Norwood v. Village of Sugar Mountain

• Decision Date: 21 October 2008
• Docket Number: No. COA07-1402.,COA07-1402.
• Citation: 667 S.E.2d 524
• Parties: Bettie NORWOOD; Melissa Y. Norwood; Norwood Family Limited Partnership; Sugar View Real Estate Investors, LLC; Manning Gambrell, and wife, Martha Gambrell; Donnie A. Iverson and wife, Cathy S. Iverson; and Kathleen J. Bunnells, Petitioners v. VILLAGE OF SUGAR MOUNTAIN, a North Carolina Municipality, Respondent.
• Court: North Carolina Court of Appeals

667 S.E.2d 524

Bettie NORWOOD; Melissa Y. Norwood; Norwood Family Limited Partnership; Sugar View Real Estate Investors, LLC; Manning Gambrell, and wife, Martha Gambrell; Donnie A. Iverson and wife, Cathy S. Iverson; and Kathleen J. Bunnells, Petitioners v. VILLAGE OF SUGAR MOUNTAIN, a North Carolina Municipality, Respondent.

No. COA07-1402.

Court of Appeals of North Carolina.

October 21, 2008.

Appeal by respondent from judgment entered 23 May 2007 by Judge James U. Downs in Avery County Superior Court. Heard in the Court of Appeals 14 May 2008.

David R. Paletta, Boone, for petitioner-appellees.

Doughton & Hart, PLLC, by Thomas J. Doughton and Amy L. Bossio, Winston-Salem, for respondent-appellant.

HUNTER, Judge.

The Village of Sugar Mountain ("the Village" or "respondent") appeals from a judgment declaring its proposed annexation ordinances to be unlawful, null, and void. After careful review, we reverse and remand.

I. Background

The Village is an incorporated municipality, with a population of less than 5,000, located in Avery County, North Carolina. The Village's original charter did not allow involuntary annexation. However, in 2000, the North Carolina Legislature amended the charter to permit the Village to involuntarily annex property.

On 23 August 2005, pursuant to its annexation power, the Village identified several areas for annexation by adopting a resolution of intent to annex. On the same date, the Village approved its Annexation Services Plan ("the original report"), which it was required to prepare pursuant to N.C. Gen. Stat. § 160A-35 (2007). The original report stated, inter alia, that the Village would provide the annexed properties with police protection, waste collection services, use of recreational facilities, and street maintenance. It also contained metes and bounds descriptions for the proposed annexation areas and a map indicating the Village's then-existing boundaries and the proposed annexation areas. On 24 August 2005, the Village displayed the original report and a list of affected property owners¹. N.C. Gen.Stat. § 160A-37(c) (2007). On 11 October 2005, it conducted a public informational meeting, and on 15 November 2005, it held a public hearing. On 20 December 2005, the Village adopted four ordinances which annexed property from four of the five areas included in the original report. Ordinance 122005A annexed Area 05-A, Ordinance 122005B annexed Area 05-C, Ordinance 122005C annexed Area 05-D, and Ordinance 122005D annexed Area 05-E.

Petitioners own real estate in the annexed areas and include: (1) Bettie Norwood, Melissa Y. Norwood, and the Norwood Family Limited Partnership (hereinafter collectively referred to as "the Norwood family") (Area 05-A); (2) Sugar View Real Estate Investors (Area 05-C); (3) Manning and Martha Gambrell (Area 05-D); (4) Donnie A. and Cathy S. Iverson (Area 05-D); and (5) Kathleen Bunnells (Area 05-E). On 1 February 2006, petitioners filed a Petition for Review of the Annexation Ordinances. After a hearing in superior court, the court entered a judgment holding, inter alia, that the proposed annexation ordinances were unlawful, null, and void. The Village appeals.

II. Analysis

A trial 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.

Hayes v. Town of Fairmont, 167 N.C.App. 522, 523-24, 605 S.E.2d 717, 718 (2004) (citing 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)), disc. review denied, 359 N.C. 410, 612 S.E.2d 320 (2005). [Where o]n its face the record of the annexation proceedings shows substantial compliance with every essential provision of the applicable [annexation] statutes, ... the burden is upon petitioners ... to show by competent evidence that [the municipality] 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. at 647, 180 S.E.2d at 855-56 (citation omitted). Respondent argues that the record of the annexation proceedings demonstrates its substantial compliance with the essential statutory provisions and that petitioners did not meet their burden of showing via competent evidence either that respondent failed to meet the statutory requirements as a matter of fact or an irregularity in the proceedings which materially prejudiced petitioners' substantive rights. Consequently, respondent asserts the trial court erred in declaring the annexation ordinances unlawful, null, and void. "`On appeal, the findings of fact made below are binding on this Court if supported by the evidence, even where there may be evidence to the contrary.' However, `conclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal.'" Briggs v. City of Asheville, 159 N.C.App. 558, 560, 583 S.E.2d 733, 735 (citations omitted), disc. review denied, 357 N.C. 657, 589 S.E.2d 886 (2003).

