1. Cities and Towns_annexation_fire and water services_trial court
findings_supported by evidence
The evidence in an annexation case supported the trial court's findings about fire
suppression services, maintenance of the insurance rating, and the need for booster pumps in
water lines in the annexed area.
2. Cities and Towns_annexation_extension of services_illusory statements_assumption
that agreements would be reached
The trial court properly concluded that an annexing city's statements about its
commitment to extending waterlines were illusory. The city's master plan assumed (without
providing a basis) that the city would be able to negotiate an agreement with the current water
provider (Dan River).
3. Cities and Towns_annexation_plan for extension of fire and water
services_contingent_-abstract-_not sufficient
The trial court did not err by concluding that an annexing city did not meet statutory
requirements concerning the extension of municipal services where the city's plan for providing
water and fire protection depended upon the doubtful contingency of reaching agreements with
the current provider. Moreover, the city did not meet minimum statutory requirements in the
information provided; a statement of intent alone is not sufficient. N.C.G.S. § 160A-47
4. Cities and Towns_annexation_noncompliance with statutory requirements_remand
Where petitioners show that the degree of noncompliance with statutory requirements for
annexation is so great as to eviscerate the protections provided in N.C.G.S. § 160A-47, a trial
court does not err in declaring the ordinance null and void. However, the court must specifically
find that the ordinance cannot be corrected on remand. The court here found only that the
ordinance is not likely to be corrected on remand.
5. Cities and Towns_annexation_actual use evidence_relevance_reliability
The evidence supported the trial court's finding in an annexation case that petitioners'
evidence about use and subdivision tests was of questionable relevance and that the city had
used reasonably reliable methods in its calculation.
6. Cities and Towns_annexation_use tests_split parcel_flawed data
The question of whether a city had satisfied the use tests for annexation was remanded
where the data relied on in compiling a table was flawed and a parcel was inappropriately split.
7. Cities and Towns_annexation_recorded property lines not used_gap in annexed
area avoided
The trial court correctly determined that a city had substantially complied with N.C.G.S.
§ 160A-48(e) in an annexation where it used boundary lines along a river and creek rather than
recorded property lines. There was evidence that the property lines would have left a gap
between the city's current boundaries and the area to be annexed; the Legislature would not have
intended a literal compliance with the statute that would leave such a gap.
8. Cities and Towns_annexation_split parcel_degree of irregularity_remand
An annexation was remanded for appropriate conclusions, including the court's
determination of whether the inappropriate splitting of a parcel amounted to a “slight
irregularity.”
9. Cities and Towns_annexation_plans for extending water and sewer lines_engineer's
seal
An annexing city substantially complied with the statutory requirement that maps
showing the extension of water and sewer lines bear the seal of a professional engineer where the
maps were both prepared by an engineering firm and were attached to a report to which an
engineer affixed his or her seal, even though the maps themselves were not sealed.
Eldridge Law Firm, P.C., by James E. Eldridge, for
petitioners-appellees.
Medlin Law Office, by Thomas E. Medlin, Jr., for respondent-
appellant.
CALABRIA, Judge.
The City of Eden (the “City”) appeals from a judgment of the
trial court declaring an annexation ordinance null and void. We
remand to the trial court for proceedings not inconsistent with
this opinion.
On 28 April 2003, the City of Eden adopted a resolution
stating an intention to consider annexation of the Indian Hillsarea. The City adopted an annexation report on 14 May 2003 and an
annexation ordinance on 22 September 2003. Fix, et al.
(“petitioners”) own real property in the Indian Hills area.
Petitioners filed a petition in Rockingham County Superior Court on
8 September 2003 for review of the City's adoption of the
annexation ordinance at issue. On 9 June 2004, Judge Davis entered
findings of fact, conclusions of law, and judgment in favor of
petitioners, declaring the City's annexation ordinance null and
void. Respondent appeals.
I. The City's Assignments of Error
A. Findings Regarding the Necessity of the City having an
Agreement with Dan River Water, Inc. (“Dan River”)
[1] The City first challenges finding of fact 28, which
states, “The undertaking to extend fire suppression services
assumes the ability to negotiate with [Dan River] to install
additional hydrants on existing [Dan River] lines.” In annexation
cases, “the findings of fact made below are binding on the Court of
Appeals if supported by the evidence, even when there may be
evidence to the contrary.” Barnhardt v. City of Kannapolis, 116
N.C. App. 215, 217, 447 S.E.2d 471, 473 (1994).
