Link to original WordPerfect file
How to access the above link?
All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the
print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
WILLIAM A. HAYES, LANNESS K. McKEE and wife, ANN McKEE, JIMMY
SMITH and wife, RUBY SMITH, JO ANN SMITH, AMY SMITH, SAM TEDDER
and wife, ANN TEDDER, FRAN J. COLEMAN, ROBERT CAPPS and wife,
BEVERLY CAPPS, THOMAS LEWIS and wife, SHIRLEY LEWIS, C.M. IVEY
and wife, GLADYS IVEY, ALLEN FOWLER, III, ROBERT FLOYD, III and
wife, BETH FLOYD, BARBARA SMITH, CHARLES CALLAHAN, A.B. STUBBS
and wife, REBECCA STUBBS, FAIRMONT GOLF CLUB, INC., Petitioners,
v. TOWN OF FAIRMONT, Respondent
Filed: 21 December 2004
1. Cities and Towns_annexation_subdivision test_reliance on survey
The trial court did not err by concluding that certain property consisted of separate lots
for purposes of the subdivision test for annexation. Petitioners did not show that the town was
unreasonable in relying upon an actual survey, as allowed by statute.
2. Cities and Towns_annexation_undeveloped property_insignificant portion of golf
A golf course was properly designated as commercial by a town for annexation purposes
and the entire acreage, including an undeveloped portion, should have been included as
commercial acreage under the use test. The disputed portion was only about 15% of the total
area of the tract.
3. Cities and Towns_annexation_subdivision test
An annexation ordinance met the subdivision test even after a golf course with vacant
land was reclassified as commercial.
Appeal by petitioners from order entered 23 June 2003 by Judge
Gary L. Locklear in Robeson County Superior Court. Heard in the
Court of Appeals 1 September 2004.
C. Wes Hodges, II, P.L.L.C., by C. Wes Hodges, II, for
Charles E. Floyd for respondent-appellee.
This is an appeal brought pursuant to N.C. Gen. Stat. § 160A-
38 (2003) for judicial review of an ordinance of the Town ofFairmont (Town) to annex into its corporate limits the Golf
Course Road area.
The facts pertinent to this appeal are as follows: The Town
Council of Fairmont, a municipal corporation with a population of
less than 5,000, identified an area known as the Golf Course Road
area for annexation by adopting a resolution of intent to annex on
13 July 2000. A public hearing on the matter was conducted on 15
The Town adopted an ordinance annexing the Golf Course Road
area on 10 October 2000. The annexation ordinance incorporated a
specific finding that the annexation area met the use and
subdivision tests of N.C. Gen. Stat. § 160A-36 (2003). The
annexation ordinance established an effective date of 31 October
2001. On 8 December 2000, petitioners filed their petition
challenging the action of the Town in adopting its annexation
Petitioners specifically challenged the classifications
assigned by the Town to three plots within the annexation area: the
Fowler lots, the Brice lots and the Fairmont Golf Club parcel. The
trial court first concluded that the statutory procedures and
requirements of N.C. Gen. Stat. § 160A-35 had been met. The trial
court further concluded: (1) that the Fowler lots were
inappropriately classified as three residential lots, and instead
were only one common residential lot; (2) that the Brice lots were
appropriately classified as two lots, one residential and one
vacant; and (3) that 26.44 acres of the Fairmont Golf Club parcel
were incorrectly classified as commercial and, instead, 19.44 acresshould have been classified as vacant and 7 acres as governmental
or institutional. Despite the errors in classification, the trial
court concluded that the area proposed for annexation met the
statutory requirements of N.C. Gen. Stat. § 160A-36 and affirmed
without change the Town's annexation ordinance. Petitioners appeal
from this judgment.
Petitioners argue on appeal: (1) that the trial court erred in
concluding that the Brice lots were two separate lots three acres
or less in size; (2) that the trial court erred in concluding that
seven acres of the Fairmont Golf Club parcel should have been
classified as governmental or institutional; and (3) that due to
these errors, the trial court erred in concluding that the Golf
Course Road area met the requirements of N.C. Gen. Stat. § 160A-36.
The superior court's review of an annexation ordinance is
limited to deciding (1) whether the annexing municipality complied
with the statutory procedures; (2) if not, whether the petitioners
will suffer material injury as a result of any alleged procedural
irregularities; and (3) whether the area to be annexed meets the
applicable statutory requirements. In re Annexation Ordinance, 278
N.C. 641, 647, 180 S.E.2d 851, 855 (1971); Trask v. City of
Wilmington, 64 N.C. App. 17, 28, 306 S.E.2d 832, 838 (1983), disc.
review denied, 310 N.C. 630, 315 S.E.2d 697 (1984); N.C. Gen. Stat.
