Asheville Industries, Inc. v. City of Asheville

• Decision Date: 07 December 1993
• Docket Number: No. 9228SC569,9228SC569
• Court: North Carolina Court of Appeals
• Parties: ASHEVILLE INDUSTRIES, INC., a North Carolina Corporation, Jerry Chandler and wife, Robin Chandler, Eaton Corporation, an Ohio Corporation, William Cloud Hicklin, Jessie R. Law, Jr., Francis L. Mattos and wife, Floy E. Mattos, Philips Consumer Electronics Company, a division of North American Philips, a Delaware Corporation, Haywood Plott and wife, Ruth Plott, Albert Shingles and wife, Virginia Shingles, Joseph C. Swicegood and wife, Dorothy C. Swicegood, Tennessee Gas Pipeline Company, a Delaware Corporation, West Controls, Inc., a Delaware Corporation, Grace West, Westinghouse Electric Corporation, a Pennsylvania Corporation, A.B. Wexler and wife, Phyllis Wexler, Willa M. Witherspoon, Petitioners, v. CITY OF ASHEVILLE, a municipal corporation, Respondent.

Page 873

436 S.E.2d 873

112 N.C.App. 713

ASHEVILLE INDUSTRIES, INC., a North Carolina Corporation Jerry Chandler and wife, Robin Chandler, Eaton Corporation an Ohio Corporation, William Cloud Hicklin, Jessie R. Law Jr., Francis L. Mattos and wife, Floy E. Mattos, Philips Consumer Electronics Company, a division of North American Philips, a Delaware Corporation, Haywood Plott and wife Ruth Plott, Albert Shingles and wife, Virginia Shingles, Joseph C. Swicegood and wife, Dorothy C. Swicegood, Tennessee Gas Pipeline Company, a Delaware Corporation, West Controls, Inc., a Delaware Corporation, Grace West, Westinghouse Electric Corporation, a Pennsylvania Corporation, A.B. Wexler and wife, Phyllis Wexler, Willa M. Witherspoon, Petitioners, v. CITY OF ASHEVILLE, a municipal corporation, Respondent.

No. 9228SC569.

Court of Appeals of North Carolina.

Dec. 7, 1993.

Adams, Hendon, Carson, Crow & Saenger, P.A., by S. Jerome Crow and Martin Reidinger, Asheville, for petitioners-appellants.

Nesbitt & Slawter, by William F. Slawter, Asheville, for respondent-appellee.

Asst. City Atty. Sarah Patterson Brison, Asheville, for respondent-appellee.

JOHNSON, Judge.

The facts pertinent to this appeal are as follows: The City Council of Asheville identified an area south of the corporate limits of the City of Asheville for annexation by adopting a resolution considering the proposed area on 2 June 1987. The property under consideration became adjacent or contiguous to the City's boundary on 31 August 1988. On 28 February 1989, the City Council adopted a resolution which stated the intent of the City of Asheville to consider the proposed area. On 14 March 1989, the City Council adopted a resolution which approved the report setting forth plans to provide services to the annexation area. The public hearing on this annexation was held on 18 April 1989.

An annexation ordinance was adopted on a first reading on 2 May 1989 and on a second reading on 9 May 1989. The annexation ordinance incorporated specific findings of the City that the annexation area met the subdivision test of North Carolina General Statutes § 160A-48(c)(3) (1987). On 16 May 1989, the City Council amended the report of plans for extension of municipal services into the annexation area by adoption of a resolution which annexed the proposed area. The annexation ordinance established an effective date of 30 June 1989. The effective date was stayed by the filing of a petition on 13 June 1989.

The matter came on for hearing before Judge Shirley L. Fulton on 27 November 1989 in Buncombe County Superior Court. Based upon the evidence presented at trial, the trial court affirmed City Ordinance 1761. The trial court held that the City had substantially complied with the statutory requirements of North Carolina General Statutes § 160A (1987) in the City's annexation procedures. Petitioners appeal from this judgment.

Petitioners' First Assignment of Error

Petitioners contend with their first assignment of error that the trial court committed reversible error by finding and concluding that the annexation area met the requirements of North Carolina General Statutes § 160A-48(b)(1) (1987). We disagree.

Specifically, petitioners contend the annexation process was invalid because the annexed area was not contiguous when the annexation process was begun. Petitioners contend the annexation process was initiated by the resolution of consideration which was adopted on 2 June 1987 and that the annexation area did not qualify for annexation on 2 June 1987 because it was not contiguous at that time. However, respondent contends the annexation proceeding was initiated by the resolution of intent which was adopted on 16 February 1989 and that the annexation area was contiguous on 16 June 1989 thereby qualifying the property for annexation. Therefore, we must determine whether the annexation proceeding is initiated by the resolution of consideration or the resolution of intent.

