Arquilla v. City of Salisbury
| Decision Date | 21 December 1999 |
| Docket Number | No. COA98-1398.,COA98-1398. |
| Citation | 136 NC App. 24,523 S.E.2d 155 |
| Court | North Carolina Court of Appeals |
| Parties | Bennie ARQUILLA and wife Julie Arquilla, Herbert L. Baker and wife Grace P. Baker, David M. Bennett and wife Melanie H. Bennett, Ronald Bost and wife Martha Bost, Robert J. Brunory and wife Nan W. Brunory, Bob Burges and wife Sharon Burges, Eugene K. Clary and wife Sue H. Clary, Randy L. Cox and wife Mary A. Cox, Paul Dziezyc and wife Katherine Dziezyc, Gordon L. Eddy and wife Teresa Eddy, Richard T. Fontenot and wife Donnalee Fontenot, Robert W. Garner and wife Julie S. Garner, Suzanne R. Godridge, Glenn R. Harrison and wife Mary J. Harrison, Darlene Barrow Hartman, Carroll Bruce Hawkins and wife Karen Hawkins, Dennis D. Hinz and wife Dorothy C. Hinz, Jerry L. Holder and wife Brenda S. Holder, Hong Bich Van Le and wife Cam Hong Thi Do Le, Douglas H. Jones and wife Melody T. Jones, J. Steven Land and wife Jayne H. Land, Carl C. Lyerly, Sr. and wife Margaret C. Lyerly, Clara R. Lazaro, John K. Miller and wife Carol K. Miller, William Miller and wife Katherine Miller, Dorothy Misenheimer, Robert R. Moore and wife Gay P. Moore, Timothy L. Nooner and wife Cynthia C. Nooner, Janet T. Parker and husband Rick Parker, Steve Poteat and wife Donna Poteat, John R. Pring and wife Laura W. Pring, Kent Rabon and wife Marisa W. Rabon, Warren S. Reynolds and wife Rita H. Reynolds, John Russ and wife Kim Russ, Alex Scott, Stephan F. Sherriff and wife Nancy S. Sherriff, Floyd John Walcher and wife Joe Ellen Davis Walcher, Linne Wallace and husband Charlie James Wallace, Jr., Andrew E. Whitted and wife Annette E. Whitted, Daniel H. Williford and wife Melinda S. Williford, John W. Williams and wife Patty P. Williams, Carl Ray Yates and wife Della Faye Yates, James D. Cusak, Jill Duggan, Scott Gaskill and wife Karen Gaskill, Jerry Milem and wife Shirley Milem, Robert Morgan and wife Elizabeth Morgan, John Noonan and wife Lisa Noonan, Charles R. Reed and wife Genevieve B. Reed, Mark Ritchie and wife Jane Ritchie, Danny Thornton, Jesse C. Ebersole and wife Lisa M. Ebersole, Wallace J. Elston, Jr. and wife Arline A. Elston, Allen R. Arey and wife Ruby L. Arey, Marvin A. Burnett and wife Hazel H. Burnett, Yu Chin Choi and wife Hyung K. Choi, Jeff Dinse, Viola H. Dixon, John M. Durkee and wife Joyce G. Durkee, Martha S. Freeze and husband Michael A. Freeze, Joseph P. Green and wife Anna Green, Letty Kelly, Moses Landrum and wife Georgia Landrum, Doris D. Masters, Walter Grady Morris, Barbara A. Nance and husband Clarence V. Nance, Old Carolina Brick Co., Jack B. Richardson and wife Manie G. Richardson, Ralph Shatterly and wife Sharon Shatterly, Kenneth W. Shepler and wife Naomi G. Shepler, Ransom A. Shuping and wife Pauline L. Shuping, Michael Sommers and wife Joanne Sommers, Charles F. Vasconcellos and wife Laurie Vasconcellos, Robert H. Waddell and wife Alice Waddell, Larry Dean Wagoner and wife Caroline Kirkpatrick Wagoner, C. Wayne Whitman and wife Nancy H. Whitman, Betty B. Hoyt, and F. Sylvia Wiseman, Petitioners, v. CITY OF SALISBURY, A North Carolina Municipal Corporation, Respondent. |
Adams, Hendon, Carson, Crow & Saenger, P.A., by S.J. Crow and Martin K. Reidinger, Asheville, for petitioners.
