Rexham Corporation v. Town of Pineville , 26 N.C. App. 349 ( 1975 )

216 S.E.2d 445 (1975) 26 N.C. App. 349

REXHAM CORPORATION, Successor in Interest to Riegel Paper Corporation, Petitioner, and
Carolina-Michigan Properties Co., et al., Petitioners and Intervenors,
v.
The TOWN OF PINEVILLE, North Carolina, et al., Respondents.

No. 7526SC231

Court of Appeals of North Carolina.

July 2, 1975.

Moore & Van Allen by James O. Moore, George V. Hanna, III, and Norman A. Smith, Charlotte, for petitioner appellant.

Caudle, Underwood & Kinsey by William E. Underwood, Jr., Charlotte, for petitioner-intervenor appellants.

Kenneth R. Downs, Charlotte, and Davis, Ford & Weinhold by Larry G. Ford, Salisbury, for respondent appellees.

HEDRICK, Judge.

By assignments of error five and twelve, petitioner first contends that Judge Ervin erred in finding as a fact that the order of Judge Clarkson prohibited the Town Council from amending its ordinance dated 3 May 1971 to include within the municipality land not originally proposed to be annexed. Petitioner argues that this "misunderstanding" of Judge Clarkson's order influenced Judge Ervin in his finding that the Town Council acted reasonably in dropping back from the original annexation boundary in the manner it did as opposed to holding a new hearing for the purpose of annexing the developed land on the opposite sides of those streets originally used as boundaries.

G.S. § 160A-38(g) provides:

"The court may affirm the action of the governing board without change, or it may

* * * * * *

(2) Remand the ordinance to the municipal governing board for amendment of the boundaries to conform to the provisions of G.S. 160A-36 if it finds that the provisions of G.S. 160A-36 have not been met; provided, that the court cannot remand the ordinance to the municipal governing board with directions to add area to the municipality which was not included in the notice of public hearing and not provided for in plans for service."

Since the Town Council clearly had the statutory authority to amend its ordinance upon remand without increasing the area to be annexed, it is of no legal significance here whether Judge Ervin misinterpreted the order of Judge Clarkson as alleged by petitioner. In any event, there has been no showing by petitioner as to how the alleged misunderstanding on the part of Judge Ervin with regard to the options available to respondent upon remand affected his conclusions that the Town Council acted reasonably pursuant to the alternative taken in fixing the new boundary lines and that these lines conform to the provisions of G.S. § 160A-36(d).

In this respect, intervenors contend that even though the Town Council upon remand did not add area to the municipality which was not included in the notice of public hearing and not provided for in the plans for service, the Town Council was required to hold a second public hearing before it could alter the annexation boundary. We do not agree. Neither G.S. § 160A-38(g)(2), supra, nor any other provision of the annexation statute requires the municipal governing board upon remand to hold a second public hearing unless it adds area not included in the original notice of public hearing and not provided for in the plans for service. See also Williams v. Town of Grifton, 22 N.C.App. 611, 207 S.E.2d 275 (1974) (amendment of annexation report). Intervenors' property was included within the area originally proposed to be annexed and intervenors were given notice and an opportunity to be heard prior to adoption of the 3 May 1971 annexation ordinance. Intervenors did not participate in the proceedings at that time and, in fact, did not intervene until the second appeal of the ordinance to the superior court. We are therefore of the opinion that the intervenors have been denied neither their statutory nor constitutional rights of notice and hearing.

Petitioner and intervenors next contend that the Town Council did not act reasonably in establishing the amended annexation boundary lines and that these lines do not conform to the provisions of G.S. § 160A-36(d), which is as follows:

"In fixing new municipal boundaries, a municipal governing board shall, wherever practical, use natural topographic features such as ridge lines and streams and creeks as boundaries, and if a street is used as a boundary, include within the municipality developed land on both sides of the street."

The record discloses that portions of the annexation boundary contained in the 3 May 1971 ordinance followed the center lines of several streets in Southland Industrial Park in violation of G.S. § 160A-36(d) since the area to be annexed did not include developed land on the opposite sides of these streets. Upon remand, the Town Council amended the boundary lines of the annexation area so that the new lines were roughly parallel to but were from five to twenty feet away from the streets previously used as boundaries. Appellants argue that by "dropping back" certain distances from the center lines of streets previously used as boundaries, the Town Council has continued to "use" the streets as boundaries and has therefore acted arbitrarily. We do not agree. Even assuming that portions of the new boundary lines are "setback" lines from the streets, we find no provision in G.S. § 160A-36(d) which prevents a municipality from using a street as a reference in setting the boundary lines of an area to be annexed.

