McKenzie v. City of High Point , 61 N.C. App. 393 ( 1983 )

301 S.E.2d 129 (1983)

John T. McKENZIE, Jr., et al.
v.
CITY OF HIGH POINT.

No. 8218SC407.

Court of Appeals of North Carolina.

April 5, 1983.

Herbert L. Hyde, Asheville, for petitioners-appellants.

Knox Walker, High Point, for respondent-appellee.

WELLS, Judge.

Part Three of chapter 160A of the General Statutes deals with annexation by cities of 5,000 or more people of areas adjacent or contiguous to existing municipal boundaries. See G.S. 160A-45 through 56. Section 46 provides the authority to annex; section 47 sets forth the prerequisites to annexation; section 48 establishes the character of areas which may be annexed; section 49 establishes the procedure for annexation; and section 50 provides the basis upon which property owners in an annexed area may seek judicial review of an annexation ordinance. Thus, the General Assembly has established detailed criteria and guidelines for annexation under Part Three. The General Assembly has also provided for limited judicial review of annexation ordinances. Section 50 provides that a property owner in the annexed area "who shall believe that he will suffer material injury by reason of the failure of the municipal governing board to comply with the [statutory] procedure ... or to meet the [statutory] requirements ... as they apply to his property" 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 160A-48 have not been met. See In re Annexation Ordinance, 303 N.C. 220, 278 S.E.2d 224 (1981); Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E.2d 265 (1980); In re Annexation Ordinance, 278 N.C. 641, 180 S.E.2d 851 (1971). Upon such review, petitioner must carry the burden of showing both noncompliance with statutory requirements and procedure and material injury flowing from such non-compliance. 303 N.C. 220, 278 S.E.2d 224, supra, and 278 N.C. 641, 180 S.E.2d 851, supra.

The only substantial question presented in this appeal is whether the areas annexed in the contested ordinance meet the "adjacent or contiguous" requirement of the statute. G.S. 160A-48(b) provides:

(b) The total area to be annexed must meet the following standards:

(1) It must be adjacent or contiguous to the municipality's boundaries at the time the annexation proceeding is begun.

(2) At least one eighth of the aggregate external boundaries of the area must coincide with the municipal boundary.

. . . . .

Petitioners' attack on contiguity is primarily based upon their assertion that the area of High Point adjacent and contiguous to the areas annexed in the ordinance under attack here was unlawfully annexed, that the prior annexation was void, and that therefore this annexation fails to meet the contiguity test. Petitioners' argument cannot prevail. First, G.S. 160A-50 requires that on appeal to the Superior Court,

(b) [The] petition shall explicitly state what exceptions are taken to the action of the governing board and what relief the petitioner seeks ...

In the petition under consideration here, the earlier annexation was never mentioned. Second, in their evidence, petitioners failed to show that they had standing (residency in the area) to attack the earlier annexation. Third, as the record clearly shows, there was no appeal from the enactment of the earlier ordinance and petitioners' attempted attack in this appeal is collateral in nature.^[1] The evidence before Judge Wood clearly established that the areas annexed under the 2 April 1981 ordinance were adjacent and contiguous to High Point's existing municipal boundaries and that more than one eighth of the external boundary of the areas annexed coincided with High Point's existing boundary.

Petitioners also contend that no more than one area may be annexed in an ordinance and that since two areas were annexed in the contested ordinance, it must fall. We disagree. G.S. 160A-49(g) provides:

(g) Simultaneous Annexation Proceedings.—

If a municipality is considering the annexation of two or more areas which are all adjacent to the municipal boundary but are not adjacent to one another, it may undertake simultaneous proceedings under authority of this Part for the annexation of such areas.

We hold that under the foregoing statute, any number of separate qualifying areas may be annexed in a single ordinance.

Petitioners also contend that the ordinance failed to comply with the requirement set out in G.S. 160A-49(e)(1) that the external boundaries of the area to be annexed be described by metes and bounds. We have examined the descriptions used in the ordinance and hold that they are in substantial compliance with the statutory requirement. Absolute and literal compliance with the statute is unnecessary; only substantial compliance is required. In re Annexation Ordinance, 278 N.C. 641, 180 S.E.2d 851, supra.

We have carefully examined the record of evidence in this case, the trial court's judgment, and petitioners' contentions, and conclude that the judgment below must be

Affirmed.

HILL and JOHNSON, JJ., concur.

NOTES

[1] We note that the judgment entered by Judge Wood contains a finding of fact with respect to the prior annexation ordinance of 29 December 1980. As that matter was not properly before him, that portion of his order is surplusage and without legal consequence, except to the extent that Judge Wood "found" that these petitioners could not contest that ordinance.