Annexation Ordinance Adopted by City of Charlotte, December 11, 1972, Albemarle-York Road Area, In re

• Decision Date: 11 December 1972
• Citation: 202 S.E.2d 143,284 N.C. 442
• Parties: In re ANNEXATION ORDINANCE ADOPTED BY the CITY OF CHARLOTTE,
• Court: North Carolina Supreme Court

Page 143

202 S.E.2d 143

284 N.C. 442

In re ANNEXATION ORDINANCE ADOPTED BY the CITY OF CHARLOTTE DECEMBER 11, 1972, ALBEMARLE-YORK ROAD AREA.

No. 90.

Supreme Court of North Carolina.

Jan. 25, 1974.

Craighill, Rendleman & Clarkson, PA, by J. B. Craighill, Charlotte, for petitioner appellant, Ruth S. Lucas.

Henry W. Underhill, Jr., H. Michael Boyd, W. A. Watts, City Attys., Charlotte, for respondent appellee, City of Charlotte.

HUSKINS, Justice:

Petitioner assigns as error the denial of her motion for a jury trial incident to review of the annexation proceeding. She contends the constitutional questions involved in this proceeding are matters with respect to which she is entitled to trial by jury and that the provisions of G.S. § 160--453.18(f) (now G.S. § 160A--50(f)) relating to review without a jury are (1) violative of Article I, Section 25 of the Constitution of North Carolina and (2) are superseded by the Rules of Civil Procedure.

The provisions of Article I, Section 25 of the present Constitution of North Carolina are similar to the provisions of the first sentence of Article I, Section 19 of the Constitution of 1868. A similar contention with respect to the unconstitutionality of G.S. § 160--453.18(f) was rejected by this Court in In re Annexation Ordinances, 253 N.C. 637, 117 S.E.2d 795 (1960). We there said:

'The procedure and requirements contained in the Act under consideration being solely a legislative matter, the right of trial by jury is not guaranteed, and the fact that the General Assembly did not see fit to provide for trial by jury in cases arising under the Act, does not render the Act unconstitutional.

'The right to a trial by jury, guaranteed under our Constitution, applies only to cases in which the prerogative existed at common law, or was procured by statute at the time the Constitution was adopted. The right to a trial by jury is not guaranteed in those cases where the right and the remedy have been created by statute since the adoption of the Constitution. Groves v. Ware, 182 N.C. 553, 109 S.E. 568; McInnish v. Bd. of Education, 187 N.C. 494, 122 S.E. 182; Hagler v. Highway Commission, 200 N.C. 733, 158 S.E. 383; Unemployment Comp. Com. v. Willis, 219 N.C. 709, 15 S.E.2d 4; Belk's Dept. Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E.2d 897; Utilities Commission v. Trucking Co., 223 N.C. 687, 28 S.E.2d 201.'

Moreover, the provisions of G.S. § 160--453.18(f) authorizing review of annexation proceedings by the court without a jury have not been superseded by the North Carolina Rules of Civil Procedure. Rule 38(a) of the Rules of Civil Procedure provides: 'The right of trial by jury as declared by the Constitution or statutes of North Carolina shall be preserved to the parties inviolate.' This rule was not designed to expand the right of trial by jury but only to preserve the right where it had existed previously. Since the General Assembly has never granted the right to jury trial in judicial review of annexation proceedings, Rule 38(a) by its own language is inapposite. This assignment of error is overruled.

Petitioner contends that the City 'acted arbitrarily, capriciously and unreasonably in that it did not uniformly apply the same standards throughout the entire Annexation Area.'

Although the courts are vested with jurisdiction to review annexation proceedings, the scope of judicial review is limited by statute. G.S. § 160--453.18 (now G.S. § 160A--50) specifies the inquiries to which the courts are limited. These include the question presented by this case: Has the City met the requirements of G.S. § 160--453.16(c)(1) as they apply to petitioner's property? See G.S. § 160--453.18(a) and (f)(3); In re Annexation Ordinance, 278 N.C. 641, 180 S.E.2d 851 (1971).

As a general rule it is presumed that a public official in the performance of his official duties 'acts fairly, impartially, and in good faith, and in the exercise of sound judgment or discretion, for the purpose of promoting the public good and protecting the public interest. (Citation omitted) The presumption of regularity of official acts is rebuttable by affirmative evidence of irregularity or failure to perform duty, but the burden of producing such evidence rests on him who asserts unlawful or irregular conduct. The presumption, however, prevails until it is overcome by . . . evidence to the contrary. . . . Every reasonable intendment will be made in support of the presumption. . . .' Huntley v. Potter. 255 N.C. 619, 122 S.E.2d 681, 687 (1961); Accord, Styers v. Phillips, 277 N.C. 460, 178 S.E.2d 583 (1971). Hence the burden is on the petitioner to overcome the presumption by competent and substantial evidence. 6 N.C.Index 2d, Public Officers, § 8 (1968).