We initially note that the trial court's finding of fact 23,
which is not challenged on appeal, conclusively establishes that
the current Indian Hill water service provider, Dan River, is
federally protected. The following statute applies:
(b) Curtailment or limitation of service prohibited
The service provided or made available through
any such association [federally indebted water
associations] shall not be curtailed orlimited by inclusion of the area served by
such association within the boundaries of any
municipal corporation or other public body, or
by the granting of any private franchise for
similar service within such area during the
term of such loan; nor shall the happening of
any such event be the basis of requiring such
association to secure any franchise, license,
or permit as a condition to continuing to
serve the area served by the association at
the time of the occurrence of such event.
7 U.S.C. § 1926(b) (2005).
Petitioners reference the following provision of the
Comprehensive Water and Wastewater Master Plan (“Master Plan”),
which assumes Dan River is federally protected, in order to show
that the trial court's finding of fact 28 is supported by evidence:
If the City opts to pursue annexation of the
areas that Dan River is serving and the two
parties cannot come to an agreement on a
purchase plan, then the City will face a
difficult problem. The City would be required
to let Dan River continue to serve these areas
but the City would be responsible for
providing fire suppression. The City is
obligated to provide fire suppression with its
water system while Dan River Water System was
not designed and is not required to provide
fire suppression. Therefore, the City would
have very little choice but to bolster the
portion of Dan River Water System within its
then incorporated boundaries or install an
extension of the City's system within these
areas that is dedicated solely to fighting
fires. Either option will require investment
that would have to be offset with the benefits
of revenues received from an increased tax
base and wastewater service area.
The City argues that “[a]t most, [this] Court could find that
the installation of additional hydrants assumes the ability to
negotiate with [Dan River], but no evidence supports the finding
that the entire 'undertaking to extend fire suppression services'requires such negotiation.” We agree with the City that
petitioners presented no evidence that the only way to go about
extending fire suppression services was by adding additional
hydrants. Indeed, the aforementioned provision of the Master Plan
shows that fire suppression services could also have been
maintained through a purchase agreement with Dan River, by
“bolster[ing] the portion of Dan River Water System within its then
incorporated boundaries[,] or [by installing] an extension of the
City's system within these areas that is dedicated solely to
fighting fires.” Petitioners respond, however, that “[s]ince the
City cannot compete with [Dan River], and did not address the
feasibility of installing a dedicated suppression line, it elected
to 'bolster' the existing lines within the annexation area through
the installation of additional fire hydrants as shown on the City's
water lines extension map.” After reviewing the Annexation
Utilities Study, stating “[f]ire hydrants are required at 600 foot
intervals and must be connected to a minimum 6-inch water main”
along with the Water System Improvements Annexation Area Map that
included the proposed fire hydrants, we agree with the petitioners.
We uphold the trial court's finding 28 because it conforms to the
evidence that the particular method through which the City proposed
to provide fire suppression services did indeed assume the ability
to negotiate with Dan River.
The City next challenges finding of fact 29, which states,
“The installation of the additional hydrants is necessary to obtain
the same insurance rating (Class 4) for the Indian Hills Area as isapplicable in the City.” Finding 29 likewise is supported by the
evidence. The record shows that the Indian Hills area is currently
located in the Leaksville District, which has an insurance rating
of class 9 and significantly higher insurance premium levels than
in the City. Kelly Stultz (“Stultz”), planning director for the
City, testified that the Indian Hills Area would drop to a class 4
rating with the installation of the additional hydrants:
Q. So the addition of those hydrants would
bring the level of fire protection into
this area on a level that was equal to
what the rest of the city is receiving
from the city fire department; is that
correct?
A. Yes.
Q. And is that the basis for the anticipated
lower ISO rating?
A. No. My understanding of the ISO rating
is that it is much more than fire
hydrants. . . .
Q. The fire hydrants are certainly part of
that; is that correct?
A. Yes.
The City urges us to consider Fire Chief Ronnie Overby's (“Overby”)
testimony in reply to the question, “And the increase in hydrants
is going to get the city its lower rating in the area?” Overby
responded, “We already have a lower rating. The hydrants are not
going to make any difference.” Although there is some evidence to
support contrary findings, the trial court's finding of fact 29 is
binding on this Court because it is supported by evidence. See
Barnhardt, 116 N.C. App. at 217, 447 S.E.2d at 473.
The City also challenges finding of fact 32, which states,
“Within the Indian Hills Area, the flow rate in [Dan River's] water
lines is less than the flow rate within the City's water lines suchthat the installation and use of booster pumps is necessary in
order for the City to be able to provide the same level of fire
suppression service within the annexed area.” The City argues that
“nothing was stated about booster pumps being needed.” However,
Brad Corcoran (“Corcoran”) the city manager testified about
information contained in the Master Plan as follows:
Q. And in order to provide the operating
pressure in your water distribution
system as it is in the rest of the town,
you are going to be required to have
booster pumping in that area, is that
correct, in order to get the adequate
pressures?
