Editor’s Note.

Session Laws 1983, c. 636, which amended this section, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: “The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections.”

Section 38 of Session Laws 1983, c. 636 provided: “This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25.”

The act was ratified June 29, 1983.

Legal Periodicals.

For note, “Tax Increment Financing in North Carolina: The Myth of the Countermajoritarian Difficulty,” see 83 N.C. L. Rev. 1526 (2005).

For article, “Do North Carolina Governments Need Home Rule,” see 84 N.C. L. Rev. 1983 (2006).

For article, “Democracy in Rural America,” see 98 N. C.L. Rev. 837 (2020).

CASE NOTES

Constitutionality. —

See In re Annexation Ordinance, 62 N.C. App. 588, 303 S.E.2d 380, 1983 N.C. App. LEXIS 2990 (1983).

Enactment Held a “Local Act”. —

Under this Chapter, Session Laws 1967, c. 506, which permits the City of Durham to employ the “quick-take” condemnation procedure provided by Article 9 of Chapter 136 of the General Statutes, is a local act and a part of the charter of the City of Durham. City of Durham v. Manson, 285 N.C. 741 , 208 S.E.2d 662, 1974 N.C. LEXIS 1133 (1974).

Session Laws 1967, c. 506, relating to municipal eminent domain procedures, is a legislative act which applies specifically to Durham by name, and is, therefore, a “local act” as that term is defined in subdivision (5) of this section, and as such it is subject to the applicable provisions of this Chapter. City of Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41, 1974 N.C. App. LEXIS 1748 , modified, 285 N.C. 741 , 208 S.E.2d 662, 1974 N.C. LEXIS 1133 (1974).

Time Limitations. —

Landowner’s challenges to zoning ordinance amendments were time-barred under the two-month limitations period of G.S. 160A-364.1; even if an amendment was adopted inconsistent with the notice requirements of G.S. ch. 160A, an action which attacked the validity of the amendment but was commenced in more time than the statutory period from the adoption of the amendment was barred. Templeton v. Town of Boone, 208 N.C. App. 50, 701 S.E.2d 709, 2010 N.C. App. LEXIS 2079 (2010).

Housing authority provided a governmental function and was entitled to rely on doctrine of governmental immunity as it related to a personal injury suit brought against it; G.S. 160A-485(a) did not control whether or not the housing authority had legal capacity to waive its immunity by buying insurance, but authority could have accepted liability to the extent of insurance purchased, and the case was therefore remanded since the appellate court was unable to discern whether the trial court’s denial of the housing authority’s motion to dismiss was premised upon the housing authority’s insurance coverage. Evans v. Hous. Auth., 359 N.C. 50 , 602 S.E.2d 668, 2004 N.C. LEXIS 1125 (2004).

CASE NOTES

Specific legislative intent of this Chapter was not to repeal local acts by implication, but to save them. City of Durham v. Manson, 285 N.C. 741 , 208 S.E.2d 662, 1974 N.C. LEXIS 1133 (1974).

It was the express intent of the legislature to retain local acts unless otherwise specifically indicated. City of Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41, 1974 N.C. App. LEXIS 1748 , modified, 285 N.C. 741 , 208 S.E.2d 662, 1974 N.C. LEXIS 1133 (1974).

This section manifests the legislative concern that certain prior laws should be preserved. City of Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41, 1974 N.C. App. LEXIS 1748 , modified, 285 N.C. 741 , 208 S.E.2d 662, 1974 N.C. LEXIS 1133 (1974).

This section is made more meaningful by reference to G.S. 160A-1 , wherein the definitions of “charter” and “local act” are contained. City of Durham v. Manson, 21 N.C. App. 161, 204 S.E.2d 41, 1974 N.C. App. LEXIS 1748 , modified, 285 N.C. 741 , 208 S.E.2d 662, 1974 N.C. LEXIS 1133 (1974).

Chapter 506 of Session Laws 1967, which became a part of the charter of the City of Durham, was not repealed by this Chapter. City of Durham v. Manson, 285 N.C. 741 , 208 S.E.2d 662, 1974 N.C. LEXIS 1133 (1974).

CASE NOTES

The provisions of a municipal charter are supplemented by the General Statutes of the State. Parsons v. Wright, 223 N.C. 520 , 27 S.E.2d 534, 1943 N.C. LEXIS 314 (1943) (decided prior to enactment of this section) .

City Charter Superseded by State Statute. —

Summary judgment was properly awarded to a city and its officials in an action by property owners challenging an annexation because, pursuant to G.S. 160A-3(c) , the statutory provision establishing involuntary annexations superseded a city charter provision permitting only voluntary annexations. Brown v. City of Winston-Salem, 171 N.C. App. 266, 614 S.E.2d 599, 2005 N.C. App. LEXIS 1266 , cert. denied, 360 N.C. 60 , 2005 N.C. LEXIS 1511 (2005).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided prior to enactment of this section.

Legislative Mandate. —

The North Carolina Supreme Court treats the language in this section as a legislative mandate to construe in a broad fashion the provisions and grants of power contained in this Chapter. Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37 , 442 S.E.2d 45, 1994 N.C. LEXIS 168 (1994).

Mandate of G.S. 160A-4 Has Replaced “Dillon’s Rule.” —

Narrow rule of statutory construction entitled “Dillon’s Rule,” used when interpreting municipal powers, has been replaced by the mandate of G.S. 160A-4 ; and the language of Chapter 160A must be construed in favor of extending powers to a municipality where there is an ambiguity in the authorizing language, or the powers clearly authorized reasonably necessitate additional and supplementary powers to carry them into execution and effect. BellSouth Telecomms., Inc. v. City of Laurinburg, 168 N.C. App. 75, 606 S.E.2d 721, 2005 N.C. App. LEXIS 164 (2005).

Construction with G.S. 160A-301 . —

Zoning amendment, which addressed the number of vehicles that could be parked on a private lot, did not address the same subject as G.S. 160A-301 , which governed ordinary parking on public vehicular areas; therefore, G.S. 160A-301 is not a more “specific” statute that renders the provisions of G.S. 160A-4 inapplicable because it simply addresses a different subject. Patmore v. Town of Chapel Hill N.C. 233 N.C. App. 133, 757 S.E.2d 302, 2014 N.C. App. LEXIS 298 (2014).

A municipality may not exercise any power not granted to it, and possesses no inherent authority to exercise powers either expressly or impliedly prohibited by statute. Porsh Bldrs., Inc. v. City of Winston-Salem, 302 N.C. 550 , 276 S.E.2d 443, 1981 N.C. LEXIS 1077 (1981).

Municipal Powers Must Be Expressly Granted or Implied from Express Grants. —

A municipal corporation is a political subdivision of the State and can exercise only such powers as are granted in express words, or those necessary or fairly implied or incident to the powers expressly conferred, or those essential to the accomplishment of the declared objects and purposes of the corporation. Stephenson v. City of Raleigh, 232 N.C. 42 , 59 S.E.2d 195, 1950 N.C. LEXIS 395 (1950).

A municipal corporation has only such powers as are granted to it by the General Assembly in its specific charter or by the general laws of the State applicable to all municipal corporations, and the powers granted in its charter will be construed together with those given under the General Statutes. Laughinghouse v. City of New Bern, 232 N.C. 596 , 61 S.E.2d 802, 1950 N.C. LEXIS 600 (1950); Starbuck v. Town of Havelock, 252 N.C. 176 , 113 S.E.2d 278, 1960 N.C. LEXIS 410 (1960).

A municipal corporation is a creature of the General Assembly and has no inherent power, but can exercise such powers as are expressly conferred by the General Assembly or such as are necessarily implied by those expressly given. State v. McGraw, 249 N.C. 205 , 105 S.E.2d 659, 1958 N.C. LEXIS 455 (1958).

A municipal corporation has only such powers as are granted to it by the General Assembly in its specific charter or by the general laws of the State applicable to all municipal corporations, or such powers as are necessarily implied by those given. State v. Hord, 264 N.C. 149 , 141 S.E.2d 241, 1965 N.C. LEXIS 1137 (1965).

An incorporated city or town is an agency created by the State. It has no governmental power or authority except such as has been granted to it by the legislature, expressly or by necessary implication from the powers expressly conferred. State v. Furio, 267 N.C. 353 , 148 S.E.2d 275, 1966 N.C. LEXIS 1043 (1966).

Municipal corporations are created by legislative enactment and possess only those powers conferred in the express language of a statute and those necessarily implied by law therefrom. Porsh Bldrs., Inc. v. City of Winston-Salem, 302 N.C. 550 , 276 S.E.2d 443, 1981 N.C. LEXIS 1077 (1981).

What Municipal Powers Are Implied. —

The implied powers of a municipality are those which are necessarily or fairly implied in or incident to the powers expressly granted or essential to the accomplishment of the purposes of the corporation. Green v. Kitchin, 229 N.C. 450 , 50 S.E.2d 545, 1948 N.C. LEXIS 365 (1948) (commented on in 27 N.C.L. Rev. 500 (1949)) .

A municipal corporation is authorized by implication to do an act if the doing of such act is necessarily or fairly implied in or incident to the powers expressly granted, or is essential to the accomplishment of the declared objects and purposes of the corporation. Harrelson v. City of Fayetteville, 271 N.C. 87 , 155 S.E.2d 749, 1967 N.C. LEXIS 1160 (1967).

Municipal corporations have no inherent police powers and can exercise only those conferred, which powers are subject to strict construction. Kass v. Hedgepeth, 226 N.C. 405 , 38 S.E.2d 164, 1946 N.C. LEXIS 452 (1946).

An incorporated city or town has no inherent police powers. State v. Furio, 267 N.C. 353 , 148 S.E.2d 275, 1966 N.C. LEXIS 1043 (1966).

A city or town in this State has no inherent police power. It may exercise only such powers as are expressly conferred upon it by the General Assembly or as are necessarily implied from those expressly so conferred. Town of Conover v. Jolly, 277 N.C. 439 , 177 S.E.2d 879, 1970 N.C. LEXIS 629 (1970).

Town had no Authority to Impose Impact Fees. —

Water and sewer “impact fee” ordinances were invalid because the Public Enterprise Statutes failed to empower the town to impose impact fees for future services; the enabling statutes clearly and unambiguously empowered the town to charge for the contemporaneous use of water and sewer services, not to collect fees for future discretionary spending, and because the legislature alone controlled the extension of municipal authority, the ordinances exceeded the powers delegated to the town. Quality Built Homes, Inc. v. Town of Carthage, 369 N.C. 15 , 789 S.E.2d 454, 2016 N.C. LEXIS 650 (2016).

No Power to Spend Tax Revenues Absent Authorization. —

A municipality is a creature of the State, with the powers prescribed by the statute and those necessarily implied by law, and no other; therefore a city or town cannot make a rightful outlay of its tax revenues unless the outlay is explicitly or implicitly authorized by a statute conforming to the Constitution. Horner v. Chamber of Commerce, 231 N.C. 440 , 57 S.E.2d 789, 1950 N.C. LEXIS 489 (1950); Wilson v. City of High Point, 238 N.C. 14 , 76 S.E.2d 546, 1953 N.C. LEXIS 401 (1953).

A municipal corporation has no authority to waive its immunity from tort liability in performance of its governmental functions. Stephenson v. City of Raleigh, 232 N.C. 42 , 59 S.E.2d 195, 1950 N.C. LEXIS 395 (1950).

Municipal Authority to Charge User Fees. —

Applying the broad rule of construction of this section, city possessed the authority to charge regulatory user fees as an additional and supplementary power that was reasonably necessary or expedient to carry a regulatory program into execution and effect. Homebuilders Ass'n v. City of Charlotte, 336 N.C. 37 , 442 S.E.2d 45, 1994 N.C. LEXIS 168 (1994).

Absent Statutory Authority. —

In the absence of statutory authority, a municipality has no authority to contract away or waive its governmental immunity in respect to torts committed in the exercise of its governmental function. Valevais v. City of New Bern, 10 N.C. App. 215, 178 S.E.2d 109, 1970 N.C. App. LEXIS 1239 (1970).

Ordinances Having Effect Outside Territorial Limits of Corporation. —

While the legislature may confer upon a municipal corporation the power to enact ordinances having effect in territory contiguous to the corporation, in the absence of the grant of such power a city or town may not, by its ordinance, prohibit acts outside its territorial limits or impose criminal liability therefor. State v. Furio, 267 N.C. 353 , 148 S.E.2d 275, 1966 N.C. LEXIS 1043 (1966).

Statutory delegations of power to municipalities should be strictly construed, resolving any ambiguity against the corporation’s authority to exercise the power. Porsh Bldrs., Inc. v. City of Winston-Salem, 302 N.C. 550 , 276 S.E.2d 443, 1981 N.C. LEXIS 1077 (1981).

Any Doubts Must Be Resolved Against Municipality. —

A municipality has no inherent police powers, but can exercise only those conferred by the State, and any reasonable doubt concerning such powers is resolved against it. State v. Dannenberg, 150 N.C. 799 , 63 S.E. 946, 1909 N.C. LEXIS 158 (1909).

Discretion as to Accomplishment of Municipal Purposes. —

A municipal corporation has only those powers expressly granted in its charter and by the general law, construing the acts together, and those powers reasonably implied in or incident to the granted powers which are necessary to effect the fair intent and purpose of its creation; however, it may exercise a sound discretion as to the means by which the purposes of its creation may be accomplished. Riddle v. Ledbetter, 216 N.C. 491 , 5 S.E.2d 542, 1939 N.C. LEXIS 22 (1939).

A municipal corporation may exercise all the powers within the fair intent and purpose of its creation which are reasonably necessary to give effect to the powers expressly granted, and in doing this it may exercise discretion as to the means to the end. Keeter v. Town of Lake Lure, 264 N.C. 252 , 141 S.E.2d 634, 1965 N.C. LEXIS 1163 (1965).

Although the power to impose a privilege license tax must be construed broadly to include incidental powers, a privilege license tax, standing alone, is only a tax and does not carry with it any powers wholly unrelated to its imposition or administration. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, 2004 N.C. App. LEXIS 267 (2004).

The courts will not inquire into the motives which prompt a municipality’s legislative body to enact an ordinance which is valid on its face. Clark's Greenville, Inc. v. West, 268 N.C. 527 , 151 S.E.2d 5, 1966 N.C. LEXIS 1246 (1966).

Contracts with Firefighters Not Ultra Vires. —

As the legislature expressly authorized municipal corporations to fix salaries or other compensation or to approve and adopt pay plans to compensate city employees, and thus, the city could legally form contracts for the services of firefighters and offer a plan for accumulated vacation leave as a benefit under the contracts, even though they may have been executed improperly, any contracts entered into by the city through its agents to compensate firefighters with accumulated vacation leave were not ultra vires the city. Pritchard v. Elizabeth City, 81 N.C. App. 543, 344 S.E.2d 821, 1986 N.C. App. LEXIS 2338 (1986).

Contract with Town Manager Not Ultra Vires. —

The execution of an employment contract providing severance pay to an at-will town manager was not ultra vires. Myers v. Town of Plymouth, 135 N.C. App. 707, 522 S.E.2d 122, 1999 N.C. App. LEXIS 1237 (1999).

Eminent Domain Power of a City. —

City lawfully exercised its eminent domain power because, consistent with the mandates of G.S. 160A-4 and G.S. 160A-312 , the city could acquire property by condemnation to establish a gas transmission and distribution system, even in the absence of a concrete, immediate plan to furnish gas services to its citizens as the acquisition was for a public use by the city in compliance with G.S. 160A-240.1 and G.S. 40A-3(b) . Town of Midland v. Morris, 209 N.C. App. 208, 704 S.E.2d 329, 2011 N.C. App. LEXIS 152 (2011).

City had the authority to allow the city tax collector to assess zoning compliance as part of the administration of the business privilege license tax and to deny a business privilege license to a sexually oriented business because the business sought to operate in violation of a zoning ordinance. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, 2004 N.C. App. LEXIS 267 (2004).

Authority to Impose Water And Sewer Fees. —

City was entitled to partial summary judgment as a matter of law because an act transferred the authority of the Board of Light and Water to collect water and sewer fees for services “to be furnished” to the city, and thus, there was no genuine issue as to any material fact with respect to the city’s legislative authority to charge those fees to developers for their developments; the General Assembly was not required to use the word “transfer” in order to transfer the powers of the Board. JVC Enters., LLC v. City of Concord, 376 N.C. 782 , 855 S.E.2d 158, 2021- NCSC-14, 2021 N.C. LEXIS 178 (2021).

OPINIONS OF ATTORNEY GENERAL

A proposed escrow agreement between a town and various property owners to collect and dispose of funds in order to acquire right of way, by condemnation or otherwise, in order to widen and improve a road was not prohibited by this section or public policy. See opinion of Attorney General to William C. Coward, Coward, Hicks & Siler, P.A., 2000 N.C. AG LEXIS 28 (4/10/2000).

Editor’s Note.

Former G.S. 160A-4.1 pertained to the notice of new fees and fee increases; public comment period.

Session Laws 2019-111, s. 2.8, is a severability clause.

Session Laws 2019-111, s. 3.2 provided for the delayed repeal of this section, effective January 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that “Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date.” Session Laws 2020-3, s. 4.33(a), extended the delayed repeal of this section, making it effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date. Session Laws 2020-25, s. 51(a), (d), repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33, effective June 19, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Session Laws 2020-25, s. 51(b), provides: “Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

“(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

“(2) July 1, 2021.”

Effect of Amendments.

Session Laws 2010-180, s. 11(b), effective February 1, 2011, deleted “Electronic” from the beginning of the section catchline; in the introductory paragraph in subsection (a), in the first sentence, substituted “A city shall provide notice to interested parties of the imposition” for “If a city has a Web site maintained by one or more of its employees, the city shall provide notice of the imposition” and deleted “on the city’s Web site” following “Part 2 of Article 19 of this Chapter,” and added the last sentence; added subdivisions (a)(1) through (a)(4); and added subsection (a1).

Editor’s Note.

Session Laws 1981 (Reg. Sess., 1982), c. 1191, s. 64, provided that the repeal of this Article did not affect the validity of any corporate charter issued by the Municipal Board of Control prior to the effective date thereof. Section 65 of the act provided that the repeal became effective October 1, 1982, except that an order incorporating a city which was entered prior to October 1, 1982, but subject to a referendum to be held under G.S. 160A-9.3 between October 1, 1982, and January 1, 1983, would be valid notwithstanding the abolition of the Municipal Board of Control.

CASE NOTES

Editor’s Note. —

Many of the cases cited below were decided under former similar provisions.

Control of Municipal Territory and Affairs. —

When a municipal corporation is established it takes control of the territory and affairs over which it is given authority to the exclusion of other governmental agencies. Gunter v. Town of Sanford, 186 N.C. 452 , 120 S.E. 41, 1923 N.C. LEXIS 268 (1923); Parsons v. Wright, 223 N.C. 520 , 27 S.E.2d 534, 1943 N.C. LEXIS 314 (1943).

Exclusive Control of Municipal Streets. —

The object of incorporating a town or city is to invest the inhabitants of the municipality with the government of all matters that are of special municipal concern, and certainly the streets are as much of a special and local concern as anything connected with a town or city can be. It ought, therefore, to be presumed that they pass under the exclusive control of the municipality as soon as it comes into existence under the law. Gunter v. Town of Sanford, 186 N.C. 452 , 120 S.E. 41, 1923 N.C. LEXIS 268 (1923); Parsons v. Wright, 223 N.C. 520 , 27 S.E.2d 534, 1943 N.C. LEXIS 314 (1943).

Power to Purchase Land at Tax Sale. —

The title of the purchaser at a tax foreclosure sale may not be challenged by the listed owner upon the purchaser’s motion for a writ of assistance; such purchaser may be a municipality where it does not appear of record that the purchase of the land was ultra vires, a municipality having the power to purchase land for certain purposes. Wake County v. Johnson, 206 N.C. 478 , 174 S.E. 303, 1934 N.C. LEXIS 220 (1934).

Ordinance Within Power Granted Presumed Reasonable. —

When an ordinance is within the grant of power to the municipality, the presumption is that it is reasonable. Gene's, Inc. v. City of Charlotte, 259 N.C. 118 , 129 S.E.2d 889, 1963 N.C. LEXIS 492 (1963).

A town must be sued in its corporate name and not in the name of its officers. Young v. Barden, 90 N.C. 424 , 1884 N.C. LEXIS 247 (1884).

Service Against City. —

A summons against a city may be served on the mayor and on the secretary of the board of aldermen. Loughran v. City of Hickory, 129 N.C. 281 , 40 S.E. 46, 1901 N.C. LEXIS 70 (1901).

Venue of Suits Against Cities or Towns. —

Cities and towns must be sued in the county in which they are located, and if suit is brought in another county, they have the right to have it removed. Jones v. Town of Statesville, 97 N.C. 86 , 2 S.E. 346, 1887 N.C. LEXIS 113 (1887).

Action in Name of All Citizens Against City. —

In an action against a municipal corporation to enjoin the collection of an illegal tax, it was not error to allow all citizens other than the original plaintiff to be made parties plaintiff. Cobb v. Elizabeth City, 75 N.C. 1 , 1876 N.C. LEXIS 186 (1876).

Action Against City. —

In this Age Discrimination in Employment Act of 1967 (ADEA) action, ADEA authorized a suit against the City of Winston-Salem, but not the Winston-Salem Police Department because North Carolina law implied that a city was the employer of the police officer working for the city’s police department. Fisher v. Winston-Salem Police Dep't, 28 F. Supp. 3d 526, 2014 U.S. Dist. LEXIS 87471 (M.D.N.C. 2014).

OPINIONS OF ATTORNEY GENERAL

The authority of a city to hold property granted by this section should not be interpreted to authorize a city to act as a shareholder of a private for-profit corporation organized under the provisions of Chapter 55, and to appoint city officials and employees as corporate directors or officers. See opinion of the Attorney General to H. Michael Boyd, Deputy City Attorney, City of Charlotte, 60 N.C. Op. Att'y Gen. 114 (1992).

While there may be authority for a city to purchase all of the stock of a corporation which owns and operates a water and sewer system, there is no authority to operate and continue the existence of a private for-profit corporation which is outside of the traditional functions of a municipality and for which there is no judicial or legislative approval. See opinion of the Attorney General to H. Michael Boyd, Deputy City Attorney, City of Charlotte, 60 N.C. Op. Att'y Gen. 114 (1992).

CASE NOTES

City Not Liable Absent Agreement for Treatment of Inebriate Injured While Being Assisted by Police. —

A city was not liable to a hospital for the cost of treating a habitual inebriate who was injured when he fell while being assisted by city police officers, where there was no express agreement to pay for such services. Nor was there an implied promise to pay, pursuant to a statutory duty, since persons arrested by city police officers, if confined, were confined in the county jail. Under G.S. 153A-224(b) , the cost of emergency medical services rendered to persons confined in local confinement facilities is imposed on the local governmental unit operating the facility. Craven County Hosp. Corp. v. Lenoir County, 75 N.C. App. 453, 331 S.E.2d 690, 1985 N.C. App. LEXIS 3700 (1985).

Where no duty was imposed by statute upon city to pay for medical services rendered to persons in custody of its police officers, there was no relationship implied by law which would obligate the city to pay the costs of such treatment. Craven County Hosp. Corp. v. Lenoir County, 75 N.C. App. 453, 331 S.E.2d 690, 1985 N.C. App. LEXIS 3700 (1985).

Sovereign immunity does not apply to breach of contract claims. Houpe v. City of Statesville, 128 N.C. App. 334, 497 S.E.2d 82, 1998 N.C. App. LEXIS 37 (1998).

A viable claim for breach of an employment contract must allege the existence of contractual terms regarding the duration or means of terminating employment. Houpe v. City of Statesville, 128 N.C. App. 334, 497 S.E.2d 82, 1998 N.C. App. LEXIS 37 (1998).

Editor’s Note.

Session Laws 2015-207, s. 7, made this section effective August 11, 2015.

Editor’s Note.

Session Laws 1989, c. 708, which amended this section, in ss. 2 and 3, provides:

“Sec. 2. (a) Any contract made or entered into, prior to the date of ratification of this act, by a city, a county, or a water and sewer authority created under Article 1 of Chapter 162A of the General Statutes which would have been valid under G.S. 160A-20 , subsections (a), (b), (c), and (f), as rewritten by this act, is hereby validated, ratified, and confirmed. Furthermore, such a contract may not be held invalid because it contains a nonsubstitution clause, or because no public hearing was advertised and held on the contract, or both.

“(b) Any contract made or entered into, prior to the date of ratification of this act, by a city, a county, or a water and sewer authority created under Article 1 of Chapter 162A of the General Statutes which would have been valid under subsection (a) of this Section 2 or under G.S. 160A-20 as it existed prior to the ratification of this act or as rewritten by this act, except that the Local Government Commission did not approve the contract, is hereby validated, ratified, and confirmed.

“Sec. 3. Nothing in this act shall be interpreted to limit or restrict the authority of cities, counties, or water and sewer authorities created under Article 1 of Chapter 162A of the General Statutes to purchase, improve, or finance the purchase or improvement of real or personal property pursuant to any other applicable law, whether general, special, or local.”

Session Laws 1997-426, s. 7.1, provided that if Ratified Senate Bill 389, 1997 Regular Session, became law, then subdivision (h)(9) was recodified as subdivision (h)(10) of this section. Senate Bill 389 became S.L.1997-380, which became law on August 7, 1997.

Session Laws 1997-426, s. 10(a)-(c), provides that, insofar as the provisions of that act are not consistent with the provisions of any other law, public or private, the provisions of that act shall be controlling; that references in that act to specific sections or Chapters of the General Statutes are intended to be references to such sections or Chapters as they may be amended from time to time by the General Assembly; and that that act, being necessary for the health and welfare of the people of the State, shall be liberally construed to effect the purposes thereof.

Session Laws 1997-426, s. 10(d), is a severability clause.

Session Laws 1999-377, s. 4, effective August 4, 1999, provides that any hospital continuing to operate under Article 2 of Chapter 131 of the General Statutes pursuant to Section 3 of Chapter 775 of the 1983 Session Laws shall be considered to be a “public hospital” within the meaning of G.S. 159-39 and to be a “unit of local government” within the meaning of G.S. 160A-20 .

Session Laws 2002-161, s. 12, provides that nothing in the act limits the use of any method of contracting authorized by local law or other applicable laws.

Session Laws 2003-388, provides in its preamble:

“Whereas, the State Treasurer’s Office formed a Public Finance Advisory Committee comprised of representative city and county governments, as well as the public finance bar and financial services sectors, to review and propose changes to the General Statutes dealing with public finance in an effort to strengthen, modernize, and provide for the most efficient method of issuing of public debt by local governments and other political subdivisions of the State; and

“Whereas, the Public Finance Advisory Committee has developed, and the State Treasurer’s Office has reviewed, a set of recommendations to the General Assembly for specific changes to relevant General Statutes around which there is consensus that the proposed changes are beneficial to local governments in their issuance of public debt; and

“Whereas, the Local Government Commission remains the statutorily designated entity to which all proposed issuances must be submitted for approval, and these recommendations in no way lower or lessen the level of due diligence performed in determining the appropriateness of a specific issuance; and

“Whereas, for these reasons, this legislation is submitted for consideration by the General Assembly on behalf of the State Treasurer, the staff of the Local Government Commission, and the Public Finance Advisory Committee; Now, therefore,”

Effect of Amendments.

Session Laws 2007-226, s. 1, effective July 18, 2007, added subdivision (h)(3c).

Session Laws 2007-229, s. 3, effective July 18, 2007, added subdivision (h)(13).

Session Laws 2009-527, s. 2(g), effective August 27, 2009, added subdivision (h)(14).

Session Laws 2015-207, s. 5(a), effective August 11, 2015, added subdivisions (h)(3d) and (h)(3e).

Session Laws 2017-120, s. 4, effective July 18, 2017, added subdivision (h)(15).

Legal Periodicals.

For note, “Constitutional Expansion of Local Government Financing Alternatives: Wayne County Citizens Association v. Wayne County Board of Commissioners,” see 70 N.C.L. Rev. 1947 (1992).

CASE NOTES

This section does not contravene N.C. Const., Art. V, § 4, which authorizes the General Assembly to regulate local government finance. Wayne County Citizens v. Wayne County Bd. of Comm'rs, 328 N.C. 24 , 399 S.E.2d 311, 1991 N.C. LEXIS 15 (1991).

County’s installment purchase contract for construction of a new courthouse and jail was authorized by this section. Wayne County Citizens v. Wayne County Bd. of Comm'rs, 328 N.C. 24 , 399 S.E.2d 311, 1991 N.C. LEXIS 15 (1991).

CASE NOTES

Constitutionality of Annexation by Local Act Where Essential Service Not Provided. —

Annexation to a municipality by a local act of the General Assembly is not invalid constitutionally where the municipality fails to provide one of the many essential services to the newly acquired territory. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, 1981 N.C. App. LEXIS 2308 (1981).

Contiguity and cohesiveness were not constitutionally required in an annexation proceeding under this section. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, 1981 N.C. App. LEXIS 2308 (1981).

Legislature Has Power to Regulate Annexation. —

Annexation by a municipal corporation is a political question which is within the power of the state legislature to regulate. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, 1981 N.C. App. LEXIS 2308 (1981).

But Such Power Is Not Unlimited. —

The power of the legislature to expand the boundaries of cities, towns, or other local units, though great, is not unlimited. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, 1981 N.C. App. LEXIS 2308 (1981).

Scope of Legislative Discretion. —

Enlargement of municipal boundaries by the annexation of new territory, and the consequent extension of corporate jurisdiction, including that of levying taxes, are legitimate subjects of legislation. In the absence of constitutional restriction, the extent to which such legislation shall be enacted, both with respect to the terms and circumstances under which the annexation may be had, and the manner in which it may be made, rests entirely in the discretion of the legislature. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, 1981 N.C. App. LEXIS 2308 (1981).

Judicial Review of Local Annexation Act. —

A local annexation act is not insulated from judicial review when it is an instrument for circumventing a constitutionally protected right. Abbott v. Town of Highlands, 52 N.C. App. 69, 277 S.E.2d 820, 1981 N.C. App. LEXIS 2308 (1981).

Editor’s Note.

Session Laws 1999-227, s. 3, contains findings of the General Assembly regarding, in part, the use of census data for congressional redistricting.

Session Laws 2021-56, s. 1(b), provides: “Revision of Districts After Release of 2020 Census Data. — G.S. 160A-23.1 , and any resolution adopted under that statute, shall not apply with respect to any election delayed to 2022 in accordance with this act. Notwithstanding G.S. 160A-23.1 , upon the release of the 2020 Census data by the U.S. Census Bureau, each municipality with elections delayed in accordance with this act shall review and revise its electoral districts in accordance with State and federal law on or before the date provided in Section 1(c) of this act. In revising the electoral districts, the municipality with elections delayed in accordance with this act may seek and provide an opportunity for public input prior to the release of the 2020 Census data. In addition, the municipality with elections delayed in accordance with this act shall provide an opportunity for public input after the release of the 2020 Census data and shall conduct at least one public hearing prior to adopting revised districts.”

Session Laws 2021-56, s. 1.9, provides: “This act shall not apply to offices elected at large in any municipality where there is an election of municipal officers scheduled for 2021, where less than the entire jurisdiction is eligible to vote for candidates for one or more offices on the 2021, and that municipality has notified the county board of elections at least five business days prior to the opening of the 2021 filing period as provided in Article 23 or 24 of Chapter 163 of the General Statutes for the method of election for that municipality. If the county board of elections is so notified, the county board of elections shall open the filing period for the offices elected at large only for that municipality and conduct the election in 2021 in accordance with that municipality’s charter and Chapter 163 of the General Statutes.”

Effect of Amendments.

Session Laws 2009-414, s. 1, effective August 5, 2009, in the section heading, substituted “a federal decennial census” for “2000 census”; in subsection (a), substituted “decennial census information” for “census information in 2001”; in subsection (b), substituted “the two years following a federal decennial census” for “2001 or 2002”; in subsection (d), substituted “the second year following a federal decennial census” or “that year” for “2002” throughout; and added subsection (e).

Editor’s Note.

Session Laws 1983, c. 636, which repealed these sections, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: “The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections.”

Section 38 of Session Laws 1983, c. 636 provided: “This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25.”

The act was ratified June 29, 1983.

Editor’s Note.

Session Laws 2012-3, s. 6, is a severability clause.

Session Laws 2012-103, s. 4, is a severability clause.

Session Laws 2012-104, s. 4, is a severability clause.

CASE NOTES

As to the constitutionality of this Article, see Forsyth Citizens Opposing Annexation v. City of Winston-Salem, 67 N.C. App. 164, 312 S.E.2d 517, 1984 N.C. App. LEXIS 2993 (1984).

Right to Annexation Conditioned on Compliance with Duty to Create Record. —

For an annexation ordinance to be valid, the record must show prima facie complete and substantial compliance with Article 4A of G.S. 160A as a condition precedent to the municipality’s right to annex the territory. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

If Record Is Complete, Burden of Showing Irregularity Shifts to Those Opposing Annexation. —

Once a municipality has made its prima facie showing of compliance with this Article, the burden shifts to those opposing annexation to prove either a procedural irregularity in the annexation process materially prejudicing the rights of those opposing annexation or a failure on the part of the municipality to comply with statutory prerequisites to annexation as a matter of fact. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Editor’s Note.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Effect of Amendments.

Session Laws 2011-57, s. 3, effective April 28, 2011, added subsection (i).

Session Laws 2011-396, s. 10, effective July 1, 2011, rewrote the section to the extent that a detailed comparison is impracticable. For applicability, see editor’s notes.

Legal Periodicals.

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For 1984 survey, “Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule,” see 63 N.C.L. Rev. 1260 (1985).

For casenote, “Carolina Power & Light v. City of Asheville Municipal Annexation in North Carolina: The Pros, the Cons and the Judiciary,” see 27 N.C. Cent. L.J. 224 (2005).

CASE NOTES

Deliberate preference for voluntary annexation is incorporated into the law. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89 , 357 S.E.2d 686, 1987 N.C. LEXIS 2171 (1987).

G.S. 160A-37(e), 160A-49(e), and this section are in pari materia. Conover v. Newton, 297 N.C. 506 , 256 S.E.2d 216, 1979 N.C. LEXIS 1405 (1979).

No Authorization to Annex Only Part of Area Described. —

If the General Assembly had intended to authorize cities proceeding pursuant to a petition for voluntary annexation to annex merely a part of the area described in the petition, it would have so provided, as it has explicitly done in G.S. 160A-37(e) and 160A-49(e). The absence of such statutory authorization, in light of the explicit provisions for it in the involuntary annexation statutes, is cogent evidence that the General Assembly intended a petition for voluntary annexation to stand or fall as a unity. Conover v. Newton, 297 N.C. 506 , 256 S.E.2d 216, 1979 N.C. LEXIS 1405 (1979).

“Contiguous”. —

North Carolina annexation statutes do not permit municipality to annex by voluntary means tract of land that is contiguous with its municipal boundaries only by virtue of second tract of land that is being annexed simultaneously. City of Kannapolis v. City of Concord, 326 N.C. 512 , 391 S.E.2d 493, 1990 N.C. LEXIS 241 (1990).

Standing to Contest Annexation. —

Because this section describes a voluntary annexation undertaken at the request of land owners and does not authorize suit by neighboring municipalities, plaintiff town did not have standing to contest the annexation scheme of defendant neighboring town; only if another town owned property in the annexed area, or if both towns were simultaneously attempting to annex controverted property, could there be a justiciable controversy, giving one town standing to contest the annexation by the other, and, even then, G.S. 160A-360 provides a way to resolve such a conflict. Town of Ayden v. Town of Winterville, 143 N.C. App. 136, 544 S.E.2d 821, 2001 N.C. App. LEXIS 223 (2001).

Annexation of Undeveloped Lands Only on Petition. —

Large tracts of agricultural or vacant lands, where no evidence of urban development can be shown, should not be annexed in any event, except upon petition of the landowners. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532 , 135 S.E.2d 574, 1964 N.C. LEXIS 531 (1964).

Property owners who have signed a voluntary annexation petition have the right to withdraw from the petition at any time up until the governing municipal body has taken action upon the petition by annexing the area described in the petition. Conover v. Newton, 297 N.C. 506 , 256 S.E.2d 216, 1979 N.C. LEXIS 1405 (1979).

Resolution of intent is “first mandatory public procedural step” for purposes of the prior jurisdiction rule. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89 , 357 S.E.2d 686, 1987 N.C. LEXIS 2171 (1987).

The adoption of a resolution of intent is the critical date for determining whether a municipality utilizing involuntary annexation procedures has prior jurisdiction over the same territory being considered for voluntary annexation by a different municipality. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89 , 357 S.E.2d 686, 1987 N.C. LEXIS 2171 (1987).

Property Not Contiguous. —

Where city sought to annex private property and municipal property, and where municipal property was not contiguous with city but was contiguous to private property, city could not annex municipal property on the theory that the area as a whole was contiguous; the private property and municipal property were annexed by different procedures with independent requirements and could not be considered one whole area for the purpose of satisfying the contiguity requirement. City of Kannapolis v. City of Concord, 95 N.C. App. 591, 383 S.E.2d 402, 1989 N.C. App. LEXIS 832 (1989), rev'd, 326 N.C. 512 , 391 S.E.2d 493, 1990 N.C. LEXIS 241 (1990).

At the time town purported to annex defendant counties’ property, the property was not contiguous and the attempted annexation was invalid. Town of Valdese v. Burke, Inc., 125 N.C. App. 688, 482 S.E.2d 24, 1997 N.C. App. LEXIS 224 (1997).

Effect of Withdrawal. —

Where six owners of real property located within the area described in a voluntary annexation petition validly withdrew their signatures from the petition before the annexation ordinance was passed, the city governing body was without jurisdiction to take any further action on the petition as submitted, and the entire ordinance purporting to annex all the area described in the petition was void. Conover v. Newton, 297 N.C. 506 , 256 S.E.2d 216, 1979 N.C. LEXIS 1405 (1979).

Condemnor-County May Enjoin Municipal Annexation Proceeding. —

When a county initiates condemnation of property for a sanitary landfill, and the property is being considered for voluntary annexation into a municipality, the county may proceed with the condemnation action. The county is entitled to an injunction enjoining the annexation proceeding, and the property owners and the municipality may raise the proposed annexation in the answer to the condemnation complaint, for appropriate consideration by the court. Yandle v. Mecklenburg County, 85 N.C. App. 382, 355 S.E.2d 216, 1987 N.C. App. LEXIS 2628 (1987).

Annexation Held Proper. —

City’s division of an annexation area into sub-areas did not result in the improper annexation of an “island” not contiguous with the city limits as of the date of the original resolution of intent, although the boundaries of the sub-area, if considered in isolation, rather than as a sub-part of the area originally identified and eventually annexed, were not contiguous with the city limits on the date of the initial resolution. U.S. Cold Storage, Inc. v. City of Lumberton, 170 N.C. App. 411, 612 S.E.2d 415, 2005 N.C. App. LEXIS 1014 (2005).

Annexation Held Void. —

City’s annexation of three developments was void despite utility agreements with the developers barring future lot owners from withdrawing consent to an annexation. No easements were created through the agreements, deeds to non-consenting lot owners did not refer to the agreements, and all owners had to consent under G.S. 160A-31(a). Cunningham v. City of Greensboro, 212 N.C. App. 86, 711 S.E.2d 477, 2011 N.C. App. LEXIS 955 (2011).

Editor’s Note.

Session Laws 1983, c. 636, which repealed this section, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: “The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections.”

Section 38 of Session Laws 1983, c. 636 provided: “This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25.”

The act was ratified June 29, 1983.

Part 2. Annexation by Cities of Less Than 5,000.

Editor’s Note.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Former G.S. 160A-33 through 160A-42, repealed by Session Laws 2011-396, s. 1, pertained to annexation by cities having a population of less than 5,000 persons. For current provisions, see G.S. 160A-58.50 et seq.

Former G.S. 160A-36, was amended by Session Laws 2011-363, s. 2, effective June 27, 2011, and applicable to annexations of property used for bona fide farm purposes that were initiated by municipalities on or after that date or are pending on that date, by adding a subsection (f), which read: “(f) As used in this subsection, ‘bona fide farm purposes’ is as described in G.S. 153A-340. As used in this subsection, ‘property’ means a single tract of property or an identifiable portion of a single tract. Property that is being used for bona fide farm purposes on the date of the resolution of intent to consider annexation may not be annexed without the written consent of the owner or owners of the property.”

Editor’s Note.

Session Laws 1983, c. 636, which repealed these sections, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: “The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections.”

Section 38 of Session Laws 1983, c. 636 provided: “This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25.”

The act was ratified June 29, 1983.

Part 3. Annexation by Cities of 5,000 or More.

Editor’s Note.

Former G.S. 160A-48 was amended by Session Laws 2011-363, s. 3, effective June 27, 2011, and applicable to annexations of property used for bona fide farm purposes that were initiated by municipalities on or after that date or are pending on that date, by adding a subsection (g), which read: “(g) As used in this subsection, ‘bona fide farm purposes’ is as described in G.S. 153A-340. As used in this subsection, ‘property’ means a single tract of property or an identifiable portion of a single tract. Property that is being used for bona fide farm purposes on the date of the resolution of intent to consider annexation may not be annexed without the written consent of the owner or owners of the property.”

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Former Part 3 of Article 4A of Chapter 160A, which was repealed by Session Laws 2011-396, s. 7, pertained to annexation by cities having a population of 5,000 or more persons. For current provisions, see G.S. 160A-58.50 et seq. The current provisions include five sections recodified from former Part 3.

Editor’s Note.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Former Part 3 of Article 4A of Chapter 160A, which was repealed by Session Laws 2011-396, s. 7, pertained to annexation by cities having a population of 5,000 or more persons. For current provisions, see G.S. 160A-58.50 et seq.

Effect of Amendments.

Session Laws 2009-570, s. 27, effective August 28, 2009, substituted “judgment” for “judgement” in the last sentence of subsection (i).

Editor’s Note.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Former Part 3 of Article 4A of Chapter 160A, which was repealed by Session Laws 2011-396, s. 7, pertained to annexation by cities having a population of 5,000 or more persons. For current provisions, see G.S. 160A-58.50 et seq.

Editor’s Note.

Session Laws 1983, c. 636, which repealed these sections, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: “The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections.”

Section 38 of Session Laws 1983, c. 636 provided: “This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25.”

Session Laws 1983, c. 636 was ratified June 29, 1983.

Editor’s Note.

Session Laws 2012-3, s. 6, is a severability clause.

Session Laws 2012-103, s. 4, is a severability clause.

Session Laws 2012-104, s. 4, is a severability clause.

Legal Periodicals.

For 1984 survey, “Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule,” see 63 N.C.L. Rev. 1260 (1985).

CASE NOTES

Satellite corporate limits are not “municipal boundaries” as that term is used in G.S. 160A-36. Hawks v. Town of Valdese, 299 N.C. 1 , 261 S.E.2d 90, 1980 N.C. LEXIS 904 (1980).

Satellite Corporate Limits. —

A corporate limit is defined as a satellite only when there is no connection whatsoever between the municipality and the satellite. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, 1998 N.C. App. LEXIS 757 (1998).

Editor’s Note.

Session Laws 2001-37, s. 1, amended subsection (b) by deleting subdivision (b)(5), regarding limitations on the area within the proposed satellite corporate limits. Section 2 of the act made this amendment applicable to the Cities of Marion, Oxford, and Rockingham and the Towns of Calabash, Catawba, Dallas, Godwin, Louisburg, Mocksville, Pembroke, Rutherfordton, and Waynesville only. Session Laws 2001-37, ss. 1 and 2, have been codified as subsection (b1) at the direction of the Revisor of Statutes. Session Laws 2001-438, s. 1, also enacted a subsection (b1), which has been recodified as subsection (b2) at the direction of the Revisor of Statutes.

Session Laws 2002-121, s. 1, provides that subdivision (b)(5) does not apply to the cities of Claremont, Concord, Conover, Newton, Sanford, and Southport, and the Towns of Maiden, Midland, Swansboro, and Warsaw. Session Laws 1997-2, s. 1, provided that subdivision (b)(5) did not apply to the town of Catawba, and Session Laws 2001-72, s. 1 provided the subdivision did not apply to the city of Salisbury. Since subdivision (b)(5) does not apply to more than 10 jurisdictions, the second paragraph of that subdivision has been added at the direction of the Revisor of Statutes.

Session Laws 2007-26, s. 2(a), contained a local modification as to G.S. 160A-58.1(b)(2) and (b)(5). The local modification as to subdivision (b)(5) adds to a local modification that affects ten or more localities. It was codified at this section at the direction of the Revisor of Statutes by inserting “Oak Island” in the second paragraph of subdivision (b)(5).

Pursuant to Session Laws 2009-298, s. 1, and at the direction of the Revisor of Statutes, the town of Huntersville has been added to the list of localities in subdivision (b)(5) to which that subdivision is inapplicable.

Session Laws 2013-32, s. 1, amended subsection (b) by deleting subdivision (b)(4), regarding annexation of all of a subdivision. Section 2 deleted the limitation as applicable to the Vidant Family Medical Center. Section 3 of the act made this amendment applicable to the Town of Wallace only.

Effect of Amendments.

Session Laws 2004-57, s. 1, effective July 6, 2004, rewrote the second paragraph of subdivision (b)(5).

Session Laws 2004-99, s. 1, effective July 15, 2004, inserted “Angier” in the second paragraph of subdivision (b)(5).

Session Laws 2004-203, ss. 13(a)-(d), effective August 17, 2004, rewrote subdivision (b)(5) and repealed subdivision (b1).

Session Laws 2005-52, s. 1, effective May 18, 2005, inserted “Taylorsville” in subdivision (b)(5).

Session Laws 2005-71, s. 1, effective June 1, 2005, inserted “Elizabeth City,” “Greenville,” “Ayden,” “Surf City,” and “Windsor” in subdivision (b)(5).

Session Laws 2005-79, s. 1, effective June 7, 2005, inserted “Maggie Valley” in subdivision (b)(5).

Session Laws 2005-173, s. 1, effective July 11, 2005, inserted “Kannapolis,” “Landis,” and “Shallotte, Spencer” in subdivision (b)(5).

Session Laws 2005-433, s. 9, effective September 22, 2005, inserted “Columbia” in subdivision (b)(5).

Session Laws 2006-62, s. 1, effective July 6, 2006, inserted “Princeton” and “Smithfield” in the second paragraph of subdivision (b)(5).

Session Laws 2006-122, s. 1, effective July 18, 2006, inserted “Benson”, “Burgaw”, “Clayton”, “Dobson”, and “Yadkinville” in the second paragraph of subdivision (b)(5).

Session Laws 2006-130, s. 1, effective July 19, 2006, inserted “Grimesland”, “Stem” and “Stovall” in the second paragraph of subdivision (b)(5).

Session Laws 2007-17, s. 1, effective April 19, 2007, inserted “Four Oaks” in the second paragraph of subdivision (b)(5).

Session Laws 2007-26, s. 1, effective April 26, 2007, inserted “Green Level” in the second paragraph of subdivision (b)(5).

Session Laws 2007-62, s. 1, effective June 6, 2007, inserted “Cramerton” and “Watha” in the second paragraph of subdivision (b)(5).

Session Laws 2007-225, s. 1, effective July 17, 2007, inserted “Durham” in the second paragraph of subdivision (b)(5).

Session Laws 2007-311, s. 1, effective July 28, 2007, inserted “Roanoke Rapids,” “Ahoskie,” “Columbus,” and “Weldon” in the second paragraph of subdivision (b)(5).

Session Laws 2007-342, s. 1, effective August 2, 2007, added “Mount Pleasant” in the second paragraph of subdivision (b)(5).

Session Laws 2008-24, s. 1, effective June 30, 2008, inserted “Middlesex” and “Nashville” in the second paragraph of subdivision (b)(5).

Session Laws 2008-30, s. 1, effective June 30, 2008, inserted “Granite Quarry,” “Kenansville,” “Lillington,” “Nashville” and “Troutman” in the second paragraph of subdivision (b)(5).

Session Laws 2009-40, s. 2, effective May 27, 2009, inserted “Richlands” in the second paragraph of subdivision (b)(5).

Session Laws 2009-53, s. 1, effective June 2, 2009, inserted “Apex” in the second paragraph of subdivision (b)(5).

Session Laws 2009-111, s. 1, effective June 16, 2009, inserted “Belmont” in the second paragraph of subdivision (b)(5).

Session Laws 2009-156, s. 1, effective June 23, 2009, inserted “Bridgeton” in the second paragraph of subdivision (b)(5).

Session Laws 2009-323, s. 1, effective July 22, 2009, inserted “Jamestown” in the second paragraph of subdivision (b)(5).