§ 160A-38 (2003). Where the annexation proceedings show prima
facie that the municipality has substantially complied with the
requirements and provisions of the annexation statutes, the burden
shifts to the petitioners to show by competent evidence a failure
on the part of the municipality to comply with the statutoryrequirements or an irregularity in the proceedings that materially
prejudices the substantive rights of the petitioners. In re
Annexation Ordinance, 278 N.C. at 647, 180 S.E.2d at 855-56.
 Petitioners contend that the trial court erred by finding
and concluding that the Brice lots were in fact two separate lots,
thus causing inaccurate results in the subdivision test for
purposes of meeting the requirements of N.C. Gen. Stat. § 160A-36.
N.C. Gen. Stat. § 160A-36(c) states in pertinent part:
The area to be annexed must be developed for
urban purposes at the time of approval of the
report provided for in G.S. 160A-35 . . . .
An area developed for urban purposes is
(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,
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) (2003).
The Town found the Brice property to be comprised of two lots,
described as 1.90 acres more or less and 2.68 acres more or less,
by relying on a plat recorded in Book of Maps 36, page 148, Robeson
County Registry on 15 February 1999. The trial court made the
following findings regarding the Brice property: 13. Petitioners contend Respondent erred in
its classification of the lands owned by L.B.
Brice and wife, Mildred Brice as two separate
lots three acres or less in size. Petitioners
contend these lands should have been
classified as one lot of 4.59 acres.
14. Said Brice lands are more particularly
described according to a map entitled
Boundary Survey and Proposed Division for
Bridget B. Bass by Phillip B. Culbreth,
R.L.S. dated 19 December 1998 and filed in Map
Book 36, page 148, Robeson County Register of
Deeds. Said map is Petitioners Exhibit 20.
15. Said recorded map shows three lots; Lot 1
being 1.90 acres, more or less; Lot 2 being
2.68 acres, more or less; and Lot 3 being 0.73
acre, more or less.
16. Said recorded map contains certifications
by the Robeson County Health Officer, the
owners, L.B. and Mildred Brice, the Mayor of
the Town of Fairmont, the Chairman of the
Fairmont Planning Board, the surveyor and the
Robeson County Review Officer that said map
creates a subdivision and meets the Town and
County subdivision requirements.
17. Lot 3 on said recorded map was conveyed
to Bridgett Brice Bass by deed dated February
25, 1999 and recorded in Deed Book 1046, page
18. Lots 1 and 2 on said recorded map are
treated as one parcel of 4.59 acres owned by
L.B. and Mildred Bass by the Robeson County
Tax Office and have one tax parcel
19. Said recorded map is a subdivision of the
Brice tract into two tracts as shown on said
recorded map as Lot 1, 1.90 acres, more or
less, and Lot 2, 2.68 acres, more or less,
each 3 acres or less in size and were properly
so classified by Respondent at the time of
We note that finding number 19 is more properly a conclusion of law
and thus will be treated as such. See In re Weiler, 158 N.C. App.
473, 478-79, 581 S.E.2d 134, 137 (2003). Findings of fact madebelow are binding on the appellate court if supported by the
evidence, even where there may be evidence to the contrary.
Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d
189, 190 (1980).
Where an appeal is taken from adoption of an ordinance and the
proceedings show prima facie that there has been substantial
compliance with the statute, the burden is on the petitioners
challenging the ordinance to show competent evidence that the city
in fact failed to meet the statutory requirements. In re
Annexation Ordinance, 278 N.C. at 647, 180 S.E.2d at 855-56. N.C.
Gen. Stat. § 160A-42 (2003) provides that municipalities must use
methods calculated to provide reasonably accurate results in
determining the degree of land subdivision for purposes of meeting
the requirements of N.C. Gen. Stat. § 160A-36. In reviewing
whether the standards of N.C. Gen. Stat. § 160A-36 have been met,
the court must accept the estimate made by the municipality as to
the degree of land subdivision:
[I]f the estimates are based on an actual
survey, or on county tax maps or records, or
on aerial photographs, or on some other
reasonably reliable source, unless the
petitioners on appeal show that such estimates
are in error in the amount of five percent
(5%) or more.
N.C. Gen. Stat. § 160A-42(2) (2003).
In addition, the North Carolina Supreme Court in Thrash v.
City of Asheville, 327 N.C. 251, 393 S.E.2d 842 (1990), held that
the accuracy of a subdivision test must reflect actual urbanization
of the proposed area, not just reliance on some artificial means of
making an annexation appear urbanized. Id. at 257, 393 S.E.2d at846.
