Nolan v. Village of Marvin , 172 N.C. App. 84 ( 2005 )

MARTIN, Chief Judge.

Petitioner land owners appeal an order of the trial court affirming involuntary annexation of their property by respondent Village of Marvin. We affirm the order of the trial court.

On 22 September 2003, petitioners filed a petition for review of an annexation ordinance enacted by respondent. The petition alleged, inter alia, that respondent had failed to adequately respond to questions regarding the proposed annexation, and that annexation of petitioners' property violated express declarations of public policy as set forth in section 160A-33 of the North Carolina General Statutes. The matter came before the trial court on 3 May 2004. The court, based upon the pleadings, briefs, arguments by counsel and other materials submitted, made the following findings of fact:

1. [Respondent] adopted the annexation ordinance on July 24, 2003. Petitioners William J. Nolan III and Louise C. Hemphill-Nolan ("the Nolans") filed a petition challenging this annexation on September 22, 2003.

....

5. [Respondent's] Annexation Report and Amended Annexation Report provided information on the level of services [respondent] currently provides. In these reports, [respondent] committed itself to providing substantially the same level of services in the Annexation Area, and it identified how [respondent] will finance the extension of its services into the Annexation Area.

6. [Respondent] provides independent administrative, engineering, auditing, legal and planning services to its residents.

7. After annexation, the Annexation Area will receive services on substantially the same basis and in the same manner as services received elsewhere in [the municipality].

8.... [Respondent] is exploring options for obtaining additional police patrol services, and it has committed to providing its current and future levels of such services to its residents in a non-discriminatory manner.

9. [Respondent] conducted an informational meeting under N.C.G.S. § 160A-37(c1). At this meeting, [respondent] representatives declined to answer any questions concerning [its] motivations for annexing the territory. There is no evidence that [respondent] failed to answer any other questions asked.

Based on these findings, the trial court concluded respondent had satisfied statutory requirements regarding the provision of services to the annexation area, and that general policy declarations contained in section 160A-33 of the North Carolina General Statutes created no further procedural steps for respondent, nor created substantive rights for petitioners. The trial court further concluded that petitioners had failed to show any material injury as a result of respondent's refusal to answer questions regarding its motivation for pursuing annexation. The trial court entered an order affirming annexation. Petitioners appeal.

Petitioners argue the trial court erred in affirming annexation on the grounds that (1) such annexation violates state policy, and (2) respondent violated procedural requirements of the annexation process. Review of an annexation ordinance is limited to resolving the following three issues: (1) whether the annexing municipality has properly complied with the statutory procedures; (2) where the statutory procedures have not been properly followed, whether the petitioners will suffer material injury as a result of such procedural irregularities; and (3)

*901whether the area to be annexed meets the applicable statutory requirements. See N.C. Gen.Stat. § 160A-38 (2003); In re Annexation Ordinance, 278 N.C. 641, 646-47, 180 S.E.2d 851, 855 (1971).

Where an appeal is taken from the adoption of an annexation ordinance and the proceedings show prima facie that there has been substantial compliance with the statute, the burden is upon the party attacking the annexation to show, by competent evidence, failure on the part of the municipality to comply with the statutory requirements.

Thrash v. City of Asheville, 327 N.C. 251, 255, 393 S.E.2d 842, 845 (1990); In re Annexation Ordinance, 278 N.C. at 647, 180 S.E.2d at 855-56; Hayes v. Town of Fairmont, 167 N.C.App. 522, 605 S.E.2d 717, 718 (2004), disc. review denied, 359 N.C. 410, 612 S.E.2d 320 (2005). "Substantial compliance" is defined as compliance with the essential requirements of the statute. Thrash, 327 N.C. at 255, 393 S.E.2d at 845. Findings of fact made by the trial court are binding on this Court if supported by the evidence, even where there may be evidence to the contrary. Hayes, 167 N.C.App. at ___, 605 S.E.2d at 719.