A. That's what this says, yes.
We are, accordingly, bound by the trial court's finding. See
Barnhardt, 116 N.C. App. at 217, 447 S.E.2d at 473.
B. Conclusions of Law
[2] The City next challenges several of the trial court's
conclusions of law. It first challenges conclusion of law 7 which
states:
7. While the Report contains statements
generally committing the City to provide
water and fire protection and suppression
services to the Indian Hills Area on
substantially the same basis and in the
same manner as such services are provided
within the rest of the City prior to
annexation, as required by [N.C. Gen.
Stat.] § 160A-47(3)(a), Petitioners have
shown that the City's general statements
are illusory, for reasons including:
a. The City is prohibited from
interfering with [Dan River's]
business so long as federally
guaranteed loans are in place (see 7
U.S.C. § 1926), thereby foreclosing
competition and acquisition by
eminent domain. b. [Dan River] must agree to various
proposals that the City could make
to acquire supplement or connect to
existing [Dan River] facilities, and
no such agreement exists.
In regard to water services, the following findings are
relevant:
13. With respect to extension of water
services to the area to be annexed, the
Report notes that both the City and [Dan
River] provide “limited water services”
to the area; that “[t]he extension of
water . . . to the entire area will
result in new lines being run to
properties not already served by the
City . . . ”; that the extension of such
services would be complete within two
years of annexation; and that the net
cost thereof would be $78,000, half of
which would be assessed to residents.
14. [Dan River's] customers within the Indian
Hills Area pay a higher rate for water
service than the City charges its water
service customers within the
municipality.
15. No agreement exists between the City and
[Dan River] that provides for how the
City will subsidize [Dan River] for the
revenue it will lose as a result of the
lower rates the City will charge its
water service customers within the Indian
Hills Area.
16. If new City water service lines are
constructed in the Indian Hills Area, or
an agreement between the City and [Dan
River] concerning the City's acquisition
or use of [Dan River's] lines is
negotiated, the City will pay [Dan River]
a yearly subsidy for the lost revenue
resulting from the lower rates the City
will charge for its water service. [In a
footnote, the trial court notes, “The
City also suggests, alternatively, that
customers in the Indian Hills Area who
continue to receive water services from
[Dan River] at its higher rates could be
'reimbursed' by the City for the
difference between [Dan River] rates and
City rates, to meet the 'same basis' and'same manner' requirements of N.C. Gen.
Stat. § 160A-47(3)a.”]
19. [Dan River] provides water service to all
of Area 5 except “a small section of NC
770 from Matrimony Creek to Brammer
Road,” and the only water system
improvements contemplated by the City are
the addition of fire hydrants throughout
the area “to maintain the City's required
600 foot spacing.”
20. Among assumptions in the FBS report is
that “the [Dan River] system could be
modified and extended for the City's
purposes.”
21. The FBS report further states that “[a]n
agreement must be negotiated between the
City . . . and [Dan River] to provide
water services to these customers.”
22. No agreement exists between the City and
[Dan River] concerning the City's use of
or modifications to [Dan River's] water
service lines in the Indian Hills Area,
or otherwise to provide for additional
water service in that area by the City or
by [Dan River] under contract with the
City.
23. [Dan River] is a rural water association,
and a portion of its operating assets
secures payment of a federally guaranteed
loan.
The findings of fact regarding the lack of an agreement to
subsidize Dan River, if taken alone, fail to support the trial
court's conclusion of law 7; however, the findings regarding the
extension of waterlines do adequately support conclusion 7. The
City, in its report, proposed to continue using Dan River
waterlines since the City is prohibited from competing with Dan
River, but the City failed to reach an agreement with Dan River
regarding a plan to subsidize Dan River for the lower prices that
the annexed residents will be charged for water. The lack of an
agreement to subsidize Dan River, however, fails to support the
trial court's conclusion that the City's commitment to providingwater services is illusory, given that the trial court found that
the City could reimburse the customers directly.
