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.
The trial court erred in an annexation case by affirming defendant city's
annexation ordinance 2708 regarding the pertinent non-urban or undeveloped parcels, because:
(1) the plain meaning of N.C.G.S. § 160A-48(d)(2) states that there must be a combination of
adjacency to the municipality and adjacency to areas developed for urban purposes; and (2) the
proposed annexation as to Non-Urban Areas 1 and 4 is invalid since those areas do not qualify
under (d)(2) for inclusion with developed areas which meet the Urban Use/Subdivision Test in
N.C.G.S. § 160A-48(c) when no part of those two areas are adjacent to the city limits.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the
decision of a divided panel of the Court of Appeals, 161 N.C.
App. 1, 587 S.E.2d 490 (2003), affirming a judgment entered
18 February 2002 by Judge Zoro J. Guice, Jr. in Superior Court,
Buncombe County. Heard in the Supreme Court 13 April 2004.
Van Winkle, Buck, Wall, Starnes and Davis, P.A. by
Larry S. McDevitt and Craig D. Justus, for plaintiff-
appellant.
Robert W. Oast, Jr. and William F. Slawter for
defendant-appellee.
LAKE, Chief Justice.
This case concerns legislative policy and procedure as
it relates to undeveloped land desired to be annexed by a
municipal governing board, pursuant to N.C.G.S. § 160A-48 which
defines the character of an area to be annexed. Specifically,
the issue before this Court on appeal is the proper
interpretation of the exception set forth in N.C.G.S. § 160A-
48(d)(2) as it relates to areas of land that are not developed
for urban purposes, an issue of first impression for this Court.
The Court of Appeals' majority opinion concluded that the
language of this subsection of the statute allows for annexationof the non-urban or undeveloped parcels at issue because the
parcels, on at least sixty percent of their external boundary,
are adjacent to areas which are developed for urban purposes.
Because we conclude that this is not what the statutory language
proposes and intends, we reverse the decision of the Court of
Appeals and remand this case to that court for further remand to
the trial court.
On 22 February 2000, the City of Asheville (the City)
adopted a resolution of intent to annex approximately 1,500 acres
in the Long Shoals Area, including properties owned by Carolina
Power & Light Company (CP&L). This acreage was being utilized
in a variety of ways. The largest single property and use within
the entire area is the steam-generated electrical power plant
owned and operated by CP&L. This property includes the power
plant, Lake Julian, and other associated facilities.
An annexation services plan (ASP) depicting the
boundaries of the Long Shoals Area to be annexed was approved by
the City on 15 March 2000. The ASP purported to qualify the Long
Shoals Area under one of the five available standards or tests
specified in N.C.G.S. § 160A-48 for determining whether an area
is developed for urban purposes, which test is set forth in
subsection (c)(3) and is known as the Urban Use/Subdivision
Test. This test, in essence, provides that an area is developed
for urban purposes if at least sixty percent of the total number
of lots in the area are used for residential, commercial,
industrial, institutional, or governmental purposes and is
subdivided into lots such that at least sixty percent of the
total acreage of the area, not counting that used for commercial,
industrial, governmental, or institutional purposes, consists oflots three acres or less in size. N.C.G.S. § 160A-48(c)(3)
(2003).
Richard Cowick, a consultant from Benchmark, Inc., was
hired by the City to classify the character of the property to be
annexed. Cowick reported that 101 out of 134 lots or tracts in
the Long Shoals Area, or 75.37 percent, were actively used for
residential, commercial, industrial, institutional, or
governmental purposes. Cowick and the City also reported that
only 114.06 acres in the Long Shoals Area were undeveloped areas
or developed areas being used for residential purposes. Of that
total, it was contended that 72.17 acres, or 63.27 percent of the
undeveloped or residential areas, consisted of lots or tracts
three acres or less in size, thus bringing the Long Shoals Area
within the standards set forth in N.C.G.S. § 160A-48(c)(3).
In its ASP, the City classified 288.21 acres out of the
1,500 acres of the Long Shoals Area as non-urban, or not
developed for urban purposes. The City excluded this acreage
from the subdivision test calculations. These 288.21 acres are
separated into five, noncontiguous tracts denominated as Non-
Urban Areas 1 through 5. The external boundaries for Non-Urban
Area 1 and Non-Urban Area 4, consisting of 122.75 acres and 66.51
acres respectively, are not adjacent to the City's existing
municipal boundary line.
On 23 May 2000, a public hearing was held concerning
the annexation of the Long Shoals Area. On 13 June 2000, the
City adopted Ordinance 2708, which purported to annex the Long
Shoals Area, including the CP&L property, effective 1 July 2001.