Petitioners argue the annexation at issue violates state policy as declared in section 160A-33 of the North Carolina General Statutes. Section 160A-33 declares "as a matter of State policy" the following:

(1) That sound urban development is essential to the continued economic development of North Carolina;

(2) That municipalities are created to provide the governmental services essential for sound urban development and for the protection of health, safety and welfare in areas being intensively used for residential, commercial, industrial, institutional and government purposes or in areas undergoing such development;

(3) That municipal boundaries should be extended, in accordance with legislative standards applicable throughout the State, to include such areas and to provide the high quality of governmental services needed therein for the public health, safety and welfare; and

(4) That new urban development in and around municipalities having a population of less than 5,000 persons tends to be concentrated close to the municipal boundary rather than being scattered and dispersed as in the vicinity of larger municipalities, so that the legislative standards governing annexation by smaller municipalities can be simpler than those for larger municipalities and still attain the objectives set forth in this section;

(5) That areas annexed to municipalities in accordance with such uniform legislative standards should receive the services provided by the annexing municipality in accordance with G.S. 160A-35(3).

N.C. Gen.Stat. § 160A-33 (2003). Section 160A-35(3), in turn, requires an annexing municipality to prepare a "statement setting forth the plans of the municipality for extending to the area to be annexed each major municipal service performed within the municipality at the time of annexation." N.C. Gen.Stat. § 160A-35(3) (2003). Such plans must:

a. Provide for extending police protection, fire protection, solid waste collection and street maintenance 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. A contract with a rural fire department to provide fire protection shall be an acceptable method of providing fire protection. If a water distribution system is not available in the area to be annexed, the plans must call for reasonably effective fire protection services until such time as waterlines are made available in such area under existing municipal policies for the extension of waterlines. A contract with a private firm to provide solid waste collection services shall be an acceptable method of providing solid waste collection services.

b. Provide for extension of water mains and sewer lines into the area to be annexed *902so that property owners in the area to be annexed will be able to secure public water and sewer services according to the policies in effect in such municipality for extending water and sewer lines to individual lots or subdivisions. If the municipality must, at its own expense, extend water and/or sewer mains into the area to be annexed before property owners in the area can, according to municipal policies, make such connection to such lines, then the plans must call for contracts to be let and construction to begin on such lines within one year following the effective date of annexation. In areas where the installation of sewer is not economically feasible due to the unique topography of the area, the municipality may agree to provide septic system maintenance and repair service until such time as sewer service is provided to properties similarly situated.

c. Set forth the method under which the municipality plans to finance extension of services into the area to be annexed.

Id. Petitioners contend sections 160A-33 and 160A-35(3) make clear that the provision of governmental services by municipalities "to help foster growth and economic development" is the "primary public policy behind the involuntary annexation ordinance." They argue that, in the instant case, respondent will provide "no additional services whatsoever" to the annexed property, and that respondent has no current plan to provide such services. Because petitioners will receive no additional services, they contend the present annexation ordinance violates public policy and must be nullified. Petitioners' argument fails on several grounds.

First, the trial court found that respondent provides "independent administrative, engineering, auditing, legal and planning services to its residents." In addition, the trial court found that respondent is "exploring options for obtaining additional police patrol services and it has committed itself to providing its current and future levels of such services to its residents in a non-discriminatory manner." Petitioners made no exception to these findings of fact, and this Court is bound by them. Hayes, 167 N.C.App. at ___, 605 S.E.2d at 719. Thus, the trial court found that respondent will provide some additional services to the area to be annexed, notwithstanding petitioners' claim they will receive "no additional services whatsoever."