The lack of an agreement regarding the extension of waterlines
is more problematic. The report assumes, without providing any
basis for the assumption, that the City will be able to negotiate
an agreement with Dan River regarding the extension and use of Dan
River's waterlines in order to reach part of the Indian Hills area
that is not already serviced with water. If Dan River refuses to
allow the City to use and extend its lines, that portion of the
Indian Hills area which is currently without water may continue not
to receive water services. In the absence of such an agreement,
the City would have to arrange for more costly measures such as
extending its own lines solely to service this area, since it
cannot compete with areas already serviced by Dan River due to Dan
River's protected status. As such, there should have been an
agreement with Dan River or other concrete indication that such an
agreement could be obtained prior to the creation of the report so
that the report could set forth reasonably concrete information
about the feasibility and costliness of extending water services
and the governing board could make an informed decision about this
matter with informed public comment. Rather, the report merely
assumes that Dan River will grant such acceptance and does not
address whether the City has the means to extend water services if
Dan River fails to negotiate with them. Accordingly, in the
absence of an agreement or analysis in the report discussing the
feasibility and costliness of providing water services if Dan Riverrefuses to bargain with the City, the trial court properly
concluded that the City's statement regarding its commitment to
provide water services is illusory.
Regarding fire suppression services, the trial court found:
27. The Report states that the City will
extend its fire protection and fire
suppression services into the Indian
Hills area.
28. The undertaking to extend fire
suppression services assumes the ability
to negotiate with [Dan River] to install
additional hydrants on existing [Dan
River] lines.
29. The installation of the additional
hydrants is necessary to obtain the same
insurance rating (Class 4) for the Indian
Hills Area as is applicable in the City.
30. The City has not complied with or
implemented [Dan River's] water line
extension policy with respect to
installing the fire hydrants within the
Indian Hills Area.
31. No agreement exists between the City and
[Dan River] concerning installation of
new hydrants.
32. Within the Indian Hills Area, the flow
rate in [Dan River's] water lines is less
than the flow rate within the City's
water lines such that the installation
and use of booster pumps is necessary in
order for the City to be able to provide
the same level of fire suppression
service within the annexed area.
33. No agreement exists between the City and
[Dan River] that provides for how the
City will install or use the necessary
booster pumps within the Indian Hills
Area.
Likewise, the findings of fact support the trial court's
conclusion that the City's statements regarding its commitment to
provide fire protection and suppression services are illusory. The
City's proposed plan required that it negotiate with Dan River
regarding the installation of additional hydrants on Dan River'swaterlines. If Dan River refuses to allow the installation of
additional hydrants, the City would be unable to provide Indian
Hill residents with the same insurance rating. The findings also
state that booster pumps are necessary in order for the City to be
able to provide a flow rate in [Dan River's] waterlines that is
equivalent to the flow rate in the City waterlines and in order to
provide an equivalent rate of fire suppression services; however,
the City has no agreement with Dan River regarding the installation
of booster pumps. Because the City failed to reach any agreement
with Dan River regarding these matters, the trial court properly
concluded that the City's statements regarding its commitment to
fire protection and suppression services are illusory.
[3] The City next challenges conclusion of law number 8 which
states, “The Report does not meet the requirements of [N.C. Gen.
Stat.] § 160A-47(3)(a) and (b), pertaining to water service and
fire suppression.” The statute at issue in this case is N.C. Gen.
Stat. § 160A-47 (2003), covering prerequisites to annexation. “The
purpose of this statute is to insure that, in return for the
financial burden of city taxes, annexed residents receive all major
city services.” Parkwood Ass'n v. City of Durham, 124 N.C. App.
603, 606, 478 S.E.2d 204, 206 (1996). “The requirements of the Act
that plans for extension to the area to be annexed of all major
municipal services performed within the municipality at the time of
annexation is a condition precedent to annexation.” In re
Annexation Ordinance No. 1219 Adopted by City of Jacksonville,
North Carolina, April 18, 1961, 255 N.C. 633, 646-647, 122 S.E.2d690, 700 (1961). “The minimum requirements of the [annexation]
statute are 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.” Cockrell v. City of Raleigh, 306 N.C. 479, 484, 293
S.E.2d 770, 773 (1982) (emphasis added). However, while our
Supreme Court has recognized that a city need only “substantially
comply” with § 160A-47, see Food Town Stores v. City of Salisbury,
300 N.C. 21, 40, 265 S.E.2d 123, 135 (1980), it has also said a
city is required to provide major municipal services under N.C.
Gen. Stat. § 160A-47, and its performance of this duty “may not be
made to depend upon a doubtful contingency.” In re Annexation
Ordinance Adopted by City of Jacksonville, 255 N.C. at 646, 122
S.E.2d at 700 (finding plans for extension of water and sewer
services insufficient when they were purely conditional).