At the outset, we note that many of the trial court's supposed findings of fact are actually conclusions of law. In distinguishing between findings of fact and conclusions of law, "[a]s a general rule, ... any determination requiring the exercise of judgment or the application of legal principles is more properly classified a conclusion of law." In re Helms, 127 N.C.App. 505, 510, 491 S.E.2d 672, 675 (1997) (citations omitted). "[F]indings of fact [which] are essentially conclusions of law ... will be treated as such on appeal." Harris v. Harris, 51 N.C.App. 103, 107, 275 S.E.2d 273, 276 (citations omitted), disc. review denied, 303 N.C. 180, 280 S.E.2d 452 (1981); see also Charlotte v. Heath, 226 N.C. 750, 755, 40 S.E.2d 600, 604 (1946) ("[t]he label of fact put upon a conclusion of law will not defeat appellate review").

In addition, we note that the trial court's findings and conclusions as to the alleged statutory violations committed by respondent which led to the trial court's striking down of the these ordinances fall into two distinct categories: (1) those purported statutory violations that pertain to a specific petitioner's or petitioners' property, and (2) those that pertain to all of petitioners' respective properties. We address the former in section III and the latter in section IV below.

III. Violations Pertaining to Specific Properties

A. The Norwood Property: Area 05-A

Petitioner, the Norwood family, owns a tract of land consisting of approximately eighteen acres. Respondent annexed a one-acre tract, which was being used for commercial purposes, from this larger tract as part of Area 05-A. Respondent argues that the trial court erred in its findings of fact and conclusions of law that respondent: (1) did not properly identify the Norwood tract in its original report in violation of N.C. Gen.Stat. § 160A-35, and (2) did not "use recorded property lines and streets as boundaries" "[i]n fixing [the] new municipal boundaries" as to the one-acre tract in violation of N.C. Gen.Stat. § 160A-36(d) (2007). We agree.

At trial, petitioners essentially argued that the one-acre Norwood tract was left out of the original report because neither the tract nor the Norwood family were clearly identified on the Village's list of properties and property owners who might be affected by the annexation. However, N.C. Gen.Stat. § 160A-35 does not require such a list to be included in the original report. N.C. Gen. Stat. § 160A-35. Further, we note that the affected property owners' list that the Norwood family describes is actually mandated by N.C. Gen.Stat. § 160A-37(c). Petitioners waived all arguments pertaining to N.C. Gen. Stat. § 160A-37 at trial and specifically conceded that petitioners had notice that the Norwood family property was being considered for annexation. As such, to the extent that petitioners' argument involves a purported violation of N.C. Gen.Stat. § 160A-37's procedural requirements, these matters are not properly before us.

With regard to identifying proposed areas for annexation, N.C. Gen.Stat. § 160A-35 simply mandates that as part of the original report, the annexing entity must include "[a] map or maps of the municipality and adjacent territory" showing "[t]he present and proposed boundaries of the municipality." N.C. Gen.Stat. § 160A-35(1)(a). In looking at the evidence presented at trial and the applicable law, we do not believe that competent evidence exists to support the trial court's finding that the original report did not include the one-acre tract in violation of N.C. Gen.Stat. § 160A-35.

The map prepared by the Village as part of its original report clearly included the Norwood Family's one-acre tract which was ultimately annexed. In fact, Melissa Y. Norwood ("Ms. Norwood") admitted that the Norwood family's property, including "the piece of property [the Norwood family was] complaining about in this case," was clearly shown on both the 10 August and 23 August 2005 maps prepared by the Village, the latter of which was included in the original report.

Even assuming, arguendo, that the 23 August map included the larger eighteen-acre tract and did not specifically carve out and identify the one-acre tract, this is of no import under the applicable law so long as the one-acre tract which the Village annexed was clearly included in the highlighted area on the 23 August map. Our law is clear that an annexing municipality has the "authority to adopt an ordinance extending the corporate limits of the municipality to include all, or such part, of the area described in the notice of public...