Trask v. City of Wilmington, 825SC534
| Decision Date | 20 September 1983 |
| Docket Number | No. 825SC534,825SC534 |
| Citation | 64 N.C.App. 17,306 S.E.2d 832 |
| Parties | Alex M. TRASK, et al. v. CITY OF WILMINGTON, North Carolina; Benjamin B. Halterman; Margaret Fonvielle; Joseph Dunn; Luther Jordan; William Schwartz; Tony Pate; and Ralph W. Roper. |
| Court | North Carolina Court of Appeals |
Burney, Burney, Barefoot & Bain by Auley M. Crouch, III, and John J. Burney, Jr., Wilmington, for petitioners-appellants.
R. Michael Jones and Laura E. Crumpler, Wilmington, for respondents-appellees.
Petitioners assign as error the trial court's findings of fact and conclusions of law that the record of the annexation proceedings, specifically including the annexation report, demonstrates compliance with the applicable statutes governing annexation by municipalities with more than 5,000 persons. Our Supreme Court has held that the record of annexation proceedings must demonstrate prima facie "complete and substantial" compliance with the statutes as a condition precedent to the right to annex. In re Annexation Ordinance (Goldsboro) 296 N.C. 1, 249 S.E.2d 698 (1978).
Petitioners' assignments of error deal with both G.S. 160A-47 () and G.S. 160A-48 (). With regard to the annexation plan, petitioners first point out that the map of the proposed water and sewer extensions into the area to be annexed does not show the proposed Northeast Interceptor sewer line. Petitioners contend that a map showing proposed sewer interceptors is required in the annexation report, as a statutory prerequisite to annexation, and that the omission thereof is fatal to the ordinance. By failing to include such a map, petitioners contend, the respondents have not demonstrated the required level of compliance with the statute.
In pertinent part, the statute relied upon reads as follows:
A municipality exercising authority under this Part shall make plans for the extension of services to the area proposed to be annexed and shall, ... prepare a report setting forth such plans to provide services to such area. The report shall include:
(1) A map or maps of the municipality and adjacent territory to show the following information:
* * *
b. The present major trunk water mains and sewer interceptors and outfalls, and the proposed extensions of such mains and outfalls as required in subdivision (3) of this section.
* * *
(3) A statement setting forth the plans of the municipality for extending to the area to be annexed each major municipal service performed within the municipality at the time of annexation. Specifically, such plans shall:
* * *
b. Provide for extension of major trunk water mains and sewer outfall lines into the area to be annexed so that when such lines are constructed, property owners in the area to be annexed will be able to secure public water and sewer service according to the policies in effect in such municipality for extending water and sewer lines to individual lots or subdivisions.
Respondent concedes in its brief, as it did in the annexation report and at trial, that the map in question does not show the proposed Northeast Interceptor. Respondent contends, however, that the statute makes no such requirement.
We agree with respondent. G.S. 160A-47 specifically requires that certain items be shown on maps in the report. Among these items are presently existing sewer interceptors. Also required to be shown are presently existing and proposed water mains and sewer outfalls. Not included among those things required to be shown are proposed sewer interceptors. Therefore, the omission of the proposed Northeast Interceptor was neither a fatal failure of complete and substantial compliance with the statute nor a "slight irregularity" as respondent, and apparently the court, would characterize it. Rather it is simply a literal adherence to the requirements of the statute.
Petitioners nevertheless contend that the omission of the proposed interceptor is an error of such a character as to invalidate the annexation proceeding and the ordinance. Petitioners note the "central importance" of adequate water and sewer facilities to sound urban development. This importance, they contend, makes the complete and accurate inclusion on maps of all proposed facilities crucial to the general public's understanding of what is involved in a particular annexation. It is the policy of the state, in providing for municipal annexation, to promote "sound urban development" and in so doing to provide for the delivery of quality urban services to the developed area. G.S. 160A-45. We recognize the importance of adequate water and sewer facilities to the legislative end of sound urban development. The legislature has recognized the same and specifically required that certain present and proposed water and sewer facilities be shown in the report. That the legislature did not include proposed sewer interceptors among those certain facilities is a matter of legislative concern. We cannot infer from our reading of G.S. 160A-47 that proposed sewer interceptors must be included on the maps that accompany annexation reports.
Moreover, the report: (1) does mention and describe in detail the proposed Northeast Interceptor and its role in the proposed water and sewer extension; (2) includes the interceptor among those facilities legally required to be under construction within twelve months of annexation; and (3) makes available the detailed engineering maps and plans for the construction of the interceptor. The failure to include the interceptor on the small and considerably less detailed exhibit maps in the annexation report does not amount to an omission of such a character that petitioners can claim they were thereby denied access to information vital to their cause. Our Supreme Court has considered the sufficiency of annexation proceedings on several occasions and has held:
The central purpose behind our annexation procedure is to assure that, in return for the added financial burden of municipal taxation, the residents [of the area to be annexed] receive the benefits of all the major services available to municipal residents. [Citations.] The minimum requirements of the statute are that the city provide information which is necessary to allow the public and the courts to determine whether the municipality has committed itself to provide a non-discriminatory level of service and to allow a reviewing court to determine after the fact whether the municipality has timely provided such services.
In re Annexation Ordinance (Charlotte), 304 N.C. 549, 554, 284 S.E.2d 470, 474 (1981); see also Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980), reh. denied, 301 N.C. 728, 274 S.E.2d 230 (1981). Petitioners' contention in this regard is without merit.
Still challenging the city's level of compliance with G.S. 160A-47, petitioners next point out that the entire plan for providing sewer facilities to the area to be annexed depends on the construction by New Hanover County of the Northeast Interceptor. The interceptor, in turn, will only work if connected to the proposed Wrightsville Beach connector to be constructed by the town of Wrightsville Beach.
G.S. 160A-47, quoted above in pertinent part, specifically requires that the annexation report set forth plans by the city for providing water and sewer facilities to the area to be annexed. With respect to the annexing municipality's duty to provide urban services, our Supreme Court has said, "The performance of this duty may not be made to depend upon a doubtful contingency and may not be delegated to others so as to relieve the city of the duty." In re Annexation Ordinance (Jacksonville), 255 N.C. 633, 646, 122 S.E.2d 690, 700 (1961).
Petitioners argue that the plan for extending the required sewer services into the area to be annexed is dependent on a doubtful contingency and embodies a delegation of the city's duty to provide those services. Therefore, petitioners contend, the city has not met its burden of complete and substantial compliance with the requirements of G.S. 160A-47 and the annexation ordinance is, therefore, invalid.
Petitioners apparently contend that complete and substantial compliance with the statute requires...
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