In the instant case, the Town relied upon an actual survey
prepared by the Brices when they subdivided their lot into three
lots and conveyed one of the newly created lots to Bridget Brice
Bass. The burden was on the petitioners to show that the use of
this survey caused the Town to miscalculate the actual percentage
of subdivision. Petitioners argue that the remaining two lots of
the Brice property should be treated as one lot for classification
purposes. Multiple lots are properly treated as a single tract for
the purposes of classification where the several lots are under
common ownership and are used for a common purpose. Food Town
Stores v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980);
Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155
(1999), disc. review denied, 351 N.C. 350, 543 S.E.2d 122 (2000).
Petitioners argue that the common ownership and residential use of
the two lots requires that they be treated as one lot for
classification purposes; thus, petitioners argue that they met
their burden of showing that the Town was unreasonable in relying
upon the survey to classify the Brice lots.
In Asheville Industries, Inc. v. City of Asheville, 112 N.C.
App. 713, 436 S.E.2d 873 (1993), this Court found that the city was
unreasonable in relying upon a map that showed the subdivision of
the tract in question given that the petitioners had shown common
ownership and a single use. Id. at 720, 436 S.E.2d at 877. In
Asheville Industries, the landowner testified as to his actual
usage of the property in question. Id. Here, the only evidence
offered by the petitioners to support common ownership and usage isthe county tax records, which listed one tax identification number
for the Brice property. The Brices did not testify as to the lots'
actual use and in fact are not parties to this action. We conclude
that petitioners did not show that the Town was unreasonable in
relying upon an actual survey, as allowed by statute. Thus, the
trial court did not err in concluding that the Brice property
consisted of two separate lots for the purposes of the subdivision
test. Petitioners' assignment of error fails.
 Petitioners next contend that the trial court erred by
finding and concluding that 7 acres of the contested 26.44 acre
area of the golf course parcel was used for governmental or
institutional purposes, thus causing inaccurate results in the
subdivision test for purposes of meeting the requirements of N.C.
Gen. Stat. § 160A-36. In regards to the golf course tract, the
trial court found:
31. Petitioners contend Respondent erred in
its classification of the lands of Fairmont
Golf Club, Inc as one commercial lot.
Petitioners contend that part of the Fairmont
Golf Club tract is vacant and undeveloped and
should be classified as such.
32. The Fairmont Golf Club lands consist of
approximately 166 acres all in one contiguous
tract of land which is treated as a single
tract by the Robeson County Tax Office with
one tax parcel identification number.
33. The Fairmont Golf Club, Inc. lands are
subject to an Option To Purchase Contract and
Agreement For Right Of First Refusal dated
January 27, 1997 and recorded in Book 940,
page 688, Robeson County Registry and are
subject to a First Amendment To Lease With
Option To Purchase And Agreement For Right Of
First Refusal dated December 14, 1999 and
recorded in Book 1090, page 230, RobesonCounty Registry.
34. William A. Hayes, one of the Petitioners,
testified that he is President of Fairmont
Golf Club, Inc. and that part of the Fairmont
Golf Club, Inc. tract along the northern edge
and as shaded in yellow on Petitioners'
Exhibit #17 was not developed nor used for any
commercial purpose at the time of annexation.
35. Sherwin Cribb, a professional land
surveyor, testified on behalf of Petitioners
that said portion as shaded in yellow consists
of 26.44 acres.
36. Petitioners contend that this 26.44 acre
portion should have been classified as vacant
and undeveloped by Respondent and that the
remainder of the Fairmont Golf Club, Inc.
tract was proper to be classified as
37. Johnny W. Nobles, a professional land
surveyor, testified on behalf of Respondent
that he agreed with Surveyor Cribb's estimate
of 26.44 acres as shaded in yellow on
Petitioners' Exhibit #17 and further testified
that 7 acres of the 26.44 acres were part of a
perpetual drainage easement to the Town of
Fairmont which is 200 feet in width and said
drainage easement is recorded in Deed Book 16-
0, page 1, Robeson County Register of Deeds.
Said easement deed is one of Respondent's
38. At the time of annexation Respondent
should have classified this 7 acres of the
26.44 acres shaded in yellow in Petitioners
Exhibit 17 as governmental or institutional
39. The Fairmont Golf Club, Inc. tract is one
contiguous tract, not divided by any road or
highway, which contains along its northern
border a strip of land area on which no
building, fairway, tee, green or other golf
course use is found other than as drainage.
40. At the time of annexation 19.44 acres of
the 26.44 acres shaded in yellow in
Petitioners Exhibit 17 of the Fairmont Golf
Club, Inc. property should have been
classified as vacant and undeveloped by
We again note that findings numbers 38 and 40 are more properly
conclusions of law and thus will be treated as such. See In re
Weiler, 158 N.C. App. at 478-79, 581 S.E.2d at 137. Findings of
fact made below are binding on the appellate court if supported by
the evidence, even where there may be evidence to the contrary.