Session Laws 2011-57, s. 1, effective April 28, 2011, added the last sentence in the beginning paragraph in subsection (a); and added subdivisions (a)(1) through (a)(3).

Session Laws 2012-96, s. 1, effective June 28, 2012, inserted “Ocean Isle Beach” in the second paragraph of subdivision (b)(5).

Session Laws 2013-248, s. 1, effective July 9, 2013, in the second paragraph of subdivision (b)(5), inserted “Hookerton” and “Maysville.”

Session Laws 2014-30, s. 2(a), effective June 30, 2014, inserted “Harrisburg” in subdivision (b)(5).

Session Laws 2015-80, s. 1, effective June 15, 2015, inserted “Wilson’s Mills” in subdivision (b)(5).

Session Laws 2015-81, s. 2(a), effective June 17, 2015, inserted “Franklin” in subdivision (b)(5).

Session Laws 2015-172, s. 2, effective July 30, 2015, inserted “Hope Mills” and “Spring Lake” in subdivision (b)(5).

Session Laws 2016-48, s. 2, effective June 29, 2016, in subdivision (b)(5), inserted “Siler City.”

Session Laws 2018-56, s. 1, effective June 25, 2018, added “Carthage,” following “Calabash,” and “Pollocksville,” following “Pine Level,” in subdivision (b)(5).

Session Laws 2019-58, s. 1, effective June 26, 2019, inserted “China Grove” following “Catawba” in subdivision (b)(5).

Session Laws 2019-103, s. 1, effective July 10, 2019, added “Asheboro,” “Bunn,” “Franklinton,” and “Youngsville” to the concluding paragraph in subdivision (b)(5).

Session Laws 2019-160, s. 1, effective July 24, 2019, inserted “Saluda” following “Rockingham” and “West Jefferson” following “Wendell” in subdivision (b)(5).

Session Laws 2021-17, s. 2, effective April 28, 2021, inserted “Rockwell” prior to “Rolesville” in the last paragraph of subdivision (b)(5).

Session Laws 2021-21, s. 1, effective May 12, 2021, inserted “Belville” prior to “Benson” and “Wingate” prior to “Yadkinville” in the last paragraph of subdivision (b)(5).

Session Laws 2021-86, s. 1, effective July 14, 2021, inserted “Franklinville,” “Liberty,” and “Ramseur” in subdivision (b)(5).

Session Laws 2021-87, s. 1, effective July 15, 2021, inserted “Kings Mountain,” “Lowell,” “Shelby,” “Franklinville,” “Liberty,” “Ramseur,” “Stanley,” and “Vass” in subdivision (b)(5).

Session Laws 2021-101, s. 1, effective August 9, 2021, inserted “North Wilkesboro, Norwood,” and “Oakboro” in subdivision (b)(5).

CASE NOTES

A city has statutory authority to annex areas both contiguous and noncontiguous to its primary corporate limits. It must stand ready to provide sewer service (among other services) to newly annexed areas on substantially the same basis and in the same manner in which these services are provided to the rest of the city. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. —

Since county had no authority to restrict or regulate city’s provision of sewer service to its residents, the city could use the city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county’s special use permit, with a condition attached to the permit requiring the county’s prior approval of service to county citizens to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county’s prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Town Had No Standing to Challenge Annexations. —

Plaintiff town had no standing to challenge annexations of contiguous properties by nearby village. Town of Seven Devils v. Village of Sugar Mt., 125 N.C. App. 692, 482 S.E.2d 39, 1997 N.C. App. LEXIS 226 (1997).

Residents and Property Owners Without Standing to Challenge Voluntary Annexation of Noncontiguous Property. —

Residents and property owners in town, who instituted an action in which they sought to enjoin town from placing into effect an ordinance annexing into the corporate limits of the town 89.68 acres of noncontiguous property belonging to intervenor company, residents and property owners did not have standing; no judicial review is provided for annexations of noncontiguous territory, since such annexations are, by statute, the result of voluntary petitions by the property owners. Joyner v. Town of Weaverville, 94 N.C. App. 588, 380 S.E.2d 536, 1989 N.C. App. LEXIS 540 (1989).

CASE NOTES

If a town wishes to annex involuntarily two unannexed areas on either side of the satellite area, it must first annex the area which abuts directly on both the primary corporate limits and the satellite corporate limits. Only after this intervening territory has been successfully annexed is the area which presently abuts solely on satellite corporate limits eligible for annexation. Only then do the satellite corporate limits become part of the primary corporate limits in accord with this section. Hawks v. Town of Valdese, 299 N.C. 1 , 261 S.E.2d 90, 1980 N.C. LEXIS 904 (1980).

Definition of Satellite. —

A corporate limit is defined as a satellite only when there is no connection whatsoever between the municipality and the satellite. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, 1998 N.C. App. LEXIS 757 (1998).

Editor’s Note.

The reference to “G.S. 160A-58.61” was substituted for “G.S. 160A-51” at the direction of the Revisor of Statutes to conform to recodification of that section by Session Laws 2011-396, s. 5.

G.S. 160A-37, 160A-39, and 160A-49, referred to in subsection (a), were repealed by Session Laws 2011-396, ss. 1 and 7, effective July 1, 2011.

Editor’s Note.

Former G.S. 163-132.6 , referred to in subsection (c), was repealed by Session Laws 1991 (Regular Session, 1992), c. 927, s. 1.

References to “G.S. 160A-58.57(h), G.S. 160A-58.59(g),” were substituted for “G.S. 160A-49.1(h), G.S. 160A-49.3(g),” at the direction of the Revisor of Statutes to conform to recodification of those sections by Session Laws 2011-396, ss. 2 and 4.

G.S. 160A-37.1 and 160A-37.3, referred to in subsection (a), were repealed by Session Laws 2011-396, s. 1, effective July 1, 2011. Former G.S. 160A-33 through 160A-42 pertained to annexation by cities having a population of less than 5,000 persons. For current provisions, see G.S. 160A-58.50 et seq.

Part 5. Property Tax Liability of Newly Annexed Territory.

Editor’s Note.

Session Laws 2006-72, s. 1, provides: “A taxing unit’s governing body may by resolution provide that, notwithstanding the provisions of G.S. 105-360 regarding the due date and accrual of interest, G.S. 105-380 and G.S. 105-381 regarding the release, refund, and compromise of taxes, and G.S. 160A-58.10 regarding the taxation of newly annexed property, property taxes for the partial fiscal year October 1, 2005, through June 30, 2006, shall be collected over a three-year period with one-third due and payable on September 1, 2006, one-third due and payable on September 1, 2007, and the remaining one-third due and payable on September 1, 2008. The resolution may provide that interest accrues on unpaid property taxes only to the extent that the property taxes have become due and payable under the payment schedule set out in the resolution. To the extent property taxes are due and payable pursuant to a resolution adopted under this act, interest accruing on taxes that remain unpaid shall be computed according to the schedule stated in G.S. 105-360 . A resolution adopted pursuant to this act applies only to taxes for the partial fiscal year October 1, 2005, through June 30, 2006, on property located in an area that was annexed between January 1, 2003, and January 1, 2006, and for which effective date of the annexation was set by judicial order.”

Session Laws 2006-72, s. 2, provides: “If a resolution adopted by a taxing unit’s governing body pursuant to this act delays the due date, accrual of interest, or both for any property taxes, the tax collector’s obligations under G.S. 160A-58.10 and G.S. 105-360 with respect to those taxes are delayed to the same extent.”

Legal Periodicals.

For 1984 survey, “Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule,” see 63 N.C.L. Rev. 1260 (1985).

Editor’s Note.

Session Laws 2011-396 repealed former Parts 2 and 3 of Article 4A and enacted in their place new Parts 7 and 8.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Legal Periodicals.

For survey of 1980 administrative law, see 59 N.C.L. Rev. 1026 (1981).

For survey of 1980 constitutional law, see 59 N.C.L. Rev. 1093 (1981).

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

For 1984 survey, “Competitive Annexation Among Municipalities: North Carolina Adopts the Prior Jurisdiction Rule,” see 63 N.C.L. Rev. 1260 (1985).

For survey, “Municipal Annexation in North Carolina: A Look at the Past Decade,” see 14 Campbell L. Rev. 135 (1992).

For comment, “ ‘Caught Between a Rock and a Hard Place’: Fringe Landowners ‘Can’t Get No Satisfaction.’ Is It Time to Re-Think Annexation Policy in North Carolina?,” see 24 Campbell L. Rev. 317 (2002).

For note, “Consent Not Required: Municipal Annexation in North Carolina,” see 83 N.C. L. Rev. 1634 (2005).

For article, “Bargain Basement Annexation: How Municipalities Subvert the Intent of North Carolina Annexation Laws,” see 29 N.C. Cent. L.J. 77 (2006).

CASE NOTES

This Part does not constitute an unconstitutional delegation of legislative power in violation of N.C. Const., Art. VIII. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288, 1973 N.C. App. LEXIS 1684 (1973).

The legislature may, without violating the state or federal Constitutions, delegate to a municipality the authority to implement a plan of annexation. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288, 1973 N.C. App. LEXIS 1684 (1973).

The guidelines established by this Part are as stringent as those in G.S. 160A-45 et seq., and the discretion conferred upon the municipalities of population less than 5,000 is no greater than that conferred upon municipalities of population of 5,000 or greater. Therefore, the contention that the annexation statute is unconstitutional is untenable. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288, 1973 N.C. App. LEXIS 1684 (1973).

Rational Basis for Statutory Scheme. —

Given the State policy, it is not difficult to conceive of a rational basis supportive of the patchwork statutory scheme governing annexation in North Carolina. Thompson v. Whitley, 344 F. Supp. 480, 1972 U.S. Dist. LEXIS 13424 (E.D.N.C. 1972).

Application to Property of Condominium Owners. —

Condominium unit owners need municipal services like water, sewage disposal, and police and fire protection just as do homeowners in any new development. It would lead to anomalous results and violate legislative intent to construe the statute as applying to the property of homeowners but not to the property of condominium unit owners. Tar Landing Villas Owners' Ass'n v. Town of Atlantic Beach, 64 N.C. App. 239, 307 S.E.2d 181, 1983 N.C. App. LEXIS 3260 (1983).

Annexation of territory by a municipality is a legislative and not a judicial act; hence, in the absence of statutory directive, the court, on appeal from an annexation ordinance, cannot divide the territory, annex a part thereof and refuse to annex the remainder. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961).

Proceeding Is Summary. —

A proceeding by a municipality to annex territory pursuant to this Part is summary in nature. Southern Ry. v. Hook, 261 N.C. 517 , 135 S.E.2d 562, 1964 N.C. LEXIS 526 (1964).

Material statutory requirements must be complied with. Southern Ry. v. Hook, 261 N.C. 517 , 135 S.E.2d 562, 1964 N.C. LEXIS 526 (1964).

Summary Judgment Inappropriate for Fact Questions. —

The trial court erred in granting summary judgment as to whether defendant-town had fulfilled its duty to maintain a street it annexed where the record was undeveloped as to the current state of repair of the street and the customary maintenance provided by defendant on similar streets. Buckland v. Town of Haw River, 141 N.C. App. 460, 541 S.E.2d 497, 2000 N.C. App. LEXIS 1307 (2000).

Burden of Showing Noncompliance. —

In an annexation proceeding under this Part, the record of the proceedings must show prima facie complete and substantial compliance with the applicable provisions of the statutes; the burden is upon petitioners requesting review of annexation proceedings to show, by competent evidence, failure on the part of the municipality to comply with the statutory requirements as a matter of fact, or irregularity in the proceedings which materially prejudiced the substantive rights of petitioners. Conover v. Newton, 297 N.C. 506 , 256 S.E.2d 216, 1979 N.C. LEXIS 1405 (1979).

Voluntary Procedure Is Simpler and Quicker Than Involuntary Procedure. —

The voluntary procedure initiated by landowners and future municipal taxpayers has understandably been made simpler and quicker than involuntary annexation procedures. Town of Hudson v. City of Lenoir, 279 N.C. 156 , 181 S.E.2d 443, 1971 N.C. LEXIS 761 (1971).

Injection of Element of Choice. —

The variations in procedural requirements with respect to voluntary and involuntary annexation make it possible for property owners in the affected area to inject an element of choice as to which municipality will govern them. Town of Hudson v. City of Lenoir, 279 N.C. 156 , 181 S.E.2d 443, 1971 N.C. LEXIS 761 (1971).

Contiguity is an essential component of the traditional concept of a municipal corporation, which is envisioned as a governmental unit capable of providing essential governmental services to residents within compact borders on a scale adequate to insure “the protection of health, safety, and welfare in areas being intensively used for residential, commercial, industrial, and government purposes or in areas undergoing such development.” Imposition of the contiguity requirement is one means of ensuring that the annexation process remains consistent with principles of sound urban development. Hawks v. Town of Valdese, 299 N.C. 1 , 261 S.E.2d 90, 1980 N.C. LEXIS 904 (1980).

Section 160A-37 provides two different procedural methods for beginning the involuntary annexation process under G.S. 160A-33 to 160A-42, and former G.S. 160A-43 and 160A-44. A municipality may either pass a resolution of consideration one year prior to adopting its resolution of intent, or it may immediately adopt the resolution of intent and postpone the effective date of annexation for at least a year after the ordinance is passed. Town of Hazelwood v. Town of Waynesville, 83 N.C. App. 670, 351 S.E.2d 558, 1987 N.C. App. LEXIS 2384 , rev'd, 320 N.C. 89 , 357 S.E.2d 686, 1987 N.C. LEXIS 2171 (1987).

Prior Jurisdiction Doctrine. —

Adherence to the prior jurisdiction doctrine is not only consistent with the majority rule, but is in keeping with the spirit and intent of the annexation statutes. City of Burlington v. Town of Elon College, 310 N.C. 723 , 314 S.E.2d 534, 1984 N.C. LEXIS 1693 (1984).

Where one municipality institutes valid annexation proceedings first, that municipality should be given priority under the prior jurisdiction rule, and subsequent annexation proceedings, of whatever nature, are of no force and effect. City of Burlington v. Town of Elon College, 310 N.C. 723 , 314 S.E.2d 534, 1984 N.C. LEXIS 1693 (1984).

Preference of Landowners Is of No Consequence. —

For purposes of the prior jurisdiction rule, annexation proceedings, regardless of their nature, are “equivalent proceedings,” and it is of no consequence which town or city the landowners prefer. In fact, it appears to be the very essence of the involuntary annexation procedures that the affected landowners have no choice, as long as the annexing body complies with the applicable statutes. City of Burlington v. Town of Elon College, 310 N.C. 723 , 314 S.E.2d 534, 1984 N.C. LEXIS 1693 (1984).

Objectives Held Sufficient to Justify Annexation. —

Three avowed objectives stated by a town’s governing board, namely, (1) essentially all of the town’s desirable building sites were exhausted, (2) the tax base was unable to provide the kind of services people needed, and (3) many interested people were unable to participate in town government were sufficient to qualify annexation under this Part. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288, 1973 N.C. App. LEXIS 1684 (1973).

Annexation Proper. —

Trial court properly found that a village provided independent administrative, engineering, auditing, legal, and planning services to its residents, and that the village was exploring options for obtaining additional police patrol services, and had committed itself to providing its current and future levels of such services to its residents in a non-discriminatory manner; the trial court found that the village was going to provide some additional services to the area to be annexed, notwithstanding land owners’ claim they would receive no additional services whatsoever, and the trial court’s order affirming the annexation was proper. Nolan v. Village of Marvin, 172 N.C. App. 84, 615 S.E.2d 898, 2005 N.C. App. LEXIS 1432 (2005), rev'd, 360 N.C. 256 , 624 S.E.2d 305, 2006 N.C. LEXIS 3 (2006).

Village essentially complied with the requirements of G.S. 160A-33 because the village’s annexation of property was consistent with the public policy of sound urban development articulated in G.S. 160A-33 . Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524, 2008 N.C. App. LEXIS 1819 (2008).

Annexation Ordinance Unenforceable. —

Appellate court’s decision that upheld the trial court’s judgment upholding the annexation ordinance was reversed, as the village’s annexation ordinance did not provide for meaningful extension of municipal services to the lots subject to annexation, which meant that the village had not substantially complied with the statutory procedures for annexation and that the property owners would suffer material injury, in the form of municipal taxes, if annexation proceeded. Nolan v. Village of Marvin, 360 N.C. 256 , 624 S.E.2d 305, 2006 N.C. LEXIS 3 (2006).

Municipality Need Not Acquire Private Water and Sewer Systems. —

An annexation ordinance may not be attacked on the ground that the municipality has no plans to purchase or finance the purchase of private water and sewer systems existing in the annexed territory, since the mere existence of such private systems within the territory to be annexed does not compel the city to purchase or acquire ownership of them. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961).

Nor Does Mere Extension of Limits or Voluntary Maintenance Appropriate Such Systems. —

Where a municipality annexes territory served by private water or sewer lines, the owners of such lines may not recover the value thereof from the municipality in the absence of provisions for payment by contract or ordinance, unless the municipality appropriates such private lines and controls them as proprietor; the mere extension of the city limits to include such lines or the voluntary maintenance of such lines by the city does not amount to an appropriation of such lines by the municipality. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961).

Annexation Procedure Constitutional. —

The procedure for annexation by cities of 5,000 or more, G.S. 160A-45 et seq., does not violate N.C. Const., Art. I, § 25, because it does not provide for trial by jury on issues of fact. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

The procedure for annexation by cities of 5,000 or more does not authorize a taking of private property without just compensation in violation of the due process clause of U.S. Const., Amend. V or the law of the land provision of N.C. Const., Art. I, § 19, on the alleged ground that petitioner will pay a substantial sum in ad valorem taxes to the annexing town without receiving any substantial benefits or major services he does not already receive, since petitioner may petition for a writ of mandamus pursuant to G.S. 160A-49(h) if he discovers he is not receiving services other residents are receiving, within 12 to 15 months from the effective date of the annexation, and the annexation procedure thus provides adequate due process safeguards to assure that citizens in the annexed area get municipal services on a nondiscriminatory basis. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

Provisions Not Unconstitutional as Special or Local Legislation. —

Sections 160A-45 through 160A-50 are not unconstitutional as special or local legislation even though as enacted the statutes exempted certain counties from their application, because municipal annexation is not one of the subject matter areas which the Constitution requires to be accomplished by general or uniformly applicable laws. In re City of Durham Annexation Ordinance Numbered 5991 for Area A, 69 N.C. App. 77, 316 S.E.2d 649, 1984 N.C. App. LEXIS 3384 (1984).

Sections 160A-45 et seq. do not violate N.C. Const., Art. II, § 24, which prohibits the General Assembly from enacting “any local, private, or special act or resolution” in regard to certain enumerated subjects. This constitutional provision does not apply to annexation proceedings by municipalities, since N.C. Const., Art. VII, § 1, authorizes the General Assembly “except as otherwise prohibited by this Constitution” to “give such powers and duties to counties, cities, and towns and other governmental subdivisions as it may deem advisable,” and no other provision of the Constitution prohibits the General Assembly from enacting special legislation for the annexation of areas by municipalities. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

No Denial of Equal Protection. —

Part 3 of Article 4A of Chapter 160A does not deny equal protection under either the state or federal Constitutions. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

Rational Basis for Statutory Scheme. —

Given the state policy, it is not difficult to conceive of a rational basis supportive of the patchwork statutory scheme governing annexation in North Carolina. Thompson v. Whitley, 344 F. Supp. 480, 1972 U.S. Dist. LEXIS 13424 (E.D.N.C. 1972).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195, 1984 N.C. App. LEXIS 3856 (1984).

Legislative Intent. —

To apply a strict interpretation to G.S. 160A-45 , et seq., would contravene the intent of the legislature, which is to obtain a meaningful review of annexation ordinances. Southern Glove Mfg. Co. v. City of Newton, 63 N.C. App. 754, 306 S.E.2d 466, 1983 N.C. App. LEXIS 3172 (1983).

The legislative policy expressed in this section is that municipalities remain dynamic growing entities. Quality Water Supply, Inc. v. City of Wilmington, 97 N.C. App. 400, 388 S.E.2d 608, 1990 N.C. App. LEXIS 127 (1990).

Central purpose behind the annexation procedure is to assure that, in return for the added financial burden of municipal taxation, the residents receive the benefits of all the major services available to municipal residents. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982); In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

The General Assembly has established detailed criteria and guidelines for annexation under Part 3 of this Article. McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, 1983 N.C. App. LEXIS 2691 (1983).

The minimum requirements of the annexation 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 nondiscriminatory level of service. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Prima facie complete and substantial compliance with this Part is a condition precedent to annexation of territory by a municipality. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

The provisions of this section are merely statements of policy. No procedural steps, substantive rights, or annexation requirements are contained in that statute. Humphries v. City of Jacksonville, 300 N.C. 186 , 265 S.E.2d 189, 1980 N.C. LEXIS 1039 (1980); In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

Policies enumerated under this section are aids for statutory interpretation when other sections of Part 3 of this Article are in need of clarification, definition, and interpretation. Humphries v. City of Jacksonville, 300 N.C. 186 , 265 S.E.2d 189, 1980 N.C. LEXIS 1039 (1980); In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

Statement of Policy Not Part of G.S. 160A-50 “Procedure”. —

The statement of state policy with regard to annexation set forth in this section is not part of the “procedure” of annexation under G.S. 160A-50 . In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

It is not required that proposed sewer interceptors be included on the maps that accompany annexation reports. Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832, 1983 N.C. App. LEXIS 3215 (1983).

The legislature has recognized the importance of adequate water and sewer facilities to the end of quality urban development 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. Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832, 1983 N.C. App. LEXIS 3215 (1983).

Prior Jurisdiction Doctrine. —

Adherence to the prior jurisdiction doctrine is not only consistent with the majority rule, but is in keeping with the spirit and intent of the annexation statutes. City of Burlington v. Town of Elon College, 310 N.C. 723 , 314 S.E.2d 534, 1984 N.C. LEXIS 1693 (1984).

A county may not exercise jurisdiction over any part of a city located within its borders. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Statutes do not give a county authority over provision of sewer services within a city, or over newly annexed areas of the city which also lie in the county. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. —

Since county had no authority to restrict or regulate city’s provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county’s special use permit, with a condition attached to the permit requiring the county’s prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county’s prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Where one municipality institutes valid annexation proceedings first, that municipality should be given priority under the prior jurisdiction rule, and subsequent annexation proceedings, of whatever nature, are of no force and effect. City of Burlington v. Town of Elon College, 310 N.C. 723 , 314 S.E.2d 534, 1984 N.C. LEXIS 1693 (1984).

Meaningful Benefit Provided to Annexed Residents. —

Town’s annexation was valid because: (1) according to the annexation report, the town would extend its municipal services on a non-discriminatory basis, thus satisfying the statutory requirements under G.S. 160A-47(3); (2) the town annexation provided police protection, a service that promoted the health, safety, and welfare of residents within the annexed area; (3) such protection provided a meaningful benefit to the annexed residents and furthered the public policies underlying the annexation statutes, under G.S. 160A-45 ; and (4) property owners were bound by a trial court’s factual finding that the owners had not shown that the annexation area currently received police services that were comparable to those that the town would provide the annexation area after the annexation became effective. Nolan v. Town of Weddington, 182 N.C. App. 486, 642 S.E.2d 261, 2007 N.C. App. LEXIS 690 (2007).

Preference of Landowners Is of No Consequence. —

For purposes of the prior jurisdiction rule, annexation proceedings, regardless of their nature, are “equivalent proceedings,” and it is of no consequence which town or city the landowners prefer. In fact, it appears to be the very essence of the involuntary annexation procedures that the affected landowners have no choice, as long as the annexing body complies with the applicable statutes. City of Burlington v. Town of Elon College, 310 N.C. 723 , 314 S.E.2d 534, 1984 N.C. LEXIS 1693 (1984).

Discovery. —

Though discovery in annexation proceedings is not altogether forbidden, its scope is necessarily limited by the nature of the proceeding. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

Reports’ Statement of Policy Objectives Held Sufficient. —

A statement in an annexation plan report that the annexation was designed to promote sound urban development and assure adequate provision of government services was a sufficient statement of the policy objectives to be met by the annexation to comply with this section. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

Judicial Review. —

The General Assembly has provided for limited judicial review of annexation ordinances. Section 160A-50 provides that a property owner in the annexed area may seek judicial review of the ordinance. Upon such review, the superior court may consider only whether (1) the statutory procedure was not followed, or (2) the provisions of G.S. 160A-47 were not met, or (3) the provisions of G.S. 160A-48 have not been met. Additionally, petitioner must carry the burden of showing both noncompliance with statutory requirements and procedure and material injury flowing from such noncompliance. McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, 1983 N.C. App. LEXIS 2691 (1983).

CASE NOTES

Annexation Procedure Constitutional. —

The procedure for annexation by cities of 5,000 or more, G.S. 160A-45 et seq., does not violate N.C. Const., Art. I, § 25, because it does not provide for trial by jury on issues of fact. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

The procedure for annexation by cities of 5,000 or more does not authorize a taking of private property without just compensation in violation of the due process clause of U.S. Const., Amend. V or the law of the land provision of N.C. Const., Art. I, § 19, on the alleged ground that petitioner will pay a substantial sum in ad valorem taxes to the annexing town without receiving any substantial benefits or major services he does not already receive, since petitioner may petition for a writ of mandamus pursuant to G.S. 160A-49(h) if he discovers he is not receiving services other residents are receiving, within 12 to 15 months from the effective date of the annexation, and the annexation procedure thus provides adequate due process safeguards to assure that citizens in the annexed area get municipal services on a nondiscriminatory basis. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

Provisions Not Unconstitutional as Special or Local Legislation. —

Sections 160A-45 through 160A-50 are not unconstitutional as special or local legislation even though as enacted the statutes exempted certain counties from their application, because municipal annexation is not one of the subject matter areas which the Constitution requires to be accomplished by general or uniformly applicable laws. In re City of Durham Annexation Ordinance Numbered 5991 for Area A, 69 N.C. App. 77, 316 S.E.2d 649, 1984 N.C. App. LEXIS 3384 (1984).

Sections 160A-45 et seq. do not violate N.C. Const., Art. II, § 24, which prohibits the General Assembly from enacting “any local, private, or special act or resolution” in regard to certain enumerated subjects. This constitutional provision does not apply to annexation proceedings by municipalities, since N.C. Const., Art. VII, § 1, authorizes the General Assembly “except as otherwise prohibited by this Constitution” to “give such powers and duties to counties, cities, and towns and other governmental subdivisions as it may deem advisable,” and no other provision of the Constitution prohibits the General Assembly from enacting special legislation for the annexation of areas by municipalities. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

No Denial of Equal Protection. —

Part 3 of Article 4A of Chapter 160A does not deny equal protection under either the state or federal Constitutions. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

Rational Basis for Statutory Scheme. —

Given the state policy, it is not difficult to conceive of a rational basis supportive of the patchwork statutory scheme governing annexation in North Carolina. Thompson v. Whitley, 344 F. Supp. 480, 1972 U.S. Dist. LEXIS 13424 (E.D.N.C. 1972).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195, 1984 N.C. App. LEXIS 3856 (1984).

Legislative Intent. —

To apply a strict interpretation to G.S. 160A-45 , et seq., would contravene the intent of the legislature, which is to obtain a meaningful review of annexation ordinances. Southern Glove Mfg. Co. v. City of Newton, 63 N.C. App. 754, 306 S.E.2d 466, 1983 N.C. App. LEXIS 3172 (1983).

The legislative policy expressed in this section is that municipalities remain dynamic growing entities. Quality Water Supply, Inc. v. City of Wilmington, 97 N.C. App. 400, 388 S.E.2d 608, 1990 N.C. App. LEXIS 127 (1990).

Central purpose behind the annexation procedure is to assure that, in return for the added financial burden of municipal taxation, the residents receive the benefits of all the major services available to municipal residents. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982); In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

The General Assembly has established detailed criteria and guidelines for annexation under Part 3 of this Article. McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, 1983 N.C. App. LEXIS 2691 (1983).

The minimum requirements of the annexation 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 nondiscriminatory level of service. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Prima facie complete and substantial compliance with this Part is a condition precedent to annexation of territory by a municipality. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

The provisions of this section are merely statements of policy. No procedural steps, substantive rights, or annexation requirements are contained in that statute. Humphries v. City of Jacksonville, 300 N.C. 186 , 265 S.E.2d 189, 1980 N.C. LEXIS 1039 (1980); In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

Policies enumerated under this section are aids for statutory interpretation when other sections of Part 3 of this Article are in need of clarification, definition, and interpretation. Humphries v. City of Jacksonville, 300 N.C. 186 , 265 S.E.2d 189, 1980 N.C. LEXIS 1039 (1980); In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

Statement of Policy Not Part of G.S. 160A-50 “Procedure”. —

The statement of state policy with regard to annexation set forth in this section is not part of the “procedure” of annexation under G.S. 160A-50 . In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

It is not required that proposed sewer interceptors be included on the maps that accompany annexation reports. Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832, 1983 N.C. App. LEXIS 3215 (1983).

The legislature has recognized the importance of adequate water and sewer facilities to the end of quality urban development 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. Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832, 1983 N.C. App. LEXIS 3215 (1983).

Prior Jurisdiction Doctrine. —

Adherence to the prior jurisdiction doctrine is not only consistent with the majority rule, but is in keeping with the spirit and intent of the annexation statutes. City of Burlington v. Town of Elon College, 310 N.C. 723 , 314 S.E.2d 534, 1984 N.C. LEXIS 1693 (1984).

A county may not exercise jurisdiction over any part of a city located within its borders. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Statutes do not give a county authority over provision of sewer services within a city, or over newly annexed areas of the city which also lie in the county. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. —

Since county had no authority to restrict or regulate city’s provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county’s special use permit, with a condition attached to the permit requiring the county’s prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county’s prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Where one municipality institutes valid annexation proceedings first, that municipality should be given priority under the prior jurisdiction rule, and subsequent annexation proceedings, of whatever nature, are of no force and effect. City of Burlington v. Town of Elon College, 310 N.C. 723 , 314 S.E.2d 534, 1984 N.C. LEXIS 1693 (1984).

Meaningful Benefit Provided to Annexed Residents. —

Town’s annexation was valid because: (1) according to the annexation report, the town would extend its municipal services on a non-discriminatory basis, thus satisfying the statutory requirements under G.S. 160A-47(3); (2) the town annexation provided police protection, a service that promoted the health, safety, and welfare of residents within the annexed area; (3) such protection provided a meaningful benefit to the annexed residents and furthered the public policies underlying the annexation statutes, under G.S. 160A-45 ; and (4) property owners were bound by a trial court’s factual finding that the owners had not shown that the annexation area currently received police services that were comparable to those that the town would provide the annexation area after the annexation became effective. Nolan v. Town of Weddington, 182 N.C. App. 486, 642 S.E.2d 261, 2007 N.C. App. LEXIS 690 (2007).

Preference of Landowners Is of No Consequence. —

For purposes of the prior jurisdiction rule, annexation proceedings, regardless of their nature, are “equivalent proceedings,” and it is of no consequence which town or city the landowners prefer. In fact, it appears to be the very essence of the involuntary annexation procedures that the affected landowners have no choice, as long as the annexing body complies with the applicable statutes. City of Burlington v. Town of Elon College, 310 N.C. 723 , 314 S.E.2d 534, 1984 N.C. LEXIS 1693 (1984).

Discovery. —

Though discovery in annexation proceedings is not altogether forbidden, its scope is necessarily limited by the nature of the proceeding. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

Reports’ Statement of Policy Objectives Held Sufficient. —

A statement in an annexation plan report that the annexation was designed to promote sound urban development and assure adequate provision of government services was a sufficient statement of the policy objectives to be met by the annexation to comply with this section. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

Judicial Review. —

The General Assembly has provided for limited judicial review of annexation ordinances. Section 160A-50 provides that a property owner in the annexed area may seek judicial review of the ordinance. Upon such review, the superior court may consider only whether (1) the statutory procedure was not followed, or (2) the provisions of G.S. 160A-47 were not met, or (3) the provisions of G.S. 160A-48 have not been met. Additionally, petitioner must carry the burden of showing both noncompliance with statutory requirements and procedure and material injury flowing from such noncompliance. McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, 1983 N.C. App. LEXIS 2691 (1983).

Editor’s Note.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Subdivisions (2) through (5) of this section were originally enacted by Session Laws 2011-396, s. 9, as subdivisions (1a), (2), (3) and (4), respectively. The subdivisions have been renumbered at the direction of the Revisor of Statutes.

Effect of Amendments.

Session Laws 2012-11, s. 2, effective July 1, 2012, in the first sentence of subdivision (2), deleted “to sign a petition to deny an annexation ordinance or a property owner who is eligible”; and deleted the second sentence, which read: “A property owner is eligible to sign a petition to deny an annexation ordinance if the property owner held a freehold interest in the property, determined as of the date of the resolution of consideration.” For applicability, see Editor’s note.

CASE NOTES

Coincidence of Boundary Requirement. —

In considering the coincidence of boundary requirement, the entire area proposed for annexation must be viewed as a whole, rather than as various component portions. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

Territory which is contiguous solely to “satellite corporate limits” is not a “contiguous area ” as that term is defined in subdivision (1). Hawks v. Town of Valdese, 299 N.C. 1 , 261 S.E.2d 90, 1980 N.C. LEXIS 904 (1980).

Classification of Landlocked and Fronting Lots in Single Ownership as Single Lot. —

It is not unreasonable and beyond the statutory definition to classify a landlocked lot and its fronting lot in single ownership as a single lot in residential use where only the fronting lot contains “a habitable dwelling unit.” Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, 1969 N.C. App. LEXIS 1144 (1969).

Annexation Proper. —

Village essentially complied with the requirements of G.S. 160A-41 because the village met the literal contiguity requirements in annexing an area. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524, 2008 N.C. App. LEXIS 1819 (2008).

“Used for Residential Purposes.” —

Under G.S. 160A-53(2), “used for residential purposes” means any lot or tract five acres or less in size on which is constructed a habitable dwelling unit, for purposes of an annexation ordinance. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40, 2007 N.C. App. LEXIS 2250 (2007).

Mobile Homes as “Constructed” for “Residential Purposes” Requirement. —

Petitioners/property owners failed to overcome the presumption that the City substantially complied with G.S. 160A-48(c)(3) when it moved to annex disputed areas; mobile homes used to meet the “urban purposes” percentage requirement were “constructed” on the lots pursuant to “residential purposes” as defined by subdivision (2) of this section, and the deletion of a condemned home, originally included as a “habitable” residence, did not affect the calculations or the city’s compliance. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208, 1999 N.C. App. LEXIS 747 (1999).

Tract Classified as Residential Despite Growing of Grass Thereon for Cattle Feed. —

A city could classify a 1.83 acre tract with a rented house located on it as one lot used for residential purposes, despite the fact that on two separate parts of the lot fescue and sudex grass was grown and a person living in the neighborhood had been allowed to mow this grass, bale it and feed it to his cows. Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, 1985 N.C. App. LEXIS 3693 (1985).

CASE NOTES

“Used for Residential Purposes.” —

Under G.S. 160A-53(2), “used for residential purposes” means any lot or tract five acres or less in size on which is constructed a habitable dwelling unit, for purposes of an annexation ordinance. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40, 2007 N.C. App. LEXIS 2250 (2007).

Mobile Homes as “Constructed” for “Residential Purposes” Requirement. —

Petitioners/property owners failed to overcome the presumption that the City substantially complied with G.S. 160A-48(c)(3) when it moved to annex disputed areas; mobile homes used to meet the “urban purposes” percentage requirement were “constructed” on the lots pursuant to “residential purposes” as defined by subdivision (2) of this section, and the deletion of a condemned home, originally included as a “habitable” residence, did not affect the calculations or the city’s compliance. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208, 1999 N.C. App. LEXIS 747 (1999).

Tract Classified as Residential Despite Growing of Grass Thereon for Cattle Feed. —

A city could classify a 1.83 acre tract with a rented house located on it as one lot used for residential purposes, despite the fact that on two separate parts of the lot fescue and sudex grass was grown and a person living in the neighborhood had been allowed to mow this grass, bale it and feed it to his cows. Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, 1985 N.C. App. LEXIS 3693 (1985).

Editor’s Note.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

CASE NOTES

Annexation of territory to a municipal corporation is a legislative function which may not be delegated to a court. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961).

Municipality’s Discretion Limited to Method of Annexation. —

The only discretion given to the governing boards of municipalities is the permission and discretionary right to use the new method of annexation set out in this Article, provided such boards conform to the procedure and meet the requirements set out in this Part as a condition precedent to the right to annex. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961).

Burden of Showing Failure to Meet Statutory Requirements. —

Where the record of annexation proceedings under this section on its face showed substantial compliance with every essential element of the applicable statutes, the burden was upon petitioners, who appealed from the annexation ordinance, to show by competent evidence that the city in fact failed to meet the statutory requirements or that there was irregularity in the proceedings which materially prejudiced their substantive rights. Dunn v. City of Charlotte, 284 N.C. 542 , 201 S.E.2d 873, 1974 N.C. LEXIS 1284 (1974).

This section is constitutional. In re Annexation Ordinances, 253 N.C. 637 , 117 S.E.2d 795, 1961 N.C. LEXIS 451 (1961).

Right to Use New Annexation Method as Only Discretion Delegated to Municipalities. —

By the enactment of Part 3 of this Article, the General Assembly did not delegate to the municipalities of the State having a population of 5,000 or more any discretion with respect to the provisions of the law. The guiding standards and requirements of the act are set out in great detail. The only discretion given to the governing boards of such municipalities is the permissive or discretionary right to use this new method of annexation, provided such boards conform to the procedure and meet the requirements set out in the act as a condition precedent to the right to annex. In re Annexation Ordinances, 253 N.C. 637 , 117 S.E.2d 795, 1961 N.C. LEXIS 451 (1961).

A city has statutory authority to annex areas both contiguous and non-contiguous to its primary corporate limits. It must stand ready to provide sewer service (among other services) to newly annexed areas on substantially the same basis and in the same manner in which these services are provided to the rest of the city. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. —

Since county had no authority to restrict or regulate city’s provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county’s special use permit, with a condition attached to the permit requiring the county’s prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county’s prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

CASE NOTES

This section is constitutional. In re Annexation Ordinances, 253 N.C. 637 , 117 S.E.2d 795, 1961 N.C. LEXIS 451 (1961).

Right to Use New Annexation Method as Only Discretion Delegated to Municipalities. —

By the enactment of Part 3 of this Article, the General Assembly did not delegate to the municipalities of the State having a population of 5,000 or more any discretion with respect to the provisions of the law. The guiding standards and requirements of the act are set out in great detail. The only discretion given to the governing boards of such municipalities is the permissive or discretionary right to use this new method of annexation, provided such boards conform to the procedure and meet the requirements set out in the act as a condition precedent to the right to annex. In re Annexation Ordinances, 253 N.C. 637 , 117 S.E.2d 795, 1961 N.C. LEXIS 451 (1961).

A city has statutory authority to annex areas both contiguous and non-contiguous to its primary corporate limits. It must stand ready to provide sewer service (among other services) to newly annexed areas on substantially the same basis and in the same manner in which these services are provided to the rest of the city. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. —

Since county had no authority to restrict or regulate city’s provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county’s special use permit, with a condition attached to the permit requiring the county’s prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county’s prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Editor’s Note.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

CASE NOTES

Local Modification Held Unconstitutional. —

Chapter 1189, Session Laws 1963, amending subdivision (3)b of this section solely as it applied to the Town of Beaufort and providing that a municipality shall not be required to extend sewage outfalls into an area annexed by it in the event that the municipal sewerage system shall have been declared a source of unlawful pollution, was a local act relating to health and sanitation within the meaning of N.C. Const., Art. II, § 24, and was unconstitutional and void. Gaskill v. Costlow, 270 N.C. 686 , 155 S.E.2d 148, 1967 N.C. LEXIS 1405 (1967); Safrit v. Costlow, 270 N.C. 680 , 155 S.E.2d 252, 1967 N.C. LEXIS 1404 (1967).

Standard of Review Under This Section. —

The trial court’s order affirming a town annexation ordinance had to be vacated where the court applied the material prejudice standard of review to the adequacy of maps contained in the town report as well as to the questions of solid waste collection and the financing of services instead of determining whether or not the town complied with this section in formulating and carrying out its annexation plan; procedural irregularities under G.S. 160A-37 are to be evaluated under a “material prejudice” standard, while violations of either this section or G.S. 160A-36 are to be viewed in light of compliance or lack thereof and, if necessary, result in appropriate amendment. Sonopress, Inc. v. Town of Weaverville, 139 N.C. App. 378, 533 S.E.2d 537, 2000 N.C. App. LEXIS 948 (2000).

Municipality, as a condition precedent to the right to annex, must file a report showing on its face strict compliance with statutory requirements, and upon review in superior court has the burden of sustaining the regularity, adequacy, veracity and validity of the report and annexation ordinance by competent evidence. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961).

The legislature has empowered municipal governing boards to amend the report required by this section, in order to make changes in the plans for serving the area proposed to be annexed, so long as such changes meet the requirements of this section. Gregory v. Town of Plymouth, 60 N.C. App. 431, 299 S.E.2d 232, 1983 N.C. App. LEXIS 2441 (1983).

Plans Held in Compliance with Subdivision (3)a. —

Plans which contained (1) information with respect to the current level of services within town, (2) a commitment to provide substantially the same level of services in the annexation area, and (3) information as to how the extension of services would be financed set forth sufficient information to allow the public and the courts to determine that the town had committed itself to provide a nondiscriminatory level of services to the annexed area and to establish compliance with subdivision (3)a. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

Failure to Call for Increase in Personnel in Plans. —

Plans for services to the annexed area are not defective in failing to call for any significant increase in personnel where the record is devoid of evidence showing any need for increased personnel. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, 1969 N.C. App. LEXIS 1144 (1969).

The fact that the metes and bounds description in a resolution of intent to annex failed to close, because one small piece of property owned by a person who did not join the petition for review was not included within the resolution of intent, was not fatal to the validity of the annexation ordinance where the resolution of intent and the published notice of public hearing made full reference to a map filed in the office of the clerk of the city and available for public inspection of the area proposed to be annexed, and this map and a map published in the newspaper notice of the public hearing showed all the property proposed to be annexed. Conover v. Newton, 297 N.C. 506 , 256 S.E.2d 216, 1979 N.C. LEXIS 1405 (1979).

This section does not make it incumbent upon the municipality to justify annexation other than to the extent of its ability to serve the areas to be annexed. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288, 1973 N.C. App. LEXIS 1684 (1973).

While the extent to which an area needs municipal services is among the factors to be considered in a decision to annex, the statute requires only that a city demonstrate an ability to serve the area to be annexed. Thompson v. City of Salisbury, 24 N.C. App. 616, 211 S.E.2d 856, 1975 N.C. App. LEXIS 2453 , cert. denied, 287 N.C. 264 , 214 S.E.2d 437, 1975 N.C. LEXIS 1116 (1975).

Map Requirement Met. —

Annexation report complied with statutory map requirements where the map indicated the current town limits, the area of proposed annexation, and the current town limits of satellite annexation, as well as major roads and property boundaries; there was no requirement that the report contain a sealed map where the town did not plan to extend water and sewer into an annexed area. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, 2002 N.C. App. LEXIS 282 (2002).

Providing nondiscriminating level of services within statutory time is all that is required. Greene v. Town of Valdese, 306 N.C. 79 , 291 S.E.2d 630, 1982 N.C. LEXIS 1376 (1982).

Remedy Where Municipality Has Not Carried Out Service Plans Adopted under Subdivision (3). —

The statutory remedy for owners of property in annexed territory where the municipality has not followed through on its service plans adopted under the provisions of subdivision (3) of this section and G.S. 160A-37 is by writ of mandamus. Safrit v. Costlow, 270 N.C. 680 , 155 S.E.2d 252, 1967 N.C. LEXIS 1404 (1967).

Record Held to Sustain Finding of Compliance. —

Where the record disclosed the plans of the municipality for extending municipal services to the area annexed, itemizing the cost, and obtaining such cost from current taxes, the record supported a finding by the court of compliance with this section, and such finding would not be disturbed in the absence of evidence to the contrary of sufficient weight to overcome the prima facie presumption of regularity. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961).

Evidence supporting the plans set out in the report, and no evidence that the service would not be adequate, was sufficient to support the conclusion that the police protection requirement of this section would be met. Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288, 1973 N.C. App. LEXIS 1684 (1973).

Annexation ordinance and report met the requirements of this section and G.S. 160A-37. Williams v. Town of Grifton, 22 N.C. App. 611, 207 S.E.2d 275, 1974 N.C. App. LEXIS 2394 (1974).

A second public hearing after amendment is not required by this section. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, 1969 N.C. App. LEXIS 1144 (1969).

There is no requirement that a second public hearing be held on an amended annexation proposal, when that amendment is adopted to achieve compliance with this section, pursuant to the authority granted in G.S. 160A-37(e). Gregory v. Town of Plymouth, 60 N.C. App. 431, 299 S.E.2d 232, 1983 N.C. App. LEXIS 2441 (1983).

There is no requirement that a second public hearing be held on an amended annexation proposal, when that amendment is adopted to achieve compliance with G.S. 160A-35, and G.S. 160A-35 is the corollary to G.S. 160A-47, with the only significant difference in these statutes being that G.S. 160A-35 applies to cities less than 5,000 and G.S. 160A-47 applies to cities of 5,000 or more. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40, 2007 N.C. App. LEXIS 2250 (2007).

Town Not Required to Provide Service. —

Language in annexation ordinances to the effect that since water service then provided to the annexed areas by plaintiff was comparable to that provided by the town, the town would not be required to appropriate funds to extend water and sewer lines to the annexed area was required by G.S. 160A-37(e)(3) and subdivision (3)b to insure that residents of the area to be annexed would have access to comparable water service; in no way did this serve as a promise to be rightfully relied upon that the town would not in the future construct its own water lines within the annexed area or that plaintiff had the exclusive right to furnish water service there. Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317, 1995 N.C. App. LEXIS 956 (1995).

Additional Services Not Required. —

Annexation report complied with statutory requirements where it stated that no additional police officers were required by the annexation and that roads would continue to be maintained by the State; evidence supported the town’s statements that additional police officers were not required and that the State would continue to provide road maintenance. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, 2002 N.C. App. LEXIS 282 (2002).

Annexation Proper. —

Trial court properly found that a village provided independent administrative, engineering, auditing, legal, and planning services to its residents, and that the village was exploring options for obtaining additional police patrol services, and had committed itself to providing its current and future levels of such services to its residents in a non-discriminatory manner; the trial court found that the village was going to provide some additional services to the area to be annexed, notwithstanding land owners’ claim they would receive no additional services whatsoever, and the trial court’s order affirming the annexation was proper. Nolan v. Village of Marvin, 172 N.C. App. 84, 615 S.E.2d 898, 2005 N.C. App. LEXIS 1432 (2005), rev'd, 360 N.C. 256 , 624 S.E.2d 305, 2006 N.C. LEXIS 3 (2006).

Village essentially complied with the requirements of G.S. 160A-35 because a map prepared by the village as part of its original report clearly included a one-acre tract of land which was ultimately annexed. Moreover, the annexation ordinance would have extended the same police protection, waste collection services, and recreation department facilities that were then provided within the village. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524, 2008 N.C. App. LEXIS 1819 (2008).

Annexation Ordinance Unenforceable. —

Appellate court’s decision that upheld the trial court’s judgment upholding the annexation ordinance was reversed, as the village’s annexation ordinance did not provide for meaningful extension of municipal services to the lots subject to annexation, which meant that the village had not substantially complied with the statutory procedures for annexation and that the property owners would suffer material injury, in the form of municipal taxes, if annexation proceeds. Nolan v. Village of Marvin, 360 N.C. 256 , 624 S.E.2d 305, 2006 N.C. LEXIS 3 (2006).

Financing Statement Not Required. —

Town did not need to set out a method for the financing of additional services in its annexation report where the town’s statement that no additional services were required was supported by competent evidence in the record; a financing statement was required only if there was to be an extension of services. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, 2002 N.C. App. LEXIS 282 (2002).

Purpose. —

The purpose of this section is to insure that major municipal services are provided to newly annexed areas on a nondiscriminatory basis. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225, 1989 N.C. App. LEXIS 223 (1989).

The purpose of this statute is to insure that, in return for the financial burden of city taxes, annexed residents receive all major city services. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204, 1996 N.C. App. LEXIS 1208 (1996).

