Huyck Corp. v. Town of Wake Forest

• Decision Date: 02 June 1987
• Docket Number: No. 8610SC1088,8610SC1088
• Citation: 356 S.E.2d 599,86 N.C.App. 13
• Parties: HUYCK CORPORATION, et al. v. TOWN OF WAKE FOREST.
• Court: North Carolina Court of Appeals

Page 599

356 S.E.2d 599

86 N.C.App. 13

HUYCK CORPORATION, et al. v. TOWN OF WAKE FOREST.

No. 8610SC1088.

Court of Appeals of North Carolina.

June 2, 1987.

I. Beverly Lake and Jane P. Harris, Wake Forest, for petitioners-appellants.

Ellis Nassif and Manning, Fulton & Skinner by Howard E. Manning and Charles E. Nichols, Jr., Raleigh, for respondent-appellee.

MARTIN, Judge.

The petitioners contend that the annexation ordinance is invalid because the Town failed to comply with (1) the "coincidence of boundary" requirement of G.S. 160A-36(b)(2), (2) the "urban purposes" requirement of G.S. 160A-36(c), and (3) the "extension of services" requirements of G.S. 160A-35(3). In addition, petitioners argue that the ordinance must be held invalid due to the nonoccurrence of what they contend is a condition precedent to its validity. For the reasons stated, we affirm the judgment of the superior court upholding the annexation ordinance.

The scope of judicial review of an annexation ordinance adopted by the governing board of a municipality is prescribed and defined by statute. G.S. 160A-38(f) (Annexation by Cities of Less than 5,000); G.S. 160A-50(f) (Annexation by Cities of 5,000 or More). These statutes limit the court's inquiry to a determination of whether applicable annexation statutes have been substantially complied with. In re Annexation Ordinance (Winston-Salem), 303 N.C. 220, 278 S.E.2d 224 (1981). When the record submitted in superior court by the municipal corporation demonstrates, on its face, substantial compliance with the applicable annexation statutes, then the burden falls on the petitioners to show by competent and substantial evidence that the statutory requirements were in fact not met or that procedural irregularities occurred which materially prejudiced their substantive rights. Food Town Stores v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980).

In determining the validity of an annexation ordinance, the court's review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioners suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A-48 [G.S. 160A-36 with respect to annexation by cities with populations of less than 5,000]?

Trask v. City of Wilmington, 64 N.C.App. 17, 28, 306 S.E.2d 832, 838 (1983), disc. rev. denied, 310 N.C. 630, 315 S.E.2d 697 (1984). The findings of fact made by the trial court are binding on the appellate court if supported by competent evidence, even if there is evidence to the contrary; conclusions of law drawn from the findings of fact are, however, reviewable de novo. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E.2d 189 (1980); Food Town Stores v. City of Salisbury, supra.

In the present case, petitioners have stipulated that the Town complied with all of the procedural requirements of G.S. 160A, Article 4A, Part 2 (Annexation by Cities of Less than 5,000) in adopting the annexation ordinance. They contend, however, that the proposed annexation does not meet the requirements of G.S. 160A-36(b) and (c) with respect to the character of the area to be annexed, and that the Town's plan for extending police and fire protection to the area does not satisfy the requirements of G.S. 160A-35(3) a.

G.S. 160A-36(b)(1) and (2) provide:

(b) The total area to be annexed must meet the following standards:

(1) It must be adjacent or contiguous to the municipality's boundaries at the time the annexation proceeding is begun.

(2) At least one eighth of the aggregate external boundaries of the area must coincide with the municipal boundaries.

The term "contiguous area" means

any area which, at the time annexation procedures are initiated, either abuts directly on the municipal boundary or is separated from the municipal boundary by a street or street right-of-way, a creek or river, the right-of-way of a railroad or other public service corporation, lands owned by the municipality or some other political subdivision, or lands owned by the State of North Carolina.

