Hayes v. Town of Fairmont

• Decision Date: 21 December 2004
• Docket Number: No. COA03-1562.,COA03-1562.
• Citation: 167 NC App. 522,605 S.E.2d 717
• Court: North Carolina Court of Appeals
• Parties: William A. HAYES, Lanness K. McKee and wife, Ann McKee, Jimmy Smith and wife, Ruby Smith, Jo Ann Smith, Amy Smith, Sam Tedder and wife, Ann Tedder, Fran J. Coleman, Robert Capps and wife, Beverly Capps, Thomas Lewis and wife, Shirley Lewis, C.M. Ivey and wife, Gladys Ivey, Allen Fowler, III, Robert Floyd, III and wife, Beth Floyd, Barbara Smith, Charles Callahan, A.B. Stubbs and wife, Rebecca Stubbs, Fairmont Golf Club, Inc., Petitioners, v. TOWN OF FAIRMONT, Respondent.

605 S.E.2d 717

167 NC App. 522

William A. HAYES, Lanness K. McKee and wife, Ann McKee, Jimmy Smith and wife, Ruby Smith, Jo Ann Smith, Amy Smith, Sam Tedder and wife, Ann Tedder, Fran J. Coleman, Robert Capps and wife, Beverly Capps, Thomas Lewis and wife, Shirley Lewis, C.M. Ivey and wife, Gladys Ivey, Allen Fowler, III, Robert Floyd, III and wife, Beth Floyd, Barbara Smith, Charles Callahan, A.B. Stubbs and wife, Rebecca Stubbs, Fairmont Golf Club, Inc., Petitioners, v. TOWN OF FAIRMONT, Respondent.

No. COA03-1562.

Court of Appeals of North Carolina.

December 21, 2004.

C. Wes Hodges, II, P.L.L.C., by C. Wes Hodges, II, Wilmington, for petitioner-appellants.

Charles E. Floyd, Fairmont, for respondent-appellee. THORNBURG, Judge.

This is an appeal brought pursuant to N.C. Gen.Stat. § 160A-38 (2003) for judicial review of an ordinance of the Town of Fairmont ("Town") to annex into its corporate limits the Golf Course Road area.

The facts pertinent to this appeal are as follows: The Town Council of Fairmont, a municipal corporation with a population of less than 5,000, identified an area known as the Golf Course Road area for annexation by adopting a resolution of intent to annex on 13 July 2000. A public hearing on the matter was conducted on 15 August 2000.

The Town adopted an ordinance annexing the Golf Course Road area on 10 October 2000. The annexation ordinance incorporated a specific finding that the annexation area met the use and subdivision tests of N.C. Gen.Stat. § 160A-36 (2003). The annexation ordinance established an effective date of 31 October 2001. On 8 December 2000, petitioners filed their petition challenging the action of the Town in adopting its annexation ordinance.

Petitioners specifically challenged the classifications assigned by the Town to three plots within the annexation area: the Fowler lots, the Brice lots and the Fairmont Golf Club parcel. The trial court first concluded that the statutory procedures and requirements of N.C. Gen.Stat. § 160A-35 had been met. The trial court further concluded: (1) that the Fowler lots were inappropriately classified as three residential lots, and instead were only one common residential lot; (2) that the Brice lots were appropriately classified as two lots, one residential and one vacant; and (3) that 26.44 acres of the Fairmont Golf Club parcel were incorrectly classified as commercial and, instead, 19.44 acres should have been classified as vacant and 7 acres as governmental or institutional. Despite the errors in classification, the trial court concluded that the area proposed for annexation met the statutory requirements of N.C. Gen.Stat. § 160A-36 and affirmed without change the Town's annexation ordinance. Petitioners appeal from this judgment.

Petitioners argue on appeal: (1) that the trial court erred in concluding that the Brice lots were two separate lots three acres or less in size; (2) that the trial court erred in concluding that seven acres of the Fairmont Golf Club parcel should have been classified as governmental or institutional; and (3) that due to these errors, the trial court erred in concluding that the Golf Course Road area met the requirements of N.C. Gen.Stat. § 160A-36.

The superior court's review of an annexation ordinance is limited to deciding (1) whether the annexing municipality complied with the statutory procedures; (2) if not, whether the petitioners will suffer material injury as a result of any alleged procedural irregularities; and (3) whether the area to be annexed meets the applicable statutory requirements. In re Annexation Ordinance, 278 N.C. 641, 647, 180 S.E.2d 851, 855 (1971); Trask v. City of Wilmington, 64 N.C.App. 17, 28, 306 S.E.2d 832, 838 (1983),disc. review denied, 310 N.C. 630, 315 S.E.2d 697 (1984); N.C. Gen.Stat. § 160A-38 (2003). Where the annexation proceedings show prima facie that the municipality has substantially complied with the requirements and provisions of the annexation statutes, the burden shifts to the petitioners to show by competent evidence a failure on the part of the municipality to comply with the statutory requirements or an irregularity in the proceedings that materially prejudices the substantive rights of the petitioners. In re Annexation Ordinance, 278 N.C. at 647, 180 S.E.2d at 855-56.