Section Required to Be Followed Only Where Annexation Achieved Under Chapter 160A, Art. 4A, Part 3. —

This section, dealing with the submission of plans by the municipality for the extension of municipal services (including police and fire protection, solid waste collection, and street maintenance), and G.S. 160A-49.1 and 160A-49.3, dealing with contracting for fire protection and sewage services, are required to be followed by a municipality only where the annexation is to be achieved under Chapter 160A, Art. 4A, Part 3. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262, 1988 N.C. App. LEXIS 636 (1988), writ denied, 323 N.C. 625 , 374 S.E.2d 589, 1988 N.C. LEXIS 758 (1988), rev'd, 324 N.C. 499 , 380 S.E.2d 107, 1989 N.C. LEXIS 295 (1989).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195, 1984 N.C. App. LEXIS 3856 (1984).

Central purpose behind the annexation procedure is to assure that, in return for the added financial burden of municipal taxation, the residents receive the benefits of all the major services available to municipal residents. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982); Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832, 1983 N.C. App. LEXIS 3215 (1983); In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Local act requiring city to extend municipal services, including services under this section, to newly annexed areas did not violate N.C. Const., Art. II, § 24(1)(a). Piedmont Ford Truck Sale, Inc. v. City of Greensboro, 324 N.C. 499 , 380 S.E.2d 107, 1989 N.C. LEXIS 295 (1989).

A city has statutory authority to annex areas both contiguous and non-contiguous to its primary corporate limits. It must stand ready to provide sewer service (among other services) to newly annexed areas on substantially the same basis and in the same manner in which these services are provided to the rest of the city. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. —

Since county had no authority to restrict or regulate city’s provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county’s special use permit, with a condition attached to the permit requiring the county’s prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county’s prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Discovery. —

Judicial review of an annexation ordinance is a limited judicial review, with few similarities to ordinary civil actions which are initiated, tried and adjudicated in a different manner and for which the Rules of Civil Procedure were mostly devised. Nevertheless, since the court reviewing annexation proceedings is explicitly authorized to receive evidence as to the city’s compliance with the various procedures prescribed, as to its annexation plan meeting the requisites of this section, and as to the area involved being eligible for annexation under G.S. 160A-48, in those instances where discovery may illuminate these issues it is authorized under the Rules of Civil Procedure. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

It is not required that proposed sewer interceptors be included on the maps that accompany annexation reports. Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832, 1983 N.C. App. LEXIS 3215 (1983).

Maps Held Sufficient. —

Maps prepared by a town as part of its revised annexation plan report substantially complied with subdivision (1) of this section, although the eastern boundary and approximately one-fifth of the town area were omitted and the map showing the general land use pattern contained several blank areas representing vacant lots which did not appear as a category on the legend of the maps, where both the entire area contiguous to the area to be annexed and that area itself were included on the map. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

Plans for Extension of Services as Condition Precedent. —

The requirement of plans for extension to the area to be annexed of all major municipal services performed within the municipality at the time of annexation is a condition precedent to annexation. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

The minimum requirements of subdivision (3) 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 nondiscriminatory 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 No. 300-X, 304 N.C. 549 , 284 S.E.2d 470, 1981 N.C. LEXIS 1361 (1981); Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832, 1983 N.C. App. LEXIS 3215 (1983).

The minimum requirements of the annexation 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 nondiscriminatory level of service and to allow a reviewing court to determine after the fact whether the municipality has timely provided such services. If such services are not provided, the residents of the annexed area would be entitled to a writ of mandamus requiring the municipality to live up to its commitments. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

The minimum requirements of the annexation 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 nondiscriminatory level of service. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Providing Forms to Property Owners. —

Subdivision (3)(b) does not require the city to provide notice to the property owners that they may request a form providing for extension of lines to their property in accordance with the financial policies of the city, and in the absence of a request, the city is not required to provide forms to property owners to be used to request extensions from their property to a major main in accordance with the city financial policies for such extensions. Barnhardt v. City of Kannapolis, 116 N.C. App. 215, 447 S.E.2d 471, 1994 N.C. App. LEXIS 901 (1994).

Use of the word “substantially” in subdivision (3)a does not render the section vague and ambiguous. In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

This Article requires that services be provided on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. When a municipality engages in supplying water to its inhabitants, it owes the duty of equal service to consumers within its corporate limits, as a general rule. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

The city is required by law to provide waste disposal services on substantially the same basis and in the same manner as such services are provided within the municipality prior to annexation. Stillings v. City of Winston-Salem, 63 N.C. App. 618, 306 S.E.2d 489, 1983 N.C. App. LEXIS 3179 (1983), rev'd, 311 N.C. 689 , 319 S.E.2d 233, 1984 N.C. LEXIS 1760 (1984).

Subdivision (3)a of this section requires that the annexation report reflect the city’s plans to provide certain enumerated services on substantially the same basis and in the same manner as in the rest of the city. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Nowhere in this section does the concept of equality with “average service” appear in reference to the municipal services to be supplied by the annexing municipality. No reasonable reading of the statutory language permits that inference. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

There is no requirement that a municipality duplicate services, in an area to be annexed, which are already available in the area. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978); In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

City May Not Delegate Duty of Extending Services. —

The city must furnish major municipal services to areas annexed as provided by Parts 2 and 3 of this Article. The performance of this duty may not be made to depend upon a doubtful contingency, and may not be delegated to others by the city so as to relieve the city of the duty. If other parties are obligated to the city to perform such duty, the city must enforce the obligation directly against such parties and may not be otherwise relieved of its primary duty to the area which it seeks to make a part of the city for all other purposes. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

Plans May Provide Only for Needed Services. —

Plans for extension of services may, of course, take into consideration all circumstances and provide only for services if and when needed. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

When a village proposed to involuntarily annex an area which contained privately owned streets, owners of property on the private streets could not defeat the annexation by denying the village’s employees access to the private streets, if the owners chose to keep the streets private and the area were annexed, because it was not the intent of the general assembly, in adopting G.S. 160A-47(3), to provide private communities with an avenue to defeat annexation by denying access to municipal employees, when all other statutory requirements were met, as this would create unacceptable inequities between the rights of citizens in private communities and those living on public roads. Pinewild Project Ltd. P'ship v. Vill. of Pinehurst, 198 N.C. App. 347, 679 S.E.2d 424, 2009 N.C. App. LEXIS 1180 (2009).

When a village proposed to involuntarily annex an area which contained privately owned streets, the village’s annexation plan met the requirements of G.S. 160A-47(3) when the village proposed that, if the street’s owners dedicated the street to the village, the village would provide the same level of municipal services as the village provided to residents living on public streets because these options were substantially consistent with how the village currently treated public and private streets within the village’s limits. Pinewild Project Ltd. P'ship v. Vill. of Pinehurst, 198 N.C. App. 347, 679 S.E.2d 424, 2009 N.C. App. LEXIS 1180 (2009).

Statement of Plans for Extension of Services. —

In its annexation report the city must include a statement setting forth the plans of the municipality for extending certain enumerated municipal services to the area to be annexed on the date of annexation on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

Only Services Listed in Subdivision (3) Must Be Described in Plan. —

The annexation statute requires municipalities to include in their annexation reports plans to extend into the area proposed to be annexed only those municipal services specifically enumerated in subdivision (3) of this section: police protection, fire protection, garbage collection, street maintenance, major trunk water mains, and sewer outfall lines. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Other Anticipated Services Need Not Be Included. —

In a municipal annexation proceeding the city is not required to include in its annexation report plans for extending into the proposed annexation area municipal services other than those enumerated in subdivision (3) of this section. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

The legislative intent expressed in subdivision (3) requires extension of a variety of municipal services, all of which are required for the public health and safety. Public transportation and parks and recreational facilities do not fall within this classification of service. In re Annexation Ordinance, 62 N.C. App. 588, 303 S.E.2d 380, 1983 N.C. App. LEXIS 2990 (1983).

Municipal services, such as transportation, which are not specifically enumerated in subsection (3) are not required to be included in the annexation report. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204, 1996 N.C. App. LEXIS 1208 (1996).

Since plans and procedures concerning transportation are not required by law, a reviewing court has no jurisdiction to hear evidence on this issue. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204, 1996 N.C. App. LEXIS 1208 (1996).

Only Major Municipal Services. —

The required information is not that of plans for extending all municipal services, but only the “major” municipal services. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

City bus service and TV service are not “major” municipal services required to be addressed in the annexation report. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

The respondent city was not required to file a new services plan under this section although the annexation area changed during subsequent revisions to the annexation ordinance, where the only significant change to the services plan was the scope of its coverage—the services for petitioners remained the same—and where the city was bound by the terms of the services plan as amended under principles of equitable estoppel. Bowers v. City of Thomasville, 143 N.C. App. 291, 547 S.E.2d 68, 2001 N.C. App. LEXIS 277 (2001).

Contents of Report. —

The report need contain only the following: (1) Information on the level of services then available in the city, (2) a commitment by the city to provide this same level of services in the annexed area within the statutory period, and (3) the method by which the city will finance the extension of these services. In re Annexation Ordinance No. 300-X, 304 N.C. 549 , 284 S.E.2d 470, 1981 N.C. LEXIS 1361 (1981).

The report need contain only the following: (1) information on the level of services then available in the city, (2) a commitment by the city to provide this same level of services in the annexed area within the statutory period, and (3) the method by which the city will finance the extension of these services. With this minimal information, both the city council and the public can make an informed decision of the costs and benefits of the proposed annexation, a reviewing court can determine whether the city has committed itself to a nondiscriminating level of services, and the residents and the courts have a benchmark against which to measure the level of services which the residents receive within the statutory period. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Service Is Municipal Even If Performed by Another. —

A service, such as water or sewer service, is a “municipal service” even though it is performed or furnished by an independent authority or by franchise. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Service Must Still Be Included in Plan. —

If the municipal service is one enumerated in subdivision (3) of this section, it must be included in the annexation report, even though it is provided by an independent authority or under a franchise agreement. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

The requirement that the annexation report contain a statement setting forth the plans for extending each major municipal service extends to a major service “performed within the municipality,” not performed by the municipality. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Plans Should Be Stated Fully and in Detail. —

The report of plans for extension of services is the cornerstone of the annexation procedure under this Part, and to be of greatest possible benefit, the plans for services should be stated as fully and in as much detail as resources of the municipality reasonably permit. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Response time is only one of many factors that enters into the court’s consideration of whether an annexation report reflects plans to provide certain required municipal services on substantially the same basis and in the same manner as in the pre-annexation city area. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Time for Implementing Extension of Services. —

It would appear from a reading of G.S. 160A-49(h) that a city annexing territory has one year, and possibly 15 months, to implement its plan for extending services to an annexed area. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978); In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

Burden of Showing Noncompliance with Subdivision (3). —

The burden is on petitioner to establish, by competent and substantial evidence, the city’s noncompliance with subdivision (3). In re Annexation Ordinance No. 300-X, 304 N.C. 549 , 284 S.E.2d 470, 1981 N.C. LEXIS 1361 (1981); Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Factors Affecting Whether a Plan Is Discriminatory. —

A town’s established policies for the provision of municipal services within pre-existing municipal limits should be taken into account when determining whether a proposed plan for extension of services to annexed territories is discriminatory. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Plan Held Sufficient. —

Trial court did not err in finding that city’s report of plans for the extension of police protection into annexed area met the requirements of this section; the city made a prima facie showing of substantial compliance where it promised to provide a full range of police protection on the same basis and manner as in the present municipality and where the report then outlined the specific services it currently provided, to include a regular patrol division, criminal investigation, ordinance enforcement and traffic control. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657, 1989 N.C. App. LEXIS 830 (1989), rev'd, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

City’s annexation plan which included provisions for police and fire protection and capital improvements for new water lines complied with subdivision (3)a. of this section, even though it did not include provisions for additional staff or equipment. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208, 1999 N.C. App. LEXIS 747 (1999).

When a city proposed the involuntary annexation of certain real property, it had to determine the use of that property at the time it prepared the service plan required by G.S. 160A-47, to determine if it complied with the urban usage percentages required under G.S. 160A-48(c)(3), and it was error to classify property according to its intended future use, rather than its use at the time the service plan was prepared. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400, 2003 N.C. App. LEXIS 1523 (2003), aff'd, 358 N.C. 216 , 593 S.E.2d 584, 2004 N.C. LEXIS 195 (2004).

There are many variables that affect the level of fire protection afforded to different areas of a municipality: height and size of buildings, construction materials, proximity of buildings to one another and street pattern, among others. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Police Protection Provided. —

Town’s annexation was valid because: (1) according to the annexation report, the town would extend its municipal services on a non-discriminatory basis, thus satisfying the statutory requirements under G.S. 160A-47(3); (2) the town annexation provided police protection, a service that promoted the health, safety, and welfare of residents within the annexed area; (3) such protection provided a meaningful benefit to the annexed residents and furthered the public policies underlying the annexation statutes, under G.S. 160A-45 ; and (4) property owners were bound by a trial court’s factual finding that the owners had not shown that the annexation area currently received police services that were comparable to those that the town would provide the annexation area after the annexation became effective. Nolan v. Town of Weddington, 182 N.C. App. 486, 642 S.E.2d 261, 2007 N.C. App. LEXIS 690 (2007).

Regardless of the level of services that county residents receive through a private contractor prior to annexation, the city is only required to provide annexed territories with substantially the same level of services as are enjoyed in other areas of the city. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

An increase in the police force proportional to the increase in the population attributable to annexation is a sufficiently sophisticated plan for the provision of services to meet the requirements of subdivision (3)a of this section. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Where city planned to hire three additional sworn officers to maintain its current ratio of one officer for every 486 citizens, the plan was sufficient to meet the requirements of subdivision (3)a of this section. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Full Compliance as to Police and Fire Protection Shown. —

Record of annexation proceedings showed prima facie full compliance with this section in regard to extension of police and fire protection to the area to be annexed. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

City had shown prima facie compliance with the statute by proposing to provide fire protection services to the annexed area under the same plan as such services are provided to the pre-annexation portions of the city, and similar response times should be anticipated. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

When a city proposed to annex certain land, the city’s proposal for the extension of police services to the annexed land met the requirements of G.S. 160A-47 because the plan addressed the level of services currently provided in the city and committed to provide substantially the same level of services to the annexed land, and this was all that the applicable statute required. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40, 2007 N.C. App. LEXIS 2250 (2007).

Response time for the fire services is only one of many factors that determines whether an annexation report complies with statutory requirements for the extension of fire protection services. That an annexation report did not include an average response time did not preclude a finding of compliance with the statute. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

City Must Plan to Maintain Streets. —

So far as an annexation proceeding is concerned, the primary duty of street maintenance in an area after annexation is upon the city, and it must in good faith make plans to maintain the streets, whether paved or unpaved, on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

May Not Limit Its Duty to Streets Meeting Certain Standards. —

A municipality may not limit its obligations to maintain streets in the area to be annexed by it to those streets which are improved to stipulated standards by the landowners and developers in the area. Any obligation of the landowners and developers to the city to improve the streets is a matter between them and the municipality and is irrelevant to the question of the sufficiency of the annexation ordinance to meet the requirements of the statute. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

Even if the property owners and developers in the area to be annexed are under a duty to the city to pave all streets and provide storm sewers and curbs and gutters, the city is in no position to rely on this obligation in an annexation proceeding and thereby shift to others the duty which this Article imposes on the city as a condition precedent to annexation. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

Specificity Concerning Street Maintenance. —

A revised annexation plan report was sufficiently specific with respect to extension of street maintenance services where it detailed what services were provided in the annexing town and stated that all such services would be provided in the annexed area, and was not deficient in failing to provide for the extension of water and sewer lines where this was not a service provided by the town to anyone but was a duty vested with an independent water authority. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

City’s annexation report was appropriate to the extent which it contained a statement setting forth the plans of the city for the extension of street maintenance services to the annexation area in compliance with G.S. 160A-47(3)(a). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, 2011 N.C. App. LEXIS 1758 (2011).

City May Not Limit Water and Sewer Services to Existing Lines. —

Where an annexation ordinance contains no plans for the municipality to extend water and sewer services in the area to be annexed beyond those services presently in existence in the area unless the water and sewer lines are extended by landowners and developers in the area, the ordinance fails to meet the requirements of subdivision (3)b of this section. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

As to assessment of cost of water and sewer extensions upon lots or parcels of land abutting directly on lateral mains of water and sewer systems pursuant to former G.S. 160-241 to 160-248 and G.S. 160-255, see In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

Remedy for Failure to Implement Plan. —

After an area is annexed, if the residents find that the city is not providing them with water and sewer services, they may petition the court for a writ of mandamus requiring the city to provide such services. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Timetables for Extending Water Mains and Sewer Lines. —

Since the city included in the annexation report its plans and timetables for extending the water mains and the sewer lines to the area proposed for annexation, it met the requirements of subdivisions (3)b and (3)c of this section even though no plan or associated timetables had been identified for the water supply. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Failure to Show Extension Was a Major Water Main. —

Where the plaintiffs offered no evidence from which the trial court or appellate court could ascertain in this instance that the twelve-inch water extension was a “major water main,” and the policy requiring these petitioners to pay for the cost of water line extensions to their property was consistent with the policy of water line extensions within the pre-existing municipal limits, the trial court was not in error in concluding the town had substantially complied with all the relevant provisions of this section. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225, 1989 N.C. App. LEXIS 223 (1989).

Annexation Denied Because Plan Did Not Provide Statutorily Required Sewer Service. —

Trial court’s judgment upholding an ordinance which the City of Asheville (North Carolina) passed to annex property was reversed because the court failed to recognize that the city’s plan for providing services to the area it proposed to annex did not provide statutorily required sewer service. Briggs v. City of Asheville, 159 N.C. App. 558, 583 S.E.2d 733, 2003 N.C. App. LEXIS 1534 (2003).

Remand When Protections of Section not Honored. —

Where petitioners show that the degree of noncompliance with statutory requirements for annexation is so great as to eviscerate the protections provided in G.S. 160A-47, a trial court does not err in declaring an ordinance null and void. However, in order for a trial court to properly declare an ordinance null and void under G.S. 160A-50(g)(4), it must specifically find that “the ordinance cannot be corrected by remand” as opposed to finding that “the ordinance is not likely to be corrected on remand.” Because the trial court failed to make the appropriate finding, perhaps acting under a misapprehension of applicable law, the matter was remanded to the trial court for appropriate findings to support one of the statutory grounds under G.S. 160A-50(g). Fix v. City of Eden, 175 N.C. App. 1, 622 S.E.2d 647, 2005 N.C. App. LEXIS 2739 (2005).

Duties under Section. —

The requirements of G.S. 160A-47 are that plans for extension to the area to be annexed of all major municipal services performed within the municipality at the time of annexation is a condition precedent to annexation. The minimum requirements of G.S. 160A-47 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 nondiscriminatory level of service and to allow a reviewing court to determine after the fact whether the municipality has timely provided such services. A city need only substantially comply with G.S. 160A-47. A city is required to provide major municipal services under G.S. 160A-47, and its performance of that duty may not be made to depend upon a doubtful contingency. Fix v. City of Eden, 175 N.C. App. 1, 622 S.E.2d 647, 2005 N.C. App. LEXIS 2739 (2005).

City’s annexation report was appropriate to the extent which it complied with G.S. 160A-47 regarding the sewer service installation fee. Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, 2011 N.C. App. LEXIS 1758 (2011).

Subdivision (3)d requires only that the method of financing be disclosed, not that the precise source of each dollar be pinpointed. In re Annexation Ordinance No. 300-X, 304 N.C. 549 , 284 S.E.2d 470, 1981 N.C. LEXIS 1361 (1981).

Use of Federal Funds to Finance Extension of Services. —

Although a city’s proposals with reference to the financing of the extension of services into the area to be annexed contemplated the use of certain federal funds in connection with such financing, the method set forth in plans to finance extension of the services into the areas to be annexed constituted compliance with subdivision (3)d. Dunn v. City of Charlotte, 284 N.C. 542 , 201 S.E.2d 873, 1974 N.C. LEXIS 1284 (1974).

Budgeting of Funds at Time of Trial Held Unnecessary. —

Since subdivision (3) of this section requires only that the annexing city file a statement showing how it will provide and finance municipal services to the annexed area, and since there is no requirement that available services be duplicated, the City of Goldsboro, in annexing a federal air force base, was not required to have funds budgeted at the time of trial to provide municipal services to the base in the event the federal government ceased providing those services, where the plan of annexation was based upon sound estimates of anticipated expenditures and revenues. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Sufficiency of Annexation Report. —

City provided a sufficient statement in an annexation report showing the financial impact of an annexation as required by G.S. 160A-47(5). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, 2011 N.C. App. LEXIS 1758 (2011).

CASE NOTES

Purpose. —

The purpose of this section is to insure that major municipal services are provided to newly annexed areas on a nondiscriminatory basis. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225, 1989 N.C. App. LEXIS 223 (1989).

The purpose of this statute is to insure that, in return for the financial burden of city taxes, annexed residents receive all major city services. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204, 1996 N.C. App. LEXIS 1208 (1996).

Section Required to Be Followed Only Where Annexation Achieved Under Chapter 160A, Art. 4A, Part 3. —

This section, dealing with the submission of plans by the municipality for the extension of municipal services (including police and fire protection, solid waste collection, and street maintenance), and G.S. 160A-49.1 and 160A-49.3, dealing with contracting for fire protection and sewage services, are required to be followed by a municipality only where the annexation is to be achieved under Chapter 160A, Art. 4A, Part 3. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262, 1988 N.C. App. LEXIS 636 (1988), writ denied, 323 N.C. 625 , 374 S.E.2d 589, 1988 N.C. LEXIS 758 (1988), rev'd, 324 N.C. 499 , 380 S.E.2d 107, 1989 N.C. LEXIS 295 (1989).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195, 1984 N.C. App. LEXIS 3856 (1984).

Central purpose behind the annexation procedure is to assure that, in return for the added financial burden of municipal taxation, the residents receive the benefits of all the major services available to municipal residents. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982); Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832, 1983 N.C. App. LEXIS 3215 (1983); In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Local act requiring city to extend municipal services, including services under this section, to newly annexed areas did not violate N.C. Const., Art. II, § 24(1)(a). Piedmont Ford Truck Sale, Inc. v. City of Greensboro, 324 N.C. 499 , 380 S.E.2d 107, 1989 N.C. LEXIS 295 (1989).

A city has statutory authority to annex areas both contiguous and non-contiguous to its primary corporate limits. It must stand ready to provide sewer service (among other services) to newly annexed areas on substantially the same basis and in the same manner in which these services are provided to the rest of the city. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Use of City-Owned Sewage Treatment Plant Without Prior Approval of County. —

Since county had no authority to restrict or regulate city’s provision of sewer service to its residents, the city could use city-owned sewage treatment plant located outside the city but within the county, which was upgraded pursuant to the county’s special use permit, with a condition attached to the permit requiring the county’s prior approval of service to county citizens, to meet its statutory mandate to provide sewer service to residents in newly annexed areas without seeking the county’s prior approval, even though the facility was located in the county. Davidson County v. City of High Point, 321 N.C. 252 , 362 S.E.2d 553, 1987 N.C. LEXIS 2555 (1987).

Discovery. —

Judicial review of an annexation ordinance is a limited judicial review, with few similarities to ordinary civil actions which are initiated, tried and adjudicated in a different manner and for which the Rules of Civil Procedure were mostly devised. Nevertheless, since the court reviewing annexation proceedings is explicitly authorized to receive evidence as to the city’s compliance with the various procedures prescribed, as to its annexation plan meeting the requisites of this section, and as to the area involved being eligible for annexation under G.S. 160A-48, in those instances where discovery may illuminate these issues it is authorized under the Rules of Civil Procedure. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

It is not required that proposed sewer interceptors be included on the maps that accompany annexation reports. Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832, 1983 N.C. App. LEXIS 3215 (1983).

Maps Held Sufficient. —

Maps prepared by a town as part of its revised annexation plan report substantially complied with subdivision (1) of this section, although the eastern boundary and approximately one-fifth of the town area were omitted and the map showing the general land use pattern contained several blank areas representing vacant lots which did not appear as a category on the legend of the maps, where both the entire area contiguous to the area to be annexed and that area itself were included on the map. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

Plans for Extension of Services as Condition Precedent. —

The requirement of plans for extension to the area to be annexed of all major municipal services performed within the municipality at the time of annexation is a condition precedent to annexation. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

The minimum requirements of subdivision (3) 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 nondiscriminatory 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 No. 300-X, 304 N.C. 549 , 284 S.E.2d 470, 1981 N.C. LEXIS 1361 (1981); Trask v. City of Wilmington, 64 N.C. App. 17, 306 S.E.2d 832, 1983 N.C. App. LEXIS 3215 (1983).

The minimum requirements of the annexation 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 nondiscriminatory level of service and to allow a reviewing court to determine after the fact whether the municipality has timely provided such services. If such services are not provided, the residents of the annexed area would be entitled to a writ of mandamus requiring the municipality to live up to its commitments. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

The minimum requirements of the annexation 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 nondiscriminatory level of service. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Providing Forms to Property Owners. —

Subdivision (3)(b) does not require the city to provide notice to the property owners that they may request a form providing for extension of lines to their property in accordance with the financial policies of the city, and in the absence of a request, the city is not required to provide forms to property owners to be used to request extensions from their property to a major main in accordance with the city financial policies for such extensions. Barnhardt v. City of Kannapolis, 116 N.C. App. 215, 447 S.E.2d 471, 1994 N.C. App. LEXIS 901 (1994).

Use of the word “substantially” in subdivision (3)a does not render the section vague and ambiguous. In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

This Article requires that services be provided on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. When a municipality engages in supplying water to its inhabitants, it owes the duty of equal service to consumers within its corporate limits, as a general rule. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

The city is required by law to provide waste disposal services on substantially the same basis and in the same manner as such services are provided within the municipality prior to annexation. Stillings v. City of Winston-Salem, 63 N.C. App. 618, 306 S.E.2d 489, 1983 N.C. App. LEXIS 3179 (1983), rev'd, 311 N.C. 689 , 319 S.E.2d 233, 1984 N.C. LEXIS 1760 (1984).

Subdivision (3)a of this section requires that the annexation report reflect the city’s plans to provide certain enumerated services on substantially the same basis and in the same manner as in the rest of the city. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Nowhere in this section does the concept of equality with “average service” appear in reference to the municipal services to be supplied by the annexing municipality. No reasonable reading of the statutory language permits that inference. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

There is no requirement that a municipality duplicate services, in an area to be annexed, which are already available in the area. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978); In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

City May Not Delegate Duty of Extending Services. —

The city must furnish major municipal services to areas annexed as provided by Parts 2 and 3 of this Article. The performance of this duty may not be made to depend upon a doubtful contingency, and may not be delegated to others by the city so as to relieve the city of the duty. If other parties are obligated to the city to perform such duty, the city must enforce the obligation directly against such parties and may not be otherwise relieved of its primary duty to the area which it seeks to make a part of the city for all other purposes. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

Plans May Provide Only for Needed Services. —

Plans for extension of services may, of course, take into consideration all circumstances and provide only for services if and when needed. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

When a village proposed to involuntarily annex an area which contained privately owned streets, owners of property on the private streets could not defeat the annexation by denying the village’s employees access to the private streets, if the owners chose to keep the streets private and the area were annexed, because it was not the intent of the general assembly, in adopting G.S. 160A-47(3), to provide private communities with an avenue to defeat annexation by denying access to municipal employees, when all other statutory requirements were met, as this would create unacceptable inequities between the rights of citizens in private communities and those living on public roads. Pinewild Project Ltd. P'ship v. Vill. of Pinehurst, 198 N.C. App. 347, 679 S.E.2d 424, 2009 N.C. App. LEXIS 1180 (2009).

When a village proposed to involuntarily annex an area which contained privately owned streets, the village’s annexation plan met the requirements of G.S. 160A-47(3) when the village proposed that, if the street’s owners dedicated the street to the village, the village would provide the same level of municipal services as the village provided to residents living on public streets because these options were substantially consistent with how the village currently treated public and private streets within the village’s limits. Pinewild Project Ltd. P'ship v. Vill. of Pinehurst, 198 N.C. App. 347, 679 S.E.2d 424, 2009 N.C. App. LEXIS 1180 (2009).

Statement of Plans for Extension of Services. —

In its annexation report the city must include a statement setting forth the plans of the municipality for extending certain enumerated municipal services to the area to be annexed on the date of annexation on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

Only Services Listed in Subdivision (3) Must Be Described in Plan. —

The annexation statute requires municipalities to include in their annexation reports plans to extend into the area proposed to be annexed only those municipal services specifically enumerated in subdivision (3) of this section: police protection, fire protection, garbage collection, street maintenance, major trunk water mains, and sewer outfall lines. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Other Anticipated Services Need Not Be Included. —

In a municipal annexation proceeding the city is not required to include in its annexation report plans for extending into the proposed annexation area municipal services other than those enumerated in subdivision (3) of this section. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

The legislative intent expressed in subdivision (3) requires extension of a variety of municipal services, all of which are required for the public health and safety. Public transportation and parks and recreational facilities do not fall within this classification of service. In re Annexation Ordinance, 62 N.C. App. 588, 303 S.E.2d 380, 1983 N.C. App. LEXIS 2990 (1983).

Municipal services, such as transportation, which are not specifically enumerated in subsection (3) are not required to be included in the annexation report. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204, 1996 N.C. App. LEXIS 1208 (1996).

Since plans and procedures concerning transportation are not required by law, a reviewing court has no jurisdiction to hear evidence on this issue. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204, 1996 N.C. App. LEXIS 1208 (1996).

Only Major Municipal Services. —

The required information is not that of plans for extending all municipal services, but only the “major” municipal services. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

City bus service and TV service are not “major” municipal services required to be addressed in the annexation report. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

The respondent city was not required to file a new services plan under this section although the annexation area changed during subsequent revisions to the annexation ordinance, where the only significant change to the services plan was the scope of its coverage—the services for petitioners remained the same—and where the city was bound by the terms of the services plan as amended under principles of equitable estoppel. Bowers v. City of Thomasville, 143 N.C. App. 291, 547 S.E.2d 68, 2001 N.C. App. LEXIS 277 (2001).

Contents of Report. —

The report need contain only the following: (1) Information on the level of services then available in the city, (2) a commitment by the city to provide this same level of services in the annexed area within the statutory period, and (3) the method by which the city will finance the extension of these services. In re Annexation Ordinance No. 300-X, 304 N.C. 549 , 284 S.E.2d 470, 1981 N.C. LEXIS 1361 (1981).

The report need contain only the following: (1) information on the level of services then available in the city, (2) a commitment by the city to provide this same level of services in the annexed area within the statutory period, and (3) the method by which the city will finance the extension of these services. With this minimal information, both the city council and the public can make an informed decision of the costs and benefits of the proposed annexation, a reviewing court can determine whether the city has committed itself to a nondiscriminating level of services, and the residents and the courts have a benchmark against which to measure the level of services which the residents receive within the statutory period. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Service Is Municipal Even If Performed by Another. —

A service, such as water or sewer service, is a “municipal service” even though it is performed or furnished by an independent authority or by franchise. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Service Must Still Be Included in Plan. —

If the municipal service is one enumerated in subdivision (3) of this section, it must be included in the annexation report, even though it is provided by an independent authority or under a franchise agreement. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

The requirement that the annexation report contain a statement setting forth the plans for extending each major municipal service extends to a major service “performed within the municipality,” not performed by the municipality. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Plans Should Be Stated Fully and in Detail. —

The report of plans for extension of services is the cornerstone of the annexation procedure under this Part, and to be of greatest possible benefit, the plans for services should be stated as fully and in as much detail as resources of the municipality reasonably permit. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Response time is only one of many factors that enters into the court’s consideration of whether an annexation report reflects plans to provide certain required municipal services on substantially the same basis and in the same manner as in the pre-annexation city area. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Time for Implementing Extension of Services. —

It would appear from a reading of G.S. 160A-49(h) that a city annexing territory has one year, and possibly 15 months, to implement its plan for extending services to an annexed area. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978); In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

Burden of Showing Noncompliance with Subdivision (3). —

The burden is on petitioner to establish, by competent and substantial evidence, the city’s noncompliance with subdivision (3). In re Annexation Ordinance No. 300-X, 304 N.C. 549 , 284 S.E.2d 470, 1981 N.C. LEXIS 1361 (1981); Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Factors Affecting Whether a Plan Is Discriminatory. —

A town’s established policies for the provision of municipal services within pre-existing municipal limits should be taken into account when determining whether a proposed plan for extension of services to annexed territories is discriminatory. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Plan Held Sufficient. —

Trial court did not err in finding that city’s report of plans for the extension of police protection into annexed area met the requirements of this section; the city made a prima facie showing of substantial compliance where it promised to provide a full range of police protection on the same basis and manner as in the present municipality and where the report then outlined the specific services it currently provided, to include a regular patrol division, criminal investigation, ordinance enforcement and traffic control. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657, 1989 N.C. App. LEXIS 830 (1989), rev'd, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

City’s annexation plan which included provisions for police and fire protection and capital improvements for new water lines complied with subdivision (3)a. of this section, even though it did not include provisions for additional staff or equipment. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208, 1999 N.C. App. LEXIS 747 (1999).

When a city proposed the involuntary annexation of certain real property, it had to determine the use of that property at the time it prepared the service plan required by G.S. 160A-47, to determine if it complied with the urban usage percentages required under G.S. 160A-48(c)(3), and it was error to classify property according to its intended future use, rather than its use at the time the service plan was prepared. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400, 2003 N.C. App. LEXIS 1523 (2003), aff'd, 358 N.C. 216 , 593 S.E.2d 584, 2004 N.C. LEXIS 195 (2004).

There are many variables that affect the level of fire protection afforded to different areas of a municipality: height and size of buildings, construction materials, proximity of buildings to one another and street pattern, among others. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Police Protection Provided. —

Town’s annexation was valid because: (1) according to the annexation report, the town would extend its municipal services on a non-discriminatory basis, thus satisfying the statutory requirements under G.S. 160A-47(3); (2) the town annexation provided police protection, a service that promoted the health, safety, and welfare of residents within the annexed area; (3) such protection provided a meaningful benefit to the annexed residents and furthered the public policies underlying the annexation statutes, under G.S. 160A-45 ; and (4) property owners were bound by a trial court’s factual finding that the owners had not shown that the annexation area currently received police services that were comparable to those that the town would provide the annexation area after the annexation became effective. Nolan v. Town of Weddington, 182 N.C. App. 486, 642 S.E.2d 261, 2007 N.C. App. LEXIS 690 (2007).

Regardless of the level of services that county residents receive through a private contractor prior to annexation, the city is only required to provide annexed territories with substantially the same level of services as are enjoyed in other areas of the city. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

An increase in the police force proportional to the increase in the population attributable to annexation is a sufficiently sophisticated plan for the provision of services to meet the requirements of subdivision (3)a of this section. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Where city planned to hire three additional sworn officers to maintain its current ratio of one officer for every 486 citizens, the plan was sufficient to meet the requirements of subdivision (3)a of this section. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Full Compliance as to Police and Fire Protection Shown. —

Record of annexation proceedings showed prima facie full compliance with this section in regard to extension of police and fire protection to the area to be annexed. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

City had shown prima facie compliance with the statute by proposing to provide fire protection services to the annexed area under the same plan as such services are provided to the pre-annexation portions of the city, and similar response times should be anticipated. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

When a city proposed to annex certain land, the city’s proposal for the extension of police services to the annexed land met the requirements of G.S. 160A-47 because the plan addressed the level of services currently provided in the city and committed to provide substantially the same level of services to the annexed land, and this was all that the applicable statute required. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40, 2007 N.C. App. LEXIS 2250 (2007).

Response time for the fire services is only one of many factors that determines whether an annexation report complies with statutory requirements for the extension of fire protection services. That an annexation report did not include an average response time did not preclude a finding of compliance with the statute. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

City Must Plan to Maintain Streets. —

So far as an annexation proceeding is concerned, the primary duty of street maintenance in an area after annexation is upon the city, and it must in good faith make plans to maintain the streets, whether paved or unpaved, on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

May Not Limit Its Duty to Streets Meeting Certain Standards. —

A municipality may not limit its obligations to maintain streets in the area to be annexed by it to those streets which are improved to stipulated standards by the landowners and developers in the area. Any obligation of the landowners and developers to the city to improve the streets is a matter between them and the municipality and is irrelevant to the question of the sufficiency of the annexation ordinance to meet the requirements of the statute. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

Even if the property owners and developers in the area to be annexed are under a duty to the city to pave all streets and provide storm sewers and curbs and gutters, the city is in no position to rely on this obligation in an annexation proceeding and thereby shift to others the duty which this Article imposes on the city as a condition precedent to annexation. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

Specificity Concerning Street Maintenance. —

A revised annexation plan report was sufficiently specific with respect to extension of street maintenance services where it detailed what services were provided in the annexing town and stated that all such services would be provided in the annexed area, and was not deficient in failing to provide for the extension of water and sewer lines where this was not a service provided by the town to anyone but was a duty vested with an independent water authority. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

City’s annexation report was appropriate to the extent which it contained a statement setting forth the plans of the city for the extension of street maintenance services to the annexation area in compliance with G.S. 160A-47(3)(a). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, 2011 N.C. App. LEXIS 1758 (2011).

City May Not Limit Water and Sewer Services to Existing Lines. —

Where an annexation ordinance contains no plans for the municipality to extend water and sewer services in the area to be annexed beyond those services presently in existence in the area unless the water and sewer lines are extended by landowners and developers in the area, the ordinance fails to meet the requirements of subdivision (3)b of this section. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

As to assessment of cost of water and sewer extensions upon lots or parcels of land abutting directly on lateral mains of water and sewer systems pursuant to former G.S. 160-241 to 160-248 and G.S. 160-255, see In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

Remedy for Failure to Implement Plan. —

After an area is annexed, if the residents find that the city is not providing them with water and sewer services, they may petition the court for a writ of mandamus requiring the city to provide such services. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Timetables for Extending Water Mains and Sewer Lines. —

Since the city included in the annexation report its plans and timetables for extending the water mains and the sewer lines to the area proposed for annexation, it met the requirements of subdivisions (3)b and (3)c of this section even though no plan or associated timetables had been identified for the water supply. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Failure to Show Extension Was a Major Water Main. —

Where the plaintiffs offered no evidence from which the trial court or appellate court could ascertain in this instance that the twelve-inch water extension was a “major water main,” and the policy requiring these petitioners to pay for the cost of water line extensions to their property was consistent with the policy of water line extensions within the pre-existing municipal limits, the trial court was not in error in concluding the town had substantially complied with all the relevant provisions of this section. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225, 1989 N.C. App. LEXIS 223 (1989).

Annexation Denied Because Plan Did Not Provide Statutorily Required Sewer Service. —

Trial court’s judgment upholding an ordinance which the City of Asheville (North Carolina) passed to annex property was reversed because the court failed to recognize that the city’s plan for providing services to the area it proposed to annex did not provide statutorily required sewer service. Briggs v. City of Asheville, 159 N.C. App. 558, 583 S.E.2d 733, 2003 N.C. App. LEXIS 1534 (2003).

Remand When Protections of Section not Honored. —

Where petitioners show that the degree of noncompliance with statutory requirements for annexation is so great as to eviscerate the protections provided in G.S. 160A-47, a trial court does not err in declaring an ordinance null and void. However, in order for a trial court to properly declare an ordinance null and void under G.S. 160A-50(g)(4), it must specifically find that “the ordinance cannot be corrected by remand” as opposed to finding that “the ordinance is not likely to be corrected on remand.” Because the trial court failed to make the appropriate finding, perhaps acting under a misapprehension of applicable law, the matter was remanded to the trial court for appropriate findings to support one of the statutory grounds under G.S. 160A-50(g). Fix v. City of Eden, 175 N.C. App. 1, 622 S.E.2d 647, 2005 N.C. App. LEXIS 2739 (2005).

Duties under Section. —

The requirements of G.S. 160A-47 are that plans for extension to the area to be annexed of all major municipal services performed within the municipality at the time of annexation is a condition precedent to annexation. The minimum requirements of G.S. 160A-47 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 nondiscriminatory level of service and to allow a reviewing court to determine after the fact whether the municipality has timely provided such services. A city need only substantially comply with G.S. 160A-47. A city is required to provide major municipal services under G.S. 160A-47, and its performance of that duty may not be made to depend upon a doubtful contingency. Fix v. City of Eden, 175 N.C. App. 1, 622 S.E.2d 647, 2005 N.C. App. LEXIS 2739 (2005).

City’s annexation report was appropriate to the extent which it complied with G.S. 160A-47 regarding the sewer service installation fee. Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, 2011 N.C. App. LEXIS 1758 (2011).

Subdivision (3)d requires only that the method of financing be disclosed, not that the precise source of each dollar be pinpointed. In re Annexation Ordinance No. 300-X, 304 N.C. 549 , 284 S.E.2d 470, 1981 N.C. LEXIS 1361 (1981).

Use of Federal Funds to Finance Extension of Services. —

Although a city’s proposals with reference to the financing of the extension of services into the area to be annexed contemplated the use of certain federal funds in connection with such financing, the method set forth in plans to finance extension of the services into the areas to be annexed constituted compliance with subdivision (3)d. Dunn v. City of Charlotte, 284 N.C. 542 , 201 S.E.2d 873, 1974 N.C. LEXIS 1284 (1974).

Budgeting of Funds at Time of Trial Held Unnecessary. —

Since subdivision (3) of this section requires only that the annexing city file a statement showing how it will provide and finance municipal services to the annexed area, and since there is no requirement that available services be duplicated, the City of Goldsboro, in annexing a federal air force base, was not required to have funds budgeted at the time of trial to provide municipal services to the base in the event the federal government ceased providing those services, where the plan of annexation was based upon sound estimates of anticipated expenditures and revenues. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Sufficiency of Annexation Report. —

City provided a sufficient statement in an annexation report showing the financial impact of an annexation as required by G.S. 160A-47(5). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, 2011 N.C. App. LEXIS 1758 (2011).

Editor’s Note.

Session Laws 2011-363, s. 3.1, which amended this section by adding subsection (c), effective July 27, 2011, and applicable to annexations of property used for bona fide farm purposes that were initiated by municipalities on or after that date or pending on that date, was contingent upon House Bill 845, 2011 Regular Session, becoming law. House Bill 845 was enacted as Session Laws 2011-396.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Legal Periodicals.

For article, “Math for the People: Reining in Gerrymandering While Protecting Minority Rights,” see 98 N.C.L. Rev. 273 (2020).

CASE NOTES

This section was not copied from the laws of other states, but is a result of a study and recommendations made by the Municipal Government Study Commission, which was established in accordance with Joint Resolution 51 of the General Assembly of 1957. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532 , 135 S.E.2d 574, 1964 N.C. LEXIS 531 (1964).

This Section and § 160A-48 Compared. —

The provisions of subsections (b), (c) and (e) of G.S. 106A-48 are virtually identical to their counterparts in subsections (b), (c) and (d) of this section. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

When Annexation Proper Generally. —

The language of subsection (a) of this section makes it clear that a municipality may annex any area which meets the general standards of subsection (b) and the requirements of subsection (c). Greene v. Town of Valdese, 306 N.C. 79 , 291 S.E.2d 630, 1982 N.C. LEXIS 1376 (1982).

Particular Facts Control in Doubtful Cases. —

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. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, 1982 N.C. App. LEXIS 2756 (1982).

This section does not specify any particular method of calculation for determination of compliance with statutorily mandated requirements and the reasonableness of the method chosen is to be determined in light of the particular circumstances of the questioned annexation proceedings. Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739, 1985 N.C. App. LEXIS 3873 (1985), limited, Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83, 1996 N.C. App. LEXIS 60 (1996).

Contiguous Area and Coincidence of Boundary Requirements Held Met. —

For case holding that where each of three portions included in proposed annexation area was contiguous to the existing town boundary, and, by using a railroad strip as a connector, were contiguous to each other, when viewed as an entire area, the area was contiguous to the boundaries of the town as they existed at the commencement of the annexation proceedings and that the required coincidence of boundaries existed, see Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

Reason for Providing for Judicial Review. —

The difficulties of applying the standards of this section in extreme cases were the reason the Municipal Government Study Commission recommended a provision for court review, set out in G.S. 160A-38, to determine whether the agency making the decision made a reasonable decision in accord with statutory standards. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532 , 135 S.E.2d 574, 1964 N.C. LEXIS 531 (1964).

The trial court’s order affirming a town annexation ordinance had to be vacated where the court applied the material prejudice standard of review to the adequacy of maps contained in the town report as well as to the questions of solid waste collection and the financing of services instead of determining whether or not the town complied with this section in formulating and carrying out its annexation plan; procedural irregularities under G.S. 160A-37 are to be evaluated under a “material prejudice” standard, while violations of either G.S. 160A-35 or this section are to be viewed in light of compliance or lack thereof and, if necessary, result in appropriate amendment. Sonopress, Inc. v. Town of Weaverville, 139 N.C. App. 378, 533 S.E.2d 537, 2000 N.C. App. LEXIS 948 (2000).

Annexation of Area in Another Municipality Prohibited. —

Any new or amended proceeding by a town correcting procedural irregularities would be an exercise in futility after the disputed area became a part of another city, because after that date any attempt by the town to annex the disputed area would be in violation of this statute, which prohibits the annexation of an area already included within the boundary of another incorporated municipality. Town of Hudson v. City of Lenoir, 279 N.C. 156 , 181 S.E.2d 443, 1971 N.C. LEXIS 761 (1971).

Summary judgment was proper in case involving a determination of prior jurisdiction between two towns’ competing resolutions of intent where one municipality had sought to involuntarily annex two acres within the boundaries of the other. Town of Spencer v. Town of E. Spencer, 351 N.C. 124 , 522 S.E.2d 297, 1999 N.C. LEXIS 1255 (1999).

Competing Resolutions of Intent and Priority Jurisdiction. —

A resolution of intent to annex territory which includes any territory already within the boundaries of another municipality is void and will lose priority to an intervening and competing valid resolution of intent; the elements listed in this section are “essential elements” with regard to a “prior jurisdiction” determination. Town of Spencer v. Town of E. Spencer, 351 N.C. 124 , 522 S.E.2d 297, 1999 N.C. LEXIS 1255 (1999).

Territory which is contiguous solely to the “satellite corporate limits” fails to satisfy the requirement of subdivision (b)(1) of this section that the area to be annexed in an involuntary annexation proceeding be contiguous or adjacent to the municipal boundaries of the city which seeks annexation. Territory contiguous solely to “satellite corporate limits” is not eligible for annexation until such “satellite corporate limits” become “a part of the primary corporate limits.” This occurs in accord with G.S. 160A-58.6 when, through annexation of intervening territory, the boundaries of the satellite area and those of the primary town area touch. Hawks v. Town of Valdese, 299 N.C. 1 , 261 S.E.2d 90, 1980 N.C. LEXIS 904 (1980).

If a town wishes to annex involuntarily two unannexed areas on either side of the satellite area, it must first annex the area which abuts directly on both the primary corporate limits and the satellite corporate limits. Only after this intervening territory has been successfully annexed is the area which presently abuts solely on satellite corporate limits eligible for annexation. Hawks v. Town of Valdese, 299 N.C. 1 , 261 S.E.2d 90, 1980 N.C. LEXIS 904 (1980).

Coincidence of Boundary Requirement. —

In considering the coincidence of boundary requirement, the entire area proposed for annexation must be viewed as a whole, rather than as various component portions. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

Purposes Underlying Subsection (b) Subverted. —

Superior court properly remanded town’s annexation ordinance for amendment of its proposed boundaries, where although the literal contiguity requirements of subsection (b) of this section and G.S. 160A-41(1) were apparently satisfied by the town’s ordinance, the town’s compliance with the literal requirements of these statutes resulted in the subversion of the purposes underlying subsection (b), since the town’s intentional gerrymandering of the annexation boundary created isolated islands connected to the town by a single narrow corridor of land. Amick v. Town of Stallings, 95 N.C. App. 64, 382 S.E.2d 221, 1989 N.C. App. LEXIS 675 (1989).

When a town proposed to annex certain land, it did not comply with the purpose of the standards in G.S. 160A-36(b), to provide essential government services within compact borders, even though it technically complied with the one-eighth contiguity requirement of G.S. 160A-36(b)(2), because it sought to annex certain noncontiguous valuable property by connecting it to the town by a narrow strip of land, surrounded on either side by nonannexed property, thus creating the potential for confusion in the provision of emergency and other services, and this was an impermissible “shoestring” annexation. Hughes v. Town of Oak Island, 158 N.C. App. 175, 580 S.E.2d 704, 2003 N.C. App. LEXIS 1052 , aff'd, 357 N.C. 653 , 588 S.E.2d 467, 2003 N.C. LEXIS 1409 (2003).

Tax Records and Land Use Maps Are Proper Basis for Use Calculations. —

Tax records and land use maps have been approved as accepted methods designed to provide reasonably accurate results for calculating the land use requirements in G.S. 160A-36 for the annexation of property. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, 2002 N.C. App. LEXIS 282 (2002).

