Kritzer v. Town of Southern Pines

Annotate this Case

234 S.E.2d 648 (1977)

33 N.C. App. 152

James Peter KRITZER et al. v. TOWN OF SOUTHERN PINES, a Municipal Corporation.

No. 7620SC879.

Court of Appeals of North Carolina.

May 4, 1977.

*650 James R. Van Camp, P. A., by James R. Van Camp, and Seawell, Pollock, Fullenwider, Robbins & May, P. A., Southern Pines, by Bruce T. Cunningham, Jr., Carthage, for petitioners-appellants.

Brown & Pate by W. Lamont Brown and W. Daniel Pate, Southern Pines, for respondent-appellee.

ARNOLD, Judge.

Petitioners argue that certain proceedings of the annexation statutes, G.S. 160A-45, et seq., were violated. They contend that the court erred in finding of fact number eight, and in conclusions of law numbers four and five. The finding of fact is as follows:

"8. On April 13, 1976, the Southern Pines Town Council adopted a motion signifying its Notice of Intent to consider the annexation of four (4) areas adjacent to . . . the Town of Southern Pines. . ., which areas the Court has determined were properly identified and the boundaries outlined in explanation of Annexation Study made by the Town Manager prior to the time said motion was made and adopted, clearly indicating on a map that was displayed on a screen visible to all members of the Council, and each area was outlined by pointer on said map by the Town Manager, and that the phrase in the motion, `these areas,' was clearly shown to mean the areas considered for annexation as shown on the map, and testimony of each member of the Council showed that each of them understood that these were the areas, the boundaries of which were shown on the map, that were being considered for annexation and that the Notice of Intent being adopted had to do with those areas."

And, the conclusions of law say:

"4. That G.S. 160A-49 does not require that the Resolution of Notice of Intent to Consider Annexation of certain properly identified areas must be in writing or that the boundaries of the areas under consideration be set forth by metes and bounds; that maps showing the boundaries are sufficient, and that in this case the maps showing the boundaries were sufficient to comply with the requirements of this section." "5. That the action of the Town Council. . . in passing a resolution upon an oral motion and the recording of the action in the minutes, and therein making reference to the areas as shown on the map showing the boundaries, complies with the provisions of the law since the evidence clearly shows that [each Council member had before him, and fully understood, the map showing the areas to be annexed.]"

The petitioners argue that these findings and conclusions are contrary to G.S. 160A-49(a), which says:

"Any municipal governing board desiring to annex territory under the provisions of this Part shall first pass a resolution stating the intent of the municipality to consider annexation. Such resolution shall describe the boundaries of the area under consideration and fix a date for a public hearing on the question of annexation. . . .

Petitioners insist that the resolution of notice of intent to consider annexation must be written. They cite no authority, and we are not convinced by their argument. The statute does not specifically require a written resolution; nor is such a requirement implicit in the fact that the resolution must describe the land under consideration.

Petitioners also argue that the Town Council's resolution did not adequately *651 describe the lands under consideration for annexation. We find, however, that an adequate description was embodied in the resolution and that there was substantial compliance with the statute, G.S. 160A-49(a). The purpose of G.S. 160A-49(a) requiring the resolution stating the intent to consider annexation is to record the town board's decision and to mark the formal beginning of the municipality's actions. Town of Hudson v. Town of Lenoir, 279 N.C. 156, 181 S.E.2d 443 (1971). This resolution expresses the intent of the governing board and it has little significance to the public. However, the public is significantly affected by the notice of the public hearing, which must be published in a newspaper, or by other means, and must contain a clear description of the land under consideration. G.S. 160A-49(b). By virtue of G.S. 160A-49(e) the governing board is prohibited from annexing any land except that described in the notice of the public hearing.

An examination of the resolution reveals that while it does not explicitly describe the lands under consideration, or incorporate such a description by explicit reference, it does refer to the land as "these areas." Testimony by members of the Town Council revealed that "these areas" referred to areas clearly marked on maps which were before the Council when the resolution was offered. These maps were admitted into evidence at the hearing in superior court, and they were found to be authentic. Upon this finding the court concluded that such a map provided an adequate description of the land and that such a reference incorporated the description into the resolution.

We agree. The maps were before the Councilmen when they considered the resolution. Reference in the resolution to the maps is sufficient to show that the Council saw and understood the boundaries of the areas under consideration and that the members realized the significance of their action. While the description contained in the resolution may not have been clear to the general public, the oral resolution incorporating by reference the maps before the Town Council substantially complies with G.S. 160A-49(a). The rights of petitioners, and the general public, are protected by G.S. 160A-49(b) and G.S. 160A-49(e).

Petitioners' next argument is very similar to their first. Part of the annexation statute, G.S. 160A-47(3)(c), says:

"A municipality exercising authority under this Part shall make plans for the extension of services to the area proposed to be annexed and shall, prior to the public hearing . . ., prepare a report setting forth such plans to provide services to such area. The report shall include: ...... (3) 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. Specifically, such plans shall: ..... (c) . . . set forth a proposed time-table for construction of [water] mains and [sewer] outfalls as soon as possible following the effective date of annexation. In any event, the plans shall call for contracts to be let and construction to begin within 12 months following the effective date of annexation."

Petitioners argue that Southern Pines did not comply with G.S. 160A-47(3)(c) because the annexation study failed to set forth a sufficient timetable for construction of sewer lines. The annexation report filed by the Town provided that "construction would begin" within twelve months of the effective date of annexation, and petitioners say this is not a sufficient timetable as required by the statute. This argument has been rejected before by our Supreme Court. Dunn v. City of Charlotte, 284 N.C. 542, 201 S.E.2d 873 (1974); see In re Annexation Ordinances, 253 N.C. 637, 117 S.E.2d 795 (1961). We find that the Town substantially complied with the requirements of G.S. 160A-47(3)(c).

Petitioners' remaining assignments of error relating to evidentiary rulings have *652 been considered, and we find no prejudicial error in them.

The record shows substantial compliance with Chapter 160A of the General Statutes. Judgment of the trial court is

Affirmed.

MORRIS and HEDRICK, JJ., concur.