Second, we agree with the trial court that sections 160A-33 and 160A-35(3) do not require respondent to provide additional services that the current residents of the municipality do not enjoy, or to duplicate services already provided to the area to be annexed. Rather, under the plain language of the statute, a municipality must provide to the annexed area "each major municipal service performed within the municipality at the time 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." N.C. Gen.Stat. § 160A-35(3)(a). Contrary to petitioners' argument, section 160A-35(3) does not command municipalities to provide certain specific services, but ensures that whatever services are provided, are provided in a non-discriminatory fashion to those areas to be annexed. " ``Providing a nondiscriminating level of services within the statutory time is all that is required.' " Greene v. Town of Valdese, 306 N.C. 79, 87, 291 S.E.2d 630, 635 (1982) (quoting Moody v. Town of Carrboro, 301 N.C. 318, 328, 271 S.E.2d 265, 272 (1980) ("The plan details what services are provided in the Town and states that all such services will be provided in the annexed area. Providing a nondiscriminating level of services within the statutory time is all that is required")); see also Parkwood Assn., Inc. v. City of Durham, 124 N.C.App. 603, 607, 478 S.E.2d 204, 206 (1996) (stating that, "The City detailed the police and fire services now available to city residents and committed to provide the same services to the annexed area. The statute and case law require no more"), disc. review denied, 345 N.C. 345, 483 S.E.2d 175 (1997); Chapel Hill Country Club v. Town of Chapel Hill, 97 N.C.App. 171, 184-85, 388 S.E.2d 168, 176 (holding that the Town of Chapel Hill complied with the annexation statute where the annexation report called for the annexed area to be served by a volunteer fire department on a contract basis in the same manner as service provided to rest of the town), disc. reviews denied, 326 N.C. 481, 392 S.E.2d 87, 88 (1990).

*903Here, the trial court found that "[a]fter annexation, the Annexation Area will receive services on substantially the same basis and in the same manner as services received elsewhere in the [municipality]" and that respondent "has committed to providing its current and future levels of such services to its residents in a non-discriminatory manner." Thus, the trial court properly concluded that respondent had satisfied all statutory requirements regarding the provision of services to the annexed area. See In re Annexation Ordinance, 304 N.C. 549, 555, 284 S.E.2d 470, 474 (1981) ("We believe that the [annexation] 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").

We are not unsympathetic to petitioners' contention they will receive very few additional services despite additional taxation. We are, however, bound by the plain language of the statute and case precedent. Petitioners must look to the General Assembly, and not the courts, for relief in such matters. We overrule petitioners' first assignment of error.

Petitioners further contend respondent failed to abide by procedural requirements for annexation set forth in section 160A-37(c1) of the North Carolina General Statutes. Specifically, petitioners assert that respondent failed to answer questions regarding its motivation to annex the proposed territory during the public informational hearing about the annexation. As a result of respondent's failure to answer these questions, petitioners argue the annexation ordinance should be nullified. We do not agree.

Section 160A-37(c1) provides as follows:

Public Informational Meeting.-At the public informational meeting a representative of the municipality shall first make an explanation of the report required in G.S. 160A-35. Following such explanation, all persons resident or owning property in the territory described in the notice of public hearing, and all residents of the municipality, shall be given the opportunity to ask questions and receive answers regarding the proposed annexation.

N.C. Gen.Stat. § 160A-37(c1) (2003).

The trial court found that respondent conducted the informational meeting as required by section 160A-37(c1) and answered all questions except those concerning its motivations for annexing the territory. Petitioners argue this failure to answer questions regarding its motivation invalidates the ordinance. In order to invalidate an annexation based on procedural violations, however, petitioners must demonstrate material injury. See N.C. Gen.Stat. § 160A-38(a) (2003); Sonopress, Inc. v. Town of Weaverville, 149 N.C.App. 492, 507, 562 S.E.2d 32, 41, disc. review denied, 355 N.C. 751, 565 S.E.2d 671 (2002). Here, the trial court concluded, and we agree, that petitioners have failed to demonstrate how they have suffered material injury as a result of respondent's failure to answer one question, the answer to which could have no effect on the validity of the proposed annexation. We overrule this assignment of error.

The order affirming annexation is affirmed.

Affirmed.

Judge LEVINSON concurs.

Judge TYSON dissents.