Scovill Mfg. Co., Inc. v. Town of Wake Forest, 8110SC963
| Decision Date | 06 July 1982 |
| Docket Number | No. 8110SC963,8110SC963 |
| Court | North Carolina Court of Appeals |
| Parties | SCOVILL MANUFACTURING COMPANY, INC., Schrader Fluid Power Division, Haywood Barham, Betty L. Barham, Kenneth Cottrell, Shirley Cottrell, Clara Lee Davis, widow, Suzanne Mills Erskine, Wayne Erskine, John E. Finch, Rose S. Finch, William S. Fort, Sarah Fort, Betty J. Frankow, David M. Frankow, Mannie K. Jackson, Edward R. Jackson, Harvey M. Jones, Jr., Geraldine J. Jones, Wallace E. Looper, Carol H. Looper, John G. Mills, Jr., widower, John G. Mills, III, Joanna Mills, William R. Mims, Nancy F. Mims, A. K. Moore, Linda C. Moore, and Mae S. Withers, widow v. The TOWN OF WAKE FOREST, North Carolina, Thomas J. Byrne, Mayor and Member of the Board of Commissioners of the Town of Wake Forest, North Carolina, and Fred Chandley, John B. Cole, Mrs. Dessie Harper, Guy G. Hill and Miss Ailey Young, Members of the Board of Commissioners of the Town of Wake Forest, North Carolina. SCOVILL MANUFACTURING COMPANY, INC., Schrader-Bellows Division, Haywood Barham, Betty L. Barham, Kenneth Cottrell, Shirley Cottrell, Clara Lee Davis, widow, Suzanne Mills Erskine, Wayne Erskine, John E. Finch, Rose S. Finch, William S. Fort, Sarah Fort, Mannie K. Jackson, Edward R. Jackson, Harvey M. Jones, Jr., Geraldine J. Jones, Wallace E. Looper, Carol H. Looper, John G. Mills, Jr., widower, John G. Mills, III, Joanna Mills, William R. Mims, Nancy F. Mims, Fred S. Dickerson, Linda B. Dickerson, Gladys C. Dickerson, widow, Joseph Marion Harrison, Shirley D. Harrison, Carl Kearney, Lois Kearney, Evelyn R. Kearney v. The TOWN OF WAKE FOREST, North Carolina, Thomas J. Byrne, Mayor and Member of the Board of Commissioners of the Town of Wake Forest, North Carolina, and Fred Chandley, John B. Cole, Rufus H. Forrest, Guy G. Hill and Miss Ailey Young, Members of the Board of Commissioners of the Town of Wake Forest, North Carolina. |
Lake & Nelson by Broxie J. Nelson, Raleigh, for corporate petitioner-appellant.
Harris & Harris by Jane P. Harris, Wake Forest, for individual petitioners-appellants.
Ellis Nassif and Manning, Fulton & Skinner by Howard E. Manning and Howard E. Manning Jr., Raleigh, for respondents-appellees.
Where the record upon judicial review of an annexation proceeding demonstrates substantial compliance with statutory requirements by the municipality, the burden is placed on petitioners to show by competent evidence a failure to meet those requirements or an irregularity in the proceedings which resulted in material prejudice to their substantive rights. Dunn v. City of Charlotte, 284 N.C. 542, 201 S.E.2d 873 (1974). The findings of fact of the superior court are binding on appeal if supported by competent evidence, even though there is evidence to the contrary. Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979).
Our review of the annexation proceedings in the present case leads us to conclude that Wake Forest's report and ordinance show prima facie full compliance with the applicable statutes. The burden is now on petitioners to show otherwise or prove a procedural irregularity which materially prejudiced their substantive rights.
Petitioners first argue that the trial judge erred in finding that 9.03 acres of the area known as the "Carolina Power & Light Company [hereinafter referred to as CP&L] easement" are used for industrial purposes within the meaning of G.S. 160A-36(c). Although the easement is crossed by power lines, petitioners contend that since the area also is used for hunting and other similar activities, the land should be classified as woodlands and vacant area instead of designated as being in industrial use.
G.S. 160A-36(c) requires that the land proposed for annexation must be developed for "urban purposes," which is defined as an area that
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.