By statute, in pertinent part, the annexation report must
contain
(3) A statement setting forth the plans of the
municipality for extending to the area to be
annexed each major municipal service performed
within the municipality at the time of
annexation. Specifically, such plans shall:
a. Provide for extending . . . fire
protection . . . services to the area to
be annexed on the date of annexation on
substantially the same basis and in the
same manner as such services are provided
within the rest of the municipality prior
to annexation. A contract with a rural
fire department to provide fire
protection shall be an acceptable methodof providing fire protection. If a water
distribution system is not available in
the area to be annexed, the plans must
call for reasonably effective fire
protection services until such time as
waterlines are made available in such
area under existing municipal policies
for the extension of waterlines. . . .
b. Provide for extension of major trunk
water mains . . . into the area to be
annexed so that when such lines are
constructed, property owners in the area
to be annexed will be able to secure
public water and sewer service, according
to the policies in effect in such
municipality for extending water . . .
lines to individual lots or subdivisions.
. . .
c. If extension of major trunk water mains .
. . and water lines is necessary, set
forth a proposed timetable for
construction of such mains . . . and
lines as soon as possible following the
effective date of annexation. In any
event, the plans shall call for
construction to be completed within two
years of the effective date of
annexation.
N.C. Gen. Stat. § 160A-47(3) (2003) (emphasis added).
The trial court's findings of fact support its conclusion of
law number 8 because a doubtful contingency is present. In order
for the City to provide water and fire protection as it claims in
its report, under its proposed plan for doing so as conclusively
established through the findings of fact, it would have to reach
several agreements with Dan River. The necessity of reaching these
agreements creates a doubtful contingency such that the City is not
in substantial compliance with N.C. Gen. Stat. § 160A-47(3). See
In re Annexation Ordinance Adopted by City of Jacksonville, 255
N.C. at 646, 122 S.E.2d at 700. Moreover, the City has failed to
meet even the “minimum requirements” of the annexation statute inthat it has not “provide[d] 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.”
See Cockrell, 306 N.C. at 484, 293 S.E.2d at 773. Although the
City has stated that it made such a commitment, a statement of
intent alone is insufficient to meet the requirements of N.C. Gen.
Stat. § 160A-47(3). Our Supreme Court has held that “the report of
plans for extension of services is the cornerstone of the
annexation procedure . . . and to be of greatest possible benefit,
the plans for services should be stated as fully and in as much
detail as resources of the municipality reasonably permit.”
Cockrell, 306 N.C. at 485, 293 S.E.2d at 774. In order to show a
true commitment to the extension of municipal services, there must
be more than mere words of commitment; rather, there must be
reasonably concrete and feasible plans in place for the extension
of municipal services. See id. On these facts, the degree of
noncompliance was so great as to make the proposed plan
meaningless. If merely stating an abstract intent to provide
municipal services to the annexed area were sufficient to meet the
statutory requirements, cities would be able to adopt ordinances
without sufficient information of the costliness of the annexation
and the feasibility of providing municipal services. Citizens
would be unable to participate on an informed basis in the public
hearing and offer feedback to the City on the prudence of adopting
an annexation ordinance. See Parkwood Ass'n, 124 N.C. App. at 612,
478 S.E.2d at 209 (recognizing that the accuracy of projectedannexation costs and items contained in the report should be
challenged in the public hearing). Accordingly, because the City
had no reasonably concrete and feasible plans in place, we hold
that the trial court did not err in concluding that the City had
failed to comply with N.C. Gen. Stat. § 160A-47.
C. Declaration by the Trial Court that the Annexation Ordinance
is Null and Void
[4] The City argues that the trial court erred in declaring
the annexation ordinance null and void under the applicable
statute, which states:
The court may affirm the action of the
governing board without change, or it may
(1) Remand the ordinance to the municipal
governing board for further proceedings if
procedural irregularities are found to have
materially prejudiced the substantive rights
of any of the petitioners.
(2) Remand the ordinance to the municipal
governing board for amendment of the
boundaries to conform to the provisions of
[N.C. Gen. Stat.] 160A-48 if it finds that the
provisions of [N.C. Gen. Stat.] 160A-48 have
not been met; provided, that the court cannot
remand the ordinance to the municipal
governing board with directions to add area to
the municipality which was not included in the
notice of public hearing and not provided for
in plans for service.
(3) Remand the report to the municipal
governing board for amendment of the plans for
providing services to the end that the
provisions of [N.C. Gen. Stat. 160A-47 are
satisfied.]
(4) Declare the ordinance null and void, if
the court finds that the ordinance cannot be
corrected by remand as provided in
subdivisions (1), (2), or (3) of this
subsection.