For discussion as to history and scope of subsection (c), see Tar Landing Villas Owners' Ass'n v. Town of Atlantic Beach, 64 N.C. App. 239, 307 S.E.2d 181, 1983 N.C. App. LEXIS 3260 (1983).

“Use” Test and “Subdivision” Test for Determining Availability for Annexation. —

The General Assembly adopted a standard containing two tests for determining availability for annexation: (1) The use test, i.e., that not less than 60% of the lots and tracts in the area must be in actual use, other than for agriculture, and (2) the subdivision test, i.e., that not less than 60% 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. of Am. v. Town of Bessemer City, 261 N.C. 532 , 135 S.E.2d 574, 1964 N.C. LEXIS 531 (1964).

The criteria in subsection (c) are known as the “use” test and the “subdivision” text. Thompson v. City of Salisbury, 24 N.C. App. 616, 211 S.E.2d 856, 1975 N.C. App. LEXIS 2453 , cert. denied, 287 N.C. 264 , 214 S.E.2d 437, 1975 N.C. LEXIS 1116 (1975).

Subsection (c) contains two tests for determining the availability for annexation, the use test and the subdivision test. American Greetings Corp. v. Town of Alexander Mills, 128 N.C. App. 727, 497 S.E.2d 108, 1998 N.C. App. LEXIS 156 (1998).

Both Tests Must Be Complied With. —

The fact that the General Assembly connected the two test clauses in subsection (c) of this section with the conjunctive “and,” and the clear abuses and hardships which a literal application of the use test, if alone applied, would produce, leads to the conclusion that the legislative intent is that both tests be complied with. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532 , 135 S.E.2d 574, 1964 N.C. LEXIS 531 (1964).

Both tests established by the General Assembly must be met in order for an area to meet the statutory standard. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, 1969 N.C. App. LEXIS 1144 (1969).

Both the “use” test and the “subdivision” test must be met before an area can be classified as urban. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, 1982 N.C. App. LEXIS 2756 (1982).

Application of Tests in Subsection (c). —

The use and subdivision tests prescribed by subsection (c) of this section yield accurate results only if applied to a land area which encompasses only unannexed territory. This is so because these tests require a determination of the percentage of lots being used for “urban purposes” and the percentage of “total acreage” subdivided into lots of five acres or less. Such percentage figures will be skewed and inaccurate if not based on data from all the acreage and lots encompassed by the land area under consideration. Hawks v. Town of Valdese, 299 N.C. 1 , 261 S.E.2d 90, 1980 N.C. LEXIS 904 (1980).

Application of Both Tests May Cause Absurd Results in Extreme Cases. —

Literal insistence upon the application of both tests in subsection (c) might in some extreme and improbable circumstances bring about absurd results adverse to municipalities. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532 , 135 S.E.2d 574, 1964 N.C. LEXIS 531 (1964).

When applying the subdivision test the central inquiry is the degree of actual urbanization of the proposed area. American Greetings Corp. v. Town of Alexander Mills, 128 N.C. App. 727, 497 S.E.2d 108, 1998 N.C. App. LEXIS 156 (1998).

Determining What Is a “Lot”. —

There are several methods which can be used in determining what is a lot in making an appraisal of an area to be annexed. One is to count each numbered lot separately. Another is to consider a landlocked lot as part of the lot in front of it and group the two lots, i.e., the landlocked lot and the one providing it with access to a street, as being a single lot. A third method would be to consider a group of lots in single ownership and used for a single purpose as being a tract within the meaning of the statute, and count tracts rather than lots. Any one of these methods would be “calculated to provide reasonably accurate results,” as required by G.S. 160A-42. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, 1969 N.C. App. LEXIS 1144 (1969).

Property owners did not show that a town was unreasonable in relying upon an actual survey, as allowed by G.S. 160A-36; thus, the reviewing court did not err in concluding that one property consisted of two separate lots for the purposes of the subdivision test. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717, 2004 N.C. App. LEXIS 2383 (2004).

The word “lot ” in subsection (c) includes the concept of a condominium unit. Tar Landing Villas Owners' Ass'n v. Town of Atlantic Beach, 64 N.C. App. 239, 307 S.E.2d 181, 1983 N.C. App. LEXIS 3260 (1983).

Landlocked Lot and Fronting Lot as Single Lot. —

It is not unreasonable and beyond the statutory definition to classify a landlocked lot and its fronting lot in single ownership as a single lot in residential use, where only the fronting lot contains “a habitable dwelling unit.” Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, 1969 N.C. App. LEXIS 1144 (1969).

Lots in Single Ownership Used for Common Purpose May Be Considered Single Tract. —

In appraising an area to be annexed, one of the methods which can be used to determine what is a tract is to consider several lots in single ownership used for a common purpose as being a single tract; these consolidated lots can then be used to determine the percentage of tracts used for urban purposes. Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739, 1985 N.C. App. LEXIS 3873 (1985), limited, Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83, 1996 N.C. App. LEXIS 60 (1996).

“Use ” means “to put into service” under subsection (c). Southern Ry. v. Hook, 261 N.C. 517 , 135 S.E.2d 562, 1964 N.C. LEXIS 526 (1964).

Tract Held for Future Development Not “Used”. —

Where about a tenth of a tract of land, marked off by a bumper strip or barrier, was used for parking, and the rest of the tract was graded and held by the owner for possible future industrial development, the vacant part of the tract was not “used ” for industrial purposes within the purview of subsection (c). Southern Ry. v. Hook, 261 N.C. 517 , 135 S.E.2d 562, 1964 N.C. LEXIS 526 (1964).

As to classification of tract as being in industrial use, see Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, 1969 N.C. App. LEXIS 1144 (1969).

Industrial Classification Proper Where Area Is Actively So Used. —

When an area is used for an active industrial purpose, the land is properly classified as in industrial use within the meaning of the annexation statute. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, 1982 N.C. App. LEXIS 2756 (1982).

Industrial Classification Improper Absent Evidence of Such Use. —

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. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, 1982 N.C. App. LEXIS 2756 (1982).

Transmission of electrical power over land by a power company is an industrial activity for an urban use. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, 1982 N.C. App. LEXIS 2756 (1982).

Golf Course as Commercial Purpose. —

Golf course, open to the public and operated for profit, is used for a commercial purpose within the meaning of subsection (c). Thompson v. City of Salisbury, 24 N.C. App. 616, 211 S.E.2d 856, 1975 N.C. App. LEXIS 2453 , cert. denied, 287 N.C. 264 , 214 S.E.2d 437, 1975 N.C. LEXIS 1116 (1975).

Classification of apartment complex as commercial rather than residential property was a reasonable method of complying with statutorily mandated requirements for the character of an area to be annexed; the general statutory intent is not to exclude areas of urbanized land from annexation on a technicality, but to provide municipalities with a flexible planning tool. Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739, 1985 N.C. App. LEXIS 3873 (1985), limited, Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83, 1996 N.C. App. LEXIS 60 (1996).

Annexation Ordinance Statement Held Insufficient for Lack of Specific Findings. —

A statement in an annexation ordinance that the area to be annexed was in the process of being developed for urban purposes, that more than 60 percent of the area was in use for residential, commercial, industrial, governmental or institutional purposes, and that at least 60 percent of the total acreage, not counting the acreage so used, consisted of lots and tracts of five acres or less in size, did not meet the requirements of this section, as the statement was a mere conclusion and there were no specific findings nor any showing on the face of the record as to the method used by the municipality in making its calculations or as to the present use of any particular tract. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961).

Review as to Availability of Area. —

If a municipality clearly complies with the standards of subsection (c) of this section, there is nothing to review with respect to the availability of an area proposed for annexation. Where compliance is in doubt, the determination must be made upon the facts in the particular case. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532 , 135 S.E.2d 574, 1964 N.C. LEXIS 531 (1964).

Substantial Compliance with Statute Shown. —

Trial court erred in concluding that the usage of disputed acres affected the classification of a golf course tract as a whole when the golf course was annexed by a town ordinance, because the golf course tract was properly designated as commercial by the town in its original calculations, and the entire acreage should have been included as commercial acreage for purposes of calculations under the use test; based on the new calculations, the annexation area met the 60 percent minimum required under the subdivision test of G.S. 160A-36(c)(1), and, given that the town substantially complied with the provisions of G.S. 160A-36, the ordinance was properly affirmed without amendment pursuant to G.S. 160A-38. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717, 2004 N.C. App. LEXIS 2383 (2004).

Village essentially complied with the requirements of G.S. 160A-36 because (1) the village’s use and reliance on the then-existing recorded deed and plat, both of which were consistent with the actual description of a one-acre tract of property, complied with the mandates of G.S. 160A-36(d); (2) the recorded line that the village used from a voluntarily-annexed tract was already part of the pre-existing municipal boundary; as such, the line did not constitute a new municipal boundary within the meaning of the statute; (3) the village correctly classified the a tract of land for purposes of G.S. 160A-36(c)(1)’s subdivision test; (4) the village used methods calculated to provide reasonably accurate results to determine the degree of land subdivision; and (5) the village met the literal contiguity requirements in annexing an area. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524, 2008 N.C. App. LEXIS 1819 (2008).

Statutory Requirements Not Met. —

Where tract was not currently under active development; a plat was never recorded by either party and there was no evidence that the family intended to sell any portion of it, the tract was not sufficiently urbanized to satisfy the statutory requirements. American Greetings Corp. v. Town of Alexander Mills, 128 N.C. App. 727, 497 S.E.2d 108, 1998 N.C. App. LEXIS 156 (1998).

In order for a town to comply with the statutory requirements, there must exist some actual, minimum urbanization of the proposed annexation property. American Greetings Corp. v. Town of Alexander Mills, 128 N.C. App. 727, 497 S.E.2d 108, 1998 N.C. App. LEXIS 156 (1998).

When a town proposed to annex certain land, it did not comply with the subdivision test in G.S. 160A-36(c)(1), requiring that at least 60 percent of a proposed annexation site, not counting acreage used at the time of annexation for commercial, industrial, governmental, or industrial purposes, consist of lots and tracts three acres or less in size, because it designated certain acreage in the proposed annexation area as commercial, when, in fact, the commercial use of the acreage was only proposed, so the acreage was not being used at the time of the annexation for commercial purposes. Hughes v. Town of Oak Island, 158 N.C. App. 175, 580 S.E.2d 704, 2003 N.C. App. LEXIS 1052 , aff'd, 357 N.C. 653 , 588 S.E.2d 467, 2003 N.C. LEXIS 1409 (2003).

Purpose of Subsection (d). —

The legislative history of subsection (d) of this section suggests that the reason for its inclusion was the legislature’s concern that the full range of municipal services be available to citizens in the annexed area. Recognizing that water and, particularly, sewer services are necessarily limited by natural drainage boundaries, the Municipal Government Study Commission, whose recommendations were followed in establishing the present annexation procedures, included topography as an important consideration to be incorporated into the new statutory scheme of annexation. In order to ensure consideration of such topographic features, subsection (d) was enacted specifically enumerating certain features which create natural drainage boundaries. Greene v. Town of Valdese, 306 N.C. 79 , 291 S.E.2d 630, 1982 N.C. LEXIS 1376 (1982).

Subsection (d) contains no mandatory standards or requirements for annexation. Greene v. Town of Valdese, 306 N.C. 79 , 291 S.E.2d 630, 1982 N.C. LEXIS 1376 (1982).

Requirements of Subsection (d) Not Intended to Defeat Otherwise Proper Annexation. —

It was not the intent of the legislature to defeat the annexation of an area which was otherwise ripe for annexation because of the directory language contained in subsection (d) of this section. Greene v. Town of Valdese, 306 N.C. 79 , 291 S.E.2d 630, 1982 N.C. LEXIS 1376 (1982).

“Practical” as used in subsection (d) is defined as “that which is possible of reasonable performance.” Greene v. Town of Valdese, 306 N.C. 79 , 291 S.E.2d 630, 1982 N.C. LEXIS 1376 (1982).

Tree lines do not constitute “natural topographic features” within the meaning of the requirement of subsection (d) of this section. Greene v. Town of Valdese, 306 N.C. 79 , 291 S.E.2d 630, 1982 N.C. LEXIS 1376 (1982).

No provision in subsection (d) prevents a municipality from using a street as a reference in setting the boundary lines of an area to be annexed. Rexham Corp. v. Town of Pineville, 26 N.C. App. 349, 216 S.E.2d 445, 1975 N.C. App. LEXIS 2054 (1975), limited, Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83, 1996 N.C. App. LEXIS 60 (1996).

Drawing boundary exactly five feet from and parallel to a street for its entire length did not violate subsection (d). Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739, 1985 N.C. App. LEXIS 3873 (1985), limited, Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83, 1996 N.C. App. LEXIS 60 (1996).

Splitting of Tracts Not Prohibited. —

The statutory requirement contained in subsection (d) that a municipality use natural topographic features wherever practical in setting an annexation boundary does not demonstrate a legislative intent to prevent the splitting of tracts. Rexham Corp. v. Town of Pineville, 26 N.C. App. 349, 216 S.E.2d 445, 1975 N.C. App. LEXIS 2054 (1975), limited, Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83, 1996 N.C. App. LEXIS 60 (1996).

Proof of Noncompliance with Subsection (d). —

In order to establish noncompliance with subsection (d) of this section, petitioners must show two things: (1) that the boundary of the annexed area does not follow natural topographic features, and (2) that it would have been practical for the boundary to follow such features. Greene v. Town of Valdese, 306 N.C. 79 , 291 S.E.2d 630, 1982 N.C. LEXIS 1376 (1982); Lowe v. Town of Mebane, 76 N.C. App. 239, 332 S.E.2d 739, 1985 N.C. App. LEXIS 3873 (1985), limited, Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83, 1996 N.C. App. LEXIS 60 (1996); Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83, 1996 N.C. App. LEXIS 60 (1996).

Topographic Features Not Followed. —

There was sufficient evidence to support the court’s conclusion that the town did not attempt to follow topographic features in violation of G.S. 160A-36(d). Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83, 1996 N.C. App. LEXIS 60 (1996).

Constitutionality. —

See In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195, 1984 N.C. App. LEXIS 3856 (1984).

Question whether area is ripe for annexation should be addressed under statutory criteria set up in this section. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

The entire area to be annexed must meet the requirements of subsection (b) of this section. In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

Cities with 5,000 or more people may annex an outlying urban area pursuant to subsection (c) of this section and the intervening undeveloped lands pursuant to subsection (d) so long as the entire area meets the requirements of subsection (b). In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

This Section and § 160A-36 Compared. —

The provisions of subsections (b), (c) and (e) of this section are virtually identical to their counterparts in subsections (b), (c) and (d) of G.S. 160A-36. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Character of areas which may properly be annexed (i) cannot be included within the boundary of another incorporated municipality, (ii) must be adjacent to the existing boundaries of the annexing municipality, (iii) must be developed for urban purposes or must connect an outlying area developed for urban purposes with the municipality and (iv) wherever practical should use topographic features as boundaries. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

When a city proposed the annexation of a certain area, it could combine lots in single ownership used for a common purpose into a single tract, which could then be used to determine the percentage of tracts in the area used for urban purposes, under G.S. 160A-48(c)(3), but it was impermissible for the city to combine lots being developed for commercial purposes into a single tract classified as commercial because the lots had to be used for a common purpose, and these lots were in the process of development rather than in commercial use. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400, 2003 N.C. App. LEXIS 1523 (2003), aff'd, 358 N.C. 216 , 593 S.E.2d 584, 2004 N.C. LEXIS 195 (2004).

City proposing to annex certain land substantially complied with G.S. 160A-48 because land improperly classified as residential should have been classified as “non-urban,” as the land met no qualifications to be classified as urban, making G.S. 160A-48(c) inapplicable, as was also true with certain other undeveloped land, and making the classification of this land under G.S. 160A-48(d) proper, which meant the land did not have to qualify under G.S. 160A-48(c), so the land was correctly excluded from calculations of land qualifying for annexation under G.S. 160A-48(c) and, as a result, the total land qualified for annexation under G.S. 160A-48(c)(3), applying the use/subdivision test. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40, 2007 N.C. App. LEXIS 2250 (2007).

Each sub-area must be considered as a whole and must qualify under one of the urban purposes tests set forth in subsection (c). Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225, 1989 N.C. App. LEXIS 223 (1989).

Tests as to Urban Development to Be Applied to Whole Annexation Area. —

Not only must the entire annexation area meet the requirements of subsection (c)(1), but even more importantly, the tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole. In re Annexation Ordinance, 284 N.C. 442 , 202 S.E.2d 143, 1974 N.C. LEXIS 1275 (1974); In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

The tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Division into Sub-Areas or Study Areas Improper. —

The urban area that a city seeks to qualify for annexation under one of the urban purposes tests set forth in subdivisions (c)(1) through (c)(3) of this section must be considered as a whole, i.e., as one area, and may not be divided into sub-areas or study areas. In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

Application of population credits. —

City acted under a misapprehension of the law, and misapplied the statutory standard in subdivision (c)(1), in deciding that population credits should be applied only in the “study area” in which such credits were accumulated, rather than applied uniformly to the whole area to be annexed. In re Annexation Ordinance, 284 N.C. 442 , 202 S.E.2d 143, 1974 N.C. LEXIS 1275 (1974).

Alternative Standards in Subdivisions (c)(1) and (c)(2). —

This section’s requirement that the area to be annexed must be developed for urban purposes is satisfied if either the standard of subdivision (c)(1) or the standard of subdivision (c)(2) is met. It is not required that both standards be satisfied. In re Annexation Ordinance 301-X, 304 N.C. 565 , 284 S.E.2d 475, 1981 N.C. LEXIS 1360 (1981).

To perform the computations required by the “subdivision test” under subdivision (c)(2) of this section, two figures are needed: the total acreage and the subdivided acreage. In re Annexation Ordinance 301-X, 304 N.C. 565 , 284 S.E.2d 475, 1981 N.C. LEXIS 1360 (1981).

Use of Different Standards Upheld. —

The trial court did not err in concluding the town complied with subsection (c) of this section in annexing three noncontiguous sub-areas using different standards for qualifying each of the three sub-areas as urban property. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225, 1989 N.C. App. LEXIS 223 (1989).

Applicability of Error Margins of G.S. 160A-54 to Calculations Under Subsection (c). —

The five percent error margins allowed in subdivisions (2) and (3) of G.S. 160A-54 apply exclusively to calculations made by the municipality for purposes of establishing compliance with the population and subdivision tests contained within the alternative standards prescribed by subsection (c) of this section. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

The language of G.S. 160A-54 is free from ambiguity and represents a legislative determination that margins of error should be allowed with respect to the calculations made by a municipality to establish compliance with the population and subdivision tests of subsection (c) of this section, but not with respect to the calculations made to establish compliance with the use test of subsection (c). Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

Counting “Total Resident Population”. —

A person is properly counted as a member of the “total resident population” under this section if such person would have been counted as an inhabitant of the proposed area of annexation under rules governing the last preceding decennial census. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Finding of Domicile Not Required. —

The annexing unit is not required to make a finding that a person is actually domiciled within the proposed area of annexation before counting that person for the purpose of making the population estimate required by this section. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Military Personnel Properly Counted in Estimating Annexed Population. —

In an annexation proceeding the military personnel on an air force base in the area to be annexed were properly counted in determining the population estimate required by this section, since in accordance with census practice dating back to 1790, persons enumerated in the 1970 census who lived on military bases as members of the armed forces were counted as residents of the states, counties, and minor civil divisions in which their installations were located. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

The purpose of subsection (d) is to permit municipal governing boards to extend corporate limits to include all nearby areas developed for urban purposes and, where necessary, to include areas which at the time of annexation are not yet developed for urban purposes but which constitute necessary land connections between the municipality and areas developed for urban purposes or between two or more areas developed for urban purposes. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225, 1989 N.C. App. LEXIS 223 (1989).

Annexation of Intervening Undeveloped Land under Subsection (d). —

Where the area proposed to be annexed by a municipality, when considered as a whole, meets the requirements of subsections (b) and (c) of this section, the fact that a part of the area is an undeveloped tract which does not comply with the standards set out in the statute does not require that such part be excluded from annexation. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

The language of this section simply means that where a developed tract and an undeveloped tract are included in an area to be annexed, and the developed tract complies with subsection (c), but when the undeveloped tract is added, the area as a whole does not so comply, then the undeveloped tract must be excluded unless it complies with one of the requirements of subsection (d). In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

The requirement that the urban area that a city seeks to qualify for annexation be considered as a whole does not preclude annexation of intervening undeveloped land pursuant to subsection (d) of this section. In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

A city properly annexed land which was not developed for urban purposes, under G.S. 160A-48(d)(2), along with its annexation of land which was developed for urban purposes, even though the undeveloped land was not contiguous with the city’s pre-annexation boundaries, because at least 60 percent of the land’s external boundaries were contiguous with the developed land which was being annexed. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Plain language of G.S. 160A-48(d)(2), regarding the annexation of areas not developed for urban used, included all possible combinations which made the following equation work: the amount of border which the non-urban area shared with the municipality combined with the amount of border that the non-urban area shared with an area or areas developed for urban purposes equaled 60 percent of the border of the non-urban area, and one workable combination existed where a non-urban area touched, on at least 60 percent of its external border, only an area or areas developed for urban purposes. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Cities with 5,000 or more people could annex an outlying urban area pursuant to G.S. 160A-48(c) and the intervening undeveloped lands pursuant to G.S. 160A-48(d) so long as the entire area met the requirements of G.S. 160A-48(b). Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Compliance with Subsection (d). —

In defining areas not developed for urban purposes that nevertheless may be annexed, G.S. 160A-48(d)(2) clearly specifies a combination of two things, in “any” variation or quantities of these two entities: the municipal boundary and the boundary of the urban developed area. To totally exclude one entity from the equation fails to yield a true “combination.” Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Plain meaning of G.S. 160A-48(d)(2) states that there must be a “combination” of adjacency to a municipality and adjacency to areas developed for urban purposes in order for a city to annex land under § 160A-48(d). Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Pursuant to G.S. 160A-48(d)(1) and (d)(2), a city could not annex a landowner’s parcel of land, where the parcel was not developed for urban use and where the parcel was adjacent to areas developed for urban purposes but was not also adjacent to the city’s boundary. Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Sub-area under subsection (d) may consist entirely of tracts of five acres or less. Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, 1985 N.C. App. LEXIS 3693 (1985).

Two lots, 60 percent of external boundaries of which were contiguous to city limits or to a part of other land which the city proposed to annex, qualified as sub-areas under subsection (d)(2), although they allegedly did not constitute “necessary land connections,” as mentioned in the unnumbered paragraph at the end of subsection (d). The unnumbered paragraph had to be read as describing the sub-areas specifically allowed by subsection (d). Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, 1985 N.C. App. LEXIS 3693 (1985).

In order to establish noncompliance with subsection (e) of this section, it must be shown: (1) that the boundary of the annexed area does not follow topographic features, and (2) that it would have been practical for the boundary to follow such features. In re City of Durham Annexation Ordinance Numbered 5991 for Area A, 69 N.C. App. 77, 316 S.E.2d 649, 1984 N.C. App. LEXIS 3384 (1984).

Annexation of Water and Sewer District. —

Even though a water and sewer district under Chapter 162A is termed a municipal corporation, a water and sewer district is a municipal corporation organized for a special purpose, which does not qualify as a municipal corporation for purposes of this Chapter. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657, 1989 N.C. App. LEXIS 830 (1989), rev'd, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

Annexation of Air Force Base. —

A federal air force base was subject to annexation by the City of Goldsboro where the annexation was not for the sole purpose of generating revenue, and it did not interfere with federal jurisdiction. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

The annexation of a federal air force base by the City of Goldsboro did not create unconstitutional tax classes. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Tract Classified as Residential Despite Growing of Grass Thereon for Cattle Feed. —

A city could classify a 1.83 acre tract with a rented house located on it as one lot used for residential purposes, despite the fact that on two separate parts of the lot fescue and sudex grass was grown and a person living in the neighborhood had been allowed to mow this grass, bale it and feed it to his cows. Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, 1985 N.C. App. LEXIS 3693 (1985).

Record of annexation proceedings showed prima facie full compliance with requirements of this section as to the character of the area to be annexed. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

Discovery. —

Judicial review of an annexation ordinance is a limited judicial review, with few similarities to ordinary civil actions which are initiated, tried and adjudicated in a different manner and for which the Rules of Civil Procedure were mostly devised. Nevertheless, since the court reviewing annexation proceedings is explicitly authorized to receive evidence as to the city’s compliance with the various procedures prescribed, as to its annexation plan meeting the requisites of G.S. 160A-47, and as to the area involved being eligible for annexation under this section, in those instances where discovery may illuminate these issues that it is authorized under the Rules of Civil Procedure. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

Commercial Classification Upheld. —

Two parcels of six and over 41 acres were properly classified as commercial where the tracts had been consolidated for development and tax purposes, all but 19.75 acres had recently been developed as a commercial shopping center, and the remaining 19.75 acres, contiguous to the shopping center, had been cleared and graded, and indirectly served the shopping center as a dumping ground. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657, 1989 N.C. App. LEXIS 830 (1989), rev'd, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

Institutional Classification Upheld. —

Tract of 5.92 acres owned by local school board was properly classified as being in institutional use, where the evidence tended to show that only because of the unusual circumstance that high school was in the process of relocating was property not used for agriculture class as it has been for most summers since 1973; since the property was consistently used for institutional purposes for about 13 years prior to the trial, the property’s disuse was merely a brief hiatus which did not disqualify the property from being in urban use. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657, 1989 N.C. App. LEXIS 830 (1989), rev'd, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

Trial court properly classified property as industrial in use rather than as vacant; where the record supported the trial court’s finding that a large part of its 17.7 acres consisted of a creek and that property owner pumped water from the creek for industrial use and also discharged effluent into the creek. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657, 1989 N.C. App. LEXIS 830 (1989), rev'd, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

Substantial Compliance with Subdivision (c)(3) Shown. —

Petitioners/property owners failed to overcome the presumption that the City substantially complied with subdivision (c)(3) of this section when it moved to annex disputed areas; mobile homes used to meet the “urban purposes” percentage requirement were “constructed” on the lots pursuant to “residential purposes” defined by G.S. 160A-53(2), and the deletion of a condemned home, originally included as a “habitable” residence, did not affect the calculations or the city’s compliance. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208, 1999 N.C. App. LEXIS 747 (1999).

It was error to include certain property among the acreage counted as subdivided and used for residential purposes under subdivision (c)(3) of this section where such classification did not reflect the factual characteristics of the property. Even though recorded plat indicated land was subdivided, the property had never been surveyed and divided on the ground, no lots had been sold, and no roads had been constructed and opened for traffic. Such land was not subdivided within the meaning of subdivision (c)(3) of this section. Thrash v. City of Asheville, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

Collateral Estoppel Barred Reclassification of Land Previously Classified as “Vacant.” —

Original trial court decision that divided the landowner’s property into commercial and “vacant” portions and the order that only the commercial portion be used on remand to determine compliance with G.S. 160A-48(c)(3) could not be construed as a license to attempt to re-classify the vacant acres. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415, 2003 N.C. App. LEXIS 124 (2003).

Collateral estoppel applied where a second trial court decision permitted a city to reclassify a landowner’s vacant acres for purposes of involuntary annexation because the original decision included an adjudication that the subject area was vacant. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415, 2003 N.C. App. LEXIS 124 (2003).

Actual Minimum Urbanization Is An Essential Requirement of the Annexation Act. —

“Sound urban development” does not mean a territory may be annexed whenever some documentation of record supports its assessment as urban; it means a territory may be annexed when its character reflects some actual minimum urbanization. Thrash v. City of Asheville, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

Some actual, minimum urbanization of a proposed annexation area is required for annexation. Shackelford v. City of Wilmington, 127 N.C. App. 449, 490 S.E.2d 578, 1997 N.C. App. LEXIS 987 (1997), aff'd, 349 N.C. 222 , 505 S.E.2d 80, 1998 N.C. LEXIS 564 (1998).

When a city proposed to annex certain property, including certain lots which were being developed for commercial purposes, it was error to classify those lots as being used for a commercial purpose, for purposes of determining compliance with G.S. 160A-48(c)(3), because the property’s actual use at the time of the city’s service plan was the relevant consideration, rather than a proposed future use. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400, 2003 N.C. App. LEXIS 1523 (2003), aff'd, 358 N.C. 216 , 593 S.E.2d 584, 2004 N.C. LEXIS 195 (2004).

Topographic Features Requirement. —

In addressing the division between urban and non-urban areas, this section requires the use of topographic features to fix exterior boundaries of the municipality as annexed, but does not speak to interior boundaries. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208, 1999 N.C. App. LEXIS 747 (1999).

While this section does not provide “mandatory standards or requirements for annexation,” the provision itself is mandatory in light of the N.C. Supreme Court’s holding in Greene v. Town of Valdese, 306 N.C. 79 , 291 S.E.2d 630 that a boundary “must” follow topographic features unless to do so would defeat the annexation. Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155, 1999 N.C. App. LEXIS 1294 (1999).

Landowners met their burden of showing that the boundary of an involuntarily annexed area failed to follow natural topographic features, and that it would have been practical for the boundary to follow such features. Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155, 1999 N.C. App. LEXIS 1294 (1999).

Micro Approach Calculations Meet Urbanization Test. —

Town met the urbanization test for annexation, where the town used a “micro approach” whereby it determined the number of dwelling units in each census block within the area to be annexed, then determined the average family size therein, then multiplied the number of dwelling units in each census block by the average family size to calculate the estimated population of each block, and finally added the block numbers together to produce the population estimate. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, 1998 N.C. App. LEXIS 757 (1998).

Governmental Use. —

Involuntary annexation was improper where there was insufficient evidence of governmental use on four disputed tracts; while the evidence supported a finding of common ownership, there was insufficient evidence that the lots served a common purpose, and the court, therefore, erred in relying on a plan of future development to classify the entire tract as under governmental use. Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155, 1999 N.C. App. LEXIS 1294 (1999).

Characterization of Property Held Proper. —

Town could properly classify country club’s property as being used for commercial or institutional purposes, even though much of the property was used as a golf course. Chapel Hill Country Club, Inc. v. Town of Chapel Hill, 97 N.C. App. 171, 388 S.E.2d 168, 1990 N.C. App. LEXIS 65 (1990).

When a power company asserted that certain parts of its land which a city proposed to annex were not developed for industrial use, and, thus, not subject to annexation, there was sufficient evidence from which the trial court could find each tract was used in support of the company’s power plant, as there was testimony that two tracts were a buffer for a cooling pond, and that two other tracts were buffers for ash ponds on the property. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

In addition to topographic features, the statute explicitly permits the use of streets as boundaries. In order to establish non-compliance with subdivision (e) of this section, petitioners must show two things: (1) that the boundary of the annexed area does not follow topographic features, and (2) that it would have been practical for the boundary to follow such features. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

City Not Required to Extend Annexation to Areas in Conflict with Mandatory Statute Provisions. —

The city was not required to extend the boundaries of the proposed annexation area to include ridge lines where to do so would have defeated the city’s compliance with the other mandatory portions of the annexation statute. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Shoestring Annexation Not Shown. —

The area to be annexed by the town was not a prohibited ribbon, balloon or “shoestring” annexation, where the annexation area was a rectangle, with the easternmost side solidly abutted against the existing corporate limits. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, 1998 N.C. App. LEXIS 757 (1998).

Contiguity Requirement Met. —

Town’s annexation ordinance met the contiguity requirement of this subsection, where more than one-eighth of the area to be annexed coincided with the municipal boundary. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, 1998 N.C. App. LEXIS 757 (1998).

Annexation areas that were at least one-eighth contiguous with the municipal boundary and whose portions were connected by street right-of-way corridors, complied with the requirements of G.S. 160A-48(b). Anthony v. City of Shelby, 152 N.C. App. 144, 567 S.E.2d 222, 2002 N.C. App. LEXIS 904 (2002).

City’s division of an annexation area into sub-areas did not result in the improper annexation of an “island” not contiguous with the city limits as of the date of the original resolution of intent, although the boundaries of the sub-area, if considered in isolation, rather than as a sub-part of the area originally identified and eventually annexed, were not contiguous with the city limits on the date of the initial resolution. U.S. Cold Storage, Inc. v. City of Lumberton, 170 N.C. App. 411, 612 S.E.2d 415, 2005 N.C. App. LEXIS 1014 (2005).

Compliance with Subsection (e). —

Sufficient evidence supported a finding that the city substantially complied with this section, where the city’s Planning Director testified that the city first examined the area to be annexed for natural topographic features, and in the absence of such features, used a 200 foot setback requirement. Blackwell v. City of Reidsville, 129 N.C. App. 759, 502 S.E.2d 371, 1998 N.C. App. LEXIS 762 (1998).

City’s setting of an annexation boundary parallel to a road within a mobile home park property did not comply with the requirements of G.S. 160A-48(e). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, 2011 N.C. App. LEXIS 1758 (2011).

Classification of Condominium Common Areas. —

Common areas belonging to people who owned condominium units is residential property, and must be recognized in the city’s plan for providing services to the area the City proposed to annex to provide statutorily required sewer service. Briggs v. City of Asheville, 159 N.C. App. 558, 583 S.E.2d 733, 2003 N.C. App. LEXIS 1534 (2003).

Section 160A-48(c)(3) contained two mandatory tests for determining the availability of an area for annexation: (1) the use test — that not less than 60 percent of the lots and tracts in the area had to be in actual use, other than for agriculture, and (2) the subdivision test — not less than 60 percent of the acreage which was in residential use, if any, and was vacant had to consist of lots and tracts of five (now three) acres or less in size. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Acreage in use for an industrial purpose was excluded from the subdivision test of the availability of acreage for annexation. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Purpose of G.S. 160A-48(d) was to permit municipal governing boards to extend corporate limits to include all nearby areas developed for urban purposes and where necessary to include areas which at the time of annexation were not yet developed for urban purposes but which constituted necessary land connections between the municipality and areas developed for urban purposes or between two or more areas developed for urban purposes, and for purposes of this subsection, “necessary land connection” meant an area that did not exceed 25 percent of the total area to be annexed. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Judicial Review. —

Annexation ordinance could be challenged in a trial court on the basis that the provisions of G.S. 160A-48 had not been met, under G.S. 160A-50(f)(3), and judicial review of an annexation ordinance was limited to determining whether the annexation proceedings substantially complied with the requirements of the applicable annexation statute. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Petitioners challenging a city’s annexation ordinances failed to show the city misclassified the lots to be annexed or that the county tax maps it relied on were inaccurate. As petitioners offered no reliable evidence that the city’s methodology was inaccurate and not calculated to provide reasonably accurate results, as required by G.S. 106A-54, the ordinances were properly deemed valid. Brown v. City of Winston-Salem, 176 N.C. App. 497, 626 S.E.2d 747, 2006 N.C. App. LEXIS 531 , cert. denied, 360 N.C. 575 , 635 S.E.2d 429, 2006 N.C. LEXIS 958 (2006).

CASE NOTES

Constitutionality. —

See In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195, 1984 N.C. App. LEXIS 3856 (1984).

Question whether area is ripe for annexation should be addressed under statutory criteria set up in this section. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

The entire area to be annexed must meet the requirements of subsection (b) of this section. In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

Cities with 5,000 or more people may annex an outlying urban area pursuant to subsection (c) of this section and the intervening undeveloped lands pursuant to subsection (d) so long as the entire area meets the requirements of subsection (b). In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

This Section and § 160A-36 Compared. —

The provisions of subsections (b), (c) and (e) of this section are virtually identical to their counterparts in subsections (b), (c) and (d) of G.S. 160A-36. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Character of areas which may properly be annexed (i) cannot be included within the boundary of another incorporated municipality, (ii) must be adjacent to the existing boundaries of the annexing municipality, (iii) must be developed for urban purposes or must connect an outlying area developed for urban purposes with the municipality and (iv) wherever practical should use topographic features as boundaries. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

When a city proposed the annexation of a certain area, it could combine lots in single ownership used for a common purpose into a single tract, which could then be used to determine the percentage of tracts in the area used for urban purposes, under G.S. 160A-48(c)(3), but it was impermissible for the city to combine lots being developed for commercial purposes into a single tract classified as commercial because the lots had to be used for a common purpose, and these lots were in the process of development rather than in commercial use. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400, 2003 N.C. App. LEXIS 1523 (2003), aff'd, 358 N.C. 216 , 593 S.E.2d 584, 2004 N.C. LEXIS 195 (2004).

City proposing to annex certain land substantially complied with G.S. 160A-48 because land improperly classified as residential should have been classified as “non-urban,” as the land met no qualifications to be classified as urban, making G.S. 160A-48(c) inapplicable, as was also true with certain other undeveloped land, and making the classification of this land under G.S. 160A-48(d) proper, which meant the land did not have to qualify under G.S. 160A-48(c), so the land was correctly excluded from calculations of land qualifying for annexation under G.S. 160A-48(c) and, as a result, the total land qualified for annexation under G.S. 160A-48(c)(3), applying the use/subdivision test. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40, 2007 N.C. App. LEXIS 2250 (2007).

Each sub-area must be considered as a whole and must qualify under one of the urban purposes tests set forth in subsection (c). Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225, 1989 N.C. App. LEXIS 223 (1989).

Tests as to Urban Development to Be Applied to Whole Annexation Area. —

Not only must the entire annexation area meet the requirements of subsection (c)(1), but even more importantly, the tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole. In re Annexation Ordinance, 284 N.C. 442 , 202 S.E.2d 143, 1974 N.C. LEXIS 1275 (1974); In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

The tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Division into Sub-Areas or Study Areas Improper. —

The urban area that a city seeks to qualify for annexation under one of the urban purposes tests set forth in subdivisions (c)(1) through (c)(3) of this section must be considered as a whole, i.e., as one area, and may not be divided into sub-areas or study areas. In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

Application of population credits. —

City acted under a misapprehension of the law, and misapplied the statutory standard in subdivision (c)(1), in deciding that population credits should be applied only in the “study area” in which such credits were accumulated, rather than applied uniformly to the whole area to be annexed. In re Annexation Ordinance, 284 N.C. 442 , 202 S.E.2d 143, 1974 N.C. LEXIS 1275 (1974).

Alternative Standards in Subdivisions (c)(1) and (c)(2). —

This section’s requirement that the area to be annexed must be developed for urban purposes is satisfied if either the standard of subdivision (c)(1) or the standard of subdivision (c)(2) is met. It is not required that both standards be satisfied. In re Annexation Ordinance 301-X, 304 N.C. 565 , 284 S.E.2d 475, 1981 N.C. LEXIS 1360 (1981).

To perform the computations required by the “subdivision test” under subdivision (c)(2) of this section, two figures are needed: the total acreage and the subdivided acreage. In re Annexation Ordinance 301-X, 304 N.C. 565 , 284 S.E.2d 475, 1981 N.C. LEXIS 1360 (1981).

Use of Different Standards Upheld. —

The trial court did not err in concluding the town complied with subsection (c) of this section in annexing three noncontiguous sub-areas using different standards for qualifying each of the three sub-areas as urban property. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225, 1989 N.C. App. LEXIS 223 (1989).

Applicability of Error Margins of G.S. 160A-54 to Calculations Under Subsection (c). —

The five percent error margins allowed in subdivisions (2) and (3) of G.S. 160A-54 apply exclusively to calculations made by the municipality for purposes of establishing compliance with the population and subdivision tests contained within the alternative standards prescribed by subsection (c) of this section. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

The language of G.S. 160A-54 is free from ambiguity and represents a legislative determination that margins of error should be allowed with respect to the calculations made by a municipality to establish compliance with the population and subdivision tests of subsection (c) of this section, but not with respect to the calculations made to establish compliance with the use test of subsection (c). Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

Counting “Total Resident Population”. —

A person is properly counted as a member of the “total resident population” under this section if such person would have been counted as an inhabitant of the proposed area of annexation under rules governing the last preceding decennial census. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Finding of Domicile Not Required. —

The annexing unit is not required to make a finding that a person is actually domiciled within the proposed area of annexation before counting that person for the purpose of making the population estimate required by this section. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Military Personnel Properly Counted in Estimating Annexed Population. —

In an annexation proceeding the military personnel on an air force base in the area to be annexed were properly counted in determining the population estimate required by this section, since in accordance with census practice dating back to 1790, persons enumerated in the 1970 census who lived on military bases as members of the armed forces were counted as residents of the states, counties, and minor civil divisions in which their installations were located. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

The purpose of subsection (d) is to permit municipal governing boards to extend corporate limits to include all nearby areas developed for urban purposes and, where necessary, to include areas which at the time of annexation are not yet developed for urban purposes but which constitute necessary land connections between the municipality and areas developed for urban purposes or between two or more areas developed for urban purposes. Wallace v. Town of Chapel Hill, 93 N.C. App. 422, 378 S.E.2d 225, 1989 N.C. App. LEXIS 223 (1989).

Annexation of Intervening Undeveloped Land under Subsection (d). —

Where the area proposed to be annexed by a municipality, when considered as a whole, meets the requirements of subsections (b) and (c) of this section, the fact that a part of the area is an undeveloped tract which does not comply with the standards set out in the statute does not require that such part be excluded from annexation. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

The language of this section simply means that where a developed tract and an undeveloped tract are included in an area to be annexed, and the developed tract complies with subsection (c), but when the undeveloped tract is added, the area as a whole does not so comply, then the undeveloped tract must be excluded unless it complies with one of the requirements of subsection (d). In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

The requirement that the urban area that a city seeks to qualify for annexation be considered as a whole does not preclude annexation of intervening undeveloped land pursuant to subsection (d) of this section. In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

A city properly annexed land which was not developed for urban purposes, under G.S. 160A-48(d)(2), along with its annexation of land which was developed for urban purposes, even though the undeveloped land was not contiguous with the city’s pre-annexation boundaries, because at least 60 percent of the land’s external boundaries were contiguous with the developed land which was being annexed. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Plain language of G.S. 160A-48(d)(2), regarding the annexation of areas not developed for urban used, included all possible combinations which made the following equation work: the amount of border which the non-urban area shared with the municipality combined with the amount of border that the non-urban area shared with an area or areas developed for urban purposes equaled 60 percent of the border of the non-urban area, and one workable combination existed where a non-urban area touched, on at least 60 percent of its external border, only an area or areas developed for urban purposes. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Cities with 5,000 or more people could annex an outlying urban area pursuant to G.S. 160A-48(c) and the intervening undeveloped lands pursuant to G.S. 160A-48(d) so long as the entire area met the requirements of G.S. 160A-48(b). Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Compliance with Subsection (d). —

In defining areas not developed for urban purposes that nevertheless may be annexed, G.S. 160A-48(d)(2) clearly specifies a combination of two things, in “any” variation or quantities of these two entities: the municipal boundary and the boundary of the urban developed area. To totally exclude one entity from the equation fails to yield a true “combination.” Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Plain meaning of G.S. 160A-48(d)(2) states that there must be a “combination” of adjacency to a municipality and adjacency to areas developed for urban purposes in order for a city to annex land under § 160A-48(d). Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Pursuant to G.S. 160A-48(d)(1) and (d)(2), a city could not annex a landowner’s parcel of land, where the parcel was not developed for urban use and where the parcel was adjacent to areas developed for urban purposes but was not also adjacent to the city’s boundary. Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Sub-area under subsection (d) may consist entirely of tracts of five acres or less. Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, 1985 N.C. App. LEXIS 3693 (1985).

Two lots, 60 percent of external boundaries of which were contiguous to city limits or to a part of other land which the city proposed to annex, qualified as sub-areas under subsection (d)(2), although they allegedly did not constitute “necessary land connections,” as mentioned in the unnumbered paragraph at the end of subsection (d). The unnumbered paragraph had to be read as describing the sub-areas specifically allowed by subsection (d). Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, 1985 N.C. App. LEXIS 3693 (1985).

In order to establish noncompliance with subsection (e) of this section, it must be shown: (1) that the boundary of the annexed area does not follow topographic features, and (2) that it would have been practical for the boundary to follow such features. In re City of Durham Annexation Ordinance Numbered 5991 for Area A, 69 N.C. App. 77, 316 S.E.2d 649, 1984 N.C. App. LEXIS 3384 (1984).

Annexation of Water and Sewer District. —

Even though a water and sewer district under Chapter 162A is termed a municipal corporation, a water and sewer district is a municipal corporation organized for a special purpose, which does not qualify as a municipal corporation for purposes of this Chapter. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657, 1989 N.C. App. LEXIS 830 (1989), rev'd, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

Annexation of Air Force Base. —

A federal air force base was subject to annexation by the City of Goldsboro where the annexation was not for the sole purpose of generating revenue, and it did not interfere with federal jurisdiction. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

The annexation of a federal air force base by the City of Goldsboro did not create unconstitutional tax classes. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Tract Classified as Residential Despite Growing of Grass Thereon for Cattle Feed. —

A city could classify a 1.83 acre tract with a rented house located on it as one lot used for residential purposes, despite the fact that on two separate parts of the lot fescue and sudex grass was grown and a person living in the neighborhood had been allowed to mow this grass, bale it and feed it to his cows. Southern Glove Mfg. Co. v. City of Newton, 75 N.C. App. 574, 331 S.E.2d 180, 1985 N.C. App. LEXIS 3693 (1985).

Record of annexation proceedings showed prima facie full compliance with requirements of this section as to the character of the area to be annexed. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

Discovery. —

Judicial review of an annexation ordinance is a limited judicial review, with few similarities to ordinary civil actions which are initiated, tried and adjudicated in a different manner and for which the Rules of Civil Procedure were mostly devised. Nevertheless, since the court reviewing annexation proceedings is explicitly authorized to receive evidence as to the city’s compliance with the various procedures prescribed, as to its annexation plan meeting the requisites of G.S. 160A-47, and as to the area involved being eligible for annexation under this section, in those instances where discovery may illuminate these issues that it is authorized under the Rules of Civil Procedure. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

Commercial Classification Upheld. —

Two parcels of six and over 41 acres were properly classified as commercial where the tracts had been consolidated for development and tax purposes, all but 19.75 acres had recently been developed as a commercial shopping center, and the remaining 19.75 acres, contiguous to the shopping center, had been cleared and graded, and indirectly served the shopping center as a dumping ground. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657, 1989 N.C. App. LEXIS 830 (1989), rev'd, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

Institutional Classification Upheld. —

Tract of 5.92 acres owned by local school board was properly classified as being in institutional use, where the evidence tended to show that only because of the unusual circumstance that high school was in the process of relocating was property not used for agriculture class as it has been for most summers since 1973; since the property was consistently used for institutional purposes for about 13 years prior to the trial, the property’s disuse was merely a brief hiatus which did not disqualify the property from being in urban use. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657, 1989 N.C. App. LEXIS 830 (1989), rev'd, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

Trial court properly classified property as industrial in use rather than as vacant; where the record supported the trial court’s finding that a large part of its 17.7 acres consisted of a creek and that property owner pumped water from the creek for industrial use and also discharged effluent into the creek. Thrash v. City of Asheville, 95 N.C. App. 457, 383 S.E.2d 657, 1989 N.C. App. LEXIS 830 (1989), rev'd, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

Substantial Compliance with Subdivision (c)(3) Shown. —

Petitioners/property owners failed to overcome the presumption that the City substantially complied with subdivision (c)(3) of this section when it moved to annex disputed areas; mobile homes used to meet the “urban purposes” percentage requirement were “constructed” on the lots pursuant to “residential purposes” defined by G.S. 160A-53(2), and the deletion of a condemned home, originally included as a “habitable” residence, did not affect the calculations or the city’s compliance. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208, 1999 N.C. App. LEXIS 747 (1999).

It was error to include certain property among the acreage counted as subdivided and used for residential purposes under subdivision (c)(3) of this section where such classification did not reflect the factual characteristics of the property. Even though recorded plat indicated land was subdivided, the property had never been surveyed and divided on the ground, no lots had been sold, and no roads had been constructed and opened for traffic. Such land was not subdivided within the meaning of subdivision (c)(3) of this section. Thrash v. City of Asheville, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

Collateral Estoppel Barred Reclassification of Land Previously Classified as “Vacant.” —

Original trial court decision that divided the landowner’s property into commercial and “vacant” portions and the order that only the commercial portion be used on remand to determine compliance with G.S. 160A-48(c)(3) could not be construed as a license to attempt to re-classify the vacant acres. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415, 2003 N.C. App. LEXIS 124 (2003).

Collateral estoppel applied where a second trial court decision permitted a city to reclassify a landowner’s vacant acres for purposes of involuntary annexation because the original decision included an adjudication that the subject area was vacant. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415, 2003 N.C. App. LEXIS 124 (2003).

