Food Town Stores, Inc. v. City of Salisbury, 21

• Decision Date: 06 May 1980
• Docket Number: No. 21,21
• Parties: FOOD TOWN STORES, INC., Petitioner, v. CITY OF SALISBURY, Respondent. BRAD RAGAN, INC., Petitioner, v. CITY OF SALISBURY, Respondent. BRAD RAGAN REALTY COMPANY, Petitioner, v. CITY OF SALISBURY, Respondent. B. V. HEDRICK GRAVEL AND SAND COMPANY, Hedrick Realty and Investment Company, and 601 Industrial Development Corporation, Petitioners, v. CITY OF SALISBURY, Respondent.
• Court: North Carolina Supreme Court

Page 123

265 S.E.2d 123

300 N.C. 21

FOOD TOWN STORES, INC., Petitioner, v. CITY OF SALISBURY, Respondent.

BRAD RAGAN, INC., Petitioner, v. CITY OF SALISBURY, Respondent.

BRAD RAGAN REALTY COMPANY, Petitioner, v. CITY OF SALISBURY, Respondent.

B. V. HEDRICK GRAVEL AND SAND COMPANY, Hedrick Realty and

Investment Company, and 601 Industrial Development

Corporation, Petitioners, v. CITY OF SALISBURY, Respondent.

No. 21.

Supreme Court of North Carolina.

May 6, 1980.

Shuford & Caddell, Thomas M. Caddell and Dwight L. Crowell, III, Salisbury, for Food Town Stores, Inc., petitioner.

Clarence Kluttz and Malcolm B. Blankenship, Jr. of Kluttz & Hamlin, Salisbury, for Brad Ragan, Inc., Brad Ragan Realty Co., B. V. Hedrick Gravel and Sand Co., Hedrick Realty and Inv. Co., and 601 Indus. Development Corp., petitioners.

Margaret R. Short, City Atty., H. Michael Boyd of Constangy, Buckley & Boyd, Charlotte, for City of Salisbury, respondent.

HUSKINS, Justice:

In the review proceedings below, petitioners challenged the validity of an annexation ordinance adopted by the City of Salisbury on 27 June 1978 as the culmination of simultaneous annexation proceedings held pursuant to the terms of G.S. 160A-45, et seq. Only one of the two areas annexed, Area A, was the subject of the review proceeding.

On its face, the record of the annexation proceedings submitted by the City in Superior Court demonstrated substantial compliance with all applicable provisions of G.S. 160A-45, et seq. Thus, the burden was on petitioners, who appealed from the annexation ordinance, to show by competent evidence that the City in fact failed to meet the statutory requirements or that there was irregularity in the proceedings which materially prejudiced their substantive rights. In re Annexation Ordinance, 278 N.C. 641, 180 S.E.2d 851 (1971); Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681 (1961). See generally, G.S. 160A-50(f), (g).

Both petitioners and respondent bring forward numerous assignments of error which challenge the correctness of specific findings of fact and conclusions of law made by the trial court in the review proceedings below. On appeal, the findings of fact made below are binding on this Court if supported by the evidence, even though there be evidence to the contrary. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979); In re Annexation Ordinances, 253 N.C. 637, 117 S.E.2d 795 (1961). Conclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal. Harrelson v. Insurance Co., 272 N.C. 603, 158 S.E.2d 812 (1968).

G.S. 160A-54 provides that "(i)n determining population and degree of land subdivision for purposes of meeting the requirements of G.S. 160A-48, the municipality shall use methods calculated to provide reasonably accurate results." Petitioners contend the trial court erred in determining that the method used by the City to determine the number of lots in Area A for purposes of establishing compliance with the requirements of G.S. 160A-48 was calculated to provide reasonably accurate results.

The method utilized by the City in the instant proceedings is stated on the last page of the annexation report:

"The Rowan County tax and subdivision maps have been used to determine the number of lots and tracts as well as their acreage. There are several methods which can be used in determining what is a lot or tract in making an appraisal of an area to be annexed. The method used in this report considered a group of lots in single ownership and used for a single purpose as being a single tract and referenced by a single tax map parcel number. Where a single ownership tract was divided by a street right-of-way, the resulting division was counted as multiple tracts rather than one tract."

Petitioners object strenuously to this method because within the area to be annexed was a subdivision known as Milford Terrace which was formally subdivided into numerous lots which were 25 feet in width. Petitioners contend the City's method of lot calculation is unreasonable because it fails to follow the formal pattern of subdivision in Milford Terrace.