N.C. Gen. Stat. § 160A-50(g) (2003). Specifically, the City argues that “[o]nly if the matter
cannot be remanded and a Petitioner will suffer material injury by
reason of the failure to comply with the statutes can the ordinance
be declared null and void[,] [and] [t]he evidence and the findings
do not support any material injury to the Petitioners.” In
response, the petitioners argue
The City . . . failed to substantially comply
with an essential requirement of the
annexation procedure when it failed to approve
a Report that met the requirements of [N.C.
Gen. Stat. § 160A-47(3)]. In failing to meet
this procedural requirement, the City
compromised the substantive rights of the
Petitioners, and of any other entity having an
interest in this annexation proceeding, to
participate, on an informed basis and as
effectively as possible, in the informational
meeting and public hearing. The fact that the
City's annexation ordinance was, on its first
reading, adopted by the thinnest of margins on
a 4 to 3 vote, suggests that, but for the
material prejudice stemming from the City's
noncompliance the ordinance may have been
voted down.
Although N.C. Gen. Stat. § 160A-50(g) sets forth three grounds
on which a trial court may remand an ordinance to the governing
board, it does not require that the trial court remand the
ordinance “if the court finds that the ordinance cannot be
corrected by remand[.]” (Emphasis added.) The trial court in its
findings of fact stated that “[t]he City's failure to meet [the
requirements of § 160A-47] results in material injury to
Petitioners which the Court concludes is not likely to be corrected
if remanded.” (Emphasis added.) North Carolina General Statutes
§ 160A-50(g) permits remand of an ordinance for certain degrees of
noncompliance when irregularities do not eviscerate the protectionsprovided in N.C. Gen. Stat. § 160A-47. Where petitioners show that
the degree of noncompliance with statutory requirements for
annexation is so great as to eviscerate the protections provided in
N.C. Gen. Stat. § 160A-47, a trial court does not err in declaring
an ordinance null and void. However, in order for a trial court to
properly declare an ordinance null and void under § 160A-50(g)(4),
it must specifically find that “the ordinance cannot be corrected
by remand” as opposed to finding that “the ordinance is not likely
to be corrected on remand.” See N.C. Gen. Stat. § 160A-50(g)(4).
Because the trial court failed to make the appropriate finding,
perhaps acting under a misapprehension of applicable law, see
Nationwide Mut. Ins. Co. v. Chantos, 298 N.C. 246, 252, 258 S.E.2d
334 (1979), we remand this matter to the trial court for
appropriate findings to support one of the statutory grounds under
N.C. Gen. Stat. § 160A-50(g).
N.C. Gen. Stat. § 160A-54 (2003) provides that:
In determining . . . degree of land
subdivision for purposes of meeting the
requirements of G.S. 160A-48, the municipality
shall use methods calculated to provide
reasonably accurate results. In determining
whether the standards set forth in G.S.
160A-48 have been met on appeal to the
superior court under G.S. 160A-50, the
reviewing court shall accept the estimates of
the municipality unless the actual . . .
degree of land subdivision falls below the
standards in G.S. 160A-48: . . .
(3) As to degree of land subdivision, if 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.
Findings of fact 34-35, 37-39, and 40, which relate to the
“use” and “subdivision” requirements of the statute, support this
conclusion of law. The findings state, inter alia, the following.
The trial court found that “the area to be annexed 'is developed
for urban purposes because it meets both the use and subdivision
tests.'” The trial court also found that the City report contained
a table that summarized the compliance criteria to include: 149
parcels; 68.4% of the parcels in use; 153.1 acres of total
residential/undeveloped acreage; and 63.2% of
residential/undeveloped acreage was subdivided into lots of three
acres or less. Attached to its report was a spreadsheet marked
petitioner's exhibit 5. Exhibit 5 was initially described by the
City as the data compilation on which the report was based, but it
was later determined that the correct compilation was defendant's
exhibit 17. The trial court made the additional finding that
although petitioners presented evidence showing the inaccuracy ofthe City's data, the court discounted petitioners' evidence
“because the observations on which it is based were not as of the
date of the Report of the Second Annexation Ordinance.” Lastly,
the trial court found that the City used reasonably reliable
methods.
While these findings support the trial court's conclusion of
law 6, we look at the findings as a whole. Two footnotes in the
trial court's judgment must also be taken into consideration:
5. Unfortunately, Def. Exh. 17 contains
several inaccuracies. . . . Second, only
12,500 square feet of . . . (parcel 1350)
. . . should have been included. The
metes and bounds description in the
Second Annexation Ordinance and a map of
“Indian Hills Annexation Area” dated June
27, 2003, . . . which is Pet. Exh. 1,
include only a portion of the parcel, but
Pet. Exh. 5 and Def. Exh. 17 erroneously
include the whole parcel. The deletion
of the balance of the area of parcel
1350, or 1,133,999.54 square feet,
significantly reduces the size of the
total area to be annexed (and
significantly improves the City's
qualification under the subdivision
test).