Both the "use" test and the "subdivision" test must be met before an area can be classified as urban. Lithium Corporation of America, Inc. v. Town of Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964). Petitioners allege that modification of the amount of land qualifying under the "use" test would result in an inability to meet the "subdivision" test, thus rendering the proposed annexation area ineligible for annexation.
The land in question consists of 12.32 acres, and the "CP&L easement" itself is 160 feet in width for its full length, running North to South, in the area to be annexed. The easement contains three separate electrical transmission lines and supporting structures, with pole lines carrying between 66,000 and 115,000 volts of electricity. CP&L patrols the easement three times a year by helicopter and once on foot. The entire tract is mowed with tractors and bush-hogs or on foot every three years unless more frequent servicing is necessitated. CP&L does not allow any activity on the easement which would interfere with the transmission lines or which would be subject to danger because of the lines. No structures such as houses or other buildings are allowed on the area covered by the easement. CP&L does permit certain activities on the land, such as hunting or golf, so long as they create no interference with its utilization of the easement or do not present a hazard.
We find no error in the trial judge's classification of the entire area comprising the "CP&L easement" as being in industrial use. Petitioners argue that strict construction of an annexation statute which is in derogation of a property right would require that the presence on the land of a concurrent activity which is not an eligible "use" for annexation purposes would necessarily bring about the reclassification of an otherwise qualified use. We do not agree.
Our Supreme Court has held that an area proposed for annexation is improperly classified as property in use for industrial purposes where there is no evidence that the land in question is being used either directly or indirectly for industrial purposes. Southern Railway Co. v. Hook, 261 N.C. 517, 135 S.E.2d 562 (1964). When compliance with the statutory requirements is in doubt, the determination of whether an area is used for a purpose qualifying it for annexation will depend upon the particular facts of each case. Cf. Lithium Corporation of America, Inc. v. Town of Bessemer City, supra (). Notwithstanding some rather ingenious arguments by petitioners, we find that the transmission of electrical power over this land by CP&L is an industrial activity for an urban use. We hold that when an area, such as in the present case, is used for an active industrial purpose, the land is properly classified as in industrial use within the meaning of the annexation statute. See Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21, 265 S.E.2d 123 (1980); Adams-Millis Corp. v. Town of Kernersville, 6 N.C.App. 78, 169 S.E.2d 496, cert. denied, 275 N.C. 681 (1969). Petitioners have made no showing that any portion of the land comprising the easement was not actually being used by CP&L for an industrial purpose. There has been no showing that the extent of industrial use was insignificant as compared to any nonindustrial use. As a result, petitioners have failed to carry their burden to demonstrate a misclassification of the land by respondents. Food Town Stores, Inc. v. City of Salisbury, supra. We find no merit in petitioners' argument that respondents are estopped to have the proposed annexation area upheld as industrial since Wake Forest previously classified and advertised the property as "institutional." Cf. Thompson v. City of Salisbury, 24 N.C.App. 616, 211 S.E.2d 856, cert. denied, 287 N.C. 264, 214 S.E.2d 437 (1975) (). This assignment of error is overruled.
Petitioners also argue that the proposed annexation area fails to meet the "subdivision" test of G.S. 160A-36(c). In holding that 65.05% of the residential and undeveloped lots in the area consisted of lots and tracts of five acres or less in size, the trial judge found that land owned by petitioner Cottrell was comprised of residential property, two lots containing less than five acres in the aggregate and four separate undeveloped tracts of five acres or less. Petitioners argue that the judge should have considered the Cottrell property as one tract of 9.5 acres because the land was purchased as a whole, is now used and regarded by the owners as a single entity, and is treated for tax purposes as an entire unit. We find no error.
The determination of what constitutes a lot or tract in making an appraisal of an area to be annexed can be reached by any method "calculated to provide reasonably accurate results." G.S. 160A-42. Cf. Adams-Millis Corp. v. Town of Kernersville, supra (). In the present case, testimony was presented that estimates of this land were based on recorded plats, tax maps and deeds, an aerial photograph, and personal observations of the land surveyor. See G.S. 160A-42(1) & (2). It appears from the evidence before us that the Cottrell property consists of six adjoining lots with a residence located on one lot and associated landscaping on another. The methods utilized by respondent in appraising this land for annexation--counting separate numbered lots as individual units and considering adjoining lots used for a single purpose as one...
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