With the adoption of the ordinance, the City modified some of the
calculations for the Urban Use/Subdivision Test referenced in itsASP, determining that 63.08 percent of the total acreage of lots
undeveloped and lots used for residential purposes consisted of
lots or tracts three acres or less in size. The City did not
modify any of its prior determinations from the ASP for Non-Urban
Area 1 and Non-Urban Area 4. Within Non-Urban Area 1, there is a
farm of over thirty acres that is not contiguous to the existing
city limits which the City unsuccessfully attempted to classify
as urban and annex in a prior case. See Asheville Indus., Inc.
v. City of Asheville, 112 N.C. App. 713, 436 S.E.2d 873 (1993).
On 11 August 2000, CP&L filed a petition for review in
Superior Court, Buncombe County, challenging the City's adoption
of Ordinance 2708. CP&L contended that the City erroneously
characterized as Non-Urban, under N.C.G.S. § 160A-48(d)(2), the
residential or vacant properties in Non-Urban Area 1, including
the farm, and in Non-Urban Area 4, as those areas are not
adjacent to the existing municipal boundary line as required by
the statute. With such characterization, CP&L argued that the
City erroneously excluded that acreage from the Subdivision Test
in N.C.G.S. § 160A-48(c)(3), resulting in a false percentage of
at least sixty percent, which ostensibly met the Subdivision Test
requirements.
At trial, the parties stipulated that a 4.4-acre tract
owned by the Meece family was incorrectly listed as commercial
and should have been classified as a residential lot larger than
three acres in size. The effect of this reclassification on the
Subdivision Test was to decrease to 60.71 percent the percentage
of undeveloped lots or those used for residential purposes
consisting of lots or tracts three acres or less in size. The trial court affirmed the City's Annexation
Ordinance 2708. CP&L appealed the decision to the North Carolina
Court of Appeals. The Court of Appeals' majority opinion
affirmed the trial court's ruling, with Judge Tyson dissenting on
the issue of the City's compliance with N.C.G.S. § 160A-48(d)(2)
as it related to Non-Urban Area 1 and Non-Urban Area 4. CP&L
appealed that decision to this Court as a matter of right, based
upon the dissenting opinion. For the following reasons, we
reverse the decision of the Court of Appeals.
Involuntary annexation is by its nature a harsh
exercise of governmental power affecting private property and so
is properly restrained and balanced by legislative policy and
mandated standards and procedure. Annexation is initiated upon
the decision of a municipal governing board to extend the
municipal corporate limits, and upon challenge by a property
owner, the extent and implementation of this decision must comply
with legislative intent. The declaration of state policy for
annexation by municipalities having a population of 5,000 or more
persons, as set forth in N.C.G.S. § 160A-45, specifies that
annexation should be done in accordance with uniform legislative
standards to provide governmental services essential for sound
urban development and for the protection of health, safety and
welfare in areas being intensively used for residential,
commercial, industrial, institutional and governmental purposes
or in areas undergoing such development. N.C.G.S. § 160A-45(2)
(2003) (emphasis added).
In N.C.G.S. § 160A-48, the General Assembly has
carefully specified the standards which must be met in order for
any area to be annexed, so as to prevent municipalities fromextending their boundaries arbitrarily or without due regard for
the policy, reasons, and standards mandated by the legislature.
Subsection (a) of this statute states that a municipality may
extend its corporate limits to include any area (1) [w]hich
meets the general standards of subsection (b), and (2) [e]very
part of which meets the requirements of either subsection (c) or
subsection (d). N.C.G.S. § 160A-48(a)(1), (2) (2003) (emphasis
added). Subsection (b) of this statute begins by stating that:
The total area to be annexed must meet the following
standards:, and subsection (c) of this statute begins by
stating: Part or all of the area to be annexed must be
developed for urban purposes. N.C.G.S. § 160A-48(b), (c) (2003)
(emphasis added). For purposes of this case on appeal, the
general standards of subsection (b) are not relevant, and our
focus is solely upon subsection (c)(3), the Urban Use/Subdivision
Test to determine an area developed for urban purposes, and
subsection (d)(2), the exception provision for including in the
area to be annexed an undeveloped area if it meets the conditions
specified therein.
Areas that do not meet the test of subsection (c)(3) of
section 160A-48 are by implication non-urban areas or areas not
developed for urban purposes. These areas are still subject to
annexation if they meet the requirements of subsection (d). The
purpose of subsection (d) is to permit municipal governing
boards to extend corporate limits to include all nearby areas
developed for urban purposes and where necessary to include areas
which at the time of annexation are not yet developed for urban
purposes but which constitute necessary land connections between
the municipality and areas developed for urban purposes orbetween two or more areas developed for urban purposes.