Actual Minimum Urbanization Is An Essential Requirement of the Annexation Act. —

“Sound urban development” does not mean a territory may be annexed whenever some documentation of record supports its assessment as urban; it means a territory may be annexed when its character reflects some actual minimum urbanization. Thrash v. City of Asheville, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

Some actual, minimum urbanization of a proposed annexation area is required for annexation. Shackelford v. City of Wilmington, 127 N.C. App. 449, 490 S.E.2d 578, 1997 N.C. App. LEXIS 987 (1997), aff'd, 349 N.C. 222 , 505 S.E.2d 80, 1998 N.C. LEXIS 564 (1998).

When a city proposed to annex certain property, including certain lots which were being developed for commercial purposes, it was error to classify those lots as being used for a commercial purpose, for purposes of determining compliance with G.S. 160A-48(c)(3), because the property’s actual use at the time of the city’s service plan was the relevant consideration, rather than a proposed future use. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400, 2003 N.C. App. LEXIS 1523 (2003), aff'd, 358 N.C. 216 , 593 S.E.2d 584, 2004 N.C. LEXIS 195 (2004).

Topographic Features Requirement. —

In addressing the division between urban and non-urban areas, this section requires the use of topographic features to fix exterior boundaries of the municipality as annexed, but does not speak to interior boundaries. Bali Co. v. City of Kings Mt., 134 N.C. App. 277, 517 S.E.2d 208, 1999 N.C. App. LEXIS 747 (1999).

While this section does not provide “mandatory standards or requirements for annexation,” the provision itself is mandatory in light of the N.C. Supreme Court’s holding in Greene v. Town of Valdese, 306 N.C. 79 , 291 S.E.2d 630 that a boundary “must” follow topographic features unless to do so would defeat the annexation. Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155, 1999 N.C. App. LEXIS 1294 (1999).

Landowners met their burden of showing that the boundary of an involuntarily annexed area failed to follow natural topographic features, and that it would have been practical for the boundary to follow such features. Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155, 1999 N.C. App. LEXIS 1294 (1999).

Micro Approach Calculations Meet Urbanization Test. —

Town met the urbanization test for annexation, where the town used a “micro approach” whereby it determined the number of dwelling units in each census block within the area to be annexed, then determined the average family size therein, then multiplied the number of dwelling units in each census block by the average family size to calculate the estimated population of each block, and finally added the block numbers together to produce the population estimate. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, 1998 N.C. App. LEXIS 757 (1998).

Governmental Use. —

Involuntary annexation was improper where there was insufficient evidence of governmental use on four disputed tracts; while the evidence supported a finding of common ownership, there was insufficient evidence that the lots served a common purpose, and the court, therefore, erred in relying on a plan of future development to classify the entire tract as under governmental use. Arquilla v. City of Salisbury, 136 N.C. App. 24, 523 S.E.2d 155, 1999 N.C. App. LEXIS 1294 (1999).

Characterization of Property Held Proper. —

Town could properly classify country club’s property as being used for commercial or institutional purposes, even though much of the property was used as a golf course. Chapel Hill Country Club, Inc. v. Town of Chapel Hill, 97 N.C. App. 171, 388 S.E.2d 168, 1990 N.C. App. LEXIS 65 (1990).

When a power company asserted that certain parts of its land which a city proposed to annex were not developed for industrial use, and, thus, not subject to annexation, there was sufficient evidence from which the trial court could find each tract was used in support of the company’s power plant, as there was testimony that two tracts were a buffer for a cooling pond, and that two other tracts were buffers for ash ponds on the property. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

In addition to topographic features, the statute explicitly permits the use of streets as boundaries. In order to establish non-compliance with subdivision (e) of this section, petitioners must show two things: (1) that the boundary of the annexed area does not follow topographic features, and (2) that it would have been practical for the boundary to follow such features. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

City Not Required to Extend Annexation to Areas in Conflict with Mandatory Statute Provisions. —

The city was not required to extend the boundaries of the proposed annexation area to include ridge lines where to do so would have defeated the city’s compliance with the other mandatory portions of the annexation statute. Matheson v. City of Asheville, 102 N.C. App. 156, 402 S.E.2d 140, 1991 N.C. App. LEXIS 304 (1991).

Shoestring Annexation Not Shown. —

The area to be annexed by the town was not a prohibited ribbon, balloon or “shoestring” annexation, where the annexation area was a rectangle, with the easternmost side solidly abutted against the existing corporate limits. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, 1998 N.C. App. LEXIS 757 (1998).

Contiguity Requirement Met. —

Town’s annexation ordinance met the contiguity requirement of this subsection, where more than one-eighth of the area to be annexed coincided with the municipal boundary. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, 1998 N.C. App. LEXIS 757 (1998).

Annexation areas that were at least one-eighth contiguous with the municipal boundary and whose portions were connected by street right-of-way corridors, complied with the requirements of G.S. 160A-48(b). Anthony v. City of Shelby, 152 N.C. App. 144, 567 S.E.2d 222, 2002 N.C. App. LEXIS 904 (2002).

City’s division of an annexation area into sub-areas did not result in the improper annexation of an “island” not contiguous with the city limits as of the date of the original resolution of intent, although the boundaries of the sub-area, if considered in isolation, rather than as a sub-part of the area originally identified and eventually annexed, were not contiguous with the city limits on the date of the initial resolution. U.S. Cold Storage, Inc. v. City of Lumberton, 170 N.C. App. 411, 612 S.E.2d 415, 2005 N.C. App. LEXIS 1014 (2005).

Compliance with Subsection (e). —

Sufficient evidence supported a finding that the city substantially complied with this section, where the city’s Planning Director testified that the city first examined the area to be annexed for natural topographic features, and in the absence of such features, used a 200 foot setback requirement. Blackwell v. City of Reidsville, 129 N.C. App. 759, 502 S.E.2d 371, 1998 N.C. App. LEXIS 762 (1998).

City’s setting of an annexation boundary parallel to a road within a mobile home park property did not comply with the requirements of G.S. 160A-48(e). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, 2011 N.C. App. LEXIS 1758 (2011).

Classification of Condominium Common Areas. —

Common areas belonging to people who owned condominium units is residential property, and must be recognized in the city’s plan for providing services to the area the City proposed to annex to provide statutorily required sewer service. Briggs v. City of Asheville, 159 N.C. App. 558, 583 S.E.2d 733, 2003 N.C. App. LEXIS 1534 (2003).

Section 160A-48(c)(3) contained two mandatory tests for determining the availability of an area for annexation: (1) the use test — that not less than 60 percent of the lots and tracts in the area had to be in actual use, other than for agriculture, and (2) the subdivision test — not less than 60 percent of the acreage which was in residential use, if any, and was vacant had to consist of lots and tracts of five (now three) acres or less in size. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Acreage in use for an industrial purpose was excluded from the subdivision test of the availability of acreage for annexation. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Purpose of G.S. 160A-48(d) was to permit municipal governing boards to extend corporate limits to include all nearby areas developed for urban purposes and where necessary to include areas which at the time of annexation were not yet developed for urban purposes but which constituted necessary land connections between the municipality and areas developed for urban purposes or between two or more areas developed for urban purposes, and for purposes of this subsection, “necessary land connection” meant an area that did not exceed 25 percent of the total area to be annexed. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Judicial Review. —

Annexation ordinance could be challenged in a trial court on the basis that the provisions of G.S. 160A-48 had not been met, under G.S. 160A-50(f)(3), and judicial review of an annexation ordinance was limited to determining whether the annexation proceedings substantially complied with the requirements of the applicable annexation statute. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Petitioners challenging a city’s annexation ordinances failed to show the city misclassified the lots to be annexed or that the county tax maps it relied on were inaccurate. As petitioners offered no reliable evidence that the city’s methodology was inaccurate and not calculated to provide reasonably accurate results, as required by G.S. 106A-54, the ordinances were properly deemed valid. Brown v. City of Winston-Salem, 176 N.C. App. 497, 626 S.E.2d 747, 2006 N.C. App. LEXIS 531 , cert. denied, 360 N.C. 575 , 635 S.E.2d 429, 2006 N.C. LEXIS 958 (2006).

Editor’s Note.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Effect of Amendments.

Session Laws 2012-11, s. 2, effective July 1, 2012, in the second sentence of subsection (c), deleted “and” preceding “fix”, inserted “annexation, and fix a date for the referendum on”, and added the last sentence; in sub-subdivision (d)(1)g., inserted “the opportunity to vote in the referendum and”, and deleted “for denying and” following “remedies”; rewrote subdivision (e)(5); in the fourth sentence of subsection (f) substituted “opportunity to vote in the referendum and available statutory remedies for” for “available statutory remedies for denying and”; in subsection (h), in the introductory paragraph, substituted “certification of the election held under G.S. 160A 58.64” for “public hearing and not later than 90 days following the public hearing”, in subdivision (h)(5), deleted “and petition to deny and”, deleted subdivision (h)(7), which read: “Be summarized, and sent in accordance with subsection (i) of this section, to the list of the property owners within the area described in the annexation ordinance to which a notice was mailed under subsection (d) of this section together with a blank petition form, preprinted with name and address of the property owner,” and rewrote subdivision (h)(8); and rewrote subsection (i).

CASE NOTES

This section provides two different procedural methods for beginning the involuntary annexation process under G.S. 160A-33 to 160A-42 and former G.S. 160A-43 and 160A-44. A municipality may either pass a resolution of consideration one year prior to adopting its resolution of intent, or it may immediately adopt the resolution of intent and postpone the effective date of annexation for at least a year after the ordinance is passed. Town of Hazelwood v. Town of Waynesville, 83 N.C. App. 670, 351 S.E.2d 558, 1987 N.C. App. LEXIS 2384 , rev'd, 320 N.C. 89 , 357 S.E.2d 686, 1987 N.C. LEXIS 2171 (1987).

The trial court’s order affirming a town annexation ordinance had to be vacated where the court applied the material prejudice standard of review to the adequacy of maps contained in the town report as well as to the questions of solid waste collection and the financing of services instead of determining whether or not the town complied with this section in formulating and carrying out its annexation plan; procedural irregularities under this section are to be evaluated under a “material prejudice” standard, while violations of either G.S. 160A-35 or G.S. 160A-36 are to be viewed in light of compliance or lack thereof and, if necessary, result in appropriate amendment. Sonopress, Inc. v. Town of Weaverville, 139 N.C. App. 378, 533 S.E.2d 537, 2000 N.C. App. LEXIS 948 (2000).

Notice of Rescinded Ordinance Not Required. —

There is no provision in this section or any other section in this chapter that would impose a duty on the town to give plaintiffs notice of the fact that the town had rescinded an earlier annexation ordinance. Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 493 S.E.2d 797, 1997 N.C. App. LEXIS 1273 (1997).

Deliberate preference for voluntary annexation is incorporated into law. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89 , 357 S.E.2d 686, 1987 N.C. LEXIS 2171 (1987).

Resolution of intent is “first mandatory public procedural step” for purposes of the prior jurisdiction rule. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89 , 357 S.E.2d 686, 1987 N.C. LEXIS 2171 (1987).

The adoption of a resolution of intent is the critical date for determining whether a municipality utilizing involuntary annexation procedures has prior jurisdiction over the same territory being considered for voluntary annexation by a different municipality. Town of Hazelwood v. Town of Waynesville, 320 N.C. 89 , 357 S.E.2d 686, 1987 N.C. LEXIS 2171 (1987).

Sections 160A-31(d), 160A-49(e) and subsection (e) of this section are in pari materia. Conover v. Newton, 297 N.C. 506 , 256 S.E.2d 216, 1979 N.C. LEXIS 1405 (1979).

The legislature has empowered municipal governing boards to amend the report required by G.S. 160A-35, to accommodate changes in the plans for serving the area proposed to be annexed, so long as such changes meet the requirements of G.S. 160A-35. Gregory v. Town of Plymouth, 60 N.C. App. 431, 299 S.E.2d 232, 1983 N.C. App. LEXIS 2441 (1983).

Subsection (e) contains no provision requiring a second public hearing before the annexation report may be amended; to hold that a public hearing is always necessary when an annexation report is amended would result in a proliferation of unnecessary hearings. Williams v. Town of Grifton, 22 N.C. App. 611, 207 S.E.2d 275, 1974 N.C. App. LEXIS 2394 (1974).

There is no requirement in subsection (e) that a second public hearing be held on the report as amended. Conover v. Newton, 297 N.C. 506 , 256 S.E.2d 216, 1979 N.C. LEXIS 1405 (1979).

There is no requirement that a second public hearing be held on an amended annexation proposal, when that amendment is adopted to achieve compliance with G.S. 160A-35, pursuant to the authority granted in subsection (e) of this section. Gregory v. Town of Plymouth, 60 N.C. App. 431, 299 S.E.2d 232, 1983 N.C. App. LEXIS 2441 (1983).

Nor Any Provision as to Duration of Public Inspection of Amended Reports. —

There is no requirement in subsection (e) that the amended report be available for public inspection for any particular amount of time before final action is taken on the annexation proposal. Conover v. Newton, 297 N.C. 506 , 256 S.E.2d 216, 1979 N.C. LEXIS 1405 (1979).

Newly annexed territory is subject to municipal taxes levied for the fiscal year following the effective date of annexation under subsection (f) of this section. A taxpayer’s right to recover taxes paid under protest for a fiscal year depends upon the date the annexation ordinance became effective under G.S. 160A-38(i). Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147 , 187 S.E.2d 704, 1972 N.C. LEXIS 1017 (1972) (decided under this section as it stood before the 1975 amendment).

Effect of Appeal on Effective Date of Annexation for Tax Purposes. —

Where an appeal from an annexation ordinance was pending in the Court of Appeals on the effective date of annexation specified in the ordinance, May 15, 1969, and the decision of the Court of Appeals was filed and certified in September, 1969, property within the area being annexed was not subject to municipal ad valorem taxes for the fiscal year beginning July 1, 1969, since (1) newly annexed territory is subject to municipal taxes levied for the fiscal year following the effective date of annexation, under subsection (f) of this section, and (2) under G.S. 160A-38(i), the appeal postponed the effective date of the ordinance until the date of the final judgment of the appellate court. Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147 , 187 S.E.2d 704, 1972 N.C. LEXIS 1017 (1972) (decided under this section as it stood before the 1975 amendment).

Annexed Areas Need Not Be Contiguous to Each Other. —

If the areas to be annexed meet the standards prescribed, it does not matter whether they be contiguous. Subsection (g) of this section simply alleviates the necessity for separate annexation proceedings where areas to be annexed are adjacent to the municipality but not adjacent to each other, and specifically provides that annexation procedures may be simultaneously instituted and carried forward. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, 1969 N.C. App. LEXIS 1144 (1969).

But Contiguous Areas Are Not Excluded from Annexation. —

Subsection (g) of this section is not interpreted to exclude annexation of areas contiguous to the municipality which are also contiguous to each other. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, 1969 N.C. App. LEXIS 1144 (1969).

Fact that the metes and bounds description in a resolution of intent to annex failed to close because one small piece of property owned by a person who did not join the petition for review was not included within the resolution of intent was not fatal to the validity of the annexation ordinance, where the resolution of intent and the published notice of public hearing made full reference to a map, filed in the office of the clerk of the city, and available for public inspection of the area proposed to be annexed, and this map and a map published in the newspaper notice of the public hearing showed all the property proposed to be annexed. Conover v. Newton, 297 N.C. 506 , 256 S.E.2d 216, 1979 N.C. LEXIS 1405 (1979).

Property Owner Not Materially Prejudiced by Illegible Map. —

Although the public notice provided by town for public hearing on annexation and printed in newspaper included an illegible map, the property owner was not materially prejudiced, since the public notice adequately described the property at issue; further, the property owner was not materially prejudiced by the denial of its request for a postponement of the public hearing because it had ample notice of the proposed annexation and an opportunity to be heard. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, 2002 N.C. App. LEXIS 282 (2002).

Where annexation is completed without being challenged in the manner prescribed by G.S. 160A-38, it becomes an accomplished fact, and the remedies of property owners and citizens within the annexed areas are those provided in subsection (h) of this section. Gaskill v. Costlow, 270 N.C. 686 , 155 S.E.2d 148, 1967 N.C. LEXIS 1405 (1967).

Remedy Where Municipality Has Not Carried Out Service Plans. —

The statutory remedy for owners of property in annexed territory where the municipality has not followed through on its service plans adopted under the provisions of subdivision (3) of G.S. 160A-35 and subsection (e) of this section is by writ of mandamus. Safrit v. Costlow, 270 N.C. 680 , 155 S.E.2d 252, 1967 N.C. LEXIS 1404 (1967).

Time for Bringing Action for Mandamus. —

The owner of property within territory annexed by a municipality may bring an action for mandamus after the expiration of one year from the effective date of annexation and prior to the expiration of 15 months from such date to compel the municipality to follow through on its plans for furnishing essential municipal services to the area annexed in accordance with the plans filed in the proceedings. Safrit v. Costlow, 270 N.C. 680 , 155 S.E.2d 252, 1967 N.C. LEXIS 1404 (1967).

Annexation ordinance and annexation report met the requirements of G.S. 160A-35 and this section. Williams v. Town of Grifton, 22 N.C. App. 611, 207 S.E.2d 275, 1974 N.C. App. LEXIS 2394 (1974).

Town Not Required to Provide Service. —

Language in annexation ordinances to the effect that since water service then provided to the annexed areas by plaintiff was comparable to that provided by the town, the town would not be required to appropriate funds to extend water and sewer lines to the annexed area was required by subdivision (e)(3) and G.S. 160A-35(3)b to insure that residents of the area to be annexed would have access to comparable water service; in no way did this serve as a promise to be rightfully relied upon that the town would not in the future construct its own water lines within the annexed area or that plaintiff had the exclusive right to furnish water service there. Carolina Water Serv., Inc. v. Town of Atlantic Beach, 121 N.C. App. 23, 464 S.E.2d 317, 1995 N.C. App. LEXIS 956 (1995).

New Public Hearing Not Required. —

Although town’s annexation report failed to fully set forth the town’s policies regarding sanitation services, the trial court did not have to order a new public hearing, but could remand the issue to the town to more fully and adequately set forth the town’s policy, and the proposed extension of such services into the area of annexation; a municipal governing board has the authority to amend an annexation report to make changes in the plans for serving the area proposed to be annexed without another public hearing as long as the changes meet the statutory requirements and were part of the original notice of public hearing. Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 562 S.E.2d 32, 2002 N.C. App. LEXIS 282 (2002).

Informational Meeting. —

Land owners failed to demonstrate how they had suffered material injury as a result of a village’s failure to answer one question at the informational meeting, the answer to which could have no effect on the validity of the proposed annexation, and the annexation was proper. Nolan v. Village of Marvin, 172 N.C. App. 84, 615 S.E.2d 898, 2005 N.C. App. LEXIS 1432 (2005), rev'd, 360 N.C. 256 , 624 S.E.2d 305, 2006 N.C. LEXIS 3 (2006).

Annexation Proper. —

Village essentially complied with the requirements of G.S. 160A-37 because, while it would have been impermissible for the village to annex property that it had not included in its original report, it was permitted to omit property described in its original report from the property it ultimately annexed, which was exactly what occurred. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524, 2008 N.C. App. LEXIS 1819 (2008).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195, 1984 N.C. App. LEXIS 3856 (1984).

Challenges to annexations generally are not actionable under U.S. Const., Amend. XIV. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625, 1982 U.S. Dist. LEXIS 13633 (W.D.N.C. 1982), aff'd, 710 F.2d 132, 1983 U.S. App. LEXIS 26721 (4th Cir. 1983).

Absolute and literal compliance with this section is unnecessary; only substantial compliance is required. McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, 1983 N.C. App. LEXIS 2691 (1983).

The respondent city was not required to file a new services plan under this section although the annexation area changed during subsequent revisions to the annexation ordinance, where the only significant change to the services plan was the scope of its coverage—the services for petitioners remained the same—and where the city was bound by the terms of the services plan as amended under principles of equitable estoppel. Bowers v. City of Thomasville, 143 N.C. App. 291, 547 S.E.2d 68, 2001 N.C. App. LEXIS 277 (2001).

Metes and Bounds Description. —

Property descriptions in annexation ordinances were not metes and bounds descriptions, where the property descriptions did not include courses and distances but made reference to “lots” that were not identified in the property descriptions. Blackwell v. City of Reidsville, 129 N.C. App. 759, 502 S.E.2d 371, 1998 N.C. App. LEXIS 762 (1998).

Identification. —

Annexation resolution which identified the area under consideration for annexation as a certain township by the official mapping of the county fulfilled the requirement of G.S. 160A-49(i) to identify the area under consideration for annexation. Anthony v. City of Shelby, 152 N.C. App. 144, 567 S.E.2d 222, 2002 N.C. App. LEXIS 904 (2002).

Minimum requirements of the annexation 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 nondiscriminatory level of service and to allow a reviewing court to determine after the fact whether the municipality has timely provided such services. If such services are not provided, the residents of the annexed area would be entitled to a writ of mandamus requiring the municipality to live up to its commitments. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Purpose of subsection (a), requiring resolution stating intent to consider annexation, is to record the town board’s decision and to mark the formal beginning of the municipality’s actions. This resolution expresses the intent of the governing board and it has little significance to the public. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648, 1977 N.C. App. LEXIS 2117 (1977).

Subsection (a) does not specifically require a written resolution, nor is such requirement implicit in the fact that the resolution must describe the land under consideration. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648, 1977 N.C. App. LEXIS 2117 (1977).

Form for Extension. —

This section, which specifically describes the procedure of annexation and the information that is required to be provided to residents of an area to be annexed, does not require that the city furnish the form described in G.S. 160A-47 without a request. Barnhardt v. City of Kannapolis, 116 N.C. App. 215, 447 S.E.2d 471, 1994 N.C. App. LEXIS 901 (1994).

Reading Report at Public Hearing in Compliance with Subsection (d). —

Reading report of proposed annexation in its entirety at a public hearing is a more detailed explanation of the report than a shorter summary explanation prepared by a representative of the municipality would have been. In this manner, those who attend the meeting are made aware of each and every provision and statement in the report and are then given an opportunity to be heard. This is sufficient compliance with the requirements of subsection (d) of this section. In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

The proper forum for attacking the accuracy of projected costs and other items in the report not required by statute is the hearing before the city council provided under this section. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204, 1996 N.C. App. LEXIS 1208 (1996).

Right of the general public to sufficient notice of proposed annexation is protected by subsections (b) and (e). Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648, 1977 N.C. App. LEXIS 2117 (1977).

The notice of the public hearing must be published in a newspaper, or by other means, and must contain a clear description of the land under consideration. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648, 1977 N.C. App. LEXIS 2117 (1977).

Where materials delivered to the court did not include a certificate that notice of the public hearing was mailed to all the property owners in the affected area as required by subsection (b), but there was ample evidence that the notices were actually mailed and 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 did not require remand of the ordinance. Thrash v. City of Asheville, 115 N.C. App. 310, 444 S.E.2d 482, 1994 N.C. App. LEXIS 607 (1994).

Public Informational Meeting. —

City substantially complied with the requirement of G.S. 160A-49(c1) that property owners be given the opportunity to ask questions and receive answers regarding a proposed annexation, when the trial court found all persons attending a public informational meeting were given the opportunity to ask one or more questions to which city representatives responded. Anthony v. City of Shelby, 152 N.C. App. 144, 567 S.E.2d 222, 2002 N.C. App. LEXIS 904 (2002).

When a city proposing a certain annexation amended the annexation ordinance by excluding a certain parcel from the ordinance, no second public hearing was required, under G.S. 160A-49(e), because, with the only change to the ordinance being the deletion of one lot and no change in the subsections of G.S. 160A-48 under which the city sought annexation, there was no substantial change to the ordinance, necessitating notice. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40, 2007 N.C. App. LEXIS 2250 (2007).

Extension of Fire and Police Service. —

Although city did not need to provide the details of how it intended to extend fire and police service to the annexed area, the city did provide this information to petitioners at the hearing; further, if the city failed to provide the services as promised within the statutory time limits, petitioners could apply for a writ of mandamus. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204, 1996 N.C. App. LEXIS 1208 (1996).

By virtue of subsection (e), the governing board is prohibited from annexing any land except that described in the notice of the public hearing. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648, 1977 N.C. App. LEXIS 2117 (1977).

Sections 160A-37(e), 160A-31(d) and subsection (e) of this section are in pari materia. Conover v. Newton, 297 N.C. 506 , 256 S.E.2d 216, 1979 N.C. LEXIS 1405 (1979).

Remand Was Appropriate Remedy for Alleged Notice Irregularity. —

Trial court did not err in refusing to declare an involuntary annexation ordinance null and void where, assuming arguendo that any alleged procedural irregularities pursuant to G.S. 160A-49(b)(3) had prejudiced a landowner, the remedy under G.S. 160A-50(g)(1) was a remand to the municipal governing board for further proceedings. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415, 2003 N.C. App. LEXIS 124 (2003).

Extension of sewer lines and other services into the annexed area, pursuant to the plan of annexation, is not a condition precedent to annexation, the statutory remedy for failure to extend such services being an application, by a person owning property in the annexed territory, for a writ of mandamus to compel such performance of the plan. Dale v. City of Morganton, 270 N.C. 567 , 155 S.E.2d 136, 1967 N.C. LEXIS 1389 (1967).

In reviewing the procedure followed by a municipal governing board in an annexation proceeding, the question whether the municipality is then providing services pursuant to the plan of annexation is not before the court, and the extension of services into an annexed area in accordance with the promulgated plan is not a condition precedent to annexation. In re City of New Bern, 278 N.C. 641 , 180 S.E.2d 851, 1971 N.C. LEXIS 1017 (1971).

Time for Implementing Extension of Services. —

It would appear from a reading of subsection (h) of this section that a city annexing territory has one year, and possibly 15 months, to implement its plan for extending services to an annexed area. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Increase in Voters Through Annexation Requires Preclearance Under 42 U.S.C. § 1973c. —

The increase in the number of voters in the municipality resulting from annexation is a charge of a voting qualification, prerequisite, standard, practice, or procedure requiring preclearance as contemplated by 42 U.S.C. § 1973c. Moore v. Swinson, 58 N.C. App. 714, 294 S.E.2d 381, 1982 N.C. App. LEXIS 2817 (1982).

Elections Held Before Preclearance Under 42 U.S.C. § 1973c. —

Until the city obtains clearance of its annexations in accordance with 42 U.S.C. § 1973c, all future elections must be conducted on the basis of the city boundaries as they existed before the unprecleared annexations were made, and citizens residing in such annexed areas may not participate in future municipal elections, either as electors or as candidates. This relief applies only to the right to vote and be a candidate. It does not, of course, constitute de-annexation, and it does not affect the rights of citizens residing in the annexed areas in any other way. Moore v. Swinson, 58 N.C. App. 714, 294 S.E.2d 381, 1982 N.C. App. LEXIS 2817 (1982).

Persons in Annexed Areas May Be Denied Vote During 60-Day Approval Period. —

Although those in annexed areas become citizens of the annexing jurisdiction upon annexation, under 42 U.S.C. § 1973c, it is proper to deny such persons the right to vote on a bond referendum held within 60 days of the annexation since that section gives the United States Attorney General 60 days within which to approve an annexation expanding the number of voters. 42 U.S.C. § 1973c was designed, in part, to enforce U.S. Const., Amend. XV, and it preempts all other provisions regarding the right to vote in such referenda. Moore v. Swinson, 58 N.C. App. 714, 294 S.E.2d 381, 1982 N.C. App. LEXIS 2817 (1982).

Failure of Resolution of Intent to State Effective Date. —

City’s failure to state effective date of annexation in its resolution of intent was not an omission of an essential requirement of the statute but was only a “slight irregularity,” which would not invalidate annexation proceedings if there has been substantial compliance with all essential elements of the law. City of Kannapolis v. City of Concord, 326 N.C. 512 , 391 S.E.2d 493, 1990 N.C. LEXIS 241 (1990).

Subsection (g) — “Simultaneous Annexation Proceedings.” —

North Carolina annexation statutes do not permit municipality to annex by voluntary means tract of land that is contiguous with its municipal boundaries only by virtue of second tract of land being annexed simultaneously. City of Kannapolis v. City of Concord, 326 N.C. 512 , 391 S.E.2d 493, 1990 N.C. LEXIS 241 (1990).

City Charter Superseded by State Statute. —

Summary judgment was properly awarded to a city and its officials in an action by property owners challenging an annexation because, pursuant to G.S. 160A-3(c) , the statutory provision establishing involuntary annexations, G.S. 160A-49, superseded a city charter provision permitting only voluntary annexations. Brown v. City of Winston-Salem, 171 N.C. App. 266, 614 S.E.2d 599, 2005 N.C. App. LEXIS 1266 , cert. denied, 360 N.C. 60 , 2005 N.C. LEXIS 1511 (2005).

CASE NOTES

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195, 1984 N.C. App. LEXIS 3856 (1984).

Challenges to annexations generally are not actionable under U.S. Const., Amend. XIV. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625, 1982 U.S. Dist. LEXIS 13633 (W.D.N.C. 1982), aff'd, 710 F.2d 132, 1983 U.S. App. LEXIS 26721 (4th Cir. 1983).

Absolute and literal compliance with this section is unnecessary; only substantial compliance is required. McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, 1983 N.C. App. LEXIS 2691 (1983).

The respondent city was not required to file a new services plan under this section although the annexation area changed during subsequent revisions to the annexation ordinance, where the only significant change to the services plan was the scope of its coverage—the services for petitioners remained the same—and where the city was bound by the terms of the services plan as amended under principles of equitable estoppel. Bowers v. City of Thomasville, 143 N.C. App. 291, 547 S.E.2d 68, 2001 N.C. App. LEXIS 277 (2001).

Metes and Bounds Description. —

Property descriptions in annexation ordinances were not metes and bounds descriptions, where the property descriptions did not include courses and distances but made reference to “lots” that were not identified in the property descriptions. Blackwell v. City of Reidsville, 129 N.C. App. 759, 502 S.E.2d 371, 1998 N.C. App. LEXIS 762 (1998).

Identification. —

Annexation resolution which identified the area under consideration for annexation as a certain township by the official mapping of the county fulfilled the requirement of G.S. 160A-49(i) to identify the area under consideration for annexation. Anthony v. City of Shelby, 152 N.C. App. 144, 567 S.E.2d 222, 2002 N.C. App. LEXIS 904 (2002).

Minimum requirements of the annexation 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 nondiscriminatory level of service and to allow a reviewing court to determine after the fact whether the municipality has timely provided such services. If such services are not provided, the residents of the annexed area would be entitled to a writ of mandamus requiring the municipality to live up to its commitments. Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Purpose of subsection (a), requiring resolution stating intent to consider annexation, is to record the town board’s decision and to mark the formal beginning of the municipality’s actions. This resolution expresses the intent of the governing board and it has little significance to the public. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648, 1977 N.C. App. LEXIS 2117 (1977).

Subsection (a) does not specifically require a written resolution, nor is such requirement implicit in the fact that the resolution must describe the land under consideration. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648, 1977 N.C. App. LEXIS 2117 (1977).

Form for Extension. —

This section, which specifically describes the procedure of annexation and the information that is required to be provided to residents of an area to be annexed, does not require that the city furnish the form described in G.S. 160A-47 without a request. Barnhardt v. City of Kannapolis, 116 N.C. App. 215, 447 S.E.2d 471, 1994 N.C. App. LEXIS 901 (1994).

Reading Report at Public Hearing in Compliance with Subsection (d). —

Reading report of proposed annexation in its entirety at a public hearing is a more detailed explanation of the report than a shorter summary explanation prepared by a representative of the municipality would have been. In this manner, those who attend the meeting are made aware of each and every provision and statement in the report and are then given an opportunity to be heard. This is sufficient compliance with the requirements of subsection (d) of this section. In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980).

The proper forum for attacking the accuracy of projected costs and other items in the report not required by statute is the hearing before the city council provided under this section. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204, 1996 N.C. App. LEXIS 1208 (1996).

Right of the general public to sufficient notice of proposed annexation is protected by subsections (b) and (e). Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648, 1977 N.C. App. LEXIS 2117 (1977).

The notice of the public hearing must be published in a newspaper, or by other means, and must contain a clear description of the land under consideration. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648, 1977 N.C. App. LEXIS 2117 (1977).

Where materials delivered to the court did not include a certificate that notice of the public hearing was mailed to all the property owners in the affected area as required by subsection (b), but there was ample evidence that the notices were actually mailed and 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 did not require remand of the ordinance. Thrash v. City of Asheville, 115 N.C. App. 310, 444 S.E.2d 482, 1994 N.C. App. LEXIS 607 (1994).

Public Informational Meeting. —

City substantially complied with the requirement of G.S. 160A-49(c1) that property owners be given the opportunity to ask questions and receive answers regarding a proposed annexation, when the trial court found all persons attending a public informational meeting were given the opportunity to ask one or more questions to which city representatives responded. Anthony v. City of Shelby, 152 N.C. App. 144, 567 S.E.2d 222, 2002 N.C. App. LEXIS 904 (2002).

When a city proposing a certain annexation amended the annexation ordinance by excluding a certain parcel from the ordinance, no second public hearing was required, under G.S. 160A-49(e), because, with the only change to the ordinance being the deletion of one lot and no change in the subsections of G.S. 160A-48 under which the city sought annexation, there was no substantial change to the ordinance, necessitating notice. Arnold v. City of Asheville, 186 N.C. App. 542, 652 S.E.2d 40, 2007 N.C. App. LEXIS 2250 (2007).

Extension of Fire and Police Service. —

Although city did not need to provide the details of how it intended to extend fire and police service to the annexed area, the city did provide this information to petitioners at the hearing; further, if the city failed to provide the services as promised within the statutory time limits, petitioners could apply for a writ of mandamus. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204, 1996 N.C. App. LEXIS 1208 (1996).

By virtue of subsection (e), the governing board is prohibited from annexing any land except that described in the notice of the public hearing. Kritzer v. Town of Southern Pines, 33 N.C. App. 152, 234 S.E.2d 648, 1977 N.C. App. LEXIS 2117 (1977).

Sections 160A-37(e), 160A-31(d) and subsection (e) of this section are in pari materia. Conover v. Newton, 297 N.C. 506 , 256 S.E.2d 216, 1979 N.C. LEXIS 1405 (1979).

Remand Was Appropriate Remedy for Alleged Notice Irregularity. —

Trial court did not err in refusing to declare an involuntary annexation ordinance null and void where, assuming arguendo that any alleged procedural irregularities pursuant to G.S. 160A-49(b)(3) had prejudiced a landowner, the remedy under G.S. 160A-50(g)(1) was a remand to the municipal governing board for further proceedings. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415, 2003 N.C. App. LEXIS 124 (2003).

Extension of sewer lines and other services into the annexed area, pursuant to the plan of annexation, is not a condition precedent to annexation, the statutory remedy for failure to extend such services being an application, by a person owning property in the annexed territory, for a writ of mandamus to compel such performance of the plan. Dale v. City of Morganton, 270 N.C. 567 , 155 S.E.2d 136, 1967 N.C. LEXIS 1389 (1967).

In reviewing the procedure followed by a municipal governing board in an annexation proceeding, the question whether the municipality is then providing services pursuant to the plan of annexation is not before the court, and the extension of services into an annexed area in accordance with the promulgated plan is not a condition precedent to annexation. In re City of New Bern, 278 N.C. 641 , 180 S.E.2d 851, 1971 N.C. LEXIS 1017 (1971).

Time for Implementing Extension of Services. —

It would appear from a reading of subsection (h) of this section that a city annexing territory has one year, and possibly 15 months, to implement its plan for extending services to an annexed area. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Increase in Voters Through Annexation Requires Preclearance Under 42 U.S.C. § 1973c. —

The increase in the number of voters in the municipality resulting from annexation is a charge of a voting qualification, prerequisite, standard, practice, or procedure requiring preclearance as contemplated by 42 U.S.C. § 1973c. Moore v. Swinson, 58 N.C. App. 714, 294 S.E.2d 381, 1982 N.C. App. LEXIS 2817 (1982).

Elections Held Before Preclearance Under 42 U.S.C. § 1973c. —

Until the city obtains clearance of its annexations in accordance with 42 U.S.C. § 1973c, all future elections must be conducted on the basis of the city boundaries as they existed before the unprecleared annexations were made, and citizens residing in such annexed areas may not participate in future municipal elections, either as electors or as candidates. This relief applies only to the right to vote and be a candidate. It does not, of course, constitute de-annexation, and it does not affect the rights of citizens residing in the annexed areas in any other way. Moore v. Swinson, 58 N.C. App. 714, 294 S.E.2d 381, 1982 N.C. App. LEXIS 2817 (1982).

Persons in Annexed Areas May Be Denied Vote During 60-Day Approval Period. —

Although those in annexed areas become citizens of the annexing jurisdiction upon annexation, under 42 U.S.C. § 1973c, it is proper to deny such persons the right to vote on a bond referendum held within 60 days of the annexation since that section gives the United States Attorney General 60 days within which to approve an annexation expanding the number of voters. 42 U.S.C. § 1973c was designed, in part, to enforce U.S. Const., Amend. XV, and it preempts all other provisions regarding the right to vote in such referenda. Moore v. Swinson, 58 N.C. App. 714, 294 S.E.2d 381, 1982 N.C. App. LEXIS 2817 (1982).

Failure of Resolution of Intent to State Effective Date. —

City’s failure to state effective date of annexation in its resolution of intent was not an omission of an essential requirement of the statute but was only a “slight irregularity,” which would not invalidate annexation proceedings if there has been substantial compliance with all essential elements of the law. City of Kannapolis v. City of Concord, 326 N.C. 512 , 391 S.E.2d 493, 1990 N.C. LEXIS 241 (1990).

Subsection (g) — “Simultaneous Annexation Proceedings.” —

North Carolina annexation statutes do not permit municipality to annex by voluntary means tract of land that is contiguous with its municipal boundaries only by virtue of second tract of land being annexed simultaneously. City of Kannapolis v. City of Concord, 326 N.C. 512 , 391 S.E.2d 493, 1990 N.C. LEXIS 241 (1990).

City Charter Superseded by State Statute. —

Summary judgment was properly awarded to a city and its officials in an action by property owners challenging an annexation because, pursuant to G.S. 160A-3(c) , the statutory provision establishing involuntary annexations, G.S. 160A-49, superseded a city charter provision permitting only voluntary annexations. Brown v. City of Winston-Salem, 171 N.C. App. 266, 614 S.E.2d 599, 2005 N.C. App. LEXIS 1266 , cert. denied, 360 N.C. 60 , 2005 N.C. LEXIS 1511 (2005).

Editor’s Note.

Subsections (e1) through (f), as enacted by 2011-396, s. 9, were redesignated (f) through (h) at the direction of the Revisor of Statutes.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Editor’s Note.

This section was formerly G.S. 160A-49.1 . It was recodified as G.S. 160A-58.57 by Session Laws 2011-396, s. 2, effective July 1, 2011.

Session Laws 1983, c. 636, which amended this section, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: “The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections.”

Section 38 of Session Laws 1983, c. 636 provided: “This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25.” The act was ratified June 29, 1983.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

CASE NOTES

Editor’s Note. —

Some of the cases annotated below were decided prior to the recodification of G.S. 160A-49.1 as this section by Session Laws 2011-396, s. 2.

Section Required to Be Followed Only Where Annexation Achieved Under Chapter 160A, Art. 4A, Part 3. —

G.S. 160A-47, dealing with the submission of plans by the municipality for the extension of municipal services (including police and fire protection, solid waste collection, and street maintenance), this section and G.S. 160A-49.3 , dealing with contracting for fire protection and sewage services, are required to be followed by a municipality only where the annexation is to be achieved under Chapter 160A, Art. 4A, Part 3. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262, 1988 N.C. App. LEXIS 636 (1988), writ denied, 323 N.C. 625 , 374 S.E.2d 589, 1988 N.C. LEXIS 758 (1988), rev'd, 324 N.C. 499 , 380 S.E.2d 107, 1989 N.C. LEXIS 295 (1989).

Local act requiring city to extend municipal services, including services relating to health and sanitation, in a manner not authorized except when annexation is accomplished under general law was in contravention of N.C. Const., Art. II, § 24(a), and therefore void. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262, 1988 N.C. App. LEXIS 636 (1988), writ denied, 323 N.C. 625 , 374 S.E.2d 589, 1988 N.C. LEXIS 758 (1988), rev'd, 324 N.C. 499 , 380 S.E.2d 107, 1989 N.C. LEXIS 295 (1989).

Editor’s Note.

This section was formerly G.S. 160A-49.2 . It was recodified as G.S. 160A-58.58 by Session Laws 2011-396, s. 3, effective July 1, 2011.

Session Laws 1983, c. 636, which amended this section, in s. 37.1, as amended by Session Laws 1983, c. 768, s. 25, provided: “The General Assembly intends by this act to repeal all acts and provisions of acts that modify the application to particular cities and towns of Parts 2 and 3 of Article 4A of Chapter 160A of the General Statutes or that exempt particular cities or towns from the application of either or both of those two Parts. Therefore, all such acts and provisions of acts, even if not specifically listed and repealed in Sections 26 through 35.4 of this act, are repealed. Neither this section nor Sections 26 through 35.4 of this act shall affect any annexation in progress on the dates of ratification of this act under any of the repealed or amended sections.”

Section 38 of Session Laws 1983, c. 636 provided: “This act shall be effective with respect to all annexations where resolutions of intent are adopted on or after the date of ratification of this act, except that Sections 36 and 37 shall become effective with respect to all annexations where resolutions of intent are adopted on or after July 1, 1984, Sections 25.1 through 35.5 and Section 37.1 are effective upon ratification and Section 25 shall become effective as provided in that section. No annexation where a resolution of intent was adopted prior to the date of ratification of this act shall be affected by this act except as provided in Section 25.”

The act was ratified June 29, 1983.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Editor’s Note.

This section was formerly G.S. 160A-49.3 . It was recodified as G.S. 160A-58.59 by Session Laws 2011-396, s. 4, effective July 1, 2011.

The bracketed reference in subdivision (e)(6) to “[G.S. 160A-58.55(d)]” was added at the direction of the Revisor of Statutes as former G.S. 160A-49 was repealed by Session Laws 2011-396, s. 7, effective July 1, 2011.

Session Laws 2006-193, s. 2, which rewrote the section, was made applicable to annexations for which a resolution of intent was adopted on or after January 1, 2007.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Effect of Amendments.

Session Laws 2006-193, s. 2, applicable to annexations for which a resolution of intent is adopted on or after January 1, 2007, rewrote subsections (a) and (b); added subsections (a1), (a2) and (i); deleted “private” preceding “firm” and “firms” throughout subsections (c), (d) and (g); substituted “in writing, delivered by certified mail to the firm in question with 30 days to cure” for “for” in subdivision (c)(5); inserted “existing at the time of notice published pursuant to G.S. 160A-49(b)” in subdivision (c)(6); substituted “the” for “such” near the end of subsection (d); deleted subsections (e) and (f); and substituted “30 days” for “10 business days” twice in subsection (h).

Session Laws 2006-259, s. 53, effective August 23, 2006, substituted “file” for “fill” near the beginning of subsection (a2).

Session Laws 2011-396, s. 9, effective July 1, 2011, in the introductory paragraph of subsection (a) and in subdivision (b)(2), updated the section reference. For applicability, see editor’s note.

CASE NOTES

Editor’s Note. —

Some of the cases annotated below were decided prior to the recodification of G.S. 160A-49.3 as this section by Session Laws 2011-396, s. 4.

Section Required to Be Followed Only Where Annexation Achieved Under Chapter 160A, Art. 4A, Part 3. —

G.S. 160A-47, dealing with the submission of plans by the municipality for the extension of municipal services (including police and fire protection, solid waste collection, and street maintenance), and G.S. 160A-49.1 and this section, dealing with contracting for fire protection and sewage services, are required to be followed by a municipality only where the annexation is to be achieved under Chapter 160A, Art. 4A, Part 3. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262, 1988 N.C. App. LEXIS 636 (1988), writ denied, 323 N.C. 625 , 374 S.E.2d 589, 1988 N.C. LEXIS 758 (1988), rev'd, 324 N.C. 499 , 380 S.E.2d 107, 1989 N.C. LEXIS 295 (1989).

Local act requiring city to extend municipal services, including services relating to health and sanitation, in a manner not authorized except when annexation is accomplished under general law was in contravention of N.C. Const., Art. II, § 24(a), and therefore void. Piedmont Ford Truck Sales, Inc. v. City of Greensboro, 90 N.C. App. 692, 370 S.E.2d 262, 1988 N.C. App. LEXIS 636 (1988), writ denied, 323 N.C. 625 , 374 S.E.2d 589, 1988 N.C. LEXIS 758 (1988), rev'd, 324 N.C. 499 , 380 S.E.2d 107, 1989 N.C. LEXIS 295 (1989).

Editor’s Note.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Session Laws 2012-11, s. 5, provided that “ G.S. 160A-60(a) reads as rewritten” when, in fact, the text that was set out in the act matched that of G.S. 160A-58.60 (a). At the direction of the Revisor of Statutes, the amendment was not implemented. Subsequently, Session Laws 2013-410, s. 15, amended the introductory language of Session Laws 2012-11, s. 5, so that it now identifies G.S. 160A-58.60 as the section being amended, and the amendment has now been implemented.

Effect of Amendments.

Session Laws 2012-11, s. 5, as amended by Session Laws 2013-410, s. 15, effective July 1, 2012, substituted “following the adoption of the annexation ordinance” for “following the close of the signature period under G.S. 160A-58.55(i)” near the beginning of subsection (a). For applicability, see Editor’s note.

CASE NOTES

Reason for Judicial Review. —

The difficulties of applying the standards of G.S. 160A-36 in extreme cases are the reason the Municipal Government Study Commission recommended a provision for court review, set out in this section, to determine whether the agency making the decision made a reasonable decision in accord with statutory standards. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532 , 135 S.E.2d 574, 1964 N.C. LEXIS 531 (1964).

Scope of Superior Court Re- view. —

The superior court’s review of an involuntary annexation proceeding, pursuant to this section, is limited in scope to the following: (1) Did the municipality comply with the statutory procedures? (2) If not, will petitioners “suffer material injury” by reason of the municipality’s failure to comply? (3) Does the character of the area specified for annexation meet the requirements of G.S. 160A-36 as applied to petitioners’ property? Conover v. Newton, 297 N.C. 506 , 256 S.E.2d 216, 1979 N.C. LEXIS 1405 (1979).

Subsection (f) of this section and G.S. 160A-50(f) limit the court’s inquiry on review of an annexation ordinance to a determination of whether applicable annexation statutes have been substantially complied with. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

In determining the validity of an annexation ordinance, the court’s review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioner suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A-36 or G.S. 160A-48? Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

Section Provides Only Procedure Available to Property Owners to Prevent Annexation. —

The statutory remedy provided by this section is the only procedure available to property owners to prevent the annexation provided by an annexation ordinance. Gaskill v. Costlow, 270 N.C. 686 , 155 S.E.2d 148, 1967 N.C. LEXIS 1405 (1967).

Remedy Under G.S. 160A-37 Exclusive Where Annexation Not Challenged Under This Section. —

Where annexation is completed without being challenged in the manner prescribed by this section, it becomes an accomplished fact, and the remedies of property owners and citizens within the annexed areas are those provided in subsection (h) of G.S. 160A-37. Gaskill v. Costlow, 270 N.C. 686 , 155 S.E.2d 148, 1967 N.C. LEXIS 1405 (1967).

Independent Action to Have Ordinance Declared Void Ab Initio May Not Be Maintained. —

An owner of land in an area annexed by a municipality may attack the validity of the annexation ordinance only by filing a petition within 30 days following the passage of the ordinance seeking a review of the action of the municipal board of commissioners, in accordance with the procedure provided by this section, and an independent action instituted some 22 months after the adoption of the ordinance and seeking to have it declared void ab initio will be dismissed. Gaskill v. Costlow, 270 N.C. 686 , 155 S.E.2d 148, 1967 N.C. LEXIS 1405 (1967).

Who May Appeal. —

Any person owning property in annexed territory has a right, within 30 days following the passage of the annexation ordinance, to challenge its validity by petition for review filed in the superior court. Gaskill v. Costlow, 270 N.C. 686 , 155 S.E.2d 148, 1967 N.C. LEXIS 1405 (1967).

Subsection (a) allows persons owning property in the area to be annexed to appeal if such property owners believe that they will suffer material injury. Taylor v. City of Raleigh, 22 N.C. App. 259, 206 S.E.2d 401, 1974 N.C. App. LEXIS 2294 (1974), aff'd, 290 N.C. 608 , 227 S.E.2d 576, 1976 N.C. LEXIS 1123 (1976).