G.S. 160A-54 does not specify any particular method by which a municipality is to calculate the number of lots in the area to be annexed; rather, it requires that the method chosen be "calculated to provide reasonably accurate results." The reasonableness of the method chosen is to be determined in light of the particular circumstances presented by the annexation proceedings in question.

Review of the record in the instant case indicates that the actual development of the Milford Terrace area has proceeded without regard to the lot lines in the recorded subdivision plat. It is obvious that lots 25 feet in width cannot be developed individually but only in groups. In fact, deed restrictions for the Milford Terrace Housing Project require ownership of three lots before development can occur. Under these circumstances, it is eminently reasonable for the City to follow actual use and ownership patterns instead of artificial patterns of subdivision in determining the number of lots in the area to be annexed. Such method of lot counting was calculated to provide reasonably accurate results as required by G.S. 160A-54.

Petitioners argue that the City in past annexations has followed subdivision boundaries and that failure to do so in this case was arbitrary and capricious. This argument is without merit. Our previous discussion of G.S. 160A-54 indicates that a municipality is not tied to any particular method of calculating the number of lots so long as the method utilized is calculated to provide reasonably accurate results. The fact that different methods of lot calculation have been used by the City in past annexations is of no import where, as here, the record establishes that the method utilized in the annexation under scrutiny complies with the requirements of G.S. 160A-54. This assignment is overruled.

Petitioner Food Town contends the trial court erred in its finding of fact that Food Town's property was correctly counted as one lot or tract rather than separate lots or tracts. The parcels in question labeled A through D are contiguous and house Food Town's continually expanding office and warehouse operations. The property is in a triangle formed by Harrison Road and the Western North Carolina Railroad which converge upon the Highway 601-Bypass. The property is served by a spur railroad and by three natural gas lines. Of 68.51 usable acres, over twenty are under roof or pavement. An additional 8.5 acres behind the warehouse have been graded and filled for future expansion.

Petitioner Food Town argues that the above mentioned improvements are contained within parcels C and D; that parcels A and B are, in essence, unimproved and ought to be counted separately. Review of the record, however, indicates that parcels A and B are being actively used to support the industrial improvements housed within parcels C and D. Food Town has stipulated that a sediment basin and earthen dam was constructed in 1976 on parcel B in conjunction with construction and grading activities in parcels C and D. Food Town was required by erosion and sediment control laws to make these improvements on parcel B in order to carry out the construction on parcels C and D. See G.S. 113A-50, et seq.. The sediment basin in parcel B controls erosion on the rear portions of parcels C and D and protects nearby streams from sedimentation. "Said sediment basin has remained in existence since construction in 1976 and presently forms a part of Food Town's present plans for complying with applicable laws regarding erosion and sediment control." Trial Stipulations, No. 31 (filed 11 December 1978). Additionally, tract B has been the source of fill material needed for construction activities on tracts C and D. Employee parking facilities on tract C have been expanded onto tract A. A bank 15 to 20 feet in height is located at the "boundary" between parcels A and B and the warehouse on parcels C and D. The bank consists of fill used for construction activities on parcels C and D.

This constitutes sufficient evidence to support a finding that Food Town is using the entire tract as a single tract. Had Food Town not owned tracts A and B, its actual use and development of the remaining tracts would have been seriously impacted. It could not have constructed improvements and a 15-to-20-foot bank along the very edge of the old boundaries of tracts A and B. Off-site transportation of fill material would have been necessary. Compliance with environmental regulations would have been more difficult.

R. R. v. Hook, 261 N.C. 517, 135 S.E.2d 562 (1964), relied upon by petitioner, is factually distinguishable. In Hook, the 14-acre tract in question was not contiguous to the tract containing the primary industrial plant; rather, it was separated from this tract by a highway. Approximately one acre of this tract was used for employee parking, the remainder was graded and being held for possible industrial use. There was no evidence that the remaining acreage was "being used either directly or indirectly for industrial purposes. All of the evidence (tended) to show that it was not being used for any purpose." Id., 261 N.C. at 520, 135 S.E.2d at 565. Under these circumstances, the Court concluded that the tract in question could not be considered as one lot being used for industrial purposes; rather, the parking area had to be considered as an industrial lot and the remaining acreage as an unused lot. In the instant case the tracts in question are adjacent to the tracts containing the Food Town warehouse-office complex and are actively used to support and facilitate the industrial use of the adjacent tracts. Unlike Hook, the contiguous portions of the Food Town property are essential to the use of the entire tract for industrial purposes. Accordingly, we hold that the trial court did not err in...