N.C.G.S. § 160A-48(d) (2003). The specific wording of subsection
(d), and more narrowly, (d)(2) is at the heart of this case.
Subsection (d) states in part:
(d) In addition to areas developed for
urban purposes, a governing board may include
in the area to be annexed any area which does
not meet the requirements of subsection (c)
if such area either:
(1) Lies between the municipal boundary
and an area developed for urban
purposes so that the area developed
for urban purposes is either not
adjacent to the municipal boundary
or cannot be served by the
municipality without extending
services and/or water and/or sewer
lines through such sparsely
developed area; or
(2) Is adjacent, on at least sixty
percent (60%) of its external
boundary, to any combination of the
municipal boundary and the boundary
of an area or areas developed for
urban purposes as defined in
subsection (c).
N.C.G.S. § 160A-48(d)(1), (2).
This Court has held that [j]udicial review of an
annexation ordinance is limited to determination of whether the
annexation proceedings substantially comply with the requirements
of the applicable annexation statute. Food Town Stores v. City
of Salisbury, 300 N.C. 21, 40, 265 S.E.2d 123, 135 (1980). On
appeal, this Court is bound by the facts found by the trial court
if supported by the evidence. Humphries v. City of Jacksonville,
300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980). Conclusions of
law drawn by the trial court from its findings of fact are
reviewable de novo on appeal. Id. The issue before this Court in the instant appeal is a
question of law, the proper interpretation of N.C.G.S. § 160A-
48(d)(2), specifically whether the wording any combination will
allow use of only one boundary in the equation, either the
municipal boundary or the boundary of an area developed for
urban purposes. As stipulated by the parties, no part of the
City's Non-Urban Area 1 or Non-Urban Area 4 is adjacent to the
city limits. The Court of Appeals' majority opinion concluded
that the language of the statute allowed for annexation of the
non-urban parcels at issue because the parcels are adjacent, on
at least sixty percent of their external boundary, exclusively to
areas developed for urban purposes. The majority reasoned that
any combination could include a situation where the parcel
abuts an area developed for urban purposes but not a municipal
boundary.
The Court of Appeals in its majority opinion stated:
[T]he plain language of the statute includes
all possible combinations which make the
following equation work: the amount of
border which the non-urban area shares with
the municipality combined with the amount of
border [which] the non-urban area shares with
an area or areas developed for urban purposes
equals sixty percent of the border of the
non-urban area. One workable combination
exists where a non-urban area touches, on at
least sixty percent of its external border,
only an area or areas developed for urban
purposes.
Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1,
10, 587 S.E.2d 490, 496 (2003).
The primary rule of statutory construction is that the
intent of the legislature controls the interpretation of a
statute. Stevenson v. City of Durham, 281 N.C. 300, 303, 188
S.E.2d 281, 283 (1972). The foremost task in statutoryinterpretation is 'to determine legislative intent while giving
the language of the statute its natural and ordinary meaning
unless the context requires otherwise.' Spruill v. Lake Phelps
Vol. Fire Dep't, Inc., 351 N.C. 318, 320, 523 S.E.2d 672, 674
(2000) (quoting Turlington v. McLeod, 323 N.C. 591, 594, 374
S.E.2d 394, 397 (1988)). Where the statutory language is clear
and unambiguous, the Court does not engage in judicial
construction but must apply the statute to give effect to the
plain and definite meaning of the language. Fowler v.
Valencourt, 334 N.C. 345, 348, 435 S.E.2d 530, 532 (1993). If
the language is ambiguous or unclear, the reviewing court must
construe the statute in an attempt not to defeat or impair the
object of the statute . . . if that can reasonably be done
without doing violence to the legislative language. North
Carolina Baptist Hosp., Inc. v. Mitchell, 323 N.C. 528, 532, 374
S.E.2d 844, 846 (1988).
The crux of the statutory language in question is
focused upon the phrase, to any combination of the municipal
boundary and the boundary of an area or areas developed for urban
purposes as defined in subsection (c). N.C.G.S. § 160A-
48(d)(2). In considering this wording, little ambiguity presents
itself facially. Combination is defined as the [c]ombined
state or condition of two or more things. The Oxford English
Dictionary, Vol. II, 647 (1961). Combine is defined as [t]o
couple or join two or more things together or [t]o unite . . .
or exhibit in union. Id. at 648.
