In re Annexation Ordinance Adopted by the City of New Bern

278 N.C. 641 | N.C. | 1971

SHARP, Justice.

Petitioners undertake to raise three questions upon this appeal: (1) Did the court err in refusing to remand the annexation ordinance to Board with instructions to readvertise and hold another public hearing at which a representative of City would explain the report setting forth its plan to provide services to the area proposed for annexation? (2) Did the court err in excluding evidence concerning complaints made by representatives of the police department to Board and “concerning the condition and capability” of the fire department to serve the area covered by the annexation ordinance? (3) Is the trial court’s judgment supported by the evidence and applicable law? The scope of judicial review of annexation proceedings, however, is limited by statute.

The jurisdiction of the Superior Court on appeal from an annexation ordinance is defined by G.S. 160-453.18. Within thirty days after the passage of an annexation ordinance the statute authorizes any person owning property in the annexed territory who believes “that he will suffer material injury by reason of the failure of the municipal governing body to comply with the procedure set forth in this part (Part 3 of N. C. Gen. Stats., Ch. 160) or to meet the requirements set forth in § 160-453.16 as they apply to his property” to petition the Superior Court to review the action of the governing board. Thus, the court’s review is limited to these inquiries: (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. 160-453.16 as applied to petitioners’ property? G.S. 160-453.18(a) and (f).

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. Obviously, extension of services into an annexed area in accordance with the promulgated plan is not a condition precedent to annexation. Dale v. Morganton, 270 N.C. 567, 155 S.E. 2d 136. If, one year after annexation, “the municipality has not followed through on its service plans” adopted under the annexation procedures, the remedy of an aggrieved property owner within the annexed territory is by application for a writ of mandamus. G.S. 160-453.17(h).

Thus, the list of complaints made by certain policemen and the testimony of the Captain of the Fire Department that he intended to request additional equipment were totally irrelevant to the inquiry. The rejection of this evidence was not error.

On its face the record of the annexation proceedings shows substantial compliance with every essential provision of the applicable statutes, N. C. Gen. Stats., Ch. 160, Part 3. Therefore, the burden is upon petitioners, who appealed from the 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. Huntley v. Potter, 255 N.C. 619, 122 S.E. 2d 681.

The only irregularity which the evidence tends to establish was City’s failure, at the public hearing on 18 November 1969, to have a representative explain the report of its plans to provide services to the area proposed for annexation. Thus, the single question presented is whether this failure caused petitioners to suffer material injury. Obviously it did not.

The report, which is clear, concise, and couched in terms laymen can understand, had been on file in the office of the City Clerk for fourteen days prior to the public hearing. It was available for public inspection, and petitioners’ attorneys had examined it. At the hearing petitioners were represented by two legal firms. Their lawyers, as well as all other persons who attended the hearing, apparently understood the report, for no one requested any explanation of City’s plan to provide services. It would be vain, even farcical, for the court now to require City to readvertise and hold another public hearing so that one of its representatives could make a ritualistic explanation of plans, which had largely been carried out at the time the annexation proceedings were reviewed in the Superior Court.

It is generally held that slight irregularities will not invalidate annexation proceedings if there has been substantial compliance with all essential provisions of the law. Huntley v. Potter, supra; 2 McQuillin, Municipal Corporations § 7.29 (3d ed. 1966). “Absolute and literal compliance with a statute enacted describing the conditions of annexation is unnecessary; substantial compliance only is required. . . . The reason is clear. 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.” State v. Town of Benson, Cochise County, 95 Ariz. 107, 108, 387 P. 2d 807, 808. Accord, City of Ames v. Olson, 253 Iowa 983, 114 N.W. 2d 904.

Petitioners’ pleadings and affidavits make it quite clear that their only grievance is City’s Sunday Observance Ordinance —not the failure of a City representative to explain plans which they fully understood. A property owner, however, 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.

The judgment of the Superior Court approving the annexation procedures of the Board of Aldermen of the City of New Bern and the annexation ordinance enacted by it on 19 December 1969 is affirmed. The injunction staying the annexation of petitioners’ property and the application of City’s ordinances to it is hereby dissolved. See D & W, Inc. v. Charlotte, 268 N.C. 720, 152 S.E. 2d 199.

Affirmed.