Shackelford v. City of Wilmington, COA96-1064

• Decision Date: 07 October 1997
• Docket Number: No. COA96-1064,COA96-1064
• Citation: 127 N.C.App. 449,490 S.E.2d 578
• Parties: Ronald E. SHACKELFORD, et al., Petitioners, v. CITY OF WILMINGTON, Respondent.
• Court: North Carolina Court of Appeals

Page 578

490 S.E.2d 578

127 N.C.App. 449

Ronald E. SHACKELFORD, et al., Petitioners, v. CITY OF WILMINGTON, Respondent.

No. COA96-1064.

Court of Appeals of North Carolina.

Oct. 7, 1997.

Shipman & Associates, L.L.P. by Gary K. Shipman and C. Wes Hodges, II, Wilmington, for petitioners.

Thomas C. Pollard, Wilmington, for respondent.

McGEE, Judge.

In this appeal, petitioners challenge the City of Wilmington's proposed annexation of certain property on the ground that the property was not sufficiently developed for urban purposes pursuant to N.C. Gen.Stat. § 160A-48(c)(3).

In September 1995, the City adopted a resolution approving a proposed annexation service plan (the Plan) including property owned by petitioners. The Plan was discussed at a public hearing in October 1995. In November 1995, the City amended the plan and enacted an annexation ordinance. Petitioners filed this action seeking judicial review of the annexation ordinance in superior court. The trial court subsequently allowed petitioners to file an amended petition and the City answered. The matter was heard during the 13 February 1996 special session of New Hanover County Superior Court, Judge Narley L. Cashwell presiding. On 10 April 1996, the trial court affirmed the annexation ordinance and denied petitioners' prayers for relief. Petitioners appeal.

Petitioners contend various tracts to be annexed are not sufficiently developed for urban purposes so as to qualify for annexation under G.S. § 160A-48(c)(3). G.S. § 160A-48(c)(3) provides, in pertinent part:

(c) Part of all of the area to be annexed must be developed for urban purposes. An area developed for urban purposes is defined as any area which meets any one of the following standards:

* * * * * *

(3) It 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-48(c)(3)(1994)(emphasis added). Pursuant to this statute, to qualify for annexation, an area must satisfy both

(1) the use test--that not less than 60 percent of the lots and tracts in the area must be in actual use, other than for agriculture, and (2) the subdivision test--not less than 60 percent of the acreage which is in residential use, if any, and is vacant must consist of lots and tracts of five acres or less in size.

Lithium Corp. v. Bessemer City, 261 N.C. 532, 538, 135 S.E.2d 574, 579 (1964). Some actual, minimum urbanization of a proposed annexation area is required for annexation. Thrash v. City of Asheville, 327 N.C. 251, 257, 393 S.E.2d 842, 846 (1990). In addition, N.C. Gen.Stat. § 160A-54 (1994) requires a municipality to "use methods calculated to provide reasonably accurate results" when determining the degree of subdivision under G.S. § 160A-48. Food Town Stores v. City of Salisbury, 300 N.C. 21, 26, 265 S.E.2d 123, 127 (1980). In an appeal from the adoption of an annexation ordinance, "[w]here ... 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." Asheville Industries, Inc. v. City of Asheville, 112 N.C.App. 713, 719, 436 S.E.2d 873, 876 (1993).

Petitioners specifically challenge the City's compliance with the subdivision test. First, they contend respondent incorrectly classified four tracts--the T.F. Holdings tract, the Division of Motor Vehicles (DMV) tract, the Airlie Gardens tract and the Duck Haven tract--as commercial or institutional/governmental and that these tracts should have been included in the total acreage calculation for determining compliance with the subdivision test. An area is improperly classified as to use if there is no evidence that the land is being used either directly or indirectly for the classified use. See R.R. v. Hook, 261 N.C. 517, 520, 135 S.E.2d 562, 565 (1964). "Where there has been no showing that the extent of industrial use was insignificant as compared to nonindustrial use, petitioner has failed to carry his burden to demonstrate a misclassification." Asheville Industries, Inc., 112 N.C.App. at 720-21, 436 S.E.2d at 877; see also Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C.App. 15, 20, 293 S.E.2d 240, 244 (stating "[t]here has been no showing [by petitioner] that the extent of industrial use was insignificant as compared to any nonindustrial use"), disc. review denied, 306 N.C. 559, 294 S.E.2d 371 (1982). Thus, here petitioners had the burden to show that the extent of the use assigned to each challenged tract by respondent was insignificant as compared to uses other than the assigned use. We address petitioners' contentions on this issue as to each tract.

T.F. Holdings tract

Petitioners contend the court erred in upholding the City's classification of the entire T.F. Holdings tract as commercial. They assert this tract should either have been split into a commercial area and a vacant area or classified in its entirety as vacant. We disagree. In support of its finding that the entire tract was being used for commercial purposes at the time of annexation, the trial court found the total tract was 13.76 acres of which 3.56 acres were occupied by a used car lot, repair shop and building and that the remaining 10.2 acres were wooded. The court further found that Webster Trask, a principal in T.F. Holdings, testified that the used car lot, repair shop and building were orally leased to persons but that the leases did not include the right to used the remaining portions of the tract. These findings show that approximately twenty-five percent of the tract was directly and actively being used for commercial purposes.

Petitioners assert this case is similar to R.R. v. Hook in which our Supreme Court held a 13.747 acre tract was improperly classified as industrial when one-tenth of the tract was used for parking while the remainder was vacant, unused land. See Hook, 261 N.C. at 520, 135 S.E.2d at 565. However, we find the twenty-five percent commercial use of the T.F. Holdings tract was much more substantial than the ten percent use at issue in Hook. We hold petitioners have failed to show that twenty-five percent usage of this tract was insignificant as compared to the noncommercial use applicable to the remainder of the tract and that the trial court did not err by upholding the City's classification of this entire tract as commercial.

DMV tract

Petitioners contend the trial court erred in upholding the City's classification of the entire DMV tract as institutional. We disagree. The trial court found the total tract was 15.8 acres of which 3.9 acres were occupied by a building and parking lot used by DMV and the Highway Patrol and that the tract was being used for institutional or governmental purposes at the time of annexation. The court also found there is a radio tower on the south edge of the parking lot and that the guide wires for this tower extend into the wooded area. As with the T.F. Holdings tract, approximately twenty-five percent of this tract was directly and actively being used for institutional purposes. In addition, as to this tract, some of the wooded land was being used for the radio tower guide wires. We hold petitioners have failed to show this institutional use was insignificant as compared to the use of the remaining portion of the tract and that the trial court did not err by finding this tract was used for institutional or governmental purposes.

Airlie Gardens tract

Petitioners contend the trial court erred by upholding the City's classification of the Airlie Gardens tract as commercial. We disagree. The trial court found the total tract was 73.5 acres consisting of gardens, ponds, wooded areas and open lawns with driveways winding throughout these areas and was owned by the Corbett Packaging Company. The court found that over the years the gardens have been open to the public upon payment of an admission fee for various lengths of time ranging from one and one-half months up to seven months of the year. The court found certain flowering plants are planted in the wooded area and that an irrigation system is located in the wooded area. The court found that Airlie Gardens distributed advertisements and brochures soliciting public visitation of the gardens and that the gardens are also available for...