Thrash v. City of Asheville No. 9328SC637 (Filed 21 June 1994)
1. Municipal Corporations 121 (NCI4th)-- annexation --
challenge -- burden of proof
Where the record of annexation proceedings shows substantial
compliance with the requirements of Chapter 160A, the burden is
on petitioners to prove failure to meet those requirements or an
irregularity in the proceedings which materially prejudiced their
substantive rights.
Am Jur 2d, Municipal Corporations, Counties and Other
Political Subdivisions 70 et seq.
2. Municipal Corporations 49 (NCI4th)-- annexation -- notice
-- hearing continued without notice
The trial court did not err in an annexation challenge by
finding that the City had substantially complied with N.C.G.S.
160A-49 where the City gave proper notice of a public hearing;
the City Council met at 4:00 p.m. and conducted its regular
meeting; the meeting was recessed and continued until 7:00 p.m.,
the time scheduled for the public hearing; the public hearing was
held and the Council heard from several citizens; several members
of the Council did not return to the public hearing portion of
the meeting; and the Council voted to continue the public hearing
without further advertisement to the next regular Council
meeting. By the plain language of N.C.G.S. 160A-81, which
provides for a continuance if a quorum is not present, the
Council was within its authority to continue the public hearing
without further advertisement.
Am Jur 2d, Municipal Corporations, Counties and Other
Political Subdivisions 65 et seq.
3. Municipal Corporations 49 (NCI4th)-- annexation -- notice
-- certificate that notice mailed to all property owners --
substantial compliance
There was no procedural violation warranting remand of an
annexation ordinance where the materials delivered to the
superior court did not include a certificate that notice of the
public hearing was mailed to all property owners in the affected
area as required by N.C.G.S. 160A-49(b) but there was ample
evidence that the notices were mailed and no contention that the
property owners did not receive the notices. The irregularity of
including the certificate was so slight that it could not have
prejudiced petitioner and did not preclude a finding of
substantial compliance.
Am Jur 2d, Municipal Corporations, Counties and Other
Political Subdivisions 65 et seq.
4. Municipal Corporations 58 (NCI4th)-- annexation -- urban
use of annexed property -- time of calculation
The superior court did not err in an annexation challenge by
concluding that the City appropriately found that the area to be
annexed was developed for urban purposes where the finding was
not made on the date of annexation. There is no requirement in
Chapter 160A that the City review its tax maps or other sources
on the day the annexation ordinance is adopted in order to make
up-to-the-minute amendments of the annexation plan and, in this
case, the calculations related to urbanization were made shortly
before the ordinance was passed and were amended once to reflect
corrections which the City made after the initial adoption of the
annexation plan. Furthermore, the petitioner did not contend
that a last minute review of the lots in the annexed area would
have made any difference in the results.
Am Jur 2d, Municipal Corporations, Counties and Other
Political Subdivisions 66 et seq.
5. Municipal Corporations 77 (NCI4th)-- annexation --
contiguous boundary -- natural topographic features -- no
error
The petitioners challenging an annexation ordinance did not
establish error on the issues of contiguous boundaries and
whether the City followed natural topographic features and
streets where petitioners argued that the ordinance did not
contain the appropriate finding concerning contiguous boundaries,
but such a finding was present, and did not guide the Court of
Appeals to any portion of the record containing evidence in
support of the contention regarding topographic features or the
statistical calculations to prove that the proposed boundaries
comply with the urbanization requirements of N.C.G.S. 160A-48.
Am Jur 2d, Municipal Corporations, Counties and Other
Political Subdivisions 55 et seq.
6. Municipal Corporations 96 (NCI4th)-- annexation -- water
and sewer services -- FmHA funds
An annexation was not prohibited by the fact that the
annexed area consumes the majority of a water and sewer district
which recently constructed water and sewer facilities using funds
borrowed from the Farmers Home Administration. The statute
involved, 7 U.S.C. 1926(b), does not prohibit annexation of an
area served by an association such as this district; it merely
prohibits the annexing municipality from curtailing, limiting, or
otherwise interfering with the services provided by such an
association.
Am Jur 2d, Municipal Corporations, Counties and Other
Political Subdivisions 56 et seq.