Humphries, 300 N.C. at 187, 265 S.E.2d at 190.
In our review of the record, there is competent evidence to
support the trial court's findings about the golf course tract.
However, we determine that the trial court erred in concluding that
7 acres of the tract should have been classified as governmental or
institutional use and 19.44 acres should have been classified as
N.C. Gen. Stat. § 160A-36(c)(1)'s definition of an area
developed for urban purposes includes two tests, the use test and
the subdivision test, that must be met in order for the proposed
annexation area to be considered developed for urban purposes. In
order to meet the use test portion of the urban purposes
definition, the area proposed for annexation must be 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 . . . . N.C. Gen. Stat. § 160A-36(c)(1) (emphasis
added). When compliance with the statutory requirements is in
doubt, the determination of whether an area is used for a purpose
qualifying it for annexation will depend upon the particular facts
of each case. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C.
App. 15, 19, 293 S.E.2d 240, 244, disc. review denied, 306 N.C.559, 294 S.E.2d 371 (1982).
The statute requires the municipality to classify the usage of
lots and tracts for the purposes of the use test, not the usage of
each individual acre in the proposed annexation area. In R.R. v.
Hook, 261 N.C. 517, 135 S.E.2d 562 (1964), the Court found that it
was error for the trial court to uphold the classification of a lot
as being in industrial use where only approximately 10% of the
tract was being used as a parking lot by the industrial owner of
the tract. Id. at 520, 135 S.E.2d at 565 (This user does not
determine the character of the other 90% of the tract, which is
undeveloped and serving no active industrial purpose). In
Scovill, this Court upheld the trial court's conclusion that an
entire tract was properly classified as industrial where [t]here
has been no showing that the extent of industrial use was
insignificant as compared to any nonindustrial use. Scovill, 58
N.C. App. at 20, 293 S.E.2d at 244. See also Asheville Industries,
112 N.C. App. at 721, 436 S.E.2d at 878 (finding that the
industrial usage of a .79 acre easement was insignificant compared
to the nonindustrial use of the entire 36.22 acre tract and that
the property was incorrectly classified as industrial in use).
This Court has found that a golf course is a commercial
purpose for classification purposes under former Chapter 160 [now
Chapter 160A]. Thompson v. City of Salisbury, 24 N.C. App. 616,
619, 211 S.E.2d 856, 858, cert. denied, 287 N.C. 264, 214 S.E.2d
437 (1975). In the instant case, it is undisputed that
approximately 140 acres of the approximately 166 acre golf course
tract is in use as a golf course. The disputed 26.44 acres is onlyapproximately 15% of the total area of the tract. Thus, under
Hook, Scovill and Asheville Industries, it was error for the trial
court to conclude that the usage of the disputed 26.44 acres
affected the classification of the golf course tract as a whole.
We conclude that the golf course tract was properly designated as
commercial by the Town in its original calculations and the entire
166 acres should have been included as commercial acreage for
purposes of calculations under the use test.
 Petitioners have contended that any change in the use
classification of the Brice lots or the golf course tract
necessarily causes the ordinance to fail the subdivision test of
N.C. Gen. Stat. § 160A-36(c)(1), thus making the Golf Course Road
area ineligible for annexation. We now consider whether the
subdivision test has been met. The trial court found that the
total vacant and residential acreage in the Golf Course Road area
was 95.35 acres by allowing that 19.44 acres of the golf course
tract was vacant. Of the total 95.35 vacant and residential acres,
the trial court found that 59.40 acres was comprised of lots and
tracts three acres or less in size. Based thereon, the trial court
determined the percentage of subdivision to be 62.29%. The trial
court then concluded that both tests in N.C. Gen. Stat. § 160A-
36(c)(1) had been met and that the Town had substantially complied
with the requirements of the statute.
However, when the golf course tract is treated as a whole
tract in use for commercial purposes as we instruct, 19.44 acres
should be removed from the vacant and residential acreage total. Thus, 75.91 acres is the total amount of vacant and residential
acreage. Of that 75.91 acres, 59.40 acres are comprised of lots
and tracts three acres or less in size. Based on the new
calculations, we determine the percentage of subdivision to be
78.25%. Thus, the Golf Course Road area meets the 60% minimum
required under the subdivision test of N.C. Gen. Stat. § 160A-
Given that the Town has substantially complied with the
provisions of N.C. Gen. Stat. § 160A-36, we affirm the trial
court's conclusion that the ordinance be affirmed without amendment
pursuant to N.C. Gen. Stat. § 160A-38.
Judges GEER and LEVINSON concur.
*** Converted from WordPerfect ***