Fact that city was proceeding under a local act which did not set forth the persons who could appeal, rather than under this Chapter, did not extend the right to challenge the annexation to persons outside the annexed area who did not own property within it. Taylor v. City of Raleigh, 22 N.C. App. 259, 206 S.E.2d 401, 1974 N.C. App. LEXIS 2294 (1974), aff'd, 290 N.C. 608 , 227 S.E.2d 576, 1976 N.C. LEXIS 1123 (1976).

The only persons given authority by this Chapter to challenge an annexation ordinance are those who own property in the annexed area. Davis v. City of Archdale, 81 N.C. App. 505, 344 S.E.2d 369, 1986 N.C. App. LEXIS 2330 (1986).

Plaintiff town had no standing to challenge annexations of contiguous properties by nearby village. Town of Seven Devils v. Village of Sugar Mt., 125 N.C. App. 692, 482 S.E.2d 39, 1997 N.C. App. LEXIS 226 (1997).

The consolidation of two or more petitions for review in a single hearing referred to in subsection (d) refers to the consolidation of two or more petitions which involve a single annexation area and ordinance. Dunn v. City of Charlotte, 284 N.C. 542 , 201 S.E.2d 873, 1974 N.C. LEXIS 1284 (1974).

Failure to Allege Material Injury Not Fatal. —

While the better practice would be to allege specifically that the petitioner will suffer material injury by reason of the failure of respondent to comply with the statutory procedures regarding annexation, the failure to do so is not fatal, particularly if the petition contains allegations from which material injury can be implied. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, 1969 N.C. App. LEXIS 1144 (1969).

Effect of Appeal on Effective Date of Annexation for Tax Purposes. —

Where an appeal from an annexation ordinance was pending in the Court of Appeals on the effective date of annexation specified in the ordinance, May 15, 1969, and the decision of the Court of Appeals was filed and certified in September 1969, property within the area being annexed was not subject to municipal ad valorem taxes for the fiscal year beginning July 1, 1969, since (1) newly annexed territory is subject to municipal taxes levied for the fiscal year following the effective date of annexation, G.S. 160A-37(f), and (2) under subsection (i) of this section the appeal postponed the effective date of the ordinance until the date of the final judgment of the appellate court. Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147 , 187 S.E.2d 704, 1972 N.C. LEXIS 1017 (1972).

Findings of fact of the superior court are binding on appeal if supported by competent evidence, even though there is evidence to the contrary. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, 1982 N.C. App. LEXIS 2756 (1982).

Record Must Show Prima Facie Compliance. —

Upon review in the superior court of a municipal annexation ordinance enacted pursuant to this Article, the record of the proceedings, including the report and annexation ordinance, must show prima facie complete and substantial compliance with this Article as a condition precedent to the right of the municipality to annex the territory. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961); In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

Burden on Petitioners to Prove Prejudicial Irregularity Where Prima Facie Compliance Shown. —

Where, upon review in the superior court of an annexation ordinance, the record of the proceeding shows prima facie that there has been substantial compliance with the requirements and provisions of the annexation statute, the burden is upon petitioners to show by competent evidence failure on the part of the municipality to comply with the statutory requirements as a matter of fact, or irregularity in the proceedings which materially prejudices the substantive rights of petitioners. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961); In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961); Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, 1982 N.C. App. LEXIS 2756 (1982); Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

The burden is upon petitioners in such case by reason of the presumption that public officials will discharge their duties in good faith and exercise their powers in accord with the spirit and purpose of the law. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961).

Trial court erred in striking down a village’s annexation ordinances because the village substantially complied with the essential statutory provisions in annexing the property owners’ land and the property owners failed to produce competent evidence demonstrating that the village failed to meet the statutory requirements as a matter of fact or that an irregularity in the proceedings existed which materially prejudiced the owners’ substantive rights so that the owners suffered a material injury. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524, 2008 N.C. App. LEXIS 1819 (2008).

Nothing to Review on Issue of Availability If Compliance Is Clear. —

If a municipality clearly complies with the standards of subsection (c) of G.S. 160A-36, there is nothing to review with respect to the availability of an area proposed for annexation. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532 , 135 S.E.2d 574, 1964 N.C. LEXIS 531 (1964).

Where compliance is in doubt, the determination must be made upon the facts in the particular case with respect to the availability of an area proposed for annexation under subsection (c) of G.S. 160A-36. Lithium Corp. of Am. v. Town of Bessemer City, 261 N.C. 532 , 135 S.E.2d 574, 1964 N.C. LEXIS 531 (1964).

Court May Not Amend Record. —

The superior court itself is without authority to amend the report, ordinance or other part of the record. This is true even if evidence is presented which justifies amendment. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961).

Remand Where Compliance Not Shown by Record. —

Under this section, if the record of annexation proceedings on its face fails to show substantial compliance with any essential provision of this Article, the superior court upon review must remand to the governing board for amendment with respect to such noncompliance. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961).

Remand of Ordinance for Amendment. —

Trial court, pursuant to G.S. 160A-38(g)(2), instead of striking a village ordinance should have simply remanded the ordinance to the village to amend the annexation boundaries so as to conform with G.S. 160A-36. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524, 2008 N.C. App. LEXIS 1819 (2008).

Public Hearing on Remand. —

Neither subdivision (g)(2) of this section nor any other provisions of the annexation statute requires the municipal governing board upon remand to hold a second public hearing unless it adds an area not included in the original notice of public hearing and not provided for in the plans for service. Rexham Corp. v. Town of Pineville, 26 N.C. App. 349, 216 S.E.2d 445, 1975 N.C. App. LEXIS 2054 (1975), limited, Weeks v. Town of Coats, 121 N.C. App. 471, 466 S.E.2d 83, 1996 N.C. App. LEXIS 60 (1996).

When Court May Permit Annexation of Part of Area. —

The superior court may permit, under subsection (h) of this section, an annexation ordinance to be effective with respect to a part of the area proposed only when there is no appeal in regard to such part and the municipality agrees to the order for such partial annexation. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961).

Where an order is issued restraining the operation of an annexation ordinance as to the entire area pending review, subsection (e) of this section has no application, since the statute permits the court to approve the annexation of a part of the proposed area only when no question for review has been raised as to such part. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961).

Voiding of Town Ordinance Rather Than Remanding. —

When a town adopted an ordinance proposing to annex certain land, it was proper for the trial court to declare the ordinance void, under G.S. 160A-38(g)(4), rather than remanding the matter to the town for amendment of the boundaries, because there was no evidence that the annexation area could be corrected on remand to comply with the applicable statutes. Hughes v. Town of Oak Island, 158 N.C. App. 175, 580 S.E.2d 704, 2003 N.C. App. LEXIS 1052 , aff'd, 357 N.C. 653 , 588 S.E.2d 467, 2003 N.C. LEXIS 1409 (2003).

Findings of fact of the superior court are binding on appeal if supported by competent evidence, even though there is evidence to the contrary. Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, 1982 N.C. App. LEXIS 2756 (1982).

Jurisdiction of Court of Appeals. —

An appeal from an order of the superior court affirming an annexation ordinance was properly taken to the Court of Appeals, notwithstanding that by clear legislative oversight subsections (h) and (i) of this section were not amended to include the Court of Appeals as one of the appellate courts, since G.S. 7A-27 gives initial appellate jurisdiction of such cause to the Court of Appeals, and the Court of Appeals, therefore, is deemed to be included in subsections (h) and (i). Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147 , 187 S.E.2d 704, 1972 N.C. LEXIS 1017 (1972).

Filing of Petition Necessary to Perfect Appellate Jurisdiction in Superior Court. —

An appeal from the passage of an annexation ordinance by a municipality having a population of less than 5,000 must be taken within 30 days following such passage by filing a petition in the superior court of the county in which the municipality is located. Compliance with this provision is a condition precedent to perfecting appellate jurisdiction in the superior court for the review of an annexation ordinance. Ingles Markets, Inc. v. Town of Black Mt., 98 N.C. App. 372, 390 S.E.2d 688, 1990 N.C. App. LEXIS 403 (1990).

Entry of Remand Order Divested Superior Court of Jurisdiction. —

Superior court’s entry of order of remand of appeal of adoption of 1988 ordinance for the limited purpose of including specific findings of fact that the area to be annexed was developed for urban purposes divested that court of appellate jurisdiction to conduct further review of those aspects of the petition brought forward, but not addressed by the order, such that petitioner was required to appeal anew from the action of the town taken pursuant to remand in adopting an amended 1989 ordinance in order to obtain the right to a review of the 1989 ordinance in the superior court. Ingles Markets, Inc. v. Town of Black Mt., 98 N.C. App. 372, 390 S.E.2d 688, 1990 N.C. App. LEXIS 403 (1990).

Further Appellate Review After Remand. —

In order to obtain further review of an annexation ordinance after infirmities have been corrected by the municipality pursuant to an order of remand, whether such order of remand addresses all or merely some of the issues raised in the initial petition, appellate jurisdiction in the superior court must be perfected anew by filing a separate petition in accordance with the provisions of G.S. 160A-38(a). Ingles Markets, Inc. v. Town of Black Mt., 98 N.C. App. 372, 390 S.E.2d 688, 1990 N.C. App. LEXIS 403 (1990).

Effective date of an ordinance adopted pursuant to superior court’s order of remand is neither postponed nor amended absent further appeal, which must be taken within the required 30 days; i.e., the ordinance becomes an accomplished fact, subject only to further appeal. Ingles Markets, Inc. v. Town of Black Mt., 98 N.C. App. 372, 390 S.E.2d 688, 1990 N.C. App. LEXIS 403 (1990).

Appeal Dismissed. —

Where the thirty days afforded by this section expired before plaintiff filed its petition for review of the ordinance, the trial court was within jurisdiction and properly dismissed the action. Chicora Country Club, Inc. v. Town of Erwin, 128 N.C. App. 101, 493 S.E.2d 797, 1997 N.C. App. LEXIS 1273 (1997).

Property owners did not show that a town was unreasonable in relying upon an actual survey, as allowed by G.S. 160A-36; thus, the reviewing court did not err in concluding that one property consisted of two separate lots for the purposes of the subdivision test. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717, 2004 N.C. App. LEXIS 2383 (2004).

Substantial Compliance With Statute Shown. —

Trial court erred in concluding that the usage of disputed acres affected the classification of a golf course tract as a whole when the golf course was annexed by a town ordinance, because the golf course tract was properly designated as commercial by the town in its original calculations, and the entire acreage should have been included as commercial acreage for purposes of calculations under the use test; based on the new calculations, the annexation area met the 60 percent minimum required under the subdivision test of G.S. 160A-36(c)(1), and, given that the town substantially complied with the provisions of G.S. 160A-36, the ordinance was properly affirmed without amendment pursuant to G.S. 160A-38. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717, 2004 N.C. App. LEXIS 2383 (2004).

Annexation Properly Affirmed. —

Trial court properly found that a village provided independent administrative, engineering, auditing, legal, and planning services to its residents, and that the village was exploring options for obtaining additional police patrol services, and had committed itself to providing its current and future levels of such services to its residents in a non-discriminatory manner; the trial court found that the village was going to provide some additional services to the area to be annexed, notwithstanding land owners’ claim they would receive no additional services whatsoever, and the trial court’s order affirming the annexation was proper. Nolan v. Village of Marvin, 172 N.C. App. 84, 615 S.E.2d 898, 2005 N.C. App. LEXIS 1432 (2005), rev'd, 360 N.C. 256 , 624 S.E.2d 305, 2006 N.C. LEXIS 3 (2006).

Limited Scope of Review. —

Section 160A-38(f) and subsection (f) of this section limit the court’s inquiry on review of an annexation ordinance to a determination of whether applicable annexation statutes have been substantially complied with. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

In determining the validity of an annexation ordinance, the court’s review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioner suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A-36 or G.S. 160A-48? Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

Supreme Court Appeals Not Included. —

There is no evidence to support a conclusion that the General Assembly intended the automatic stay of an annexation ordinance to include appeals to the United States Supreme Court. Biltmore Square Assocs. v. City of Asheville, 129 N.C. App. 101, 497 S.E.2d 121, 1998 N.C. App. LEXIS 364 (1998).

If a party desires to stay the effective date of an annexation while a petition for certiorari is pending before the United States Supreme Court, a stay can be requested from the Court pursuant to a motion under Rule 23 of the Rules of the Supreme Court of the United States. Biltmore Square Assocs. v. City of Asheville, 129 N.C. App. 101, 497 S.E.2d 121, 1998 N.C. App. LEXIS 364 (1998).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195, 1984 N.C. App. LEXIS 3856 (1984).

The central purpose behind the annexation procedure is to assure that, in return for the added financial burden of municipal taxation, the residents of the annexed area receive the benefits of all the major services available to municipal residents. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

The minimum requirements of the annexation 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 nondiscriminatory level of service. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Subsection (g) Time Requirement. —

A city annexation ordinance was valid where the city complied with the 3-month requirement of subsection (g) although it acted more than six months after the Court of Appeals’ opinion was filed; the city could act only after the case was remanded two times; first to the superior court, and then to the city council because only then did the city have the power to revise the annexation ordinance. Bowers v. City of Thomasville, 143 N.C. App. 291, 547 S.E.2d 68, 2001 N.C. App. LEXIS 277 (2001).

As to the different appellate forums formerly prescribed for appeals under this section and G.S. 160A-38(h), see In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980) (decided prior to the 1981 amendment to this section) .

Who May Challenge Annexation Ordinance. —

The only persons given the authority by this chapter to challenge an annexation ordinance are those who own property in the annexed area. Davis v. City of Archdale, 81 N.C. App. 505, 344 S.E.2d 369, 1986 N.C. App. LEXIS 2330 (1986).

Where the record of the annexation proceedings showed substantial compliance with the requirements of Chapter 160A, the burden was on petitioners to prove failure to meet those requirements or an irregularity in the proceedings which materially prejudiced their substantive rights. Thrash v. City of Asheville, 115 N.C. App. 310, 444 S.E.2d 482, 1994 N.C. App. LEXIS 607 (1994).

Plaintiff town had no standing to challenge annexations of contiguous properties by nearby village. Town of Seven Devils v. Village of Sugar Mt., 125 N.C. App. 692, 482 S.E.2d 39, 1997 N.C. App. LEXIS 226 (1997).

Denial of Motion to Intervene Was Proper. —

Denial of a corporation’s motion to intervene in a case seeking review of an annexation ordinance was proper, since the corporation failed to comply with G.S. 160A-50 procedures by moving to intervene six months after the ordinance was adopted; intervention was also improper under G.S. 1A-1-24, due to the facts that the motion was filed after judgment approving a settlement was entered and that the proposed intervention would have prejudiced the original parties by destroying their settlement. Gates Four Homeowners Ass'n v. City of Fayetteville, 170 N.C. App. 688, 613 S.E.2d 55, 2005 N.C. App. LEXIS 1088 (2005).

No Jurisdiction Over Plans Concerning Transportation. —

Since plans and procedures concerning transportation are not required by law, a reviewing court has no jurisdiction to hear evidence on this issue. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204, 1996 N.C. App. LEXIS 1208 (1996).

Order compelling discovery was generally not immediately appealable; while G.S. 160A-50 contemplated an expedited hearing procedure, where the challengers in an annexation case did not appear concerned with an expedited hearing, and the most significant portion of the delay in the matter was due to the challengers’ refusal to answer discovery, and in getting the matter before the appellate court, the challengers failed to show that a substantial right was affected, and an order compelling discovery was not immediately appealable. Arnold v. City of Asheville, 169 N.C. App. 451, 610 S.E.2d 280, 2005 N.C. App. LEXIS 616 (2005).

Annexation statutes are not unconstitutional in providing that review by the superior court is without a jury. In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

Provisions for Nonjury Trial in Subsection (f) Not Superseded by Rules of Civil Procedure. —

The provisions of subsection (f) authorizing review of annexation proceedings by the court without a jury have not been superseded by the N.C. Rules of Civil Procedure. In re Annexation Ordinance, 284 N.C. 442 , 202 S.E.2d 143, 1974 N.C. LEXIS 1275 (1974).

This section specifies the inquiries to which the courts are limited. In re Annexation Ordinance, 284 N.C. 442 , 202 S.E.2d 143, 1974 N.C. LEXIS 1275 (1974).

Constitutional Challenges Restricted. —

Attacks on state annexation procedures on either due process or equal protection grounds are specifically foreclosed. Baldwin v. City of Winston-Salem, 544 F. Supp. 123, 1982 U.S. Dist. LEXIS 13761 (M.D.N.C. 1982), aff'd, 710 F.2d 132, 1983 U.S. App. LEXIS 26721 (4th Cir. 1983).

Challenges to annexations generally are not actionable under U.S. Const., Amend. XIV. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625, 1982 U.S. Dist. LEXIS 13633 (W.D.N.C. 1982), aff'd, 710 F.2d 132, 1983 U.S. App. LEXIS 26721 (4th Cir. 1983).

Limited Scope of Review. —

The judicial review afforded in annexation proceedings is limited in scope and serves as a safeguard against unreasonable and arbitrary action by the annexing municipality. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

Judicial review of an annexation ordinance is limited to determination of whether the annexation proceedings substantially comply with the requirements of the applicable annexation statute. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

The clear intent of the legislature under this section was to provide an expedited judicial review, limited in scope, and avoiding unnecessary procedural delays. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Section 160A-38(f) and subsection (f) of this section limit the court’s inquiry on review of an annexation ordinance to a determination of whether applicable annexation statutes have been substantially complied with. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

In determining the validity of an annexation ordinance, the court’s review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioner suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A-36 or G.S. 160A-48? Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

A court’s review of an annexation ordinance is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioners “suffer material injury” by reason of the municipality’s failure to comply? (3) Does the character of the area specified for annexation meet the requirement of G.S. 160A-48 as applied to petitioners’ property? In re Annexation Ordinance, 62 N.C. App. 588, 303 S.E.2d 380, 1983 N.C. App. LEXIS 2990 (1983).

There is no test of “reasonableness” which must be considered upon judicial review of an annexation proceeding. In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

On review of an annexation, a superior court may only hear claims based upon the grounds set out in subsection (f) of this section. There is no separate test of “reasonableness” within the limited scope of judicial review permitted in annexation cases. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625, 1982 U.S. Dist. LEXIS 13633 (W.D.N.C. 1982), aff'd, 710 F.2d 132, 1983 U.S. App. LEXIS 26721 (4th Cir. 1983).

Reasonableness Is Considered Under Subsection (f). —

A separate test of the reasonableness of an annexation is not included within the limited scope of judicial review; however, subsection (f) of this section and the provisions incorporated therein amount to a requirement that the courts determine whether an annexation is reasonable. Forsyth Citizens Opposing Annexation v. City of Winston-Salem, 67 N.C. App. 164, 312 S.E.2d 517, 1984 N.C. App. LEXIS 2993 (1984).

Subsection (f) of this section and the provisions incorporated therein amount to a requirement that the superior court determine whether an annexation is reasonable. The language of the provisions does not speak in terms of arbitrariness, capriciousness or unreasonableness, but, the effect of the statute is to give substantial protection against arbitrary, capricious and unreasonable acts by the city. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625, 1982 U.S. Dist. LEXIS 13633 (W.D.N.C. 1982), aff'd, 710 F.2d 132, 1983 U.S. App. LEXIS 26721 (4th Cir. 1983).

Statutory procedure referred to in subdivision (f)(1) is set out in G.S. 160A-49. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625, 1982 U.S. Dist. LEXIS 13633 (W.D.N.C. 1982), aff'd, 710 F.2d 132, 1983 U.S. App. LEXIS 26721 (4th Cir. 1983).

Section 160A-45 Policy Not Part of “Procedure”. —

The statement of state policy with regard to annexation set forth in G.S. 160A-45 is not part of the “procedure” of annexation under subsection (a) and subdivision (f)(1) of this section. In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

Issue on Review Is Substantial Compliance. —

The basic question presented by a petition for review under this section is whether the procedure followed in adopting the ordinance was in substantial compliance with the applicable statutes. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984); Forsyth Citizens Opposing Annexation v. City of Winston-Salem, 67 N.C. App. 164, 312 S.E.2d 517, 1984 N.C. App. LEXIS 2993 (1984).

Record Must Show Prima Facie Compliance. —

Upon review in the superior court of a municipal annexation ordinance enacted pursuant to this Article, the record of the proceedings, including the report and annexation ordinance, must show prima facie complete and substantial compliance with this Article as a condition precedent to the right of the municipality to annex the territory. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

When a power company challenged the annexation of certain of its land, pursuant to G.S. 160A-50 , the city properly annexed land which was not developed for urban purposes, under G.S. 160A-48(d)(2), along with its annexation of land which was developed for urban purposes, even though the undeveloped land was not contiguous with the city’s pre-annexation boundaries, because at least 60 percent of the land’s external boundaries were contiguous with the developed land which was being annexed. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Burden on Petitioners to Prove Noncompliance or Irregularity. —

The burden is upon plaintiffs who appeal from annexation ordinance to show by competent evidence that city in fact failed to meet the statutory requirements or that there was irregularity in the proceedings which materially prejudiced their substantive rights. In re City of New Bern, 278 N.C. 641 , 180 S.E.2d 851, 1971 N.C. LEXIS 1017 (1971).

The party challenging the annexation has the burden of showing error. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Where appeal is taken from an annexation ordinance and a petition has been filed requesting review of the annexation proceedings, and the proceedings show prima facie that there has been substantial compliance with the requirements and provisions of this Article, the burden is upon the petitioners to show, by competent evidence, failure on the part of the municipality to comply with the statutory requirements as a matter of fact or irregularity in the proceedings which materially prejudice their substantive rights. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961); Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

Where the record of the annexation proceedings demonstrates prima facie substantial compliance with the applicable statutes, the burden is on the petitioner to show by competent evidence that the city has failed to meet the statutory requirements or that there was some irregularity in the proceedings that resulted in material prejudice to petitioners’ rights. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984); Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

Under subsection (f) of this section, a party challenging an annexation action of a governing body must show (1) that the statutory procedure was not followed, or (2) that the provisions of G.S. 160A-47 were not met, or (3) that the provisions of G.S. 160A-48 were not met. The party challenging the ordinance has the burden of showing error. Knight v. City of Wilmington, 73 N.C. App. 254, 326 S.E.2d 376, 1985 N.C. App. LEXIS 3255 (1985).

Slight irregularities will not invalidate annexation proceedings if there has been substantial compliance with all essential provisions of the law. In re City of New Bern, 278 N.C. 641 , 180 S.E.2d 851, 1971 N.C. LEXIS 1017 (1971).

Absolute and literal compliance with a statute describing the conditions of annexation is unnecessary; substantial compliance only is required, because absolute and literal compliance with the statute would result in defeating the purpose of the statute in situations where no one has been or could be misled. In re City of New Bern, 278 N.C. 641 , 180 S.E.2d 851, 1971 N.C. LEXIS 1017 (1971); McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, 1983 N.C. App. LEXIS 2691 (1983).

Adverse Effect upon Financial Interests Not Grounds for Attacking Annexation Proceedings. —

A property owner can attack annexation proceedings only upon the grounds specified in the statutes; he cannot successfully resist annexation because a city ordinance will adversely affect his financial interest. In re City of New Bern, 278 N.C. 641 , 180 S.E.2d 851, 1971 N.C. LEXIS 1017 (1971); Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Time Limit for Seeking Review Not Extended by Settlement Agreement. —

As petitioners failed to seek judicial review of an annexation ordinance within 60 days as required by G.S. 160A-50(a), their action was time-barred. A prior settlement between the city and another party that did timely file for review did not require a remand to city council or allow petitioners a new 60-day period to seek review. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521, 2005 N.C. App. LEXIS 1072 (2005).

Remand for Amendment of Record. —

If the record of annexation proceedings on its face fails to show substantial compliance with any essential provision of the statute, the superior court upon review must remand to the governing board for amendment with respect to such noncompliance. The court itself is without authority to amend the report, ordinance or other part of the record, even if evidence is presented which justifies amendment. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961); Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

Remand on City’s Motion. —

While this section does not explicitly empower a superior court judge to remand an annexation ordinance upon a city’s motion to exclude a landowner who originally was covered by it, such remand occasioned no material injury to the petitioners, where the end result was that petitioners were not made part of the city by the ordinance at issue. Southern Glove Mfg. Co. v. City of Newton, 63 N.C. App. 754, 306 S.E.2d 466, 1983 N.C. App. LEXIS 3172 (1983).

Remand Appropriate Remedy. —

Trial court did not err in refusing to declare an involuntary annexation ordinance null and void where, assuming arguendo that any alleged procedural irregularities had prejudiced a landowner, the remedy under the G.S. 160A-50(g)(1) was a remand to the municipal governing board for further proceedings. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415, 2003 N.C. App. LEXIS 124 (2003).

Applicability of Rules of Civil Procedure. —

Since judicial review of an annexation ordinance is manifestly a “proceeding of a civil nature,” the Rules of Civil Procedure clearly apply to it, unless a different procedure is provided by statute, but only to the extent necessary to process the proceeding according to its nature. A different procedure for this proceeding from that provided in the Rules of Civil Procedure is provided to some extent by this section. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

Intervention in Petition for Review. —

Petitioners’ motion under G.S. 1A-1-24(a) to intervene in another party’s petition for review of an annexation ordinance was properly denied, because G.S. 1A-1-24(a) does not apply to appeals of annexation ordinances under G.S. 160A-50(a). Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521, 2005 N.C. App. LEXIS 1072 (2005).

Appellants’ motion to intervene in another party’s petition for review of an annexation ordinance was properly denied because, even assuming G.S. 1A-1-24(a) applied to appeals of annexation ordinances under G.S. 160A-50(a), judgment had already entered, intervention would have prejudiced the city and the other party, and appellants did not offer a legitimate reason for the delay. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521, 2005 N.C. App. LEXIS 1072 (2005).

Discovery. —

Judicial review of an annexation ordinance is a limited judicial review, with few similarities to ordinary civil actions which are initiated, tried and adjudicated in a different manner and for which the Rules of Civil Procedure were mostly devised. Nevertheless, since the court reviewing annexation proceedings is explicitly authorized to receive evidence as to the city’s compliance with the various procedures prescribed, as to its annexation plan meeting the requisites of G.S. 160A-47, and as to the area involved being eligible for annexation under G.S. 160A-48, in those instances where discovery may illuminate these issues that it is authorized under the Rules of Civil Procedure. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

Power to Require Production of Evidence. —

Absent an explicit statutory restriction to the contrary, a judge having the duty to receive evidence on and decide certain issues has the power, within his discretion, to require that evidence on those issues be produced. In the exercise of that power other factors require consideration, however, including the information already available through the documents required by subsection (c) of this section and the mandate contained in this section that these reviews be accomplished expeditiously and without unnecessary delays. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

Settlement of Annexation Disputes. —

Settlements of annexation disputes under G.S. 160A-50(m) are not “actions having the effect of an ordinance” under G.S. 160A-75 , but are a method of dispute resolution in the annexation process; therefore, there is no need to send the matter back to city council after a settlement is reached. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521, 2005 N.C. App. LEXIS 1072 (2005).

On appeal, the findings of fact made below are binding on the Supreme Court (now the Court of Appeals) if supported by the evidence, even when there may be evidence to the contrary. Humphries v. City of Jacksonville, 300 N.C. 186 , 265 S.E.2d 189, 1980 N.C. LEXIS 1039 (1980).

Conclusions of Law Are Reviewable De Novo. —

Conclusions of law drawn by the trial judge from the findings of fact are reviewable de novo on appeal. Humphries v. City of Jacksonville, 300 N.C. 186 , 265 S.E.2d 189, 1980 N.C. LEXIS 1039 (1980).

Right to Appeal. —

When a city proposed the involuntary annexation of certain real property, the owners of that property were entitled to seek review of the annexation ordinance passed by the city in the superior court and in the Court of Appeals. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400, 2003 N.C. App. LEXIS 1523 (2003), aff'd, 358 N.C. 216 , 593 S.E.2d 584, 2004 N.C. LEXIS 195 (2004).

Trial court properly granted the city’s motion to dismiss the military servicemembers’ challenge to the annexation of approximately 28 square miles of land and over 40,000 residents as time-barred because the federal Servicemembers Civil Relief Act, specifically 50 U.S.C.S. app. § 525, did not contain a plain statement showing an unmistakably clear intent to intrude upon North Carolina’s state sovereignty in the area of annexations, where: (1) the word “annexation” appeared nowhere in the statute; (2) the Act’s fundamental purpose was to address personal financial claims, not large-scale government action; and (3) the servicemembers failed to cite a single case which applied the Act to non-personal claims challenging large-scale government action. Kegley v. City of Fayetteville, 170 N.C. App. 656, 613 S.E.2d 696, 2005 N.C. App. LEXIS 1073 (2005), cert. denied, 546 U.S. 1138, 126 S. Ct. 1147, 163 L. Ed. 2d 1001, 2006 U.S. LEXIS 783 (2006).

Remand Required. —

Because a trial court failed to make the appropriate finding that a city’s annexation ordinance was not subject to correction upon remand before declaring it null and void, an appellate court remanded the case to the trial court for it to make the appropriate findings to support one of the statutory grounds under G.S. 160A-50(g). Fix v. City of Eden, 175 N.C. App. 1, 622 S.E.2d 647, 2005 N.C. App. LEXIS 2739 (2005).

Improper Purpose and Public Policy Arguments. —

When the owners of property which a village proposed to involuntarily annex contested the village’s annexation ordinance, pursuant to G.S. 160A-50(f), and appealed a trial court’s judgment in favor of the village, the court of appeals could not consider the owners’ arguments that the village’s annexation plan revealed an improper purpose for the annexation or that the annexation was contrary to public policy because these were not issues the court of appeals could consider, under the statutory limits of the court of appeals’ review. Pinewild Project Ltd. P'ship v. Vill. of Pinehurst, 198 N.C. App. 347, 679 S.E.2d 424, 2009 N.C. App. LEXIS 1180 (2009).

Sufficiency of Annexation Report. —

City’s annexation report was appropriate to the extent which (1) it contained a statement setting forth the plans of the city for the extension of street maintenance services to the annexation area in compliance with G.S. 160A-47(3)(a); (2) it complied with G.S. 160A-47 regarding the sewer service installation fee; (3) it provided a sufficient statement in an annexation report showing the financial impact of the annexation as required by G.S. 160A-47(5); and (4) it complied with G.S. 160A-47.1 regarding the extension of water and sewer services. However, the city’s setting of an annexation boundary parallel to a road within a mobile home park property did not comply with the requirements of G.S. 160A-48(e). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, 2011 N.C. App. LEXIS 1758 (2011).

Effect of Appeal. —

Where petitioner appealed an annexation ordinance to the superior court within the time limits of subsection (a) of this section, but not before the ordinance’s effective date of December 31, 1979, and the superior court on February 18, 1980, remanded the annexation plan report to the town board for a more specific statement of the services to be provided and the sources of revenues to finance such services, and where the infirmities in the report were cured by a revised plan adopted on February 26, 1980, this date became the effective date of the annexation ordinance, subject to further appeal to the superior court. Where such appeal was taken and the superior court entered an order on March 4, 1980, approving the revised annexation plan report and affirming the annexation, the effective date of the annexation became March 4, 1980, subject to further appeal to the North Carolina Supreme Court (now to the Court of Appeals). When petitioner appealed from that judgment to the Supreme Court, the effective date of the ordinance was again postponed by the language of subsection (i) of this section, until the date the final judgment of the Supreme Court was certified to the clerk of the superior court. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

The effective date of annexation ordinance was July 11, 1983, the date the judgment of the Court of Appeals holding the ordinance to be valid was certified, and not December 6, 1983, the date of the Supreme Court’s order dismissing plaintiffs’ appeal and denying discretionary review of the judgment of the Court of Appeals, as the final judgment in the annexation case was the judgment of the Court of Appeals. Hunter v. City of Asheville, 80 N.C. App. 325, 341 S.E.2d 743, 1986 N.C. App. LEXIS 2167 (1986).

Act which decreased the corporate boundaries of town was constitutional and plaintiffs were time-barred from asserting any further challenges. Bethania Town Lot Comm. v. City of Winston-Salem, 126 N.C. App. 783, 486 S.E.2d 729, 1997 N.C. App. LEXIS 622 (1997), aff'd, 348 N.C. 664 , 502 S.E.2d 360, 1998 N.C. LEXIS 363 (1998).

CASE NOTES

Limited Scope of Review. —

Section 160A-38(f) and subsection (f) of this section limit the court’s inquiry on review of an annexation ordinance to a determination of whether applicable annexation statutes have been substantially complied with. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

In determining the validity of an annexation ordinance, the court’s review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioner suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A-36 or G.S. 160A-48? Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

Supreme Court Appeals Not Included. —

There is no evidence to support a conclusion that the General Assembly intended the automatic stay of an annexation ordinance to include appeals to the United States Supreme Court. Biltmore Square Assocs. v. City of Asheville, 129 N.C. App. 101, 497 S.E.2d 121, 1998 N.C. App. LEXIS 364 (1998).

If a party desires to stay the effective date of an annexation while a petition for certiorari is pending before the United States Supreme Court, a stay can be requested from the Court pursuant to a motion under Rule 23 of the Rules of the Supreme Court of the United States. Biltmore Square Assocs. v. City of Asheville, 129 N.C. App. 101, 497 S.E.2d 121, 1998 N.C. App. LEXIS 364 (1998).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195, 1984 N.C. App. LEXIS 3856 (1984).

The central purpose behind the annexation procedure is to assure that, in return for the added financial burden of municipal taxation, the residents of the annexed area receive the benefits of all the major services available to municipal residents. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

The minimum requirements of the annexation 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 nondiscriminatory level of service. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Subsection (g) Time Requirement. —

A city annexation ordinance was valid where the city complied with the 3-month requirement of subsection (g) although it acted more than six months after the Court of Appeals’ opinion was filed; the city could act only after the case was remanded two times; first to the superior court, and then to the city council because only then did the city have the power to revise the annexation ordinance. Bowers v. City of Thomasville, 143 N.C. App. 291, 547 S.E.2d 68, 2001 N.C. App. LEXIS 277 (2001).

As to the different appellate forums formerly prescribed for appeals under this section and G.S. 160A-38(h), see In re Annexation Ordinance, 300 N.C. 337 , 266 S.E.2d 661, 1980 N.C. LEXIS 1077 (1980) (decided prior to the 1981 amendment to this section) .

Who May Challenge Annexation Ordinance. —

The only persons given the authority by this chapter to challenge an annexation ordinance are those who own property in the annexed area. Davis v. City of Archdale, 81 N.C. App. 505, 344 S.E.2d 369, 1986 N.C. App. LEXIS 2330 (1986).

Where the record of the annexation proceedings showed substantial compliance with the requirements of Chapter 160A, the burden was on petitioners to prove failure to meet those requirements or an irregularity in the proceedings which materially prejudiced their substantive rights. Thrash v. City of Asheville, 115 N.C. App. 310, 444 S.E.2d 482, 1994 N.C. App. LEXIS 607 (1994).

Plaintiff town had no standing to challenge annexations of contiguous properties by nearby village. Town of Seven Devils v. Village of Sugar Mt., 125 N.C. App. 692, 482 S.E.2d 39, 1997 N.C. App. LEXIS 226 (1997).

Denial of Motion to Intervene Was Proper. —

Denial of a corporation’s motion to intervene in a case seeking review of an annexation ordinance was proper, since the corporation failed to comply with G.S. 160A-50 procedures by moving to intervene six months after the ordinance was adopted; intervention was also improper under G.S. 1A-1-24, due to the facts that the motion was filed after judgment approving a settlement was entered and that the proposed intervention would have prejudiced the original parties by destroying their settlement. Gates Four Homeowners Ass'n v. City of Fayetteville, 170 N.C. App. 688, 613 S.E.2d 55, 2005 N.C. App. LEXIS 1088 (2005).

No Jurisdiction Over Plans Concerning Transportation. —

Since plans and procedures concerning transportation are not required by law, a reviewing court has no jurisdiction to hear evidence on this issue. Parkwood Ass'n v. City of Durham, 124 N.C. App. 603, 478 S.E.2d 204, 1996 N.C. App. LEXIS 1208 (1996).

Order compelling discovery was generally not immediately appealable; while G.S. 160A-50 contemplated an expedited hearing procedure, where the challengers in an annexation case did not appear concerned with an expedited hearing, and the most significant portion of the delay in the matter was due to the challengers’ refusal to answer discovery, and in getting the matter before the appellate court, the challengers failed to show that a substantial right was affected, and an order compelling discovery was not immediately appealable. Arnold v. City of Asheville, 169 N.C. App. 451, 610 S.E.2d 280, 2005 N.C. App. LEXIS 616 (2005).

Annexation statutes are not unconstitutional in providing that review by the superior court is without a jury. In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

Provisions for Nonjury Trial in Subsection (f) Not Superseded by Rules of Civil Procedure. —

The provisions of subsection (f) authorizing review of annexation proceedings by the court without a jury have not been superseded by the N.C. Rules of Civil Procedure. In re Annexation Ordinance, 284 N.C. 442 , 202 S.E.2d 143, 1974 N.C. LEXIS 1275 (1974).

This section specifies the inquiries to which the courts are limited. In re Annexation Ordinance, 284 N.C. 442 , 202 S.E.2d 143, 1974 N.C. LEXIS 1275 (1974).

Constitutional Challenges Restricted. —

Attacks on state annexation procedures on either due process or equal protection grounds are specifically foreclosed. Baldwin v. City of Winston-Salem, 544 F. Supp. 123, 1982 U.S. Dist. LEXIS 13761 (M.D.N.C. 1982), aff'd, 710 F.2d 132, 1983 U.S. App. LEXIS 26721 (4th Cir. 1983).

Challenges to annexations generally are not actionable under U.S. Const., Amend. XIV. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625, 1982 U.S. Dist. LEXIS 13633 (W.D.N.C. 1982), aff'd, 710 F.2d 132, 1983 U.S. App. LEXIS 26721 (4th Cir. 1983).

Limited Scope of Review. —

The judicial review afforded in annexation proceedings is limited in scope and serves as a safeguard against unreasonable and arbitrary action by the annexing municipality. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

Judicial review of an annexation ordinance is limited to determination of whether the annexation proceedings substantially comply with the requirements of the applicable annexation statute. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

The clear intent of the legislature under this section was to provide an expedited judicial review, limited in scope, and avoiding unnecessary procedural delays. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Section 160A-38(f) and subsection (f) of this section limit the court’s inquiry on review of an annexation ordinance to a determination of whether applicable annexation statutes have been substantially complied with. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

In determining the validity of an annexation ordinance, the court’s review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioner suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A-36 or G.S. 160A-48? Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

A court’s review of an annexation ordinance is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioners “suffer material injury” by reason of the municipality’s failure to comply? (3) Does the character of the area specified for annexation meet the requirement of G.S. 160A-48 as applied to petitioners’ property? In re Annexation Ordinance, 62 N.C. App. 588, 303 S.E.2d 380, 1983 N.C. App. LEXIS 2990 (1983).

There is no test of “reasonableness” which must be considered upon judicial review of an annexation proceeding. In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

On review of an annexation, a superior court may only hear claims based upon the grounds set out in subsection (f) of this section. There is no separate test of “reasonableness” within the limited scope of judicial review permitted in annexation cases. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625, 1982 U.S. Dist. LEXIS 13633 (W.D.N.C. 1982), aff'd, 710 F.2d 132, 1983 U.S. App. LEXIS 26721 (4th Cir. 1983).

Reasonableness Is Considered Under Subsection (f). —

A separate test of the reasonableness of an annexation is not included within the limited scope of judicial review; however, subsection (f) of this section and the provisions incorporated therein amount to a requirement that the courts determine whether an annexation is reasonable. Forsyth Citizens Opposing Annexation v. City of Winston-Salem, 67 N.C. App. 164, 312 S.E.2d 517, 1984 N.C. App. LEXIS 2993 (1984).

Subsection (f) of this section and the provisions incorporated therein amount to a requirement that the superior court determine whether an annexation is reasonable. The language of the provisions does not speak in terms of arbitrariness, capriciousness or unreasonableness, but, the effect of the statute is to give substantial protection against arbitrary, capricious and unreasonable acts by the city. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625, 1982 U.S. Dist. LEXIS 13633 (W.D.N.C. 1982), aff'd, 710 F.2d 132, 1983 U.S. App. LEXIS 26721 (4th Cir. 1983).

Statutory procedure referred to in subdivision (f)(1) is set out in G.S. 160A-49. Raintree Homeowners Ass'n v. City of Charlotte, 543 F. Supp. 625, 1982 U.S. Dist. LEXIS 13633 (W.D.N.C. 1982), aff'd, 710 F.2d 132, 1983 U.S. App. LEXIS 26721 (4th Cir. 1983).

Section 160A-45 Policy Not Part of “Procedure”. —

The statement of state policy with regard to annexation set forth in G.S. 160A-45 is not part of the “procedure” of annexation under subsection (a) and subdivision (f)(1) of this section. In re Annexation Ordinance No. D-21927, 303 N.C. 220 , 278 S.E.2d 224, 1981 N.C. LEXIS 1104 (1981).

Issue on Review Is Substantial Compliance. —

The basic question presented by a petition for review under this section is whether the procedure followed in adopting the ordinance was in substantial compliance with the applicable statutes. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984); Forsyth Citizens Opposing Annexation v. City of Winston-Salem, 67 N.C. App. 164, 312 S.E.2d 517, 1984 N.C. App. LEXIS 2993 (1984).

Record Must Show Prima Facie Compliance. —

Upon review in the superior court of a municipal annexation ordinance enacted pursuant to this Article, the record of the proceedings, including the report and annexation ordinance, must show prima facie complete and substantial compliance with this Article as a condition precedent to the right of the municipality to annex the territory. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961).

When a power company challenged the annexation of certain of its land, pursuant to G.S. 160A-50 , the city properly annexed land which was not developed for urban purposes, under G.S. 160A-48(d)(2), along with its annexation of land which was developed for urban purposes, even though the undeveloped land was not contiguous with the city’s pre-annexation boundaries, because at least 60 percent of the land’s external boundaries were contiguous with the developed land which was being annexed. Carolina Power & Light Co. v. City of Asheville, 161 N.C. App. 1, 587 S.E.2d 490, 2003 N.C. App. LEXIS 1995 (2003), rev'd, 358 N.C. 512 , 597 S.E.2d 717, 2004 N.C. LEXIS 668 (2004).

Burden on Petitioners to Prove Noncompliance or Irregularity. —

The burden is upon plaintiffs who appeal from annexation ordinance to show by competent evidence that city in fact failed to meet the statutory requirements or that there was irregularity in the proceedings which materially prejudiced their substantive rights. In re City of New Bern, 278 N.C. 641 , 180 S.E.2d 851, 1971 N.C. LEXIS 1017 (1971).

The party challenging the annexation has the burden of showing error. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Where appeal is taken from an annexation ordinance and a petition has been filed requesting review of the annexation proceedings, and the proceedings show prima facie that there has been substantial compliance with the requirements and provisions of this Article, the burden is upon the petitioners to show, by competent evidence, failure on the part of the municipality to comply with the statutory requirements as a matter of fact or irregularity in the proceedings which materially prejudice their substantive rights. In re Annexation Ordinance, 255 N.C. 633 , 122 S.E.2d 690, 1961 N.C. LEXIS 673 (1961); Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

Where the record of the annexation proceedings demonstrates prima facie substantial compliance with the applicable statutes, the burden is on the petitioner to show by competent evidence that the city has failed to meet the statutory requirements or that there was some irregularity in the proceedings that resulted in material prejudice to petitioners’ rights. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984); Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599, 1987 N.C. App. LEXIS 2668 (1987), aff'd, 321 N.C. 589 , 364 S.E.2d 139, 1988 N.C. LEXIS 20 (1988).

Under subsection (f) of this section, a party challenging an annexation action of a governing body must show (1) that the statutory procedure was not followed, or (2) that the provisions of G.S. 160A-47 were not met, or (3) that the provisions of G.S. 160A-48 were not met. The party challenging the ordinance has the burden of showing error. Knight v. City of Wilmington, 73 N.C. App. 254, 326 S.E.2d 376, 1985 N.C. App. LEXIS 3255 (1985).

Slight irregularities will not invalidate annexation proceedings if there has been substantial compliance with all essential provisions of the law. In re City of New Bern, 278 N.C. 641 , 180 S.E.2d 851, 1971 N.C. LEXIS 1017 (1971).

Absolute and literal compliance with a statute describing the conditions of annexation is unnecessary; substantial compliance only is required, because absolute and literal compliance with the statute would result in defeating the purpose of the statute in situations where no one has been or could be misled. In re City of New Bern, 278 N.C. 641 , 180 S.E.2d 851, 1971 N.C. LEXIS 1017 (1971); McKenzie v. City of High Point, 61 N.C. App. 393, 301 S.E.2d 129, 1983 N.C. App. LEXIS 2691 (1983).

Adverse Effect upon Financial Interests Not Grounds for Attacking Annexation Proceedings. —

A property owner can attack annexation proceedings only upon the grounds specified in the statutes; he cannot successfully resist annexation because a city ordinance will adversely affect his financial interest. In re City of New Bern, 278 N.C. 641 , 180 S.E.2d 851, 1971 N.C. LEXIS 1017 (1971); Cockrell v. City of Raleigh, 306 N.C. 479 , 293 S.E.2d 770, 1982 N.C. LEXIS 1483 (1982).

Time Limit for Seeking Review Not Extended by Settlement Agreement. —

As petitioners failed to seek judicial review of an annexation ordinance within 60 days as required by G.S. 160A-50(a), their action was time-barred. A prior settlement between the city and another party that did timely file for review did not require a remand to city council or allow petitioners a new 60-day period to seek review. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521, 2005 N.C. App. LEXIS 1072 (2005).

Remand for Amendment of Record. —

If the record of annexation proceedings on its face fails to show substantial compliance with any essential provision of the statute, the superior court upon review must remand to the governing board for amendment with respect to such noncompliance. The court itself is without authority to amend the report, ordinance or other part of the record, even if evidence is presented which justifies amendment. Huntley v. Potter, 255 N.C. 619 , 122 S.E.2d 681, 1961 N.C. LEXIS 672 (1961); Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

Remand on City’s Motion. —

While this section does not explicitly empower a superior court judge to remand an annexation ordinance upon a city’s motion to exclude a landowner who originally was covered by it, such remand occasioned no material injury to the petitioners, where the end result was that petitioners were not made part of the city by the ordinance at issue. Southern Glove Mfg. Co. v. City of Newton, 63 N.C. App. 754, 306 S.E.2d 466, 1983 N.C. App. LEXIS 3172 (1983).

Remand Appropriate Remedy. —

Trial court did not err in refusing to declare an involuntary annexation ordinance null and void where, assuming arguendo that any alleged procedural irregularities had prejudiced a landowner, the remedy under the G.S. 160A-50(g)(1) was a remand to the municipal governing board for further proceedings. United States Cold Storage v. City of Lumberton, 156 N.C. App. 327, 576 S.E.2d 415, 2003 N.C. App. LEXIS 124 (2003).

Applicability of Rules of Civil Procedure. —

Since judicial review of an annexation ordinance is manifestly a “proceeding of a civil nature,” the Rules of Civil Procedure clearly apply to it, unless a different procedure is provided by statute, but only to the extent necessary to process the proceeding according to its nature. A different procedure for this proceeding from that provided in the Rules of Civil Procedure is provided to some extent by this section. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

Intervention in Petition for Review. —

Petitioners’ motion under G.S. 1A-1-24(a) to intervene in another party’s petition for review of an annexation ordinance was properly denied, because G.S. 1A-1-24(a) does not apply to appeals of annexation ordinances under G.S. 160A-50(a). Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521, 2005 N.C. App. LEXIS 1072 (2005).

Appellants’ motion to intervene in another party’s petition for review of an annexation ordinance was properly denied because, even assuming G.S. 1A-1-24(a) applied to appeals of annexation ordinances under G.S. 160A-50(a), judgment had already entered, intervention would have prejudiced the city and the other party, and appellants did not offer a legitimate reason for the delay. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521, 2005 N.C. App. LEXIS 1072 (2005).

Discovery. —

Judicial review of an annexation ordinance is a limited judicial review, with few similarities to ordinary civil actions which are initiated, tried and adjudicated in a different manner and for which the Rules of Civil Procedure were mostly devised. Nevertheless, since the court reviewing annexation proceedings is explicitly authorized to receive evidence as to the city’s compliance with the various procedures prescribed, as to its annexation plan meeting the requisites of G.S. 160A-47, and as to the area involved being eligible for annexation under G.S. 160A-48, in those instances where discovery may illuminate these issues that it is authorized under the Rules of Civil Procedure. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

Power to Require Production of Evidence. —

Absent an explicit statutory restriction to the contrary, a judge having the duty to receive evidence on and decide certain issues has the power, within his discretion, to require that evidence on those issues be produced. In the exercise of that power other factors require consideration, however, including the information already available through the documents required by subsection (c) of this section and the mandate contained in this section that these reviews be accomplished expeditiously and without unnecessary delays. Campbell v. City of Greensboro, 70 N.C. App. 252, 319 S.E.2d 323, 1984 N.C. App. LEXIS 3638 (1984).