Womble, Carlyle, Sandridge & Rice, P.L.L.C., by Roddey M. Ligon, Jr., Winston-Salem, and Woodson, Ford, Sayers, Lawther, Short, Parrott & Hudson, by F. Rivers Lawther, Jr., Salisbury, for respondent.
On 18 February 1997, the City Council of Salisbury adopted two ordinances to annex involuntarily two areas into the corporate limits of the City of Salisbury. Property owners in the areas annexed ("petitioners") challenge the validity of both annexation ordinances. Annexation Area 1 ("Area 1") is generally southwest of the City while Annexation Area 2 ("Area 2") is generally northwest of the City.
The parties dispute whether four tracts of land located within Area 1 were used for governmental purposes and thus subject to involuntary annexation by the City of Salisbury ("respondent"); and whether the boundaries of Area 1 and Area 2 follow natural topographic features or streets whenever practical, thereby meeting legal requirements for annexation boundaries. The trial court affirmed the annexation of Area 1 and Area 2.
Petitioners' evidence at trial tended to show the following. Each of the four tracts within Annexation Area 1 is owned by Rowan County. The tracts in Annexation Area 1 in question are Lot 12, Lot 24, Lot 55 and Lot 187.
Lot 12 consists of 17.37 acres. There are no structures on the wooded lot, nor is there road access. A sewer easement runs along one of its boundaries. However, the sewer line is not in use.
Lot 24 contains 107 acres of land. It is mainly wooded and contains no structures. A road traverses the eastern edge. Part of a closed landfill occupies a small portion of the lot at its northern edge. The landfill has been closed since 1989. While respondent produced evidence at trial that Lot 24 serves to drain airport property, the County Manager testified that he did not consider any of the four tracts to be in use. The County Manager further testified that Lot 24 was being marketed for sale by the County.
Lot 55 is a wooded lot with no structures on it. It consists of 11.22 acres. A road passes through one edge of the lot.
Lot 187 contains 9.23 acres. There are no structures on the property. Some limitations exist regarding the height of any future structures that may be built on Lot 187 due to its proximity to the airport.
In preliminary maps, respondent assessed the use of the tracts in issue and determined that all four were vacant or not in use. In contrast, in the Annexation Ordinance, respondent indicated that the tracts were in use for governmental purposes. Additionally, respondent introduced a map at trial, the Airport Layout Plan ("the Plan"), which portrayed the four tracts in question as part of one overall parcel of land that is being used for governmental purposes.
According to the Plan, this parcel of land, which includes the four tracts in issue, advances the objectives of the County airport in that it serves as a buffer area between airport operations and residential property. Petitioners counter that the Plan is not evidence that the tracts are currently in governmental use, but is instead a map of the County's potential future plans for this parcel of land. On the boundaries issue, petitioners contend that portions of the boundaries of both Area 1 and Area 2 do not meet legal requirements for the establishment of annexation boundaries in that the lines do not follow natural topographic features or streets whenever practical. As a result, the City cannot provide municipal services to all of the properties that it included in the annexation areas. Petitioners provide two examples of boundaries that allegedly fail to meet legal requirements.
One of the contested boundaries concerns annexed property located in the southwest quadrant of Annexation Area 2, south of Highway 70 and west of Majolica Road. According to petitioners' evidence at trial, respondent followed property lines and private right of way lines to set the boundary for the southwest quadrant rather than following natural topographic features or streets. Respondent cannot provide fire protection or sewer services to the southwest quadrant as it is inaccessible by vehicle. The City conceded that it could have set the boundary at Highway 70 and Majolica Road, and that by doing so, it would not have annexed property that it was unable to serve.
Respondent's evidence at trial tended to show that the City made a sincere effort to use natural topographic features and roads where it was deemed to be practical and that the City did use such features and roads in many instances.
Based on the evidence at trial, the court made the following relevant findings of fact:
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