Ordinance 689--X to extend the corporate limits of Charlotte by annexation of the Albemarle Road-York Road Annexation Area discloses that the Charlotte City Council found and declared that the described annexation area met the requirements of G.S. § 160--453.16(b) and (c)(1) (now G.S. § 160A--48(b) and (c)(1)). Petitioner does not contend that the requirements of G.S. § 160--453.16(b) have not been met by the City but strongly insists that G.S. § 160--453.16(c)(1), properly interpreted and properly applied administratively, requires exclusion of her land from the Albemarle Road-York Road Annexation Area.

G.S. § 160--453.16(c)(1) (now G.S. § 160A--48(c)(1)) reads in pertinent part as follows: '(c) Part or all of the area to be annexed must be developed for urban purposes. An area developed for urban purposes is defined as any area which . . . (1) Has a total resident population equal to at least two persons for each acre of land included within its boundaries . . ..' The narrow issue presented, and here decided, is whether the City used 'population credits' arbitrarily, capriciously or in an unreasonable manner so as to produce unfair and inequitable results not in keeping with legislative intent. On this question we now consider the evidence hereinafter narrated.

The Albemarle Road-York Road Annexation Area covers 17,899 acres. That area was initially broken down by the City into six 'study areas,' numbered 1, 2, 3, 4, 11 and 12 on Respondent's Exhibit 1. (Other study areas numbered 5, 6, 7, 8, 9 and 10 on said exhibit, two of which are the subject of litigation in other annexation cases, have no pertinence here.)

Testimony of Michael Schneidermann, Charlotte City Planner, discloses that each study area encompasses land contiguous to the present City boundary and that Study Areas 1, 2, 3, 4, 11 and 12, comprising the Albemarle Road-York Road Annexation Area, are contiguous to each other. These six study areas were thus treated as one area to be annexed. However, the City applied the statutory standard of population density--at least two persons per acre--to each individual study area separately in order to qualify it for annexation. For example, petitioner's property is located in Study Area No. 4, and her 107 acres with a population of one person was annexed because there was enough population in excess of two per acre from the developed urbanized portion of Study Area No. 4 to 'populate' it, and other vacant acreage around it, at the rate of two persons per acre.

Testimony of William E. McIntyre, the Planning Director for Charlotte-Mecklenburg Planning Commission, discloses that 'the philosophy followed was, with sufficient population credit, just to move out and take in additional open area, whether that area was developed for urban purposes or not.'

Petitioner's evidence discloses that her land, 107 acres with a population of one person, is located on the outer edge of Study Area No. 4, yet lies within the area to be annexed. Her evidence further shows that many tracts of land having a higher value per acre, and more densely populated than hers, which lie just outside the outer boundary of other study areas were not included in the Albemarle Road-York Road Annexation Area. One of these tracts lies along Providence Road, within Study Area No. 2 but outside the annexation boundary, and is designated by the figure 5 on Petitioner's Exhibit 8. This land contains 102 acres, is divided into sixteen separate tracts, and has a fairly large residential population. When explaining why petitioner's land was annexed and these sixteen tracts aggregating 102 acres were not, Mr. Schneidermann had this to say:

'In regard to Petitioner's Exhibit Number 8 and that area designated as Number 5, according to the evidence containing 102.49 acres, it was not included within the annexation area because the density would not have been sufficient to qualify the entire area.

And in the light of the criteria, it was left out because we didn't have sufficient population. The criteria was that it have a density of two persons per acre.

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'It is very true that if we had left out Mrs. Lucas' 106 acres, completely undeveloped except for one person living on it, we could have taken in instead, without upsetting our population criteria in that area, Area Number 5 as shown on Plaintiff's (Petitioner's) Exhibit 8, with only 102 acres in it and with sixteen different tracts and lots of people living on it, but try to understand our procedure that was followed. When we performed these studies, we qualified each area individually, separately and independently from each other. Each area that is indicated on the maps was qualified separately. You can't really give credit to one area, because they were done separately. But we did lump them together in one annexation package.

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'We qualified each study area individually instead of all together but uniformly as far as criteria. We took a standard and applied it. The standard I have been speaking about was not applied to the entire area as a whole but to the smaller study areas that made up the entire area. [Emphasis added]

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'If we had applied that criteria to the whole area, we would have...