NO. 9328SC637
NORTH CAROLINA COURT OF APPEALS
Filed: 21 June 1994
THOMAS L. THRASH and wife,
LORA R. THRASH, KEITH HERMAN
and wife, TERRY HERMAN, and
WILLARD HINTZ and wife,
ELIZABETH HINTZ,
Petitioners
v.Buncombe County
No. 91 CVS 174
CITY OF ASHEVILLE, a
municipal corporation,
Respondent,
BASF CORPORATION,
Petitioner,
v.Buncombe County
No. 91 CVS 189
CITY OF ASHEVILLE, a
municipal corporation,
Respondent.
Appeal by petitioners from judgment entered 15 December 1992
by Judge James U. Downs in Buncombe County Superior Court. Heard
in the Court of Appeals 10 March 1994.
This appeal arises from petitioners' challenge to an
annexation ordinance adopted by the City of Asheville (the City) on
18 December 1990. Petitioners initiated review proceedings in the
superior court pursuant to N.C. Gen. Stat. 160A-50(a) (1987) and
argued that the City did not comply with all the requirements for
annexation found in Chapter 160A of the General Statutes. The
superior court determined that the City substantially complied with
the requirements of Chapter 160A and entered judgment for the City.
--
From this judgment petitioners appeal.
Adams, Hendon, Carson, Crow & Saenger P.A., by S.J. Crow
and Martin Reidinger, for petitioner appellants Thrash,
et al.
Moore & Van Allen, by Douglas R. Ghidina, for petitioner
appellant BASF Corp.
Nesbitt & Slawter, by William F. Slawter and Sarah
Patterson Brison, for respondent appellee.
ARNOLD, Chief Judge.
[1] Where the record of the annexation proceedings shows
substantial compliance with the requirements of Chapter 160A, the
burden is on petitioners to prove failure to meet those
requirements or an irregularity in the proceedings which materially
prejudiced their substantive rights. Scovill Mfg. Co. v. Town of
Wake Forest, 58 N.C. App. 15, 17-18, 293 S.E.2d 240, 243, disc.
review denied, 306 N.C. 559, 294 S.E.2d 371 (1982). Despite
petitioner BASF's commendable effort to convince us that the burden
never shifted to petitioners, our review of the record reveals
substantial compliance with Chapter 160A, and therefore the burden
was on petitioners to prove noncompliance or a procedural
irregularity and resulting prejudice.
[2] Petitioners contend that the superior court erred in
finding that the City substantially complied with several of the
procedural requirements of Chapter 160A. First, petitioners
contend that the City did not comply with N.C. Gen. Stat. 160A-49
(1987) which sets out specific requirements for the time and manner
in which the City must give notice of the public hearing on the
proposed annexation. The City gave proper notice of a public
hearing held on 13 November 1990. On that date, the City Council
(the Council) met at 4:00 p.m. and conducted its regular meeting.
It then recessed the meeting and continued it until 7:00 p.m., the
time scheduled for the public hearing. At the reconvened meeting
the public hearing was conducted and the Council heard from several
citizens. Although they had not been excused, several members of
the Council did not return to the public hearing portion of the
meeting. Therefore, at the conclusion of the public hearing the
Council voted to continue the public hearing without further
advertisement to the next regular Council meeting on 27 November
1990. Petitioners argue that the Council could not continue the
public hearing without repeating the notice requirements in G.S.
160A-49. We disagree.
G.S. 160A-81 governs the conduct of public hearings before
city councils. Aside from establishing the city council's power to
control the conduct of hearings generally, this section provides
that "[t]he council may continue any public hearing without further
advertisement. If a public hearing is set for a given date and a
quorum of the council is not then present, the hearing shall be
continued until the next regular council meeting without further
advertisement." By this section's plain language the Council was
within its authority to continue the public hearing without further
advertisement, and accordingly, the Council's action does not
foreclose a finding of substantial compliance with Chapter 160A.
We are not persuaded by petitioners' arguments that G.S. 160A-81
is applicable only to public hearings not concerning annexation.
Nothing in G.S. 160A-81 indicates that its application should be
so limited, and we decline to read such a limitation into it.
Petitioner's remaining arguments on this issue are also not
persuasive, and we therefore reject them.