I.

Petitioners contend that the trial court erred by finding and concluding that the Brice lots were in fact two separate lots, thus causing inaccurate results in the subdivision test for purposes of meeting the requirements of N.C. Gen.Stat. § 160A-36. We disagree.

N.C. Gen.Stat. § 160A-36(c) states in pertinent part:

The area to be annexed must be developed for urban purposes at the time of approval of the report provided for in G.S. 160A-35.... An area developed for urban purposes is defined as:

(1) Any area which 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 three acres or less in size.

N.C. Gen.Stat. § 160A-36(c)(1) (2003).

The Town found the Brice property to be comprised of two lots, described as 1.90 acres more or less and 2.68 acres more or less, by relying on a plat recorded in Book of Maps 36, page 148, Robeson County Registry on 15 February 1999. The trial court made the following findings regarding the Brice property:

13. Petitioners contend Respondent erred in its classification of the lands owned by L.B. Brice and wife, Mildred Brice as two separate lots three acres or less in size. Petitioners contend these lands should have been classified as one lot of 4.59 acres.

14. Said Brice lands are more particularly described according to a map entitled "Boundary Survey and Proposed Division for Bridget B. Bass" by Phillip B. Culbreth, R.L.S. dated 19 December 1998 and filed in Map Book 36, page 148, Robeson County Register of Deeds. Said map is Petitioners Exhibit 20.

15. Said recorded map shows three lots; Lot 1 being 1.90 acres, more or less; Lot 2 being 2.68 acres, more or less; and Lot 3 being 0.73 acre, more or less.

16. Said recorded map contains certifications by the Robeson County Health Officer, the owners, L.B. and Mildred Brice, the Mayor of the Town of Fairmont, the Chairman of the Fairmont Planning Board, the surveyor and the Robeson County Review Officer that said map creates a subdivision and meets the Town and County subdivision requirements.

17. Lot 3 on said recorded map was conveyed to Bridgett Brice Bass by deed dated February 25, 1999 and recorded in Deed Book 1046, page 802.

18. Lots 1 and 2 on said recorded map are treated as one parcel of 4.59 acres owned by L.B. and Mildred Bass by the Robeson County Tax Office and have one tax parcel identification number.

19. Said recorded map is a subdivision of the Brice tract into two tracts as shown on said recorded map as Lot 1, 1.90 acres, more or less, and Lot 2, 2.68 acres, more or less, each 3 acres or less in size and were properly so classified by Respondent at the time of annexation.

We note that finding number 19 is more properly a conclusion of law and thus will be treated as such. See In re Weiler, 158 N.C.App. 473, 478-79, 581 S.E.2d 134, 137 (2003). Findings of fact made below are binding on the appellate court if supported by the evidence, even where there may be evidence to the contrary. Humphries v. City of Jacksonville, 300 N.C. 186, 187, 265 S.E.2d 189, 190 (1980).

Where an appeal is taken from adoption of an ordinance and the proceedings show prima facie that there has been substantial compliance with the statute, the burden is on the petitioners challenging the ordinance to show competent evidence that the city in fact failed to meet the statutory requirements. In re Annexation Ordinance, 278 N.C. at 647, 180 S.E.2d at 855-56. N.C. Gen.Stat. § 160A-42 (2003) provides that municipalities must "use methods calculated to provide reasonably accurate results" in determining the degree of land subdivision for purposes of meeting the requirements of N.C. Gen.Stat. § 160A-36. In reviewing whether the standards of N.C. Gen.Stat. § 160A-36 have been met, the court must accept the estimate made by the municipality as to the degree of land subdivision:

[I]f the estimates are based on an actual survey, or on county tax maps or records, or on aerial photographs, or on some other reasonably reliable source, unless the petitioners on appeal show that such estimates are in error in the amount of five percent (5%) or more.

N.C. Gen.Stat. § 160A-42(2) (2003).

In addition, the North Carolina Supreme Court in Thrash v. City of Asheville, 327 N.C. 251, 393 S.E.2d 842 (1990), held that the accuracy of a subdivision test must reflect actual urbanization of the proposed area, not just reliance on some artificial means of making an annexation appear urbanized. Id. at 257, 393 S.E.2d at 846.

In the instant case, the Town relied upon an actual survey prepared by the Brices when they subdivided their lot into three lots and conveyed one of the newly created lots to Bridget Brice Bass. The burden was on the petitioners to show that the use of this survey caused the Town to miscalculate the actual percentage of subdivision. Petitioners argue that the remaining two lots of the Brice property should be treated as one lot for classification purposes. Multiple lots are properly treated as a single tract for the purposes of classification where the several lots are under common ownership and are used for a common purpose. Food Town Stores v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980); Arquilla v. City of Salisbury, 136 N.C.App. 24, 523 S.E.2d 155 (1999), disc. review denied, 351...