Settlement of Annexation Disputes. —

Settlements of annexation disputes under G.S. 160A-50(m) are not “actions having the effect of an ordinance” under G.S. 160A-75 , but are a method of dispute resolution in the annexation process; therefore, there is no need to send the matter back to city council after a settlement is reached. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521, 2005 N.C. App. LEXIS 1072 (2005).

On appeal, the findings of fact made below are binding on the Supreme Court (now the Court of Appeals) if supported by the evidence, even when there may be evidence to the contrary. Humphries v. City of Jacksonville, 300 N.C. 186 , 265 S.E.2d 189, 1980 N.C. LEXIS 1039 (1980).

Conclusions of Law Are Reviewable De Novo. —

Conclusions of law drawn by the trial judge from the findings of fact are reviewable de novo on appeal. Humphries v. City of Jacksonville, 300 N.C. 186 , 265 S.E.2d 189, 1980 N.C. LEXIS 1039 (1980).

Right to Appeal. —

When a city proposed the involuntary annexation of certain real property, the owners of that property were entitled to seek review of the annexation ordinance passed by the city in the superior court and in the Court of Appeals. Ridgefield Props., L.L.C. v. City of Asheville, 159 N.C. App. 376, 583 S.E.2d 400, 2003 N.C. App. LEXIS 1523 (2003), aff'd, 358 N.C. 216 , 593 S.E.2d 584, 2004 N.C. LEXIS 195 (2004).

Trial court properly granted the city’s motion to dismiss the military servicemembers’ challenge to the annexation of approximately 28 square miles of land and over 40,000 residents as time-barred because the federal Servicemembers Civil Relief Act, specifically 50 U.S.C.S. app. § 525, did not contain a plain statement showing an unmistakably clear intent to intrude upon North Carolina’s state sovereignty in the area of annexations, where: (1) the word “annexation” appeared nowhere in the statute; (2) the Act’s fundamental purpose was to address personal financial claims, not large-scale government action; and (3) the servicemembers failed to cite a single case which applied the Act to non-personal claims challenging large-scale government action. Kegley v. City of Fayetteville, 170 N.C. App. 656, 613 S.E.2d 696, 2005 N.C. App. LEXIS 1073 (2005), cert. denied, 546 U.S. 1138, 126 S. Ct. 1147, 163 L. Ed. 2d 1001, 2006 U.S. LEXIS 783 (2006).

Remand Required. —

Because a trial court failed to make the appropriate finding that a city’s annexation ordinance was not subject to correction upon remand before declaring it null and void, an appellate court remanded the case to the trial court for it to make the appropriate findings to support one of the statutory grounds under G.S. 160A-50(g). Fix v. City of Eden, 175 N.C. App. 1, 622 S.E.2d 647, 2005 N.C. App. LEXIS 2739 (2005).

Improper Purpose and Public Policy Arguments. —

When the owners of property which a village proposed to involuntarily annex contested the village’s annexation ordinance, pursuant to G.S. 160A-50(f), and appealed a trial court’s judgment in favor of the village, the court of appeals could not consider the owners’ arguments that the village’s annexation plan revealed an improper purpose for the annexation or that the annexation was contrary to public policy because these were not issues the court of appeals could consider, under the statutory limits of the court of appeals’ review. Pinewild Project Ltd. P'ship v. Vill. of Pinehurst, 198 N.C. App. 347, 679 S.E.2d 424, 2009 N.C. App. LEXIS 1180 (2009).

Sufficiency of Annexation Report. —

City’s annexation report was appropriate to the extent which (1) it contained a statement setting forth the plans of the city for the extension of street maintenance services to the annexation area in compliance with G.S. 160A-47(3)(a); (2) it complied with G.S. 160A-47 regarding the sewer service installation fee; (3) it provided a sufficient statement in an annexation report showing the financial impact of the annexation as required by G.S. 160A-47(5); and (4) it complied with G.S. 160A-47.1 regarding the extension of water and sewer services. However, the city’s setting of an annexation boundary parallel to a road within a mobile home park property did not comply with the requirements of G.S. 160A-48(e). Capps v. City of Kinston, 215 N.C. App. 110, 715 S.E.2d 520, 2011 N.C. App. LEXIS 1758 (2011).

Effect of Appeal. —

Where petitioner appealed an annexation ordinance to the superior court within the time limits of subsection (a) of this section, but not before the ordinance’s effective date of December 31, 1979, and the superior court on February 18, 1980, remanded the annexation plan report to the town board for a more specific statement of the services to be provided and the sources of revenues to finance such services, and where the infirmities in the report were cured by a revised plan adopted on February 26, 1980, this date became the effective date of the annexation ordinance, subject to further appeal to the superior court. Where such appeal was taken and the superior court entered an order on March 4, 1980, approving the revised annexation plan report and affirming the annexation, the effective date of the annexation became March 4, 1980, subject to further appeal to the North Carolina Supreme Court (now to the Court of Appeals). When petitioner appealed from that judgment to the Supreme Court, the effective date of the ordinance was again postponed by the language of subsection (i) of this section, until the date the final judgment of the Supreme Court was certified to the clerk of the superior court. Moody v. Town of Carrboro, 301 N.C. 318 , 271 S.E.2d 265, 1980 N.C. LEXIS 1169 (1980).

The effective date of annexation ordinance was July 11, 1983, the date the judgment of the Court of Appeals holding the ordinance to be valid was certified, and not December 6, 1983, the date of the Supreme Court’s order dismissing plaintiffs’ appeal and denying discretionary review of the judgment of the Court of Appeals, as the final judgment in the annexation case was the judgment of the Court of Appeals. Hunter v. City of Asheville, 80 N.C. App. 325, 341 S.E.2d 743, 1986 N.C. App. LEXIS 2167 (1986).

Act which decreased the corporate boundaries of town was constitutional and plaintiffs were time-barred from asserting any further challenges. Bethania Town Lot Comm. v. City of Winston-Salem, 126 N.C. App. 783, 486 S.E.2d 729, 1997 N.C. App. LEXIS 622 (1997), aff'd, 348 N.C. 664 , 502 S.E.2d 360, 1998 N.C. LEXIS 363 (1998).

Editor’s Note.

This section was formerly G.S. 160A-51 . It was recodified as G.S. 160A-58.61 by Session Laws 2011-396, s. 5, effective July 1, 2011.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

CASE NOTES

Recordation of Map and Ordinance Not Condition Precedent to Annexation. —

The requirement in this section that a map of the annexed territory, together with a certified copy of the ordinance, be recorded in the office of the register of deeds and in the office of the Secretary of State is not a condition precedent to the effective annexation of the territory, but is the imposition of a duty to be performed after the annexation is complete. Dale v. City of Morganton, 270 N.C. 567 , 155 S.E.2d 136, 1967 N.C. LEXIS 1389 (1967).

Editor’s Note.

This section was formerly G.S. 160A-52 . It was recodified as G.S. 160A-58.62 by Session Laws 2011-396, s. 6, effective July 1, 2011.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Editor’s Note.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

CASE NOTES

Determining What Is a “Lot”. —

In making an appraisal of an area to be annexed, there are several methods which can be used in determining what is a lot. One is to count each numbered lot separately. Another is to consider a landlocked lot as part of the lot in front of it and group the two lots, i.e., the landlocked lot and the one providing it with access to a street, as being a single lot. A third method would be to consider a group of lots in single ownership and used for a single purpose as being a tract within the meaning of the statute, and count tracts rather than lots. Any one of these methods would be “calculated to provide reasonably accurate results,” as required by this section. Adams-Millis Corp. v. Town of Kernersville, 6 N.C. App. 78, 169 S.E.2d 496, 1969 N.C. App. LEXIS 1144 (1969).

Property owners did not show that a town was unreasonable in relying upon an actual survey, as allowed by G.S. 160A-36; thus, the reviewing court did not err in concluding that one property consisted of two separate lots for the purposes of the subdivision test. Hayes v. Town of Fairmont, 167 N.C. App. 522, 605 S.E.2d 717, 2004 N.C. App. LEXIS 2383 (2004).

Recorded Plat. —

Recorded plat was not a “reasonably reliable” source for purposes of showing subdivision where: (1) property shown on plat had never actually been developed; (2) county tax office had exceeded its statutory authority in classifying property as “subdivision,” because it was not divided into lots and there were no streets (G.S. 105-287); (3) the property had never been surveyed; and (4) no lots had ever been sold. Further, aerial photographs showed no road while recorded plat did. When accuracy of record evidence proffered by city to meet requisites for annexation is belied by evidence of actual condition of property, such records are not “reasonably reliable” for the purposes of this section. Thrash v. City of Asheville, 327 N.C. 251 , 393 S.E.2d 842, 1990 N.C. LEXIS 570 (1990).

Use of Planimeter to Calculate Acreage. —

See Scovill Mfg. Co. v. Town of Wake Forest, 58 N.C. App. 15, 293 S.E.2d 240, 1982 N.C. App. LEXIS 2756 (1982).

Annexation Proper. —

Village essentially complied with the requirements of G.S. 160A-42 because the village used methods calculated to provide reasonably accurate results to determine the degree of land subdivision for purposes of G.S. 160A-36. Norwood v. Village of Sugar Mt., 193 N.C. App. 293, 667 S.E.2d 524, 2008 N.C. App. LEXIS 1819 (2008).

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195, 1984 N.C. App. LEXIS 3856 (1984).

Tests as to Urban Development to Be Applied to Whole Annexation Area. —

The tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Micro Approach Calculations Meet Urbanization Test. —

Town met the urbanization test for annexation, where the town used a “micro approach” whereby it determined the number of dwelling units in each census block within the area to be annexed, then determined the average family size therein, then multiplied the number of dwelling units in each census block by the average family size to calculate the estimated population of each block, and finally added the block numbers together to produce the population estimate. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, 1998 N.C. App. LEXIS 757 (1998).

Evidence Not Admissible to Challenge City’s Methodology. —

Where petitioners challenged a city annexation ordinances, the trial court properly ruled that their spreadsheets could not be offered to show that the city’s methodology was not calculated to provide reasonably accurate results, as required by G.S. 160A-54, because they presented no expert testimony about the spreadsheets, and testimony of the city’s principal planner was insufficient to establish a foundation for their admissibility. Brown v. City of Winston-Salem, 176 N.C. App. 497, 626 S.E.2d 747, 2006 N.C. App. LEXIS 531 , cert. denied, 360 N.C. 575 , 635 S.E.2d 429, 2006 N.C. LEXIS 958 (2006).

Census figures are more reliable than any formula that alters the figures by arbitrarily assuming vacancy rates and adjusting for dwelling unit size. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

This section contains no requirement regarding the use of final census data and there is no judicially imposed requirement. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Although this statute specifies the use of federal census data, it does not require the use of final rather than preliminary census data. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Applicability of Error Margins to Calculations Under § 160A-48(c). —

The five percent error margins allowed in subdivisions (2) and (3) of this section apply exclusively to calculations made by the municipality for purposes of establishing compliance with the population and subdivision tests contained within the alternative standards prescribed by G.S. 160A-48(c). Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

The language of this section is free from ambiguity and represents a legislative determination that margins of error should be allowed with respect to the calculations made by a municipality to establish compliance with the population and subdivision tests of G.S. 160A-48(c), but not with respect to the calculations made to establish compliance with the use test of G.S. 160A-48(c). Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

Method of Calculating Number of Lots. —

A municipality is not tied to any particular method of calculating the number of lots so long as the method utilized is calculated to provide reasonably accurate results. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

The fact that different methods of lot calculation have been used by the city in past annexations is of no import where the record establishes that the method utilized in the annexation under scrutiny complies with the requirements of this section. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

It is eminently reasonable for the city to follow actual use and ownership patterns instead of artificial patterns of subdivision in determining the number of lots in the area to be annexed. Such method of lot counting was calculated to provide reasonably accurate results as required by this section. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

Petitioners Failed to Meet Burden to Show Inaccuracy of City’s Methodology. —

Petitioners challenging a city’s annexation ordinances failed to show the city misclassified the lots to be annexed or that the county tax maps it relied on were inaccurate. As they offered no reliable evidence that the city’s methodology was inaccurate and not calculated to provide reasonably accurate results, as required by G.S. 106A-54, the ordinances were properly deemed valid. Brown v. City of Winston-Salem, 176 N.C. App. 497, 626 S.E.2d 747, 2006 N.C. App. LEXIS 531 , cert. denied, 360 N.C. 575 , 635 S.E.2d 429, 2006 N.C. LEXIS 958 (2006).

CASE NOTES

The annexation statutes are not taxation statutes, nor are they retrospective taxation statutes. Little Red School House, Ltd. v. City of Greensboro, 71 N.C. App. 332, 322 S.E.2d 195, 1984 N.C. App. LEXIS 3856 (1984).

Tests as to Urban Development to Be Applied to Whole Annexation Area. —

The tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole. In re Ordinance of Annexation No. 1977-4, 296 N.C. 1 , 249 S.E.2d 698, 1978 N.C. LEXIS 1155 (1978).

Micro Approach Calculations Meet Urbanization Test. —

Town met the urbanization test for annexation, where the town used a “micro approach” whereby it determined the number of dwelling units in each census block within the area to be annexed, then determined the average family size therein, then multiplied the number of dwelling units in each census block by the average family size to calculate the estimated population of each block, and finally added the block numbers together to produce the population estimate. Williams v. Town of Kernersville, 129 N.C. App. 734, 500 S.E.2d 770, 1998 N.C. App. LEXIS 757 (1998).

Evidence Not Admissible to Challenge City’s Methodology. —

Where petitioners challenged a city annexation ordinances, the trial court properly ruled that their spreadsheets could not be offered to show that the city’s methodology was not calculated to provide reasonably accurate results, as required by G.S. 160A-54, because they presented no expert testimony about the spreadsheets, and testimony of the city’s principal planner was insufficient to establish a foundation for their admissibility. Brown v. City of Winston-Salem, 176 N.C. App. 497, 626 S.E.2d 747, 2006 N.C. App. LEXIS 531 , cert. denied, 360 N.C. 575 , 635 S.E.2d 429, 2006 N.C. LEXIS 958 (2006).

Census figures are more reliable than any formula that alters the figures by arbitrarily assuming vacancy rates and adjusting for dwelling unit size. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

This section contains no requirement regarding the use of final census data and there is no judicially imposed requirement. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Although this statute specifies the use of federal census data, it does not require the use of final rather than preliminary census data. In re City of Durham Annexation Ordinance No. 5791, 66 N.C. App. 472, 311 S.E.2d 898, 1984 N.C. App. LEXIS 2930 (1984).

Applicability of Error Margins to Calculations Under § 160A-48(c). —

The five percent error margins allowed in subdivisions (2) and (3) of this section apply exclusively to calculations made by the municipality for purposes of establishing compliance with the population and subdivision tests contained within the alternative standards prescribed by G.S. 160A-48(c). Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

The language of this section is free from ambiguity and represents a legislative determination that margins of error should be allowed with respect to the calculations made by a municipality to establish compliance with the population and subdivision tests of G.S. 160A-48(c), but not with respect to the calculations made to establish compliance with the use test of G.S. 160A-48(c). Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

Method of Calculating Number of Lots. —

A municipality is not tied to any particular method of calculating the number of lots so long as the method utilized is calculated to provide reasonably accurate results. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

The fact that different methods of lot calculation have been used by the city in past annexations is of no import where the record establishes that the method utilized in the annexation under scrutiny complies with the requirements of this section. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

It is eminently reasonable for the city to follow actual use and ownership patterns instead of artificial patterns of subdivision in determining the number of lots in the area to be annexed. Such method of lot counting was calculated to provide reasonably accurate results as required by this section. Food Town Stores, Inc. v. City of Salisbury, 300 N.C. 21 , 265 S.E.2d 123, 1980 N.C. LEXIS 1030 (1980).

Petitioners Failed to Meet Burden to Show Inaccuracy of City’s Methodology. —

Petitioners challenging a city’s annexation ordinances failed to show the city misclassified the lots to be annexed or that the county tax maps it relied on were inaccurate. As they offered no reliable evidence that the city’s methodology was inaccurate and not calculated to provide reasonably accurate results, as required by G.S. 106A-54, the ordinances were properly deemed valid. Brown v. City of Winston-Salem, 176 N.C. App. 497, 626 S.E.2d 747, 2006 N.C. App. LEXIS 531 , cert. denied, 360 N.C. 575 , 635 S.E.2d 429, 2006 N.C. LEXIS 958 (2006).

Editor’s Note.

Session Laws 2011-396, s. 12, provides: “Except for Sections 10, 11.1, and 11.2, this act does not apply to any municipality that in its charter requires that an annexation must be approved by (i) either the voters in a referendum or at the request of a majority of the property owners; (ii) the voters in a referendum; or (iii) the request of a majority of the property owners.” Sections 10, 11.1, and 11.2 amended G.S. 160A-31 , 143B-437.04(a), and 159G-23, respectively.

Session Laws 2011-396, s. 13, is a severability clause.

Session Laws 2011-396, s. 14, provides: “This act is effective when it becomes law [July 1, 2011] and applies to annexations initiated by municipalities on or after that date and to petitions for annexation under Part 1 and Part 4 of Article 4A of Chapter 160A of the General Statutes presented on or after that date. Annexations initiated prior to the effective date of this act by any action under Part 2 or Part 3 of Article 4A of Chapter 160A of the General Statutes, but for which an annexation ordinance has not been adopted, shall terminate and may be reinitiated in compliance with Part 7 of Article 4A of Chapter 160A of the General Statutes as enacted by this act.”

Editor’s Note.

Session Laws 2012-11, s. 5, effective July 1, 2012, and applicable to any annexation ordinance adopted under Part 7 of Article 4A of Chapter 160A of the General Statutes on or after July 1, 2012, provided that “G.S. 160A-60(a) reads as rewritten” when, in fact, the text that was set out in the act matched that of G.S. 160A-58.60 (a). At the direction of the Revisor of Statutes, the amendment was not implemented. Subsequently, Session Laws 2013-410, s. 15, amended the introductory language of Session Laws 2012-11, s. 5, so that it now identifies G.S. 160A-58.60 as the section being amended.

CASE NOTES

Editor’s Note. —

Some of the cases below were decided under former similar provisions.

Former G.S. 160-25 dealt merely with the qualification of the appointee and not with the character of the office. State v. Hord, 264 N.C. 149 , 141 S.E.2d 241, 1965 N.C. LEXIS 1137 (1965).

Vacating Office for Preexisting Impediment. —

While there can be no serious doubt of the right of a corporate body to vacate the seat of a corporate officer for adequate causes arising subsequent to taking his seat, there has been no precedent for depriving a member of his place by the action of a municipal body of which he is a member for any preexisting impediment affecting his capacity to hold the office. Ellison v. Aldermen of Raleigh, 89 N.C. 125 , 1883 N.C. LEXIS 196 (1883).

Right to Declaratory Judgment. —

When the rights of parties were affected by provisions similar to this section and other statutes, to the end that they might be relieved “from uncertainty and insecurity” such parties were entitled to have the applicable statutes construed and their rights declared, and a real controversy existed between the parties. Bland v. City of Wilmington, 278 N.C. 657 , 180 S.E.2d 813, 1971 N.C. LEXIS 1019 (1971).

City Charter Prescribing Qualifications of Firemen Not Repealed by Former Provisions. —

Former G.S. 160-25 and 160-115.1 did not repeal the provisions of a city’s charter prescribing the qualifications of its firemen. Bland v. City of Wilmington, 278 N.C. 657 , 180 S.E.2d 813, 1971 N.C. LEXIS 1019 (1971).

CASE NOTES

Liability for Negligent Obstructions. —

The city did not owe a special duty to a cable television repairman who was electrocuted by a fallen unmarked power line, and as plaintiff did not allege any intentional misconduct on the part of the city which would survive application of the public duty doctrine, the city was immune to liability. Vanasek v. Duke Power Co., 132 N.C. App. 335, 511 S.E.2d 41, 1999 N.C. App. LEXIS 106 , cert. denied, 350 N.C. 851 , 539 S.E.2d 13, 1999 N.C. LEXIS 782 (1999).

Editor’s Note.

Notwithstanding G.S. 160A-63 and Section 3.3 of the Charter of the Town of North Topsail Beach, being Chapter 100 of the 1989 Session Laws, for the 2021 municipal election, all five board of aldermen seats shall be on the ballot for election. The three candidates who receive the highest number of votes shall be elected for four-year terms, while the two candidates who receive the next highest number of votes shall be elected for two-year terms. In 2023 and thereafter, the board of aldermen shall be elected as provided for in the Charter and Chapter 163 of the General Statutes.

OPINIONS OF ATTORNEY GENERAL

Upon arriving at a determination that an elected town official has removed his residence to another electoral jurisdiction, a town council, pursuant to the provisions of this section, may fill the vacancy created by the official’s departure. See opinion of Attorney General to Mr. John C. Wessell, III, Town Attorney, Surf City (Pender County), 58 N.C. Op. Att'y Gen. 28 (1988).

Editor’s Note.

Session Laws 2014-40, s. 3, made this section effective October 1, 2014, and applicable to final judgments awarding monetary damages that are unsatisfied or entered on or after that date.

Session Laws 2021-191, s. 2(c), made the amendments to this section by Session Laws 2021-191, s. 2(b), effective December 9, 2021, and applicable to any compensation paid in accordance with G.S. 153A-28 or G.S. 160A-64 on or after that date.

Effect of Amendments.

Session Laws 2021-191, s. 2(b), designated the previously existing provisions as subsections (a) and (c); and added subsection (b). For effective date and applicability, see editor's note.

CASE NOTES

City council, and not the city, was responsible for the government and general management of the city, and, thus, had final policymaking authority; accordingly, the city could not be held liable for its alleged retaliation against the storage business regarding the billing of it for water and sewer services as the entity liable had to be found liable for its policy or custom that violated the rights of another and the city was not responsible for making policy or customs. United States Cold Storage, Inc. v. City of Lumberton, 34 Fed. Appx. 429, 2002 U.S. App. LEXIS 8392 (4th Cir. 2002).

Part 3. Organization and Procedures of the Council.

CASE NOTES

Power of Mayor to Vote. —

Ordinarily, the office of mayor is of an executive or administrative character, and he is not permitted to vote except in cases where it is especially provided. State ex rel. Markham v. Simpson, 175 N.C. 135 , 95 S.E. 106, 1918 N.C. LEXIS 19 (1918) (decided under prior law).

CASE NOTES

Requirement that a full and accurate journal of the proceedings be kept is merely directory and not a condition precedent to the validity of a contract regularly entered into by the municipality. Town of Graham v. Karpark Corp., 194 F.2d 616, 1952 U.S. App. LEXIS 2822 (4th Cir. 1952) (decided under former § 160-269).

Editor’s Note.

The repealed section had been enacted by Session Laws 1971, c. 698, s. 1, and required public legislative sessions of the council and that the results of each vote be recorded in the minutes.

Editor’s Note.

Session Laws 2020-3, s. 4.31(j), made subsection (b) of this section, as added by Session Laws 2020-3, s. 4.31(f), effective May 4, 2020, and applicable throughout the duration of any declaration of emergency issued under G.S. 166A-19.20 in effect on or after that date, and further provides: “The actions of any public body in an open meeting conducted via simultaneous communication between March 10, 2020, and the effective date of this section are not deemed invalid due to the use of simultaneous communication to conduct that open meeting.”

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments.

Session Laws 2020-3, s. 4.31(f), added subsection (b). For effective date and applicability, see editor’s note.

Editor’s Note.

Session Laws 2001-409, s. 10, provides that prosecutions for offenses committed before the effective dates of the provisions of the act [Session Laws 2001-409 is effective July 1, 2002] are not abated or affected by the act, and the statutes that would be applicable but for the act remain applicable to those prosecutions.

Session Laws 2015-160, s. 6, made the amendment to this section by Session Laws 2015-160, s. 5, applicable to zoning ordinance changes initiated on or after August 1, 2015.

Session Laws 2019-111, s. 2.8, is a severability clause.

Session Laws 2019-111, s. 3.2, as amended by Session Laws 2020-3, s. 4.33(a), made the amendment of this section by Session Laws 2019-111, s. 2.5(n), effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that: “Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date.” Session Laws 2020-25, s. 51(a), (b), and (d), effective June 19, 2020, repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33(a), and provides: “Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

“(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

“(2) July 1, 2021.”

Session Laws 2020-3, s. 4.31(j), made subsection (b) of this section and the subsection (a) and (c) designations, as added by Session Laws 2020-3, s. 4.31(h), applicable throughout the duration of any declaration of emergency issued under G.S. 166A-19.20 in effect on or after that date, and further provides: “The actions of any public body in an open meeting conducted via simultaneous communication between March 10, 2020, and the effective date of this section are not deemed invalid due to the use of simultaneous communication to conduct that open meeting.”

Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments.

Session Laws 2005-426, s. 5.1(a), effective January 1, 2006, substituted “G.S. 14-234, 160A-381(d), or 160A-388(e1)” for “G.S. 14-234” in the first paragraph.

Session Laws 2013-126, s. 11, effective October 1, 2013, substituted “160A-388(e)(2)” for “160A-388(c1)” at the end of the first sentence in the first paragraph. For applicability, see Editor’s note.

Session Laws 2015-160, s. 5, effective August 1, 2015, inserted “except votes taken under G.S. 160A-385” in the second sentence of the first paragraph. For applicability, see editor’s note.

Session Laws 2019-111, s. 2.5(n), in the first paragraph, substituted “G.S. 14-234 or G.S. 160D-901 ” for “G.S. 14-234, 160A-381(d), or 160A-388(e)(2)” at the end of the first sentence, and substituted “G.S. 160D-601” for “G.S. 160A-385” near the beginning of the second sentence; and substituted “ordinance, except an ordinance on which a public hearing must be held pursuant to G.S. 160D-601 before the ordinance may be adopted, may” for “ordinance may” in the second sentence of the second paragraph. For effective date and applicability, see Editor’s note.

Session Laws 2020-3, s. 4.31(h), effective January 1, 2021, added the subsections (a) and (c) designations to the existing provisions of the section; and added subsection (b). For applicability, see editor’s note.

CASE NOTES

Personnel Policy Must Be Adopted with Formalities to Create Right. —

In North Carolina to create property rights, a personnel policy must not merely be adopted, but must be adopted with the formalities necessary for it to rise to the level of an ordinance, and where plaintiff’s only evidence as to personnel policy was an affidavit from the clerk of the board of commissioners stating that the personnel policy was “adopted” by the town board, the plaintiff was merely an at-will employee with no property interest in his employment and no procedural due process protections. Dunn v. Town of Emerald Isle, 722 F. Supp. 1309, 1989 U.S. Dist. LEXIS 12569 (E.D.N.C. 1989), aff'd, 918 F.2d 955, 1990 U.S. App. LEXIS 25795 (4th Cir. 1990).

Settlement of Annexation Disputes. —

Settlements of annexation disputes under G.S. 160A-50(m) are not “actions having the effect of an ordinance” under G.S. 160A-75 , but are a method of dispute resolution in the annexation process; therefore, there is no need to send the matter back to city council after a settlement is reached. Home Builders Ass'n of Fayetteville N.C. Inc. v. City of Fayetteville, 170 N.C. App. 625, 613 S.E.2d 521, 2005 N.C. App. LEXIS 1072 (2005).

CASE NOTES

Burden of Proof. —

Because a town failed to comply with its obligations under local ordinances and state law by failing to keep official zoning maps on record for public inspection, the appropriate remedy was to place the burden back on the town to establish the location and classification of zoning districts when a landowner began a nonconforming use. Shearl v. Town of Highlands, 236 N.C. App. 113, 762 S.E.2d 877, 2014 N.C. App. LEXIS 958 (2014).

CASE NOTES

Burden of Proof. —

Because a town failed to comply with its obligations under local ordinances and state law by failing to keep official zoning maps on record for public inspection, the appropriate remedy was to place the burden back on the town to establish the location and classification of zoning districts when a landowner began a nonconforming use. Shearl v. Town of Highlands, 236 N.C. App. 113, 762 S.E.2d 877, 2014 N.C. App. LEXIS 958 (2014).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under former statutory provisions.

Judicial Notice Not Taken of Ordinance. —

Courts of general jurisdiction and the Supreme Court will not take judicial notice of a municipal ordinance. High Point Surplus Co. v. Pleasants, 263 N.C. 587 , 139 S.E.2d 892, 1965 N.C. LEXIS 1335 (1965).

Warrant or Indictment to Set Out or Plead Ordinance. —

Criminal prosecution for violation of a municipal ordinance cannot be maintained if the warrant or indictment on which it is based does not set out the ordinance or plead it in a manner permitted by statute. State v. Wiggs, 269 N.C. 507 , 153 S.E.2d 84, 1967 N.C. LEXIS 1097 (1967); State v. W.N.C. Pallet & Forest Prod. Co., 283 N.C. 705 , 198 S.E.2d 433, 1973 N.C. LEXIS 1061 (1973).

Excerpt of Ordinance in Indictment May Be Construed with Entire Ordinance. —

The courts, when called upon to construe an excerpt from an ordinance set out in a bill of indictment, may interpret the excerpt correctly by construing it with the rest of the ordinance, certainly when the entire ordinance is before the court by stipulation of the parties. High Point Surplus Co. v. Pleasants, 263 N.C. 587 , 139 S.E.2d 892, 1965 N.C. LEXIS 1335 (1965).

Nonsuit for Variance Allowed. —

Where a warrant charging disorderly conduct did not contain any allegations, specific or general, to the effect that the prosecution was for violation of a municipal ordinance, but the municipal ordinance was introduced in evidence and the trial proceeded as though defendant had been charged with violation of the ordinance, nonsuit for variance would be allowed. State v. Wiggs, 269 N.C. 507 , 153 S.E.2d 84, 1967 N.C. LEXIS 1097 (1967).

Best Evidence of Zoning Line’s Location. —

While an appellate court did not hold that the plain meaning of G.S. 160A-79 foreclosed other methods of proof, the court did agree that an official map or a copy thereof was the best evidence of a zoning line’s location when a property owner began a nonconforming use. Shearl v. Town of Highlands, 236 N.C. App. 113, 762 S.E.2d 877, 2014 N.C. App. LEXIS 958 (2014).

Ordinance Properly Proved. —

In a personal injury action for damages, the introduction of an ordinance of a town regulating the speed of trains backing upon the track, properly proven, would not be regarded as error on appeal, when it was proved that upon the evidence in the case the jury had found, upon a trial without legal error, that the negligence of defendant’s employees proximately caused the personal injury for which damages were sought in the action. Parker v. Seaboard Air Line Ry., 181 N.C. 95 , 106 S.E. 755, 1921 N.C. LEXIS 25 (1921).

CASE NOTES

Radio and Television Coverage. —

Though radio and television coverage may not be necessary to the conduct of investigative hearings by municipalities, it does not follow that it is unreasonable to permit such coverage; conversely, radio and television coverage is reasonably consistent with the concept of a fully informed public, a concept which is receiving ever increasing support as the public becomes more fully informed. Leak v. High Point City Council, 25 N.C. App. 394, 213 S.E.2d 386, 1975 N.C. App. LEXIS 2271 (1975).

CASE NOTES

Application to Annexation Hearings. —

Nothing in this section indicates that its application should be limited to public hearings not concerning annexation. Thrash v. City of Asheville, 115 N.C. App. 310, 444 S.E.2d 482, 1994 N.C. App. LEXIS 607 (1994).

Radio and Television Coverage. —

Though radio and television coverage may not be necessary to the conduct of investigative hearings by municipalities, it does not follow that it is unreasonable to permit such coverage; conversely, radio and television coverage is reasonably consistent with the concept of a fully informed public, a concept which is receiving ever increasing support as the public becomes more fully informed. Leak v. High Point City Council, 25 N.C. App. 394, 213 S.E.2d 386, 1975 N.C. App. LEXIS 2271 (1975).

Editor’s Note.

Session Laws 2009-403, s. 1, enacted this section as G.S. 160A-83 . It has been renumbered as this section at the direction of the Revisor of Statutes.

Editor’s Note.

Session Laws 2009-403, s. 1, enacted this section as G.S. 160A-84. It has been renumbered as this section at the direction of the Revisor of Statutes.

Part 4. Modification of Form of Government.

Editor’s Note.

Session Laws 1975, c. 664, which added references to option e. in subdivision (6), provided in s. 6(c): “Nothing contained in this section shall be construed to alter any existing form of government of any municipality.”

CASE NOTES

Board of Adjustment. —

If a board of adjustment is created, then it must consist of at least five appointees, each with three-year terms. Such terms may not be reduced by the city council as long as the board of adjustment is in existence. However, the prohibition against the reduction of the length of the terms of the members of an existing board of adjustment does not diminish the authority of the city council to abolish the board. Board of Adjustment v. Town of Swansboro, 108 N.C. App. 198, 423 S.E.2d 498, 1992 N.C. App. LEXIS 930 (1992), aff'd, 334 N.C. 421 , 432 S.E.2d 310, 1993 N.C. LEXIS 338 (1993).

A town’s board of commissioners authority to organize city government pursuant to this section includes the power to abolish a board of adjustment, appointed and created pursuant to G.S. 160A-388, and to thereafter create a new board of adjustment and make appointments thereto. Board of Adjustment v. Town of Swansboro, 334 N.C. 421 , 432 S.E.2d 310, 1993 N.C. LEXIS 338 (1993).

Part 2. Administration of Council-Manager Cities.

Editor’s Note.

Session Laws 1989, c. 49, which amended this section, in s. 2 provided: “Whenever a city manager has served on a county board of education consistent with the requirements set forth in G.S. 160A-147(b) as enacted by Section 1 of this act, provided that such dual office holding commenced no earlier than January 1, 1984, that person may continue to serve in such dual capacity and shall not be deemed to have given up the first office upon assumption of the second office. Actions of neither the county board of education nor the city shall be invalid because of the dual office holding permitted or validated by this act.”

Effect of Amendments.

Session Laws 2009-321, s. 1, effective July 17, 2009, added subsection (b1).

CASE NOTES

Severance Pay Not at Odds with “At Will” Employment. —

An agreement providing severance pay to a town manager does not prohibit, although it may deter, a town from terminating the town manager “at will” in violation of this section. Myers v. Town of Plymouth, 135 N.C. App. 707, 522 S.E.2d 122, 1999 N.C. App. LEXIS 1237 (1999).

CASE NOTES

Role of Manager Under Subdivision (1). —

Subdivision (1) of this section prohibits the city manager from unilateral adoption of a policy establishing funding for stand-by and on-call duty for any city department. The manager’s role is limited to recommending position classification and pay plans to the city council for their ultimate approval. Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125, 1986 N.C. App. LEXIS 2702 (1986).

Liability of City for Malicious Prosecution of Employee by City Manager. —

Action of the city manager in instigating the arrest and prosecution of a municipal employee for embezzlement was done in the performance of a governmental function imposed upon the city manager, and therefore the city could not be held liable in tort by such employee in an action for malicious prosecution. McDonald v. Carper, 252 N.C. 29 , 112 S.E.2d 741, 1960 N.C. LEXIS 386 (1960) (decided under former § 160-349).

Sufficiency of Complaint. —

Plaintiff’s complaint did not sufficiently alleged facts that would support a conclusion that defendant city manager acted in a manner that was contrary to his duty and which he intended to be prejudicial or injurious to another, or acted with a wrongful design to acquire some pecuniary profit or other advantage. Because the appellate court presumed that defendant discharged his duties in good faith and exercised his power in accordance with the spirit and purpose of the law, and plaintiff did not allege facts to the contrary, plaintiff’s complaint failed to support a legal conclusion that defendant acted with malice or corruption. Green v. Howell, 274 N.C. App. 158, 851 S.E.2d 673, 2020 N.C. App. LEXIS 773 (2020).

CASE NOTES

Policy as to Payment of Employees Must Have Council Approval. —

This section makes ineffective any policy as to payment of city employees in the City of Wilmington, a city with the council-manager form of government, without the approval of the Wilmington City Council. Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125, 1986 N.C. App. LEXIS 2702 (1986).

As the evidence before the trial court on a motion for summary judgment filed by a police department did not raise a genuine issue of material fact as to whether numerous current police officers were entitled to a pay increase, because the city council had not approved any pay raise for existing employees of the police department with post-secondary degrees, the trial court properly granted summary judgment in favor of the department and against the contesting officers. City of Asheville v. Bowman, 172 N.C. App. 586, 616 S.E.2d 669, 2005 N.C. App. LEXIS 1808 (2005).

Stand-By and On-Call Duty Policy. —

Administrative policy issued by city manager’s office, which indicated in its initial sentence its purposes “to establish conditions for authorizing stand-by and on-call duty, to define them and to set rates for compensation,” fell within the purview of this section and its mandate as to “schedule of pay.” Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125, 1986 N.C. App. LEXIS 2702 (1986).

Compensation When No Salary Specified. —

Where a municipal corporation engaged a commissioner of its sinking fund under the provisions of its charter, by which the incumbent was employed for a term of years continuously, his employment was that of a public officer, which precluded compensation based upon a quantum meruit, and he could not recover for his services in the absence of express statutory provision. Borden v. City of Goldsboro, 173 N.C. 661 , 92 S.E. 694, 1917 N.C. LEXIS 366 (1917) (decided under former law).

Contract with Town Manager Not Ultra Vires. —

The execution of an employment contract providing severance pay to an at-will town manager was not ultra vires. Myers v. Town of Plymouth, 135 N.C. App. 707, 522 S.E.2d 122, 1999 N.C. App. LEXIS 1237 (1999).

CASE NOTES

Role of City Manager. —

Section 160A-148(1) prohibits the city manager from the unilateral adoption of a policy establishing the funding for stand-by and on-call duty for any city department. The manager’s role is limited to recommending position classification and pay plans to the city council for their ultimate approval. Newber v. City of Wilmington, 83 N.C. App. 327, 350 S.E.2d 125, 1986 N.C. App. LEXIS 2702 (1986).

Editor’s Note.

Session Laws 2003-169, s. 9, made this section effective June 12, 2003, and applicable to claims arising from infection or adverse medical reactions related to smallpox vaccinations incident to the Administration of Smallpox Countermeasures by Health Professionals, section 304 of the Homeland Security Act, Pub. L. No.107-296 (Nov. 25, 2002) (to be codified at 42 U.S.C. § 233(p)) whether the infection or adverse medical reactions occurred before, on, or after June 12, 2003.

Session Laws 2003-169, s. 8, is a severability clause.

Editor’s Note.

This section was originally enacted as G.S. 160A-164.1 by Session Laws 2003-214, s. 5. It has been renumbered as G.S. 160A-164.2 at the direction of the Revisor of Statutes.

Session Laws 2014-100, s. 1.1, provides: “This act shall be known as ‘The Current Operations and Capital Improvements Appropriations Act of 2014.’ ”

Session Laws 2014-100, s. 38.7, is a severability clause.

Effect of Amendments.

Session Laws 2014-100, s. 17.1(nnn), effective July 1, 2014, in the first sentence, substituted “Department of Public Safety” for “Department of Justice” and “G.S. 143B-945” for “G.S. 114-19.14.”

CASE NOTES

Action Under Section Does Not Waive Immunity. —

G.S. 106A-485 provides that the only way a city may waive its governmental immunity is by the purchase of liability insurance. Action by the City under this section does not waive immunity. Blackwelder v. City of Winston-Salem, 332 N.C. 319 , 420 S.E.2d 432, 1992 N.C. LEXIS 487 (1992).

When taxpayers sued county commissioners for entering into a contract that benefitted one of the commissioners, evidence of the amount spent by the county to defend the commissioners was admissible; the actions of one of the commissioners were unquestionably outside the scope of his office, due to his clear violation of the conflict of interest statute, G.S 14-234(a), so that he was not entitled to have his defense provided by the county, and, while the actions of the other commissioners did not rise to a violation of the conflict of interest law, their actions combined with their judgment and knowledge of the actions of the commissioner who was guilty of a conflict of interest raised questions as to whether their conduct was within the course and scope of their office. Gibbs v. Mayo, 162 N.C. App. 549, 591 S.E.2d 905, 2004 N.C. App. LEXIS 252 (2004).

Complaint Alleging Waiver of Governmental Immunity. —

Dismissal of the complaint seeking reimbursement for costs incurred in defending lawsuits brought against the former chief of police during his tenure was not warranted because the former chief sufficiently pled waiver of governmental immunity by alleging the essence of a contract claim: that he had an employment relationship with the city that included an obligation on the part of the city to pay for his defense and that the city failed to do so. Wray v. City of Greensboro, 370 N.C. 41 , 802 S.E.2d 894, 2017 N.C. LEXIS 558 (2017).

CASE NOTES

Subdivision (c)(4) of this section specifically authorizes disclosure by order of a court of competent jurisdiction. Hall v. Helms, 118 F.R.D. 51, 1987 U.S. Dist. LEXIS 12294 (W.D.N.C. 1987).

The plain language of subdivision (c)(4) indicates that a superior court, being a court of competent jurisdiction, has the authority to allow inspection of the personnel files of police officers. In re Brooks, 143 N.C. App. 601, 548 S.E.2d 748, 2001 N.C. App. LEXIS 344 (2001).

This section does not create a civil cause of action. Houpe v. City of Statesville, 128 N.C. App. 334, 497 S.E.2d 82, 1998 N.C. App. LEXIS 37 (1998).

Trial Court Has No Authority to Disclose Confidential Personnel File to General Public. —

Trial court erred in granting a city’s petition for disclosure of transcripts contained in police officers’ personnel files because the trial court was not granted authority under G.S. 160A-168(c)(4) to release portions of the officers’ confidential personnel file to the general public; a court of competent jurisdiction does not have the authority under G.S. 160A-168(c)(4) to order the release of any portion of a city employee’s confidential personnel file to the general public. Release of the Silk Plant Forest Citizen Review Committee's Report & Appendices v. Barker, 216 N.C. App. 268, 719 S.E.2d 54, 2011 N.C. App. LEXIS 2142 (2011).

Plain language of G.S.160A-168(c)(4) allows, by order of the trial court, “examination” by “any person” the relevant “portion” of a city employee’s personnel file, and the natural meaning of these terms indicate a clear intent to maintain the privacy of a city employee’s personnel file except under limited circumstances where examination of only the relevant portion of the file is allowed; the use of the word “examine,” as opposed to “copy” or another word pertaining to mass publication, indicates the legislature’s intent to limit the exposure of personnel files. Release of the Silk Plant Forest Citizen Review Committee's Report & Appendices v. Barker, 216 N.C. App. 268, 719 S.E.2d 54, 2011 N.C. App. LEXIS 2142 (2011).

Ex Parte Petitions for Disclosure Under Subdivision (c)(4). —

An ex parte petition submitted pursuant to subdivision (c)(4) should be accompanied by sworn affidavits or similar evidence, including specific factual allegations detailing reasons justifying disclosure and stating the statutory grounds which allow disclosure, the court should docket petitions submitted and orders entered pursuant to subdivision (c)(4) per its rules for docketing special proceedings, and the Superior Court should make an independent determination that the interests of justice require disclosure of the confidential employment information. In re Brooks, 143 N.C. App. 601, 548 S.E.2d 748, 2001 N.C. App. LEXIS 344 (2001).

Ex parte orders releasing defendant’s personnel and educational records were void ab initio because (1) the State presented insufficient evidence supporting a motion for the orders, and (2) no proceeding invoking a court’s jurisdiction was initiated. State v. Santifort, 257 N.C. App. 211, 809 S.E.2d 213, 2017 N.C. App. LEXIS 1081 (2017).

Official Personnel Decision. —

“Official personnel decision” is an authorized or authoritative judgment or conclusion of or pertaining to employed persons; since “personnel” is a collective noun, the plain meaning of this phrase as it is used in G.S. 160A-168(c1)(4), more specifically refers to authorized or authoritative judgments or conclusions of or pertaining to the employed person about whom the judgment or conclusion is rendered. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, 2013 N.C. App. LEXIS 291 , aff'd, 367 N.C. 184 , 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

“Official personnel decision,” as it is used in G.S. 160A-168(c1)(4) need not be limited only to those determinations that result in a change to an employee’s position of employment as under G.S. 160A-168(a), the information included in a city employee’s personnel file is not limited to information that concerns only changes in employment like promotions, demotions, or transfers, but also concerns non-selection, performance, evaluation forms, and other information in any form gathered by the city with respect to that employee. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, 2013 N.C. App. LEXIS 291 , aff'd, 367 N.C. 184 , 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

Notes, Preliminary Drafts and Internal Communications. —

Based on the common definitions of notes, preliminary drafts and internal communications when G.S. 160A-168(c1)(4) was promulgated, the North Carolina general assembly intends to allow a disclosure exemption under G.S. 160A-168(c1)(4) for written materials that are informal or provisional in character as a dictionary defines a draft as a rough or preliminary sketch of a piece of writing, and defines a note as a brief statement of a fact, experience, etc. written down for review, as an aid to memory, or to inform someone else. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, 2013 N.C. App. LEXIS 291 , aff'd, 367 N.C. 184 , 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

Improper Disclosure. —

Plaintiff police officers stated a claim against defendant city councilor for tortious interference with prospective economic advantage because they plausibly alleged interference without justification as to the improper disclosure of information with respect to each officer and relating to each officer’s performance, promotions, disciplinary actions, evaluation forms, or other aspects of employment with the city pursuant to G.S. 160A-168(a). Alexander v. City of Greensboro, 762 F. Supp. 2d 764, 2011 U.S. Dist. LEXIS 1042 (M.D.N.C. 2011).

Disclosure Required. —

As a city field to make any specific argument as to why the information should not be produced and as plaintiff In a retaliation and gender discrimination action asserted that the information was relevant to an analysis of how her qualifications for employment compared to other applicants hired by the city, the city was directed to provide information regarding the years of driving experience for individual’s named in response to another interrogatory. Barnette v. City of Charlotte, 2012 U.S. Dist. LEXIS 124795 (W.D.N.C. Aug. 31, 2012).

Assuming that the internal affairs files in plaintiff’s personnel file regarding complaints about plaintiff’s conduct as a police officer were notes, preliminary drafts and internal communications concerning an employee under G.S. 160A-168(c1)(4), defendant could not refuse plaintiff’s request to inspect the materials, even though the police chief’s decisions did not result in a change in plaintiff’s employment, as the materials were used by the police chief to make official personnel decisions with respect to plaintiff. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, 2013 N.C. App. LEXIS 291 , aff'd, 367 N.C. 184 , 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

When an informal, provisional, or otherwise preliminary or internal communication, note, or draft concerning an employee is included in his or her personnel file, that communication, note, or draft is subject to the disclosure requirement of G.S. 160A-168(c)(1) and (c1)(4) when such materials are used to make an authorized or authoritative judgment or conclusion with respect to that employee. Wind v. City of Gastonia, 226 N.C. App. 180, 738 S.E.2d 780, 2013 N.C. App. LEXIS 291 , aff'd, 367 N.C. 184 , 751 S.E.2d 611, 2013 N.C. LEXIS 1364 (2013).

In an action against city employees alleging violations of civil rights, sealing documents identified as personnel records was not warranted since the governmental interest in the confidentiality of the personnel records was not sufficiently compelling to overcome the constitutional public right of access to the records, and the employees’ actions in the course of employment formed the very basis of the lawsuit. Johnson v. City of Fayetteville, 2014 U.S. Dist. LEXIS 172229 (E.D.N.C. Dec. 11, 2014).

OPINIONS OF ATTORNEY GENERAL

Written attorney-client communications to a city (including the city manager and city council) on specific personnel matters related to an employee that are more than three years old, and which are confidential under G.S. 160A-168(a), are not public records; by its specific terms, G.S. 160A-168(a) supersedes the requirement in G.S. 132-1.1 that privileged attorney-client communications must be disclosed three years after they are received. See opinion of Attorney General to Mr. Grady Joseph Wheeler, Jr., Esq., Attorney, 2001 N.C. AG LEXIS 15 (5/30/2001).

Editor’s Note.

The number of this section was assigned by the Revisor of Statutes. The number assigned by the enacting act, G.S. 160A-99, was apparently a typographical error.

OPINIONS OF ATTORNEY GENERAL

The provisions of this section and § 153A-99 are applicable to elected officials of counties and cities. See opinion of Attorney General to Mr. William R. Gilkeson, Staff Attorney, N.C. General Assembly, 1998 N.C. Op. Att'y Gen. 1 (1/14/98).