[3] Petitioner BASF argues that the City failed to comply with
G.S. 160A-50(c), which provides that within 15 days of receiving
a copy of the petition for review of the annexation ordinance the
City must deliver to the superior court "(1) [a] transcript of the
portions of the municipal journal or minute book in which the
procedure for annexation has been set forth and (2) [a] copy of the
report setting forth the plans for extending services to the
annexed area as required in G.S. 160A-47." Petitioner argues
that the materials delivered to the court are incomplete because
they do not include a certificate that notice of the public hearing
was mailed to all the property owners in the affected area as
required by G.S. 160A-49(b). G.S. 160A-49(b) provides that the
"person or persons mailing such notices shall certify to the
governing board that fact, and such certificate shall become a part
of the record of the annexation proceeding and shall be deemed
conclusive in the absence of fraud." Because the certificate
becomes part of the record, petitioner argues, its absence from the
materials delivered to the superior court constitutes a procedural
violation warranting remand of the ordinance.
Petitioner does not contend that the City failed to mail the
notices, and there was ample evidence before the court in the form
of an affidavit and testimony showing that the notices were
actually mailed to all affected property owners. Because the
notices were mailed and there is no contention that the property
owners did not receive the mailed notices, this irregularity was so
slight that it could not have prejudiced petitioner, and it does
not require remand of the ordinance. See In re Annexation
Ordinance, 278 N.C. 641, 180 S.E.2d 851 (1971) (Slight
irregularities will not invalidate annexation.).
We note that petitioner uses the certificate's absence from
the record as support for its argument that the burden of proof did
not shift to petitioners. Petitioner argues that there cannot be
substantial compliance with the statute when a document required by
the statute is omitted from the record. Petitioner then argues
that because there was not substantial compliance, petitioner does
not have to show it was prejudiced by the omission. This minor
omission, however, does not preclude a finding of substantial
compliance. See In re Annexation Ordinance, 278 N.C. 641, 180
S.E.2d 851 (finding prima facie substantial compliance when the
city, at the public hearing, failed to comply with the statutory
requirement of explaining the plan to extend services to the
annexed area).
[4] Petitioners in 91 CVS 174 (Thrash) next argue that the
superior court erred in concluding that the City made the
appropriate findings required by G.S. 160A-49(e) showing that the
annexed area was qualified under G.S. 160A-48 for annexation.
G.S. 160A-48 sets the standards that must be met before an area
may be annexed:
(1) It must be adjacent or contiguous to the
municipality's boundaries at the time the
annexation proceeding is begun.
(2) At least one eighth of the aggregate
external boundaries of the area must
coincide with the municipal boundary.
(3) No part of the area shall be included
within the boundary of another
incorporated municipality.
In addition, the area to be annexed must be developed for urban
purposes. G.S. 160A-48(c)(3) provides that an area is developed
for urban purposes if it meets the following standard:
[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.
When all the requirements for annexation are met, the governing
body may adopt an annexation ordinance. The annexation ordinance
must contain "specific findings showing that the area to be annexed
meets the requirements of G.S. 160A-48." G.S. 160A-49(e)(1).
Petitioner Thrash contends that the City's ordinance does not
contain sufficient findings in several categories.
Petitioner first takes issue with the urbanization findings.
Petitioner acknowledges that the City made findings with respect to
urbanization, but he claims that because the findings were not made
on the date of annexation they do not comply with Chapter 160A. We
disagree. We do not find a requirement in Chapter 160A that the
City review its tax maps or other sources on the day the annexation
ordinance is adopted in order to make up-to-the-minute amendments
of the annexation plan. In this case, the calculations related to
urbanization were made shortly before the ordinance was passed, and
they were amended once to reflect corrections which the City made
after the initial adoption of the annexation plan. The City even
made findings with respect to property exchanges which some
individuals made in an effort to thwart the annexation after the
annexation plan was adopted. Even with these amendments the
findings in the ordinance showed that the annexed area met the
statutory standard for urbanization. Furthermore, petitioner does
not contend that a last minute review of the lots in the annexed
area would have made any difference in the results.
[5] Next petitioner argues that the ordinance does not contain
a finding that one eighth of the annexed area's boundary is
contiguous to the existing municipal boundary as required by G.S.
160A-48(e). On the same page with the findings petitioner refers
to above, however, we discovered the following finding in paragraph
(1) of the "Statement of Statutory Standards":
The area is contiguous as defined in N.C. Gen.