In defining areas not developed for urban purposes that
nevertheless may be annexed, subsection (d)(2) clearly specifies
a combination of two things, in any variation or quantities ofthese two entities: the municipal boundary and the boundary of
the urban developed area. To totally exclude one entity in this
equation, the boundary with the municipality, fails to yield a
true combination. The Court of Appeals' majority opinion
appears to rest upon the premise, in theory at least, that a
quantity or value of zero is computable and can, as the statute
requires, unite with something else. This approach ignores the
ordinary meaning of the words of the statute and imposes a
theoretically strained interpretation and application.
The interpretation of the Court of Appeals' majority is
not bolstered by the fact that the General Assembly chose any
as the adjective to precede combination. Any refers to the
kind of combination, which must by definition unite or
combine two things. Thus, any does not affect the meaning of
combination. That the combination must join areas adjacent to
a municipality and areas adjacent to urban developed areas is
emphasized by the use of the conjunctive term and within the
statute. Cf. Grassy Creek Neighborhood Alliance, Inc. v. City of
Winston-Salem, 142 N.C. App. 290, 297-98, 542 S.E.2d 296, 301
(2001) (stating that the natural and ordinary meaning of the
disjunctive or permits compliance with either condition).
While there is no prior state case law precisely on
point in construing this language, previous cases examining
N.C.G.S. § 160A-48(d)(2) are instructive. In the case of In re
Annexation Ordinance Adopted by the City of Jacksonville, 255
N.C. 633, 122 S.E.2d 690 (1961), this Court addressed the issue
of what area might qualify as non-urban or not developed for
urban purposes but subject to annexation due to its properties.
The petitioner in that case contended that the tract of land tobe annexed was not sufficiently urbanized. This Court noted that
although the tract was undeveloped, its acreage qualified under a
predecessor statute to N.C.G.S. § 160A-48(d)(2). This Court
stated in upholding the annexation that [a] casual examination
of the annexation map shows that more than 60% of the external
boundary of the 15.5 acre tract is adjacent to the city limits
and the Forest Hills Development. Id. at 643, 122 S.E.2d at 698
(emphasis added).
Similarly, in In re Annexation Ordinance Adopted by the
City of Albemarle, 300 N.C. 337, 266 S.E.2d 661 (1980), this
Court stated that: Cities with 5,000 or more people may annex
an outlying urban area pursuant to G.S. 160A-48(c) and the
intervening undeveloped lands pursuant to G.S. 160A-48(d) so long
as the entire area meets the requirements of G.S. 160A-48(b).
Id. at 341, 266 S.E.2d at 663. In the instant case, the non-
urban areas are not intervening undeveloped lands between the
City and the urban area proposed for annexation as stated by this
Court in Albemarle.
The Court of Appeals has analyzed N.C.G.S. § 160A-
48(d)(2) several times since Albemarle. In all of those cases,
the proposed non-urban areas were adjacent to their respective
existing municipal boundaries. Chapel Hill Country Club, Inc. v.
Town of Chapel Hill, 97 N.C. App. 171, 388 S.E.2d 168, disc. rev.
denied, 326 N.C. 481, 392 S.E.2d 87 (1990); Wallace v. Town of
Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225 (1989); Southern
Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d
180, disc. rev. denied, 314 N.C. 669, 336 S.E.2d 401 (1985); The
Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App.332, 322 S.E.2d 195 (1984), appeal dismissed and disc. rev.
denied, 313 N.C. 514, 329 S.E.2d 392 (1985).
In The Little Red School House, petitioners challenged
a proposed annexation on the ground that the subdivided land did
not meet the requirements of N.C.G.S. §§ 160A-48(c) and 160A-
48(d). 71 N.C. App. at 337-38, 322 S.E.2d at 198. The Court of
Appeals upheld the trial court's finding of fact that although
one of the subareas did not meet the requirements of N.C.G.S. §
160A-48(c), the area fully complied with the requirements of
N.C.G.S. § 160A-48(d), by having 74.9% of its external boundary
adjacent to the boundaries of the municipality and subareas
[developed for urban purposes as defined in N.C.G.S. § 160A-
48(c)]. Id. at 338, 322 S.E.2d at 198.
