight additional lots. The property listed on the tax records as#9733.04-80-8207.000 (Lot 1) is an improved parcel of .30 acres,
classified as residential/family with buildings on the parcel
valued in 1998 at $73,900. The property listed as #9733.04-80-
9435.000 (Lot 2) is an improved parcel of 3.52 acres, classified as
residential/family with buildings on the parcel valued in 1998 at
$34,900. The property listed as #9733.04-90-4934.000 (Lot 3) is an
unimproved parcel of 1.47 acres, classified as commercial vacant
with no buildings or structures. The property listed as #9733.04-
91-8483.000 (Lot 4) is an improved parcel of 2.25 acres, classified
as commercial/parking lots
.
The property listed as #9733.04-90-
1922.000 (Lot 5) is an unimproved parcel of 1.32 acres, classified
as commercial vacant with no buildings or structures. The property
listed as #9743.17-01-1671.000 (Lot 6) is an improved parcel of
8.11 acres, classified as industrial/manufacturing with buildings
on the parcel valued in 1998 at $726,900. The property listed as
#9733.04-81-8552.000 (Lot 7) is an improved parcel of 24.28 acres,
also classified as industrial/manufacturing with buildings on the
parcel valued in 1998 at $9,510,300. Finally, the property listed
as #9733.04-91-6379.000 (Lot 8) is an improved parcel of 6.02
acres, classified as commercial/parking lots
.
Despite the fact that the Town's statement in the Standards of
Service Report and the trial court's finding relevant to this issue
are incorrect, from the record before us, it is readily apparent
that the Town has met the statutory requirement that "at least
sixty percent . . . of the total number of lots and tracts . . .
are used for residential, commercial, [or] industrial . . .purposes[.]" N.C. Gen. Stat. § 160A-36(c)(1) (Cum. Supp. 1998).
Of the eight parcels, six, or seventy-five percent, are improved
parcels, classified as either commercial/parking lots,
industrial/manufacturing or residential/family. Petitioner has
failed to produce evidence that the tax record classifications are
incorrect or that the parcels are not in fact in use for these
purposes; thus, petitioner has failed to carry its burden of
demonstrating actual non-compliance and material prejudice or
injury.
We find the record contains sufficient evidence to show that
the Town has met the statutory requirements. Petitioner's fourth
assignment of error is overruled.
V.
By its fifth assignment of error, petitioner contends the
trial court committed reversible error in finding that the Town
complied with N.C. Gen. Stat. § 160A-37(e)(2) (Cum. Supp. 1998)
which requires that an annexation ordinance shall contain "[a]
statement of the intent of the municipality to provide services in
the area being annexed as set forth in the report required by G.S.
160A-35."
The trial court concluded that the Town "adequately complied
with the provisions of G.S. Sec. 160A-35" in its Standards of
Service Report and "Service Plan[.]" We have addressed this issue
in Part II and hold that the trial court did not err in concluding
that the Town complied with the requisites of N.C.G.S. § 160A-35.
Petitioner's fifth assignment of error is without merit.
VI.
By its sixth and final assignment of error, petitioner
contends the trial court committed reversible error in finding that
petitioner was not materially prejudiced due to the Town's failure
to comply with N.C.G.S. § 160A-37 which reads in part:
(b) Notice of Public Hearing. -- The notice of
public hearing shall:
. . .
(2) Describe clearly the boundaries of
the area under consideration, and include a
legible map of the area.
. . .
Such notice shall be given by publication
. . . in a newspaper having general
circulation in the municipality[.]
N.C. Gen. Stat. § 160A-37(b) (Cum. Supp. 1998).
The trial court concluded that "the Town complied with all of
the provisions of [N.C.G.S. § 160A-37] except that the map
published in the Asheville Citizen-Times with the 'Public Notice'
. . . was reduced in size and was illegible." The trial court also
concluded that petitioner
was mailed a copy of the "Public Notice" of
such hearing, knew that its property was the
subject of annexation, had access to the
report required by G.S. Sec. 160A-35 for
thirty (30) days prior to the public hearing,
sent a representative, a witness, and its
attorney to the public hearing and in no way
was materially prejudice[d] by the fact that
the published map was illegible.
Petitioner does not dispute that its representatives were
aware of the public hearing and in fact its president and legal
counsel attended the hearing, but contends that because it did nothave proper notice of the hearing it was denied "meaningful, proper
notice that the Town . . . intended to annex [petitioner's
property]." Petitioner further argues that its counsel made a
"reasonable request," which was denied, to have the annexation
matter tabled until a later date. Petitioner alleges that the
Town's failure to comply with the map requirements, coupled with
the Town's refusal to grant its request for delay, materially
prejudiced petitioner.
We agree with the trial court that petitioner was not
materially prejudiced by the Town's failure to comply with the map
requirement or denial of its request to delay the hearing. The
record shows that the Asheville-Citizen Times published the "Public
Notice" of a public hearing on the annexation of petitioner's
property on 20 and 27 April 1998. Although the map in the
newspaper was deemed illegible, the notice contained a detailed
description of the property and identified the owner or former
owners of the property being considered for annexation. Also, the
"Public Notice" stated that "[t]he report required by G.S. 160A-35
will be available at the office of the Town Clerk 30 days prior to
the date of the Public Hearing." The Town Clerk further certified
that the report available to the public included "a legible map of
the area to be annexed[.]" Finally, although petitioner asked the
Town to "table" the annexation matter, petitioner alleges in its
brief that this request was made for the purpose of reviewing the
Standards of Services Report and "present[ing] . . . some evidence
regarding [petitioner's] needs[.]" As we have previously noted,petitioner had sufficient time to review the Standards of Service
Report in the Town Clerk's office and petitioner's "needs" are not
at issue in this annexation proceeding, but rather whether the Town
complied with all statutory requirements.
We find that although the Town did not meet the map
requirements, the trial court's findings support its conclusion
that petitioner was not materially prejudiced by this error because
it had ample notice of the proposed annexation and opportunity to
be heard. Petitioner's sixth assignment of error is without merit.
We affirm the order of the trial court.
Affirmed.
Judges HUNTER and BRYANT concur.
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