Stat. Sec. 160A-53 in that at least one-eighth
of the aggregate boundary coincides with the
present City of Asheville boundary. . . .
[O]n October 9, 1990, the aggregate external
boundary line of the area to be annexed was
approximately 49,020 feet, of which
approximately 7,000 feet or 14.3 percent
coincided with the present City of Asheville
boundary. Taking into consideration boundary
changes to the annexation area made by the
City of Asheville after the initial adoption
of the Plan, the aggregate external boundary
of the area to be annexed is approximately
51,830 feet, of which approximately 7,000 feet
or 13.5 percent coincides with the present
City of Asheville boundary.
Simple division reveals that 7000 feet is greater than one eighth
of the annexed area's total boundary. Petitioner does not
acknowledge these figures and therefore does not dispute their
accuracy. The finding of contiguousness could not be plainer.
Petitioner Thrash further argues that the trial court erred in
finding that the City followed natural topographic features and
streets wherever practical in defining the boundaries of the
annexed area. Petitioner describes six areas which he contends do
not comply with the statute and argues that alternative boundaries
should have been used. He does not, however, guide us to any
portion of the record containing evidence in support of his
contention, nor does he provide the statistical calculations to
prove that his proposed boundaries comply with the urbanization
requirements of G.S. 160A-48. We conclude that petitioner did
not meet his burden of establishing error on this issue.
[6] Finally, petitioner Thrash argues that this annexation was
prohibited by 7 U.S.C. 1926(b) (1988). The annexed area consumes
the majority of the Enka Candler Water and Sewer District (ECWSD),
which recently constructed water and sewer facilities using funds
borrowed from the Farmers Home Administration (FmHA). 7 U.S.C.
1926(b) provides that the service provided by an association such
as ECWSD
shall not be curtailed or limited by inclusion
of the area served by such association within
the boundaries of any municipal corporation or
other public body . . . nor shall the
happening of any such event be the basis of
requiring such association to secure any
franchise, license, or permit as a condition
to continuing to serve the area served by the
association at the time of the occurrence of
such event.
This issue does not appear to be within the scope of review of an
annexation ordinance under G.S. 160A-50, but we will consider it
nonetheless.
Petitioner argues that annexation is absolutely prohibited by
7 U.S.C. 1926(b); he does not offer proof that the annexation
will actually curtail or limit ECWSD's service. We believe that
7 U.S.C. 1926(b) does not prohibit annexation of an area served
by an "association" such as ECWSD; it merely prohibits the annexing
municipality from curtailing, limiting, or otherwise interfering
with the services provided by such an association.
A reading of the plain language in the statute reveals that
the statute actually contemplates the annexation of an area served
by an "association." The statute first provides that service may
not be curtailed by inclusion of the area within municipal limits,
but it continues to state that "nor shall the happening of any such
event [referring to the inclusion of that area within municipal
boundaries] be the basis of requiring such association to secure
any franchise, license, or permit as a condition to continuing to
serve the area served by the association at the time of the
occurrence of such event." 7 U.S.C. 1926(b) (emphasis added).
Obviously the statute does not intend to prohibit annexation in one
sentence and provide for its occurrence in the next. Reading the
statute as a whole reveals its true intent -- to prevent
curtailment or limitation of service by events which might follow
annexation.
Further support is found in the legislative history of
1926(b) which provides in part: "A new provision has been added
to assist in protecting the territory served by such an association
facility against competitive facilities, which might otherwise be
developed with the expansion of the boundaries of municipal and
other public bodies into an area served by the rural system." 1961
U.S.C.C.A.N. 2243, 2309. The history further provides that this
statute "[p]rohibits curtailment of a water association borrower's
service as a result of inclusion of its service area within the
boundaries of any public body or as the result of the granting of
any private franchise for similar service in such area." Id. at
2305. From this language it is clear that Congress was aware that
cities, due to growth needs, may annex certain areas served by FmHA
borrowers. The statute was designed to protect "associations" from
competitive facilities which might follow annexation, not from
annexation itself. See Pinehurst Enters. v. Town of Southern
Pines, 690 F. Supp. 444 (M.D.N.C. 1988), aff'd, 887 F.2d 1080 (4th
Cir. 1989). Obviously then the statute permits annexation of the
area served by ECWSD.
The superior court's order is affirmed.
Affirmed.
Judges COZORT and LEWIS concur.