In Southern Glove, petitioners argued that annexation
by the City of Newton was not authorized by statute because the
undeveloped areas were not necessary land connections under
N.C.G.S. § 160A-48(d)(2), and that the word necessary within
the purpose section following the numbered paragraphs in (d)
acted as a limitation on the criteria set forth in those numbered
paragraphs. 75 N.C. App. at 578, 331 S.E.2d at 183. The Court
of Appeals affirmed the trial court's decision that the adjoining
undeveloped tracts qualified under subsection (d)(2) for
annexation. Id. The city did not need to prove that a land
connection was necessary so long as it met the adjacency
standards in subsection (d)(2). Id. We believe the sub-area
allowed by G.S. 160A-48(d)(2) is one of those described by the
unnumbered paragraph as a 'necessary land connection.' If we
were to hold otherwise[,] we believe we would not be following
the words of the statute. Id. In Wallace, the Town of Chapel Hill planned to annex
three urbanized areas meeting the requirements of subsection (c)
and one area which did not meet the requirements of subsection
(c), thereby being designated as non-urban. 93 N.C. App. at
423, 378 S.E.2d at 226. Despite petitioners' argument to
overturn Southern Glove, the Court of Appeals held that [t]he
Town presented evidence that the non-urban property met the
criteria of (d)(2) in that the non-urban property was adjacent on
at least sixty percent of its external boundary to a combination
of the Town's boundary and the boundary of the area developed for
urban purposes. Id. at 430, 378 S.E.2d at 230 (emphasis added).
In the year following the decision in Wallace, the
Court of Appeals addressed the language in the purpose section,
which follows part (2) of N.C.G.S. § 160A-48(d), in Chapel Hill
Country Club. There the Court of Appeals reiterated that a
municipality may annex a non-urban property if it meets the
criteria either of (d)(1) or (d)(2) without regard to language
within the purpose section following those parts. 97 N.C. App.
at 179-80, 388 S.E.2d at 173.
Further, the legislative purpose behind N.C.G.S. §
160A-48(d) and public policy favor an interpretation giving
effect to the plain meaning of the words and and combination.
Subsection (d) was created to allow municipalities the
opportunity to extend their services to reach urban core areas
without being thwarted by intervening undeveloped land. In re
Annexation Ordinance Adopted by the City of Albemarle, 300 N.C.
at 341-42, 266 S.E.2d at 663-64. These intervening undeveloped
lands connect the municipality and the areas developed for urban
purposes, making them important and must-have areas forannexation. Nonintervening, non-urban areas do not serve that
same purpose, and annexation of such areas is not essential to
extending services. If those areas do not meet the requirement
of (d)(2), there is no basis for their annexation.
This Court has cited the legislative history of
annexation laws as demonstrating that the legislative standard
should 'act as a brake only with respect to attempted annexation
of large tracts of agricultural or vacant land where no evidence
of urban development can be shown.' Lithium Corp. of America,
Inc. v. Town of Bessemer City, 261 N.C. 532, 537, 135 S.E.2d 574,
578 (1964) (quoting North Carolina General Assembly,
Supplementary Report of the Municipal Government Study
Commission, p. 11 (1959)). Furthermore, in 1998 the General
Assembly amended the annexation statutes in numerous ways,
including limiting the scope of a city's authority to annex
undeveloped acreage by: (1) reducing the acreage that would
otherwise qualify as being subdivided for urban purposes under
N.C.G.S. . 160A-48(c)(3) from a maximum of five acres to three
acres or less in size; (2) amending N.C.G.S. . 160A-48(d) to
place a twenty-five percent cap on the amount of property a city
can classify as a non-urban necessary land connection; and (3)
stating that a reviewing court will no longer be required to
accept a city's estimates of population and degree of land
subdivision for purposes of meeting the requirements of N.C.G.S.
. 160A-48 if the actual population, total area, or degree of
land subdivision falls below the standards set in that statute.
Act of Sept. 22, 1998, ch. 150, secs. 14, 19, 1997 N.C. Sess.
Laws (2d Sess. 1998) 432, 446-48, 456-57. These steps evidencethe General Assembly's desire to limit or restrict rather than
facilitate annexation.
Because the plain meaning of N.C.G.S. § 160A-48(d)(2)
states that there must be a combination of adjacency to the
municipality and adjacency to areas developed for urban purposes,
the proposed annexation as to Non-Urban Areas 1 and 4 is invalid.
Those areas do not qualify under (d)(2) for inclusion with
developed areas which meet the Urban Use/Subdivision Test in
N.C.G.S. § 160A-48(c). This interpretation is in accordance with
the intent of the General Assembly and case history.
CP&L contends that the effect of including Non-Urban
Areas 1 and 4 under subsection (c) rather than (d)(2) is to
decrease the percentage for the Urban Use/Subdivision Test to
under sixty percent, thereby invalidating the entire annexation
as outlined in the ASP. As this issue was not raised in the
dissent, we decline to address it but note its importance on
remand.
The decision of the Court of Appeals is reversed, and
this case is remanded to that court for further remand to the
trial court for proceedings not inconsistent with this opinion.
REVERSED AND REMANDED.
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