North Carolina General Statutes § 160A-48(b)(1) (1987) states in pertinent part that "to qualify for annexation the total area to be annexed must be adjacent or contiguous to the municipality's boundaries at the time the annexation proceeding is begun." The procedure to initiate an involuntary annexation proceeding is detailed in North Carolina General Statutes § 160A-49 (1987). This statute mandates that the municipal governing body must either provide that: (1) a resolution of consideration is adopted and then a resolution of intent is adopted with the requirement that the resolution of intent not be adopted until at least one year has passed since adoption of the resolution of consideration, North Carolina General Statutes § 160A-49(i) (1987), or (2) a resolution of intent describing the area and an ordinance to annex the area both provide that the effective date of the annexation shall be at least one year from the date of passage of the annexation ordinance. North Carolina General Statutes § 160A-49(j) (1987).

Petitioners argue that the resolution of consideration should be the controlling date of initiation because the City chose to proceed under North Carolina General Statutes § 160A-49(i). However, we find the Supreme Court in Town of Hazelwood v. Town of Waynesville, 320 N.C. 89, 357 S.E.2d 686, reh'g denied, 320 N.C. 639, 360 S.E.2d 106 (1987) rejected such an analysis. The Court acknowledged that the first mandatory public procedural step for a municipality choosing to proceed with involuntary annexation under North Carolina General Statutes § 160A-37(i) (1987) (the procedure for towns of less than 5,000 which is comparable to the provision found in North Carolina General Statutes § 160A-49(i) for towns of 5,000 or more) is a resolution of consideration. However, the Court stated that the procedure stated in subsection (i) is itself an option. The Court held that the first mandatory public procedural step common to both means of initiating involuntary annexation, North Carolina General Statutes § 160A-37(i) or (j), is the passing of a resolution of intent. Therefore, the Court determined the critical step in initiating an annexation proceeding under either subsection is the resolution of intent. Id., 320 N.C. at 93, 357 S.E.2d at 688.

The Hazelwood Court reasoned that North Carolina General Statutes § 160A-37 mandates a waiting period of at least one year before involuntary annexation may be completed, whether a municipality chooses to pass a resolution of consideration one year prior to its resolution of intent or whether it chooses simply to delay the effective date of the annexation ordinance for at least one year after passage of the resolution of intent. The statute does not require that involuntary annexation be initiated with a resolution of consideration; it does require a lengthy period of consideration preceding either the mandatory resolution of intent or the effective date of the annexation ordinance. Hazelwood, 320 N.C. 89, 357 S.E.2d 686.

The Hazelwood Court further noted that the resolution of consideration merely gives residents of the proposed area time within which to anticipate and adjust to the proposed annexation. It is only with the adoption of the resolution of intent that a municipality actually begins the annexation of a specific area.

In our determination of whether the resolution of intent or the resolution of consideration initiates an annexation proceeding pursuant to North Carolina General Statutes § 160A-48, we adopt the reasoning of the Hazelwood Court and find the resolution of intent initiated the involuntary annexation process. We affirm the trial court's ruling on this issue.

Petitioners' Second Assignment of Error

Petitioners contend with their second assignment of error that the trial court erred by finding and concluding that the annexation area met the requirements of the subdivision test of North Carolina General Statutes § 160A-48(c)(3). More specifically, petitioners argue that the trial court erred in finding and concluding that Study area # 7 consisted of twenty separate lots and that part of Study area # 7 was properly identified as industrial in use. We agree.

North Carolina General Statute § 160A-48(c)(3) states in pertinent part:

(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 meets any one of the following standards:

. . . . .

(3) Is so developed that at least sixty percent (60%) of the total number of lots and tracts in the area at the time of annexation are used for residential, commercial, industrial, institutional or governmental purposes, and is subdivided into lots and tracts such that at least sixty percent (60%) of the total acreage, not counting the acreage used at the time of annexation for commercial, industrial, governmental or institutional purposes, consists of lots and tracts five acres or less in size.

North Carolina General Statutes § 160A-48(c)(3).

Part of the property that respondent Asheville sought to annex was recorded on a plat showing a 90 acre tract as divided into subdivision lots in 1921 by Henry Yandey. This included the 36.22 acres that is now the Hicklin property, Study Area # 7.

The trial court made the following findings pertaining to the Hicklin property:

1. Prior to May 2, 1989, the Buncombe County tax records showed this Study Area # 7 to be approximately 20 separate tax lots or tracts all owned by W. C. Hicklin.

2. These lots or tracts are shown as separate lots or tracts on recorded plats recorded in the Buncombe County Register of Deeds in Plat Book 3 at Pages 21 and 21A and in Plat Book 198 at Page 226A and 226B.

3. On May 2, 1989, at the request of W. C. Hicklin, the Buncombe County tax office consolidated all of these old tax lots and tracts into a single lot or tract identified as Lot 48.

4. This Study Area contains 36.22 acres.

5. The size of that portion formerly known at [sic] Lot 46...