Appellants also argue that Judge Ervin erred in finding and concluding that respondent had complied with G.S. § 160A-36(d) in setting the annexation boundary by using wherever practical all of the natural topographic features in the vicinity of the proposed annexed area. Judge Ervin specifically found as a fact that "the amended boundary of the proposed annexed area follows the ridge line and several draws in or near the vicinity" and this finding is amply supported by the evidence. Maurice B. Seaver, a registered surveyor, testified for petitioner and intervenors as follows:

"Two lines of the proposed annexation boundary follow natural draws. One line at the southwest corner of the annexation area generally follows a draw. Where the boundary line leaves Industrial Drive it also generally follows the center line of another drainage draw."

"The proposed annexed area follows the ridge line as it runs in the general area of Old Pineville Road. Where the proposed annexation line parallels it does follow the ridge line there."

Furthermore, the only evidence of any natural topographic feature in the vicinity not used as a boundary is a tree line which, in fact, was located outside of the area included in the original notice of public hearing and which was not provided for in the plans for service. Thus, we hold that there is plenary competent evidence in the record to support Judge Ervin's conclusion that respondent "fully complied with the provisions of North Carolina General Statutes 160-453.4(d) (now § 160A-36(d)) in establishing the new municipal boundaries and did not act arbitrary or contrary to law or legislative intent."

Petitioner and intervenors next contend that "[t]he trial court erred in concluding that N.C.Gen.Stat.Secs. 160A-33—44 do not contain any prohibition against the splitting of established lots by the annexation boundary and that in splitting such lots the Town Council did not exceed its delegated legislative authority." They argue that the revised annexation boundary "runs through the middle of a lot owned by Structural Foam and divides other tracts by its setback from the adjacent streets" and that "the entire structure, grammar, syntax, and scheme of . . ." G.S. § 160A-33 through G.S. § 160A-44 forbids the splitting of tracts by the annexation boundary. While we can conceive of problems which might arise as a result of tract splitting, we believe that the statutory requirement contained in G.S. § 160A-36(d) that a municipality use natural topographic features wherever practical in setting an annexation boundary demonstrates a legislative intent to the contrary. Obviously, since the boundaries of lots and tracts of land do not necessarily follow "natural topographic features" it would be impossible for an annexation ordinance to follow "natural topographic features" without splitting lots or tracts.

Petitioner further contends the trial court erred in finding that respondent's annexation report sufficiently sets forth the plans of the town for providing the major municipal service of telephone service to the area to be annexed. Upon remand respondent amended its annexation report to include plans for continuing in operation the telephone service which it was already providing to the annexation area. In our opinion, the annexation report is sufficient to indicate prima facie that respondent will continue to provide telephone service to the annexed area on the same basis as to the remainder of the municipality. See G.S. § 160A—35. Furthermore, the record is replete with evidence tending to show that the respondent has detailed plans for providing telephone service to all of the property annexed by the amended ordinance. This contention has no merit.

Petitioner next contends that the statutory scheme for town-initiated annexation by towns of less than 5,000 population, G.S. § 160A-33 through G.S. § 160A-44, violates the equal protection clauses of the North Carolina and United States Constitutions because it denies the qualified resident voters of certain areas in the State subject to such annexation the benefit of voting in a referendum determinative of annexation while granting this benefit to qualified resident voters of other areas in the State also subject to annexation by a town of less than 5,000 population. See G.S. § 160A—44. Finding a rational relation between the classes of voting and non-voting areas created by the Legislature, the court, in Thompson v. Whitley, 344 F.Supp. 480 (E.D.N.C.1972) rejected a constitutional challenge to this statutory scheme based on the equal protection clause of the Fourteenth Amendment of the United States Constitution. More importantly, however, we note that petitioner in the case at bar is a corporation and therefore is not a member of the class of qualified resident voters allegedly discriminated against by the statute. Thus, we fail to perceive how petitioner has standing to raise this constitutional argument. See generally League of Nebraska Municipalities v. Marsh, 209 F.Supp. 189 (D.Neb.1962).

Finally, intervenors contend that the amended annexation ordinance deprives them of a vested property right without due process of law. They argue that under the amended ordinance they will be deprived of the right to have respondent maintain and clean the streets which abut their property and which were used as boundary lines in the annexation ordinance dated 3 May 1971. This contention has no merit. We fail to perceive how the annexation ordinance dated 3 May 1971 which was remanded to the Town Council of Pineville for failure of the boundaries to conform to the provisions of G.S. § 160A-36(d) could have in any way created a vested property right in intervenors in the aforestated municipal service as contemplated and protected by the due process clause of the state and federal constitutions.

For the reasons stated, the judgment of the trial court is

Affirmed.

BROCK, C. J., and MORRIS, J., concur.