CASE NOTES

Town Clerk. —

Trial court did not err in denying the town’s motion to dismiss the newspaper’s amended complaint for lack of standing and for the alleged failure to join a necessary party, the town clerk, as the newspaper was a party to the action who sought the disclosure of the alleged public records at issue and, thus, the newspaper had standing to request the documents, and it was not necessary to join the town clerk to the action before all necessary parties to the action were before the trial court. Womack Newspapers, Inc. v. Town of Kitty Hawk, 181 N.C. App. 1, 639 S.E.2d 96, 2007 N.C. App. LEXIS 81 (2007).

Editor’s Note.

Session Laws 2014-120, s. 32(b)-(d), provides: “(b) No later than November 1, 2014, and November 1, 2015, the Department of Agriculture and Consumer Services shall report to the Environmental Review Commission on any local government ordinances that impinge on or interfere with any area subject to regulation by the Department.

“(c) No later than November 1, 2014, and November 1, 2015, the Department of Environment and Natural Resources [now Department of Environmental Quality] shall report to the Environmental Review Commission on any local government ordinances that impinge on or interfere with any area subject to regulation by the Department.

“(d) In developing the reports pursuant to Sections 32(b) and 32(c) of this act, the Department of Environment and Natural Resources [now Department of Environmental Quality] and the Department of Agriculture and Consumer Services shall solicit and receive input from the public regarding any local government ordinances that impinge on or interfere with any area subject to regulation by the respective Department.”

Legal Periodicals.

For article, “Regulating Obscenity Through the Power to Define and Abate Nuisances,” see 14 Wake Forest L. Rev. 1 (1978).

For comment, “Municipal Tort Liability for Negligent Failure to Provide Adequate Police Protection,” see 20 Wake Forest L. Rev. 697 (1984).

For note, “Preemption Hogwash: North Carolina’s Judicial Repeal of Local Authority to Regulate Hog Farms in Craig v. County of Chatham,” see 80 N.C.L. Rev. 2121 (2002).

For note, “A First Step in the Wrong Direction: Slavin v. Town of Oak Island and the Taking of Littoral Rights of Direct Beach Access,” see 82 N.C.L. Rev. 1510 (2004).

For article, “Toward a Comprehensive Program for Regulating Vacant or Abandoned Dwellings in North Carolina: The General Police Power, Minimum Housing Standards, and Vacant Property Registration,” see 32 Campbell L. Rev. 1 (2009).

For article, “Searching for the Right Approach: Regulating Short-Term Rentals in North Carolina,” see 96 N.C.L. Rev. 1821 (2018).

For article, “Searching Everywhere for a Section 24(1)(A) Standard: City of Asheville, Town of Boone, and the Unclear Future of Local-State Relations in North Carolina,” see 96 N.C.L. Rev. 1882 (2018).

CASE NOTES

Analysis

• I. In General
• II. Sunday Ordinances
• III. Other Specific Ordinances

Editor’s Note.

The Rules of Civil Procedure, referred to in this section, are found in G.S. 1A-1 .

Session Laws 2021-138, s. 13(d), made the amendments to this section by Session Laws 2021-138, s. 13(b), effective December 1, 2021, and applicable to offenses and violations committed on or after that date.

Session Laws 2021-138, s. 22(a), is a severability clause.

Effect of Amendments.

Session Laws 2013-331, s. 2, effective July 23, 2013, added subsection (h).

Session Laws 2021-138, s. 13(b), rewrote subsection (b); and added subsection (b1). For effective date and applicability, see editor’s note.

CASE NOTES

Procedure for abatement orders in subsection (e) of this section is constitutionally defective and may not be used in enforcing the substantive provisions of a city ordinance. U.T., Inc. v. Brown, 457 F. Supp. 163, 1978 U.S. Dist. LEXIS 16198 (W.D.N.C. 1978).

Legislative Intent. —

Subsection (f) of this section and G.S. 160A-365 demonstrate a general intent by the legislature to defer to the decisions of cities on which remedies and penalties shall be used to achieve enforcement of planning and zoning ordinances. Town of Pine Knoll Shores v. Evans, 104 N.C. App. 79, 407 S.E.2d 895, 1991 N.C. App. LEXIS 990 (1991), modified, 331 N.C. 361 , 416 S.E.2d 4, 1992 N.C. LEXIS 273 (1992).

This Section Limits City’s Choice of Remedies and Penalties. —

Under subsection (f) of this section and G.S. 160A-365, the choice of remedies and penalties for enforcement of planning and zoning ordinances remains with the city. The choice of remedies and penalties, however, is limited to those remedies and penalties available in this section. Town of Pine Knoll Shores v. Evans, 104 N.C. App. 79, 407 S.E.2d 895, 1991 N.C. App. LEXIS 990 (1991), modified, 331 N.C. 361 , 416 S.E.2d 4, 1992 N.C. LEXIS 273 (1992).

Certain Penalties Must Be Authorized to Be Imposed by Court. —

Civil penalties and orders of abatement available under subsections (c) and (d) of this section must be authorized in a city’s ordinance in order to be imposed by a court. That authorization may be either specific or general. Town of Pine Knoll Shores v. Evans, 104 N.C. App. 79, 407 S.E.2d 895, 1991 N.C. App. LEXIS 990 (1991), modified, 331 N.C. 361 , 416 S.E.2d 4, 1992 N.C. LEXIS 273 (1992).

Court May Issue Injunctions and Orders of Abatement Despite Absence of Ordinance Authorization. —

The trial court may, in the absence of authorization in a city ordinance, and upon the request of the city, issue injunctions and orders of abatement for violation of ordinances that makes unlawful a condition existing upon or use made of a real property. Town of Pine Knoll Shores v. Evans, 104 N.C. App. 79, 407 S.E.2d 895, 1991 N.C. App. LEXIS 990 (1991), modified, 331 N.C. 361 , 416 S.E.2d 4, 1992 N.C. LEXIS 273 (1992).

Civil Penalty Not Allowed Where Not Authorized by Ordinance. —

Judgment of the trial court permitting defendants to avoid, by payment of $2,000.00 to town, removing a deck which town contended defendants constructed in violation of town zoning ordinance was improper where a civil penalty was not authorized by town’s ordinance and was not authorized by subsection (e); the fact that the civil penalty was to be paid at the option of defendants was immaterial, as where a party violating a city ordinance is given the option of paying a civil penalty, such optional penalty must nonetheless be authorized by the ordinance. Town of Pine Knoll Shores v. Evans, 104 N.C. App. 79, 407 S.E.2d 895, 1991 N.C. App. LEXIS 990 (1991), modified, 331 N.C. 361 , 416 S.E.2d 4, 1992 N.C. LEXIS 273 (1992).

Obscenity Ordinance Held Unconstitutional. —

The procedural provisions of a city ordinance regulating commercial exploitation of obscenity, which provided civil penalties for violation and authorized the city manager to issue a citation to the violator describing the violation and assessing the penalty and to include in the citation notice that the city manager would instruct the city attorney to commence suit under subsection (c) of this section if the penalty was not paid in five days, was unconstitutional. U.T., Inc. v. Brown, 457 F. Supp. 163, 1978 U.S. Dist. LEXIS 16198 (W.D.N.C. 1978).

Enforcement of Ordinances Through Injunctive Relief. —

Although the General Assembly has given to municipalities the power to enforce ordinances through injunctive relief, a municipality must comply with the requirements of G.S. 1A-1 , Rule 65, which requires a clear showing of specific facts of irreparable injury; the availability of injunctive relief as the appropriate ultimate remedy is not prima facie evidence establishing a municipality’s right to injunctive relief prior to the resolution of a matter on its merits. Town of Knightdale v. Vaughn, 95 N.C. App. 649, 383 S.E.2d 460, 1989 N.C. App. LEXIS 823 (1989), cert. denied, Thrash v. Asheville, 326 N.C. 54 , 389 S.E.2d 105, 1990 N.C. LEXIS 29 (1990).

Parking Violations. —

G.S. 1-54(2) did not bar a City’s recovery against a driver for unpaid taxes and fines as it applied only to actions based on statutes that expressly provided for a penalty or forfeiture, the purpose of which was punitive, and the penalty at issue was civil in nature; G.S. 160A-175 granted the City the power to impose fines and penalties for the violation of its ordinances, and the penalties assessed against the driver were assessed pursuant to Greensboro, N.C. Code of Ordinances § 16-71, which was a municipal ordinance rather than a statute, for parking violations. City of Greensboro v. Morse, 197 N.C. App. 624, 677 S.E.2d 505, 2009 N.C. App. LEXIS 745 (2009).

Disposition of Proceeds of Civil Action to Recover Parking Penalties. —

In any case in which a person is prosecuted and convicted and a fine is imposed for the violation of a parking ordinance, the fine so imposed must be paid, by directive of N.C. Const., Art. IX, § 7, to the county school fund. However, if a city chooses to maintain civil actions to recover the penalties imposed for parking violations, the proceeds of any judgment obtained would belong to the city, and the school fund would have no claim thereon. Cauble v. City of Asheville, 45 N.C. App. 152, 263 S.E.2d 8, 1980 N.C. App. LEXIS 2626 , aff'd in part and rev'd in part, 301 N.C. 340 , 271 S.E.2d 258, 1980 N.C. LEXIS 1167 (1980).

City had the authority to require confirmation of a sexually oriented business’s zoning compliance in its business privilege license application and the authority to reject the business’s privilege license application where zoning compliance was found wanting. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, 2004 N.C. App. LEXIS 267 (2004).

Public Trust Rights. —

It was error to grant a town judgment notwithstanding a verdict in a condemnation case on a theory that the public trust doctrine made the taking noncompensable because (1) the theory was not raised on directed verdict, (2) the sua sponte order was entered months after final judgment, and (3) the town was estopped from asserting the town possessed rights taken as the town’s complaint said the town did not, the town did not raise the issue at an “all other issues” hearing, at which the town disavowed the public trust doctrine, the town did not immediately appeal a vital ruling that the town condemned the property, and landowners introduced a scintilla of supporting evidence. Town of Nags Head v. Richardson, 260 N.C. App. 325, 817 S.E.2d 874, 2018 N.C. App. LEXIS 649 (2018), cert. denied, 372 N.C. 359 , 828 S.E.2d 27, 2019 N.C. LEXIS 542 (2019), aff'd, 372 N.C. 349 , 828 S.E.2d 154, 2019 N.C. LEXIS 523 (2019).

CASE NOTES

City’s Code Not Applicable Outside of City Limits. —

Trial court’s order requiring a corporation to pay a city for water the corporation drew from its own well was reversed as, although under G.S. 160A-176 , the city could have made its ordinances applicable on rights of way, Lumberton, N.C. Code of Ordinances § 23-22(a), (b), and (d) were only applicable to businesses within the city limits; the corporation’s facility was outside of the city limits. City of Lumberton v. United States Cold Storage, Inc., 178 N.C. App. 305, 631 S.E.2d 165, 2006 N.C. App. LEXIS 1397 (2006).

Editor’s Note.

The section above has been codified at the direction of the Revisor of Statutes.

Editor’s Note.

Session Laws 1991, c. 494, ss. 1 and 2, effective July 2, 1991, as amended by Session Laws 1991 (Reg. Sess., 1992), c. 801, effective June 29, 1992, has been codified as this section at the direction of the Revisor of Statutes.

Legal Periodicals.

For note, “A First Step in the Wrong Direction: Slavin v. Town of Oak Island and the Taking of Littoral Rights of Direct Beach Access,” see 82 N.C.L. Rev. 1510 (2004).

Effect of Amendments.

Session Laws 2004-203, s. 55, effective August 17, 2004, inserted “Calabash” preceding “Cape Carteret” in subsection (b).

CASE NOTES

As to unconstitutionality of solicitation ordinance containing 25% cost-of-solicitation limitation, as applied to unincorporated association formed for exerting political influence on state level, see Carolina Action v. Pickard, 465 F. Supp. 576, 1979 U.S. Dist. LEXIS 14502 (W.D.N.C. 1979). See also, Carolina Action v. Pickard, 420 F. Supp. 310, 1976 U.S. Dist. LEXIS 13170 (W.D.N.C. 1976).

Ordinance Requiring License to Beg or Solicit Contributions on Streets Upheld Under Former Law. —

A city ordinance under former G.S. 160-200, requiring a license to be issued by the municipal authorities to beg upon the city streets or to solicit contributions for charitable or religious purposes, in accordance with whether the person or purpose was ascertained by such authorities as worthy or whether the moneys solicited would be properly applied, was a valid and undiscriminating exercise of a police power, and not unlawful as an interference with religious liberty of people or an obstruction to the lawful pursuit of business. State v. Hundley, 195 N.C. 377 , 142 S.E. 330, 1928 N.C. LEXIS 99 (1928) (decided under former § 160-200).

As to power to regulate peddling prior to 1963 amendment to former G.S. 160-200, authorizing municipalities to prohibit peddlers, etc., see State v. Byrd, 259 N.C. 141 , 130 S.E.2d 55, 1963 N.C. LEXIS 511 (1963).

CASE NOTES

No Question as to Which Ordinance a County Sought to Enforce. —

In a declaratory judgment action wherein an amended ordinance was the only ordinance codified in the county’s code at the time the county filed its complaint to enforce the amended ordinance, which required sexually oriented businesses to become licensed among other requirements, the trial court did not err by denying the businesses’ motion to dismiss the county’s complaint for failing to plead in the complaint the section number and caption of the county ordinance sought to be enforced, as it was clear to the businesses what ordinance the county sought to enforce. Pitt County v. Deja Vue, Inc., 185 N.C. App. 545, 650 S.E.2d 12, 2007 N.C. App. LEXIS 1937 (2007).

CASE NOTES

Sunday closing ordinance which singled out and banned the operation of billiard halls on Sunday, but permitted other businesses which provided facilities for recreation, sports and amusements, which were potentially as equally disruptive, violated the equal protection clauses of the North Carolina and United States Constitutions. State v. Greenwood, 280 N.C. 651 , 187 S.E.2d 8, 1972 N.C. LEXIS 1287 (1972).

Regulation of Dance Halls. —

Under express provisions of former G.S. 160-200, cities had power, among other things, to license, prohibit, and regulate dance halls, and in the interest of public morals to provide for the revocation of such licenses, as a valid exercise of the State’s inherent police power, made applicable to cities and towns generally. State v. Vanhook, 182 N.C. 831 , 109 S.E. 65, 1921 N.C. LEXIS 348 (1921).

An ordinance requiring the consent of the board of directors of the city before keeping a dance hall therein was not objectionable as an arbitrary exercise of power, or as being at the pleasure of the board, but came within its limited legal discretion, which the courts would not permit it to abuse, but would not disturb in the absence of its abusive use. State v. Vanhook, 182 N.C. 831 , 109 S.E. 65, 1921 N.C. LEXIS 348 (1921) (decided under former § 160-200).

Regulation of Obscenity. —

Nothing in G.S. 14-190.1 to 14-190.9, statewide laws relating to obscene literature and exhibitions and to indecent exposure, expresses or indicates an intent by the General Assembly to preclude cities and towns under G.S. 160A-174 and this section from enacting and enforcing ordinances requiring a higher standard of conduct or condition within their respective jurisdictions. State v. Tenore, 280 N.C. 238 , 185 S.E.2d 644, 1972 N.C. LEXIS 1224 (1972).

Editor’s Note.

Former G.S. 160A-181.1 pertained to the regulation of sexually oriented businesses.

Session Laws 2019-111, s. 2.8, is a severability clause.

Session Laws 2019-111, s. 3.2 provided for the delayed repeal of this section, effective January 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that “Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date.” Session Laws 2020-3, s. 4.33(a), extended the delayed repeal of this section, making it effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date. Session Laws 2020-25, s. 51(a), (d), repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33, effective June 19, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Session Laws 2020-25, s. 51(b), provides: “Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

“(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

“(2) July 1, 2021.”

CASE NOTES

Constitutionality of City Zoning Ordinances. —

City zoning requirements regarding sexually oriented businesses set forth by the city’s zoning ordinances, pursuant to G.S. 160A-181.1 , and imposed upon the city tax collector by a city ordinance, comported with the Constitutional requirements established by the United States Supreme Court; therefore, the city possessed the authority to allow the city tax collector to assess zoning compliance as part of the administration of the business privilege license tax and to deny a business privilege license to a sexually oriented business because the business sought to operate in violation of a zoning ordinance. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, 2004 N.C. App. LEXIS 267 (2004).

County ordinance requiring licensure and other conditions upon sexually oriented businesses was upheld as within the police powers of the county, pursuant to G.S. 153A-121 , as no procedural or constitutional errors occurred by a trial court declaring the ordinance enforceable and requiring unlicensed businesses to cease operation. Pitt County v. Deja Vue, Inc., 185 N.C. App. 545, 650 S.E.2d 12, 2007 N.C. App. LEXIS 1937 (2007).

CASE NOTES

Prevention of Disturbing Noises. —

The protection of the well-being and tranquility of a community by the reasonable prevention of disturbing noises is within the city’s power to control nuisances. State v. Dorsett, 3 N.C. App. 331, 164 S.E.2d 607, 1968 N.C. App. LEXIS 857 (1968) (decided prior to enactment of this section) .

Editor’s Note.

Session Laws 2001-512, s. 15, provides: “This act shall not be construed to obligate the General Assembly to appropriate any funds to implement the provisions of this act. Every agency to which this act applies shall implement the provisions of this act from funds otherwise appropriated or available to the agency.”

CASE NOTES

Through this section and G.S. 160A-174 the legislature has delegated to the municipalities a part of its police power which may be exercised to protect or promote the health, morals, order, safety and general welfare of society. Town of Atlantic Beach v. Young, 307 N.C. 422 , 298 S.E.2d 686, 1983 N.C. LEXIS 1093 (1983).

Scope of Review of Ordinance. —

Where town passed ordinance pursuant to its police power as provided under this section and expressly stated that its purpose is to protect the health, safety and welfare of the town, review of validity of such ordinance will be to determine if the police power has been exercised within the constitutional limitations imposed by both the state and federal Constitutions. Such review will not include an analysis of the motives which prompted the passage of this ordinance, because so long as an act is not forbidden, the wisdom of the enactment is exclusively a legislative decision. Town of Atlantic Beach v. Young, 307 N.C. 422 , 298 S.E.2d 686, 1983 N.C. LEXIS 1093 (1983).

Ordinance forbidding the keeping of cows within a certain portion of the city is valid. State v. Stowe, 190 N.C. 79 , 128 S.E. 481, 1925 N.C. LEXIS 13 (1925) (decided under prior similar provisions).

Animal Control Ordinance Held Constitutional. —

Nashville, N.C. Ordinance § 4.3, which limits the number of dogs allowed on property, is not unconstitutional; the ordinance did not set an arbitrary, immutable limit on the number of pets, but, rather, the number of dogs allowed was based on the square footage of the lot, and there was no restriction on the number of dogs less than five months old. The record revealed that the town enacted the ordinance for the purpose of reducing noise and odor problems within the city limits, which were clearly legitimate public purposes, and a limitation on the number of dogs per lot was directly connected to these objectives. State v. Maynard, 195 N.C. App. 757, 673 S.E.2d 877, 2009 N.C. App. LEXIS 263 (2009).

CASE NOTES

Contract May Extend Limits of Protection. —

By use of a contract between a county and a city, rather than the provisions of this section, a city can extend its protection against accumulated garbage and refuse for more than one mile from its territorial limits. Koontz v. City of Winston-Salem, 280 N.C. 513 , 186 S.E.2d 897, 1972 N.C. LEXIS 1276 (1972).

Adult Business Ordinance Held Vague. —

Because a county’s adult business ordinance was ambiguous as to whether it applied to businesses outside a city’s business limits or only to businesses outside the city’s extraterritorial jurisdiction, it was interpreted as applying only to the latter. State v. Baggett, 133 N.C. App. 47, 514 S.E.2d 536, 1999 N.C. App. LEXIS 339 (1999).

City’s Demolition of a House Without Giving Notice. —

Trial court erred in granting summary judgment to the city on the homeowner’s claim for violation of her due process rights because, although the homeowner’s house was in severe disrepair, the city violated her due process rights by demolishing the home without giving her notice, as the condition of the house did not pose an imminent threat to the public, warranting its immediate demolition; accordingly, the appellate court reversed the judgment and remanded the case for an entry summary judgment in favor of the homeowner and a trial on the issue of damages. Monroe v. City of New Bern, 158 N.C. App. 275, 580 S.E.2d 372, 2003 N.C. App. LEXIS 1053 (2003).

Editor’s Note.

The preamble to Session Laws 2005-441, reads: “Whereas, the clearing of obstructions in streams, such as dead trees, fallen tree limbs, root balls, underbrush, and trash and debris furthers the health, safety, and welfare of the State’s citizens by allowing such streams to function more efficiently to remove stormwater, thus reducing flooding; and

“Whereas, local governments are deterred from engaging in stream-clearing activities by the possibility that they will become legally responsible for regular stream clearing, or the possibility that they will become legally responsible for the impact on private properties of natural events such as flooding, which have never been the legal responsibility of local governments; and

“Whereas, many private landowners do not have the resources to clear obstructions from the streams that are located on their property, and it is in the public interest to facilitate the establishment of stream-clearing programs by local governments; Now, therefore,”

Editor’s Note.

Former G.S. 160A-199 pertained to the regulation of outdoor advertising.

Session Laws 2019-111, s. 2.8, is a severability clause.

Session Laws 2019-111, s. 3.2 provided for the delayed repeal of this section, effective January 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that “Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date.” Session Laws 2020-3, s. 4.33(a), extended the delayed repeal of this section, making it effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date. Session Laws 2020-25, s. 51(a), (d), repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33, effective June 19, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Session Laws 2020-25, s. 51(b), provides: “Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

“(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

“(2) July 1, 2021.”

Editor’s Note.

Former G.S. 160A-200 pertained to an annual notice to chronic violators of overgrown vegetation ordinances. For annual notice to chronic violators of public nuisance or overgrown vegetation ordinance, see G.S. 160A-200.1 .

The section was codified at the direction of the Revisor of Statutes.

Session Laws 2015-246, s. 20, is a severability clause.

Editor’s Note.

Session Laws 2009-287, s. 4, made this section effective July 10, 2009. Section 4 further provides: “A municipality or county may adopt an ordinance under G.S. 160A-200.1 or G.S. 153A-140.2 when this act becomes law, but the ordinances may not become effective prior to October 1, 2009. The repeal in this act of any local act does not affect the rights or liabilities of a municipality or county that arose during the time the act was in effect, or under an ordinance adopted under such an act. If any municipality or county adopted an ordinance under any act repealed by this act, and the ordinance would be permitted under G.S. 160A-200.1 or G.S. 153A-140.2 , as enacted by this act, that ordinance shall remain in effect until amended or repealed by that municipality or county.”

Session Laws 2015-246, s. 20, is a severability clause.

Effect of Amendments.

Session Laws 2013-151, s. 1, effective June 19, 2013, inserted “registered or” in the second sentence, and added the third, fourth and fifth sentences.

Session Laws 2015-246, s. 1(b), effective September 23, 2015, inserted “or overgrown vegetation” in the section heading; added the subsection (a), (b), and (d) designations; inserted subsection (c); and added “For purposes of this section” in present subsection (d).

Editor’s Note.

Former G.S. 160A-201 pertained to limitations on regulating solar collectors.

Session Laws 2019-111, s. 2.8, is a severability clause.

Session Laws 2019-111, s. 3.2 provided for the delayed repeal of this section, effective January 1, 2021, and applicable to local government development regulation decisions made on or after that date, and further provided that “Part II of this act clarifies and restates the intent of existing law and applies to ordinances adopted before, on, and after the effective date.” Session Laws 2020-3, s. 4.33(a), extended the delayed repeal of this section, making it effective August 1, 2021, and applicable to local government development regulation decisions made on or after that date. Session Laws 2020-25, s. 51(a), (d), repealed Session Laws 2019-111, s. 3.2, and Session Laws 2020-3, s. 4.33, effective June 19, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

Session Laws 2020-25, s. 51(b), provides: “Part II of S.L. 2019-111 is effective when this act becomes law [June 19, 2020]. Part II of S.L. 2019-111 clarifies and restates the intent of law existing on the effective date of this act [June 19, 2020] and applies to ordinances adopted before, on, and after that date. Valid local government development regulations that are in effect at the time of the effective date of Part II of S.L. 2019-111 remain in effect but local governments shall amend those regulations to conform to the provisions of Part II of S.L. 2019-111 on or before July 1, 2021. Part II of S.L. 2019-111 applies to local government development regulation decisions made on or after the earlier of:

“(1) The effective date of the amendments to local development regulations made to conform to the provisions of Part II of S.L. 2019-111 or

“July 1, 2021.”

Effect of Amendments.

Session Laws 2009-553, s. 1, effective December 1, 2009, substituted “residential property” for “detached single-family residence” twice in the first sentence of subsection (a) and at the end of subsection (b); and added the last sentence in subsection (a).

Editor’s Note.

Session Laws 2015-192, s. 3, made this section effective August 5, 2015.

Editor’s Note.

Session Laws 2020-18, s. 5(e), made this section effective June 12, 2020.

Session Laws 2020-18, s. 16(a), is a severability clause.

Effect of Amendments.

Session Laws 2020-74, s. 21(b), effective July 1, 2020, substituted “G.S. 160D-903(a)” for “G.S. 153A-340(b)” in the first sentence.

Editor’s Note.

Session Laws 2013-384, s. 5, made this section effective August 23, 2013.

Session Laws 2013-384, s. 4(a), enacted this section as G.S. 160A-203 ; it was recodified as G.S. 160A-205 at the direction of the Revisor of Statutes.

Session Laws 2015-246, s. 20, is a severability clause.

Effect of Amendments.

Session Laws 2015-246, s. 1.5, effective September 23, 2015, inserted “structures that are uninhabitable and without water and sewer services for more than 120 days, as determined by the city with notice provided to the owner of record of the determination by certified mail at the time of the determination” in the second sentence of subsection (a); and added “except as provided in subsection (a) of this section” at the end of subsection (b).

CASE NOTES

Police Power. —

Passage of ordinances constituted legitimate uses of the town’s police power because the regulation of the use of certain beach equipment, on public trust areas of the ocean beaches within the town’s jurisdiction, to facilitate the free movement of emergency and service vehicles, was within the scope of the police power. Nies v. Town of Emerald Isle, 244 N.C. App. 81, 780 S.E.2d 187, 2015 N.C. App. LEXIS 958 (2015), cert. denied, 138 S. Ct. 75, 199 L. Ed. 2d 184, 2017 U.S. LEXIS 4978 (2017).

Public Trust Rights. —

It was error to grant a town judgment notwithstanding a verdict in a condemnation case on a theory that the public trust doctrine made the taking noncompensable because (1) the theory was not raised on directed verdict, (2) the sua sponte order was entered months after final judgment, and (3) the town was estopped from asserting the town possessed rights taken as the town’s complaint said the town did not, the town did not raise the issue at an “all other issues” hearing, at which the town disavowed the public trust doctrine, the town did not immediately appeal a vital ruling that the town condemned the property, and landowners introduced a scintilla of supporting evidence. Town of Nags Head v. Richardson, 260 N.C. App. 325, 817 S.E.2d 874, 2018 N.C. App. LEXIS 649 (2018), cert. denied, 372 N.C. 359 , 828 S.E.2d 27, 2019 N.C. LEXIS 542 (2019), aff'd, 372 N.C. 349 , 828 S.E.2d 154, 2019 N.C. LEXIS 523 (2019).

Demolition of Building Properly Ordered. —

Superior court did not err in upholding the decision of a town board of commissioners, which affirmed the demolition of an owner’s motel. because the board acted within its statutory authority and after a de novo hearing; the respective orders of the town building inspector and the board made it clear that the structure was condemned because it was determined to be unsafe, and those orders were proper. Six at 109, LCC v. Town of Holden Beach, 238 N.C. App. 469, 767 S.E.2d 400, 2014 N.C. App. LEXIS 1338 (2014).

Editor’s Note.

Session Laws 2015-246, s. 21, made this section effective September 23, 2015.

Session Laws 2016-94, s. 14.13(f), provides: “Impervious surface added in a city or county within the Jordan Lake watershed after July 26, 2013, and prior to December 31, 2020, shall, notwithstanding any other provision of law or associated regulations adopted by the Environmental Management Commission, not be counted as built-upon area for purposes of a city’s or county’s calculation of nutrient loading targets under a Development Stormwater Rule. Pursuant to G.S. 153A-145.6 and G.S. 160A-205.1 , cities and counties shall not enforce Development Stormwater Rules through any ordinance, code, standard, committed element, condition, or contractual obligation imposed by, agreed upon, or accepted by a county or city. For purposes of this subdivision, ‘Development Stormwater Rule’ shall mean 15A NCAC 2B.0265 (Stormwater Management for New Development) and 15A NCAC 2B.0266 (Stormwater Management for Existing Development), or equivalent or more stringent ordinance, code, standard, or committed element related to nutrient-loading targets in the Jordan Lake watershed.”

Session Laws 2016-94, s. 1.2, provides: “This act shall be known as the ‘Current Operations and Capital Improvements Appropriations Act of 2016.’ ”

Session Laws 2016-94, s. 39.4, provides: “Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2016-2017 fiscal year, the textual provisions of this act apply only to funds appropriated for, and activities occurring during, the 2016-2017 fiscal year.”

Session Laws 2016-94, s. 39.7, is a severability clause.

Editor’s Note.

Session Laws 2015-294, s. 15(b), enacted this section as G.S. 160A-499.4 . As the intent of the General Assembly was to codify this section in Article 8 of Chapter 160A, it has been redesignated as this section at the direction of the Revisor of Statutes.

Session Laws 2015-294, s. 17, made this section effective October 29, 2015.

Editor’s Note.

Session Laws 2017-87, s. 21, made this section effective June 30, 2017.

Session Laws 2017-87, s. 19(a), (b), provides: “(a) Except as otherwise provided, the Alcoholic Beverage Control (ABC) Commission shall adopt temporary rules to implement the provisions of this act. Temporary rules adopted in accordance with this section shall remain in effect until permanent rules that replace the temporary rules become effective.

“(b) Any rule or policy adopted by the ABC Commission that does not comply with the provisions of this act shall be null, void, and without effect.”

Editor’s Note.

Session Laws 2021-150, s. 33.3, made this section, as added by Session Laws 2021-150, s. 20.2, effective September 10, 2021.

Editor’s Note.

Session Laws 2021-150, s. 33.3, made this section, as added by Session Laws 2021-150, s. 21.2, effective September 10, 2021.

Editor’s Note.

Session Laws 2012-152, s. 6, as amended by Session Laws 2012-194, s. 61.5(b), and as amended by Session Laws 2015-109, s. 1, provides in part: “Sections 2, 4, and 5 of this act become effective July 1, 2013. After July 1, 2013, cities and counties shall not renew any contingency fee-based contracts for these services. After July 1, 2013, cities and counties shall not assign further audits on a contingency fee basis to an auditing firm under a contract that meets all the following conditions: (i) the contract would have been prohibited under this act had the contract been entered into after July 1, 2013, and (ii) the contract allows the assignment of audits on a discretionary basis.”

Session Laws 2012-189, ss. 1 and 2, provide: “SECTION 1. The Revenue Laws Study Committee may study whether municipalities should be granted the authority to levy a local option sales tax for the purpose of providing dedicated funding for beach nourishment and other natural resources preservation and report its findings, together with any recommended legislation, to the 2013 Regular Session of the General Assembly upon its convening.

“SECTION 2. The Revenue Laws Study Committee may study the taxation and valuation of leasehold interests in exempt real property and report its findings, together with any recommended legislation, to the 2013 Regular Session of the General Assembly upon its convening.”

Session Laws 2016-103, s. 9(c), provides: “A city may not impose a fee or charge on businesses listed in G.S. 160A-206(b) for activities conducted in the city’s right-of-way, except fees or charges not exceeding those in effect as of June 1, 2016, or payments under agreements subject to G.S. 62-350 .”

Session Laws 2016-103, s. 9(d), provides: “Subsection (c) of this section is effective when it becomes law [July 22, 2016] and is repealed effective July 1, 2017.”

Effect of Amendments.

Session Laws 2012-152, s. 5, added the third sentence. For effective date and applicability, see editor’s note.

Session Laws 2015-6, s. 2.18(a), effective April 9, 2015, designated the existing language as subsection (a); added the subsection (a) heading; and added subsection (b).

Legal Periodicals.

For article, “Searching Everywhere for a Section 24(1)(A) Standard: City of Asheville, Town of Boone, and the Unclear Future of Local-State Relations in North Carolina,” see 96 N.C.L. Rev. 1882 (2018).

CASE NOTES

Editor’s Note. —

Some of the cases cited below were decided under former statutory provisions.

City having power to levy a heavy tax on “gift enterprises” must restrict this tax to enterprises that are of a lottery nature. A dealer in trading stamps cannot be taxed, for the tax cannot be applied to a business merely because of its peculiarity. City of Winston v. Beeson, 135 N.C. 271 , 47 S.E. 457, 1904 N.C. LEXIS 29 (1904).

Recovery of Excess License Tax. —

In order to recover money paid a municipality as a license tax in excess of the amount the town was lawfully authorized to collect, and in the absence of statutory regulations, or under the common law, it is necessary that the one so paying should have done so under protest at the time or under circumstances of duress or such as would endanger his person or property, and where the payment has been voluntarily made, the action may not be successfully maintained. Blackwell v. City of Gastonia, 181 N.C. 378 , 107 S.E. 218, 1921 N.C. LEXIS 81 (1921).

Power to Appoint Special Tax Collector. —

Whenever the authorities of a town are commanded to levy and collect taxes, they may appoint a special tax collector to collect the same. But this power to appoint such a collector is additional, and does not abridge their right to require the collection to be made by the regular officer appointed for that purpose. Webb v. Town of Beaufort, 88 N.C. 496 , 1883 N.C. LEXIS 111 (1883).

Authority to Require Compliance with Zoning Requirements. —

City had the authority to require confirmation of a sexually oriented business’s zoning compliance in its business privilege license application and the authority to reject the business’s privilege license application where zoning compliance was found wanting. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, 2004 N.C. App. LEXIS 267 (2004).

OPINIONS OF ATTORNEY GENERAL

Session Laws 2001-439 and 2002-94 pertaining to the levy of an occupancy tax by cities in Avery County did not specifically authorize the levying of the tax throughout the entire town of Seven Devils, which is located within both Avery and Watagua counties. See opinion of Attorney General to Rebecca Eggers-Gryder, Eggers, Eggers, Eggers, and Eggers, 2003 N.C. Op. Att'y Gen. 1 (1/23/03).

Editor’s Note.

Former subdivision (c)(27a) was renumbered as present (c)(27b) to facilitate alphabetization.

Subdivision (c)(10b) as added by Session Laws 2010-167, s. 4(d), was renumbered as subdivision (c)(12a) at the direction of the Revisor of Statutes.

Session Laws 2013-360, s. 15.28(f), provides: “The Revisor of Statutes may conform names and titles changed by this section and may correct statutory references as required by this section throughout the General Statutes. In making the changes authorized by this section, the Revisor may also adjust subject and verb agreement and the placement of conjunctions.” Pursuant to this authority, a reference to G.S. 158-12 has been removed from subdivision (c)(10b) at the direction of the Revisor of Statutes.

Session Laws 2013-360, s. 38.5, is a severability clause.

Effect of Amendments.

Session Laws 2010-167, s. 4(d), effective August 2, 2010, added subdivision (c)(10b) (now (12a)).

Session Laws 2018-5, s. 38.8(a), added subdivision (c)(26b). For effective date and applicability, see editor’s note.

Legal Periodicals.

For survey of 1981 administrative law, see 60 N.C.L. Rev. 1165 (1982).

CASE NOTES

The word “property” includes moneys, credits, investments, and other choses in action. Redmond v. Commissioners of Tarboro, 106 N.C. 122 , 10 S.E. 845, 1890 N.C. LEXIS 278 (1890) (decided under former statutory provisions).

Editor’s Note.

Former G.S. 160A-211 pertained to privilege license taxes.

CASE NOTES

Editor’s Note. —

Many of the cases cited below were decided under former similar statutory provisions.

Constitutionality. —

Public Laws 1929, c. 345, s. 162, imposing a license tax of $50.00 for each store operated under the same ownership or management where there was more than one store so operated, was held constitutional and valid. Great Atl. & Pac. Tea Co. v. Maxwell, 199 N.C. 433 , 154 S.E. 838, 1930 N.C. LEXIS 139 (1930), aff'd, 284 U.S. 575, 52 S. Ct. 26, 76 L. Ed. 500, 1931 U.S. LEXIS 485 (1931).

That an ordinance imposing a privilege license tax on cyber-gambling businesses taxed each computer terminal within each business did not mean it unlawfully classified property for taxation. The city was not taxing individual computer terminals for the sake of taxing computers, but was taxing businesses for the privilege of carrying out cyber-gambling through the use of computer terminals, and such a tax was authorized by G.S. 160A-211 . IMT, Inc. v. City of Lumberton, 219 N.C. App. 36, 724 S.E.2d 588, 2012 N.C. App. LEXIS 291 (2012), rev'd, 366 N.C. 456 , 738 S.E.2d 156, 2013 N.C. LEXIS 271 (2013).

Taxpayers’ claim that a city’s privilege license tax on cyber-gambling establishments violated N.C. Const. Art. V, § 2(1) by imposing an unjust and inequitable taxation scheme failed because they provided no evidence that the tax would completely deprive them of all profit associated with their businesses. IMT, Inc. v. City of Lumberton, 219 N.C. App. 36, 724 S.E.2d 588, 2012 N.C. App. LEXIS 291 (2012), rev'd, 366 N.C. 456 , 738 S.E.2d 156, 2013 N.C. LEXIS 271 (2013).

City’s privilege license tax on cyber-gambling establishments was not invalid because it exempted state-endorsed lotteries from taxation, as the state-endorsed lotteries provided net revenues to the state Education Lottery Fund and thus reasonably constituted a separate classification from unendorsed gambling. IMT, Inc. v. City of Lumberton, 219 N.C. App. 36, 724 S.E.2d 588, 2012 N.C. App. LEXIS 291 (2012), rev'd, 366 N.C. 456 , 738 S.E.2d 156, 2013 N.C. LEXIS 271 (2013).

City’s privilege license tax on cyber-gambling establishments did not violate N.C. Const. art. V, § 2(2) because the tax uniformly applied to all persons engaged in the cyber-gambling business. IMT, Inc. v. City of Lumberton, 219 N.C. App. 36, 724 S.E.2d 588, 2012 N.C. App. LEXIS 291 (2012), rev'd, 366 N.C. 456 , 738 S.E.2d 156, 2013 N.C. LEXIS 271 (2013).

Purpose. —

Former statute imposed a license tax for the purpose of raising revenue, and not an ad valorem tax. Nor did the statute seek to regulate chain stores under the police power, and the tax was in accord with the fiscal policy of the State of raising revenue for State purposes by the imposition of taxes on trades, professions, franchises and incomes, and leaving to the counties and municipalities for their support ad valorem taxes on real and personal property. Great Atl. & Pac. Tea Co. v. Maxwell, 199 N.C. 433 , 154 S.E. 838, 1930 N.C. LEXIS 139 (1930), aff'd, 284 U.S. 575, 52 S. Ct. 26, 76 L. Ed. 500, 1931 U.S. LEXIS 485 (1931).

Prior Law Invalid. —

Prior law which imposed a license tax of $50.00 each on stores operated in this State where there were six or more such stores under the same management, but which imposed no such tax on other mercantile establishments doing the same business when there were less than six stores under one management, was held an arbitrary classification and unconstitutional. Great Atl. & Pac. Tea Co. v. Doughton, 196 N.C. 145 , 144 S.E. 701, 1928 N.C. LEXIS 303 (1928).

Privilege Tax on Cyber-Gambling Establishments Did Not Violate Federal Internet Tax Freedom Act. —

City’s privilege license tax on cyber-gambling establishments did not violate 47 U.S.C.S. § 151 of the Internet Tax Freedom Act, as it was not a tax on internet access and did not impose multiple discriminatory taxes on electronic commerce. IMT, Inc. v. City of Lumberton, 219 N.C. App. 36, 724 S.E.2d 588, 2012 N.C. App. LEXIS 291 (2012), rev'd, 366 N.C. 456 , 738 S.E.2d 156, 2013 N.C. LEXIS 271 (2013).

Corporation Operating Coal and Ice Yards Liable for Tax. —

A corporation operating coal and ice yards at established places of business in several cities of the State, one or more yards being operated in each of the cities, and maintaining scales, bins, etc., and a staff composed of a yard foreman and other employees at each establishment, was held liable for the tax imposed by a similar statute, such coal and ice yards being “mercantile establishments ” within the meaning of the statute. Atlantic Ice & Coal Co. v. Maxwell, 210 N.C. 723 , 188 S.E. 381, 1936 N.C. LEXIS 210 (1936).

City’s practice of referring all privilege license applicants to the zoning administrator does not convert a privilege license into a regulatory license; the city’s zoning compliance process does not involve or permit any discretion on the part of the zoning administrator as to whether a particular use is allowed in a particular district, in contrast to the special conditional use scheme of this section. Mom N Pops, Inc. v. City of Charlotte, 979 F. Supp. 372, 1997 U.S. Dist. LEXIS 20748 (W.D.N.C. 1997), aff'd, 162 F.3d 1155, 1998 U.S. App. LEXIS 34403 (4th Cir. 1998).

Privilege taxes laid upon trades and professions have been laid expressly for revenue since the enactment of provisions similar to this section. State v. Irvin, 126 N.C. 989 , 35 S.E. 430, 1900 N.C. LEXIS 348 (1900).

Power to levy a tax on all trades includes any employment or business embarked into for gain or profit. Lenoir Drug Co. v. Town of Lenoir, 160 N.C. 571 , 76 S.E. 480, 1912 N.C. LEXIS 209 (1912).

Unless Inconsistent with Special Law or Charter. —

Unless inconsistent with a special law or charter of a city, a tax may be levied on a person engaging in any trade within the city. Guano Co. v. Town of Tarboro, 126 N.C. 68 , 35 S.E. 231, 1900 N.C. LEXIS 186 (1900).

Charter and General Statute Construed Together. —

The charter of a city giving it certain powers in respect to the levying of franchise taxes on trades and professions, etc., and the general statute will be construed together in determining the legislative grant of power to the municipality to levy taxes of this class. Hilton v. Harris, 207 N.C. 465 , 177 S.E. 411, 1934 N.C. LEXIS 497 (1934).

Classification of Trades and Professions for Taxation to be Based on Reasonable Distinctions. —

A municipal corporation is empowered to tax trades or professions carried on or enjoyed within the city, unless otherwise provided by law, but its classification of trades and professions for taxation must be based upon reasonable distinctions, and all persons similarly situated must be treated alike. C.D. Kenny Co. v. Town of Brevard, 217 N.C. 269 , 7 S.E.2d 542, 1940 N.C. LEXIS 218 (1940).

Classification Upheld. —

The law of uniformity did not prohibit the classification by the municipality of dealers in a particular kind of merchandise separately from those whose business it was to sell other articles falling within the same generic term. Rosenbaum v. City of Newbern, 118 N.C. 83 , 24 S.E. 1, 1896 N.C. LEXIS 14 (1896).

Classification Held Void. —

An ordinance requiring a license of livery men, and providing that it should include any persons making contract for hire in town or “any person carrying any person with a vehicle out of town for hire ” was void as being unreasonable. Town of Plymouth v. Cooper, 135 N.C. 1 , 47 S.E. 129 (1904).

Tax on Firm Delivering Products in City Upheld. —

Construing the charter of a city in pari materia with the general statute, the city was given power to tax a firm outside the city which delivered products inside the city to customers procured by its salesman and collected for its goods upon delivery, such trade being “carried on or enjoyed within the city.” Hilton v. Harris, 207 N.C. 465 , 177 S.E. 411, 1934 N.C. LEXIS 497 (1934).

Privilege License Tax on “Electronic Gaming Operations” Presumed Valid. —

City’s privilege license tax on electronic gaming operations was presumed valid because, (1) under the current state of the law, the activity was legal, and (2) the city had the authority to enact an ordinance imposing the tax, pursuant to G.S. 160A-211 and G.S. 105-109(e). Smith v. City of Fayetteville, 220 N.C. App. 249, 725 S.E.2d 405, 2012 N.C. App. LEXIS 593 (2012).

Summary Judgment Properly Upheld Privilege License Tax on “Electronic Gaming Operations.” —

When businesses contested a city’s imposition of a privilege license tax, it was not error to grant the city summary judgment as to some businesses because (1) the tax was presumed valid, since the activity taxed was legal and the city had the authority to enact an ordinance taxing the activity, and (2) the businesses did not present sufficient evidence to rebut that presumption, as the businesses presented no evidence besides non-specific, widespread assertions that the tax would prohibit the businesses’ business, did not present specific evidence on how the tax affected those particular businesses’ revenues. Smith v. City of Fayetteville, 220 N.C. App. 249, 725 S.E.2d 405, 2012 N.C. App. LEXIS 593 (2012).

Summary Judgment Improperly Upheld Privilege License Tax on “Electronic Gaming Operations.” —

When businesses contested a city’s imposition of a privilege license tax, it was error to grant the city summary judgment as to some businesses because (1) the businesses rebutted a presumption that the tax was valid by submitting affidavits detailing the businesses’ gross revenues and net profits and asserting the tax would require the businesses to close, being joined by over 15 similar businesses, and showing the tax was over 9,000 percent greater than a previously imposed tax, and (2) the city presented evidence that the tax was not unreasonable or prohibitory, creating a genuine issue of material fact. Smith v. City of Fayetteville, 220 N.C. App. 249, 725 S.E.2d 405, 2012 N.C. App. LEXIS 593 (2012).

City’s license privilege tax adopted pursuant to G.S. 105-109(e) and G.S. 160A-211 , which represented a 59,900 percent increase in taxation for cyber-gambling businesses, was unconstitutional under the Just and Equitable Tax Clause, N.C. Const. art. V, § 2, and as a result, the lower courts erred in granting the city summary judgment. IMT, Inc. v. City of Lumberton, 366 N.C. 456 , 738 S.E.2d 156, 2013 N.C. LEXIS 271 (2013).

A manufacturer of fertilizers maintaining its sales department in another state from which sales were exclusively made for fertilizer stored for distribution only in a city in this State was liable under an ordinance of the city levying a tax upon callings and professions, naming among others “fertilizer manufacturers’ agents or dealers,” the tax being for the protection afforded by the city in the exercise of such occupation, and the profits derived therefrom. Guano Co. v. City of New Bern, 158 N.C. 354 , 74 S.E. 2, 1912 N.C. LEXIS 50 (1912).

Limitation on License Tax on Use of Motor Vehicle. —

In light of G.S. 20-97 , which expressly prohibited municipality from levying a license or privilege tax in excess of $1.00 upon the use of any motor vehicle licensed by the State, the provisions of a municipal ordinance imposing a license tax upon the operation of passenger vehicles for hire in addition to the $1.00 theretofore imposed by it upon motor vehicles generally was void, and could not be sustained upon the theory that it was a tax upon the business of operating a motor vehicle for hire rather than upon ownership of the vehicle, since the word “business ” and the word “use,” as used in the section, meant the same thing. Cox v. Brown, 218 N.C. 350 , 11 S.E.2d 152, 1940 N.C. LEXIS 153 (1940).

City had the authority to allow the city tax collector to assess zoning compliance as part of the administration of the business privilege license tax and to deny a business privilege license to a sexually oriented business because the business sought to operate in violation of a zoning ordinance. Fantasy World, Inc. v. Greensboro Bd. of Adjustment, 162 N.C. App. 603, 592 S.E.2d 205, 2004 N.C. App. LEXIS 267 (2004).

Comity Principles Prevented Federal Court from Granting Declaratory Relief. —

In a 42 U.S.C.S. § 1983 action in which direct broadcast satellite providers sought a declaratory judgment that 2006 N.C. Sess. Laws 2006-151, which revoked the authority of local governments to charge franchise taxes to cable providers and vested the state with franchising authority, violated the Dormant Commerce Clause of U.S. Const., Art. I, § 8, cl. 3, comity principles prevented the court from granting the relief sought because (1) the franchise charges levied on cable providers by North Carolina’s political subdivisions prior to 2006 N.C. Sess. Laws 2006-151 were taxes; (2) court-ordered redistribution of intrastate taxation authority would have been an inappropriate intrusion by the federal courts into North Carolina’s tax laws, and (3) state courts provided a plain, adequate, and complete remedy for the alleged constitutional violations. DIRECTV, Inc. v. Tolson, 513 F.3d 119, 2008 U.S. App. LEXIS 450 (4th Cir. 2008).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— The opinions below were rendered under former similar statutory provisions.