G.S. 160A-41. The Southside Area Annexation Report and the annexation ordinance both recite that the annexation meets the one-eighth coincidence requirement of the statute in that the aggregate external boundary line of the total area to be annexed is 45,202.85 feet, of which 6,364.9 feet coincide with the existing Town boundary. Evidence at the hearing disclosed, however, that the distances contained in the report and ordinance had been incorrectly calculated by the surveyor employed by the Town. The actual aggregate external boundary of the total area to be annexed is 39,717.33 feet, of which 5,761.93 feet coincide with the existing Town boundary. The error in calculation is of no consequence because the corrected measurements yield a percentage of coincidence of 14.5%, clearly sufficient to meet the statutory requirement.

Petitioners argue, however, that the method used by the Town to meet the statutory requirement of coincidence was, in fact, a "sham and subterfuge" which was actually designed to evade the statutory standard. They argue that the Town's real objective in this annexation proceeding is the annexation of the "Forestville Area" which contains the industrial and commercial facilities of the four corporate petitioners and the residences of the individual petitioners. The "Forestville Area" is contiguous to the Town's pre-annexation southern boundary, but coincides with the Town's boundary for only 1,429.33 feet, an insufficient distance to meet the one-eighth coincidence requirement. Therefore, according to petitioner's argument, the Town included two additional areas, neither of which would independently meet the "urban purposes" requirement of G.S. 160A-36(c), within the proposed annexation area. The first of these areas is a strip of land 40 feet wide and 2005.08 feet in length comprising the eastern half of a Seaboard Coastline Railroad right-of-way. This strip is connected to the northeast corner of the "Forestville Area" and coincides with the existing Town boundary for 2005.8 feet, the western half of the railroad right-of-way having been previously annexed by the Town. The second area is an undeveloped wedge-shaped area of land at the northern end of the "railroad strip," which adjoins the southern boundary of the Town for a distance of 2,327.52 feet. It is connected to the "Forestville area" only by the "railroad strip". Together, the areas have sufficient coincidence of boundary with the existing Town boundary to satisfy the one-eighth requirement of G.S. 160A-36(b)(2). The Town Administrator and the Town Planner both acknowledged that at least one of the purposes of including these areas in the area proposed for annexation was to meet the statutory requirement for coincidence of boundary.

Petitioners urge that the inclusion of these two areas with the "Forestville area" in order to meet the coincidence of boundary requirement is contrary to the intent of the annexation statutes and is impermissible. Therefore, they contend that the superior court erred in finding and concluding that the Town had complied with G.S. 160A-36(b)(2).

Petitioners cite us to cases from other jurisdictions which disapprove of "gerrymandered" or "shoestring" annexation. See, e.g., Clark v. Holt, 218 Ark. 504, 237 S.W.2d 483 (1951); Ridings v. Owensboro, 383 S.W.2d 510 (Ky., 1964); Mount Pleasant v. Racine, 24 Wis.2d 41, 127 N.W.2d 757 (1964). However, those cases involve the use of narrow corridors of land to connect the proposed area for annexation to the municipality, resulting in a lack of contiguity. They are not applicable to the facts before us. In the present case, each of the three portions included in the proposed annexation area is contiguous to the existing Town boundary, and, by using the "railroad strip" as a connector, they are contiguous to each other. The connection of two portions of an annexation area through a "30-foot wide umbilical cord" has been implicitly held sufficient to be considered contiguous pursuant to G.S. 160A-36(b)(1). See Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90 (1980). Moreover, the entire area proposed for annexation must be viewed as a whole, rather than as various component portions into which petitioners have sought to divide it. When so viewed as an entire area, it is apparent that the Southside area is contiguous to the boundaries of the Town as they existed at the commencement of the annexation proceedings and that the required coincidence of boundaries exists. When these statutory requirements have been satisfied, the intent of the legislature with respect to the sufficiency of contiguity for annexation has been achieved. See Humphries v. City of Jacksonville, supra. Petitioners have failed to carry their burden to show noncompliance with G.S. 160A-36(b).

Petitioners next assign error to the superior court's finding that the area proposed for annexation complies with the "urban purposes" requirement contained in G.S. 160A-36(c). That section provides:

(c) The area to be annexed must be developed for urban purposes. An area developed for urban purposes is defined as 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 five acres or less in size.

G.S. 160A-36(c). The "urban purpose" requirement contains two tests for determining whether an area is suitable for annexation:

(1) the use test--that not less than 60% of the lots and tracts in the area must be in actual use, other than for agriculture, and

(2...