6. By the evidence presented and its
submission of proposed findings of fact
and conclusions of law as requested by
the Court, the City concedes that the
“splitting” of parcel 1350 (which
actually should be parcel 6602) is not
appropriate and that either all or none
of the parcel should be included in the
area to be annexed. The City may address
that question if the proposed annexation
is revisited.
Since the data underlying the table presented in the report
was flawed, it stands to reason that depending on whether the
parcel is ultimately included or excluded from final calculations,it may have some bearing on whether the City has met the statutory
requirements regarding development for urban purposes and
satisfaction of the use and subdivision tests. Alternatively, the
inclusion or exclusion of this parcel may have little bearing on
whether the statutory requirements are met. We have no information
in the record from which we can determine this matter, and,
therefore, remand it to the trial court for its consideration.
B. North Carolina General Statutes § 160A-48(e)
[7] Next, petitioners argue that “the evidence does not
support the findings of fact and conclusions of law that the city
met the mandatory requirements of [N.C. Gen. Stat.] § 160A-48(e).”
Although petitioners argue in part that the evidence does not
support the findings of fact, we note petitioners failed to assign
error to the findings, and the findings are thus conclusively
established. We, therefore, consider only whether the trial
court's findings of fact support its conclusion of law 4, which
states:
Although the City described a portion of the
boundary of the area to be annexed along
Matrimony Creek by reference to the courses of
the creek and the Dan River, rather than by
reference to existing property lines and
streets, as N.C.G.S. § 160A-48(e) provides,
the noncompliance was insubstantial (and, in
any event, could be cured if the City were to
initiate annexation in the future).
North Carolina General Statutes § 160A-48(e) requires, in
pertinent part, that: “In fixing new municipal boundaries, a
municipal governing board shall use recorded property lines and
streets as boundaries[.]” Petitioners argue that this requirementis mandatory under Arquila v. City of Salisbury, 136 N.C. App. 24,
523 S.E.2d 155 (1999). In Arquila, a panel of this Court
interpreted the language of an earlier version of § 160A-48(e),
which said, whenever practical, a municipal governing board must
follow “natural topographic features such as ridge lines and
streams and creeks as boundaries, and may use streets as
boundaries.” N.C. Gen. Stat. § 160A-48(e) (1994). This Court held
“'While section 160A-48(e) does not provide mandatory standards or
requirements for annexation,' we believe that the provision itself
is mandatory in light of our Supreme Court's holding that a
boundary 'must' follow topographic features unless to do so would
defeat the annexation.” Arquila, 136 N.C. App. at 41, 523 S.E.2d
at 167.
“An important function of statutory construction is to ensure
accomplishment of the legislative intent.” Union Carbide Corp. v.
Offerman, 351 N.C. 310, 315, 526 S.E.2d 167, 170 (2000) (citations
omitted). Accordingly, we first look to the words chosen by the
legislature and “if they are clear and unambiguous within the
context of the statute, they are to be given their plain and
ordinary meanings.” Brown v. Flowe, 349 N.C. 520, 522, 507 S.E.2d
894, 896 (1998). Our legislature, in enacting the current version
of N.C. Gen. Stat. § 160A-48(e) (2005), removed the “whenever
practical” language of the previous versions of the statute and
used the word “shall.” As such, the plain language of the statute
establishes that § 160A-48(e) is a mandatory provision. However,
we look not only to the provision at issue but also to thestatutory scheme as a whole and to our prior interpretations of the
statutory framework. Our Supreme Court has recognized that
It is generally held that slight
irregularities will not invalidate annexation
proceedings if there has been substantial
compliance with all essential provisions of
the law. Absolute and literal compliance with
a statute enacted describing the conditions of
annexation is unnecessary; substantial
compliance only is required. . . . The reason
is clear. Absolute and literal compliance
with the statute would result in defeating the
purpose of the statute in situations in which
no one has been or could be misled.
In re Annexation Ordinance Adopted by the City of New Bern, North
Carolina, December 19, 1969, 278 N.C. 641, 648, 180 S.E.2d 851, 856
(1971) (citations omitted).
The trial court made the finding that “[t]he legal description
of the Indian Hills Area contains boundary lines that follow the
course of the Dan River and Matrimony Creek instead of using
recorded property lines.” In regard to the use of boundary lines
that follow the course of Dan River and Matrimony Creek, the City
argues that
[t]he pre-annexation boundary line for the
City ran with the meanderings of Matrimony
Creek and this portion of the boundary
coincides with a portion of the area to be
annexed. If the property lines along the bank
of the creek for the Indian Hills Subdivision
had been used, then there would have been a
“gap” from the center of the creek to the west
bank of the creek which would not have been
annexed.
