300 N.C. 337 | N.C. | 1980
We allowed discretionary review in this case because it was improper for the appeal to go initially to the Court of Appeals. Albemarle is a city of 5,000 or more people and pursuant to G.S. 160A-50(h) appeal lies directly to this Court. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E. 2d 189 (1980).
Originally, appeals in cases involving cities of less than 5,000 people, G.S. 160-453.6(h) and (i) (1964) (now G.S. 160A-38(h)), and appeals in cases involving cities of 5,000 or more people, G.S. 160-453.18(h) and (i) (1964) (now G.S. 160A-50(h)), came directly to
The case involved a city with less than 5,000 people; therefore, the appeal was pursuant to G.S. 160-453.6(h) and (i). The appeal was taken to the Court of Appeals but this Court elected pursuant to G.S. 7A-31 to certify the appeal for initial appellate review by the Supreme Court. Nevertheless, this Court held that the appeal had been properly taken to the Court of Appeals. Justice (later Chief Justice) Sharp writing for the Court held that:
“When the Court of Appeals was created as of 1 January 1967, the appellate division of the General Court of Justice became the Supreme Court and the Court of Appeals. G.S. 7A-5, G.S. 7A-16; State v. Colson, 274 N.C. 295, 163 S.E. 2d 376. By a clear legislative oversight Sections (h) and (i) of G.S. 160-4-53.6 were not amended to include the Court of Appeals as one of the appellate courts. However, N.C. Sess. Laws, Ch. 108, Section 1 (1967), codified as G.S. 7A-25 to -35, defines the respective appellate jurisdiction of the Supreme Court and the Court of Appeals. By G.S. 7A-27 initial appellate jurisdiction of this cause is given to the Court of Appeals subject, however, to the provisions of G.S. 7A-31. The Court of Appeals, therefore, is now deemed to be included in Sections (h) and (i) of G.S. 160-453.6. Guilford County v. Estates Administration, Inc., 212 N.C. 653, 194 S.E. 295. This appeal was properly taken to the Court of Appeals, from which it was transferred to this Court upon our order entered under G.S. 7A-31.” Adams-Millis Corp. v. Town of Kernersville, supra at 149, 187 S.E. 2d at 705. [Emphasis added.]
Subsequently, in 1977, the statute dealing with appeals in annexation cases involving cities with less than 5,000 people was amended by the legislature to provide that the appeal is to go initially to the Court of Appeals. G.S. 160A-38(h) (Supp. 1979).
However, the statute dealing with appeals in annexation cases involving cities with 5,000 or more people still provides that the appeal is directly to this Court. G.S. 160A-50(h). Since the legislature amended G.S. 160A-38(h) to provide that those appeals
The first issue is whether the area to be annexed meets the statutory requirements of G.S. 160A-48(b), (c) and (d).
G.S. 160A-48(a)(l) requires that the area to be annexed meet the general standards of subsection (b). Subsection (b) then requires that the total area to be annexed meet certain contiguity requirements, G.S. 160A-48(b)(l) and (2), and that the area not already be included within the boundary of any other incorporated municipality, G.S. 160A-48(b)(3).
G.S. 160A-48(a)(2) then requires that “[ejvery part ... [of the area to be annexed must meet] the requirements of either subsection (c) or subsection (d).” [Emphasis added.] Subsection (c) states that “[p]art or all of the area to be annexed must be developed for urban purposes,” [emphasis added] and three tests for urban purposes are set forth in (c) (l)-(3). Part or all of the area to be annexed must meet the requirements of at least one of those three tests.
Subsection (d) provides:
“(d) In addition to areas developed for urban purposes, a governing board may include in the area to be annexed any*341 area which does not meet the requirements of subsection (c) if such area either:
(1) Lies between the municipal boundary and an area developed for urban purposes so that the area developed for urban purposes is either not adjacent to the municipal boundary or cannot be served by the municipality without extending services and/or water and/or sewer lines through such sparsely developed area; or
(2) Is adjacent, on at least sixty percent (60%) of its external boundary, to any combination of the municipal boundary and the boundary of an area or areas developed for urban purposes as defined in subsection (c).
The purpose of this subsection 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.” [Emphasis added.]
Respondent followed precisely the requirements as set forth above. Cities with 5,000 or more people may 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 meets the requirements of G.S. 160A-48(b).
Nothing contained in this opinion is inconsistent with this court’s decision in In re Annexation Ordinance [Charlotte], 284 N.C. 442, 202 S.E. 2d 143 (1974). In that case, the City of Charlotte did not attempt to utilize G.S. 160A-48(d) in its efforts to annex certain areas to the city. Instead, it sought to accomplish the annexation solely pursuant to G.S. 160-453.16(c)(1) (now G.S. 160A-48(c)(1)). The city divided the area to be annexed into study areas and applied the urban purpose test of (c)(1) to each study area individually rather than to the area to be annexed as a whole. This was found to be contrary to the legislature’s intent as set forth in (c)(1).
An annexation in accordance with the above standards is entirely in keeping with the declaration of policy as set forth in G.S. 160A-45(4) which notes that urban development in and around cities involving 5,000 or more people is more scattered than in smaller cities thus making it more difficult to annex and expand services into those areas. Such circumstances are to be taken into account when a city of 5,000 or more people attempts to annex an area and expand services into that area. G.S. 160A-48(c) and (d) set the standards which allow annexations to occur and services to be expanded into the developed areas in such situations.
The same is not true for cities of less than 5,000 people. They do not have a provision comparable to G.S. 160A-48(d). See G.S. 160A-36 and our decision in Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E. 2d 90 (1980).
The second issue is whether the city failed to comply with the requirement of G.S. 160A-49(d) that a public hearing be held at which,
“a representative of the municipality shall first make an explanation of the report required in G.S. 160A-47. 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 an opportunity to be heard.” G.S. 160A-49(d).
At the public hearing, an officer of the municipality read the entire report of the proposed annexation prepared pursuant to G.S. 160A-47. He offered no further explanation other than the reading of the report after which all persons were heard who
The third issue is whether the city complied with the requirements of G.S. 160A-47(3) which pertains to the extension of municipal services to the area to be annexed and the timetable for doing so.
Petitioners complain that adequate provision has not been made to extend fire protection 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 municipality prior to annexation. However, the report indicates that the city will hire six additional firemen and within twelve months will let a contract for construction of a new fire station in the area to be annexed and will acquire the necessary fire-fighting apparatus for the station. In the interim period, the city will either contract with the Bethany Volunteer Fire Department (which now serves the area to be annexed) to serve this area or will establish a temporary fire station in the area with the necessary men and equipment.
Petitioner makes the same claim with respect to the extension of garbage collection to the area to be annexed because no schedule of trash collection is set out in the report and it does not state how many additional personnel will be hired to perform the task. The report states that garbage is collected in the city twice a week and collection in the newly annexed area will be on substantially the same basis and in the same manner as in the rest of the city. The report further states that the city will purchase one new garbage truck and will employ additional personnel to provide collection on substantially the same basis and in the same manner as in the rest of the city.
Petitioners voice the same complaint with respect to provisions for street maintenance in the area to be annexed. The report makes adequate provision for uniform maintenance in the city and the newly annexed area.
We hold that the report and plans are sufficient upon all grounds upon which they have been challenged.
Since the Court of Appeals was without jurisdiction to hear and determine this appeal, its decision is vacated. The decision of the trial judge is affirmed.
Court of Appeals’ decision is
Vacated.
Judgement entered by the trial judge is
Affirmed.