Thompson v. City of Salisbury

• Decision Date: 19 February 1975
• Docket Number: No. 7419SC944,7419SC944
• Citation: 211 S.E.2d 856,24 N.C.App. 616
• Parties: J. M. THOMPSON et al., Petitioners, v. The CITY OF SALISBURY, Respondent.
• Court: North Carolina Court of Appeals

Page 856

211 S.E.2d 856

24 N.C.App. 616

J. M. THOMPSON et al., Petitioners, v. The CITY OF SALISBURY, Respondent.

No. 7419SC944.

Court of Appeals of North Carolina.

Feb. 19, 1975.

Carlton, Rhodes & Thurston by Gary C. Rhodes, Salisbury, for petitioner-appellants.

James A. Hudson, Salisbury, and Larry Ford, Davis, Ford & Weinhold, Salisbury, for respondent-appellee.

ARNOLD, Judge.

When, on the face of the record, the City has substantially complied with the statutory requirements for annexation, the burden is on petitioners to show by competent evidence a failure to meet these requirements. Dunn v. City of Charlotte, 284 N.C. 542, 201 S.E.2d 873 (1974); In re Annexation Ordinance by City of New Bern, 278 N.C. 641, 180 S.E.2d 851 (1971). Upon a careful review of the record and the arguments of counsel, we have concluded that this burden has not been met.

Petitioners first contend that Area I does not meet the requirements of G.S. § 160--453.16(c) (now G.S. § 160A--36) that part of the area to be annexed be developed for urban purposes. Such an area is defined as one that:

'(3) Is so developed that at least sixty per cent (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.'

These criteria are known as the 'use' test and the 'subdivision' test. Lithium Corp. v. Bessemer City, 261 N.C. 532, 135 S.E.2d 574 (1964); Adams-Millis Corp. v. Town of Kernersville, 6 N.C.App. 78, 169 S.E.2d 496, cert. denied 275 N.C. 681 (1969). Both tests must be met.

The Official Annexation Report contains the following description of Area I:

                'Total number of lots and
                tracts                                   3,955
                Number of lots and tracts
                used for residential
                commercial, industrial, institutional
                and governmental purposes                2,587
                                                        ---------
                  (2587 / 3955)                          65.4%
                Total acreage, not used
                for commercial, industrial
                governmental, or institutional
                purposes                                 1,486.09
                Acreage, not used for
                commercial, industrial
                governmental or institutional
                purposes, consisting of
                lots and tracts five
                acres or less in size                     957.96
                                                        ---------
                  (957.96 / 1,486.09)                     64.5%'
                

Petitioners contend that the above figures are erroneous. They argue that 140 lots and tracts, comprising 205.65 acres, are presently in use as a privately-owned golf course and therefore are improperly classified as being in commercial use. Corrected 'use' figures allegedly would result in a failure to meet the 'subdivision' test.

The trial court found that these 140 lots and tracts are 'presently in 'commercial' use within the intents and purposes of G.S. 160--453.16(c)(3),' and that the acreage is 'in present use as one (1) integral commercial tract.' These findings of fact, to which petitioners have not excepted, will not be disturbed on appeal.

Moreover, we agree with the trial court that a golf course, open to the public and operated for profit, is used for a commercial purpose. Petitioners concede that the clubhouse area is being put to a commercial use but contend that the course itself is used for recreation. This argument is not persuasive. The clubhouse and fairways are a single entity. A commercial venture may involve recreation, for example, a football stadium, a race track, or a bowling alley. The fact that the acreage in question is zoned residential is not determinative of its use under the statute, particularly in light of petitioners' argument that none of it can be classified 'residential' because no habitable dwelling is on it. We hold that this acreage is properly classified as being used for a commercial purpose.

Petitioners also argue that the City improperly classified 225 vacant lots and tracts as being in residential use. These 225 lots or tracts are part of a platted subdivision and are in common ownership with lots and tracts upon which dwellings have been constructed. Petitioners contend however that, because they are vacant and have their own frontage, they are not in residential use. In Adams-Millis Corp. v. Town of Kernersville, Supra, 6 N.C.App. at 84, 169 S.E.2d at 501, holding that a lot need not contain a habitable dwelling in order to be classified as in residential use, this Court said, 'If A owned two lots, each having a 75-foot frontage, and he constructed his residence on one lot and landscaped the other with a pond, shrubbery, etc., surely it would be less than reasonable to classify the lot...