Annexation Ordinance No. 300-X, In re, 18

• Court: United States State Supreme Court of North Carolina
• Citation: 284 S.E.2d 470,304 N.C. 549
• Docket Number: No. 18,18
• Parties: In re ANNEXATION ORDINANCE NO. 300-X. Petition of Charles J. WHITTLE and wife, Ann Wright Whittle.
• Decision Date: 01 December 1981

Page 470

284 S.E.2d 470

304 N.C. 549

In re ANNEXATION ORDINANCE NO. 300-X.

Petition of Charles J. WHITTLE and wife, Ann Wright Whittle.

No. 18.

Supreme Court of North Carolina.

Dec. 1, 1981.

Jeffrey L. Bishop and Hugh G. Casey, Jr., Casey & Bishop, Charlotte, for petitioners-appellants.

Henry W. Underhill, Jr., and H. Michael Boyd, Asst. City Attys., Charlotte, for respondent-appellee.

BRANCH, Chief Justice.

Petitioners first argue that the City's annexation plan fails to meet the requirements of G.S. 160A-47(3) in that it lacks sufficient detail and specificity.

G.S. 160A-47(3) requires a municipality's annexation report to 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 police protection, fire protection, garbage collection and street maintenance 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. 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 and sewer outfall lines 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 and sewer lines to individual lots or subdivisions.

c. If extension of major trunk water mains and sewer outfall lines into the area to be annexed is necessary, set forth a proposed timetable for construction of such mains and outfalls as soon as possible following the effective date of annexation. In any event, the plans shall call for contracts to be let and construction to begin within 12 months following the effective date of annexation.

d. Set forth the method under which the municipality plans to finance extension of services into the area to be annexed.

The burden is on petitioner to establish by competent and substantial evidence the City's noncompliance with G.S. 160A-47(3).

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 (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).

In re Annexation Ordinance, 284 N.C. 442, 452, 202 S.E.2d 143, 149 (1974). See also In re Annexation Ordinance, 296 N.C. 1, 10-11, 249 S.E.2d 698, 703-704 (1978); In re Annexation Ordinance, 255 N.C. 633, 642, 122 S.E.2d 690, 697 (1961).

The City's written report contains plans for providing the major municipal services enumerated in G.S. 160A-47(3), the first of which we quote in full:

POLICE PROTECTION

The City of Charlotte has a well-trained, efficient Police Department whose function is the protection of life and property. Police protection is provided on a continuous 24 hour a day basis and is ready for immediate response to calls for protection service. The department performs a variety of services ranging from traffic control to crime investigation and uses the most modern police equipment available.

Many police services and divisions such as: central services, crime prevention, record-keeping, youth section, vice section and helicopter service are already being executed throughout the annexation area under the City-County consolidation of services program. Additional personnel and equipment required to provide police protection to this area will be secured prior to the effective date of annexation. Service will commence on the effective date.

In order to provide police protection on substantially the same basis and in the same manner as provided in the City, approximately $113,900 of general revenues will be appropriated in the annual budget to reflect the additional cost of services to this area. They do not anticipate any new capital improvements as a result of this annexation. The degree of service and the number of new officers and the amount of equipment needed to provide adequate protection is based on the adjacent areas currently inside the city limits.

The remaining provisions for major municipal services may be summarized as follows:

(a) Fire protection will be provided by constructing a two-bay fire station in the general vicinity of Carmel Road and Highway 51. This site will replace the previously determined temporary site. The costs of constructing and outfitting this station have been previously budgeted. During construction, fire protection will be provided from existing Station 16 at 6623 Park Road.

(b) Street maintenance services will be provided according to current policies in effect within the City which require maintenance of all streets constructed in accordance with City standards. In addition, streets currently maintained by the State will be maintained by the City, except for those streets which form a part of the permanent State highway system. The additional personnel and equipment required to provide these services are to be obtained prior to the date of annexation so that services can commence immediately upon annexation. Approximately $116,600 of General Revenues will be appropriated in the budget to reflect these increased costs.

(c) Garbage collection or sanitation services will be provided in the form of garbage and trash collection, street cleaning, and seasonal leaf collection. Additional personnel and equipment needed to provide the services are to be secured prior to the effective date of annexation so that services can commence immediately upon annexation. Approximately $216,300 of General Revenues will be appropriated in the budget to reflect these increased costs.

(d) The basic water and sewer system in the Area will be provided by extensions of the City's water and sewer systems in accordance with the City's Water/Sewer Extension Policy as adopted on 19 May 1975. These extensions will be under contract and construction within one year following the effective date of annexation, if not earlier. The cost of the basic sewer trunk system is estimated to be $525,000. The cost of the basic water system is estimated to be $622,000. The City plans to finance construction of the systems by sale of municipal bonds and to operate the systems on revenues generated by sale of the services to municipal residents.

We have examined these plans and find them remarkably similar to others approved by this Court. We approved, for example, the following plan for extension of police protection contained in an annexation report filed by the City of Jacksonville:

Police Protection. The Jacksonville Police Department has jurisdiction for one mile beyond the present City Limits and presently provides protection for residential areas within the City Limits on a regular patrol basis. The patrol coverage enables the department to respond to calls for aid in an average time of 5.5 minutes.

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