It is not our belief that the legislature would have intended
literal compliance with the statute such that a “gap” would be left
between the City's current boundaries and the area of land to beannexed. Accordingly, we hold that the trial court correctly
determined that the City had substantially complied on this matter.
[8] Petitioners also assign error to the trial court's failure
to conclude that “the City failed to comply with the requirements
of [N.C. Gen. Stat.] § 160A-48(e) in that it failed to use the
recorded property lines of lot number 6602.” The trial court found
“the City concedes that the 'splitting' of parcel 1350 (which
actually should be parcel 6602) is not appropriate and that either
all or none of that parcel should be included in the area to be
annexed.” Footnote 5 of the trial court's judgment shows the great
variance in the total land that would have been annexed if parcel
1350 had not been split: “only 12,500 square feet of [parcel 1350]
should have been included” . . . and the balance of land which
should not have been included equaled “1,133,999.54 square feet.”
We agree that the trial court may have erred in not concluding that
the City failed to comply with the mandatory provision of N.C. Gen.
Stat. § 160A-48(e). We remand this issue to the trial court for
appropriate conclusions of law, including its determination whether
or not this nonconformity amounted to a “slight irregularit[y]” in
regard to the annexation at issue.
C. North Carolina General Statutes § 160A-47(1)b
[9] Lastly petitioners argue that “the evidence does not
support the conclusion of law that the city met the requirements of
[N.C. Gen. Stat.] § 160A-47(1)b with respect to the water and sewer
line extension maps which were included with the report.” Because
no findings of fact on this matter are challenged, we take them astrue and look only to whether the findings support the trial
court's conclusion of law 2, which states
While the maps showing the extensions of the
water and sewer lines which were included with
the Report did not bear the seal of a
registered professional engineer, the report
to which such maps were appended did bear such
seal, and the City has substantially complied
with [N.C. Gen. Stat.] § 160A-47(1)b.
The following findings of fact are relevant:
17. The Report does not include a “map or
maps” bearing the seal of a registered
professional engineer, showing existing
and proposed extensions of trunk water
mains in the Indian Hills Area (see
N.C.G.S. § 160A-47(1)b), but does include
an “Annexation Utilities Study of City of
Eden” prepared by Finkbeiner, Pettis &
Strout, Inc. (the FBS report), which
bears the seal of a registered
professional engineer, and which contains
a map entitled “Figure 5 Water System
Improvements Annexation Area 5" (Area 5
Water map), that purports to depict the
location of existing City 12-inch and 6-
inch lines, but not the location of any
extensions thereof.
18. Area 5 is described in the FBS report as
“the area in and around the Indian Hills
subdivision.”
25. The Report does not include a “map or
maps” bearing the seal of a registered
professional engineer, showing existing
sewer interceptors and outfalls and
proposed extensions of outfalls in the
Indian Hills Area (see N.C.G.S. § 160A-
47(1)b), but the FBS report contains a
map entitled “Figure 6 Sewer System
Improvements Annexation Area 5" (Area 5
Sewer map), that purports to depict the
location of an existing City pump
station, force main and gravity sewer,
and of proposed gravity sewer extensions.
As stated supra, in assessing small nonconformities in
annexation proceedings, our Supreme Court has said that “[i]t isgenerally held that slight irregularities will not invalidate
annexation proceedings if there has been substantial compliance
with all essential provisions of the law.” In re Annexation
Ordinance Adopted by the City of New Bern, 278 N.C. at 648, 180
S.E.2d at 856. The City substantially complied with the statutory
requirement because the maps were both prepared by an engineering
firm and attached to a report to which an engineer affixed his or
her seal. As such, we reject petitioners' assignment of error.
D. Other Assignments of Error
We lastly note that petitioners' cross-assignments of error
contain five assignments of error, numbers 3-6 and 17, regarding
the trial court's failure to make certain findings of fact. On
appeal, “a trial court's findings of fact in a bench trial have the
force of a jury verdict and are conclusive on appeal if there is
competent evidence to support them, even though [] there may be
evidence that would support findings to the contrary.” Biemann and
Rowell Co. v. Donohoe Companies, Inc., 147 N.C. App. 239, 242, 556
S.E.2d 1, 4 (2001). We have considered these assignments of error
and find them to be without merit.
Remanded.
Judges ELMORE and GEER concur.
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