Gregory v. Town of Plymouth

299 S.E.2d 232 (1983)

Terry GREGORY and wife, Pennie Gregory, Edward Womble and wife, Wally Womble, W.M. Booth and wife, Ruby Booth, J.W. Wynn and wife, Gloria Wynn, Harry Ward and wife, Mittie Ward, George Smith and wife, Pat Smith, Larry Watson and wife, Nile Watson, and Tommy Woolard and wife, Jean Woolard v. TOWN OF PLYMOUTH.

No. 822SC65.

Court of Appeals of North Carolina.

January 18, 1983.

*233 Wilkinson & Vosburgh by John A. Wilkinson, Washington, for petitioners-appellants.

Hutchins, Romanet, Thompson, Hillard & Harrell by Andrew L. Romanet, Jr., Plymouth, for respondents-appellees.

*234 BECTON, Judge.

Petitioners bring forth fourteen (14) assignments of error and raise five (5) arguments on appeal. Petitioners' first argument is that the Town of Plymouth was required to hold a public hearing on the amended proposal. We hold that it was not.

The Legislature has empowered municipal governing boards to "amend the report required by G.S. 160A-35 to make changes in the plans for serving the area proposed to be annexed so long as such changes meet the requirements of G.S. 160A-35." N.C.Gen.Stat. § 160A-37(e) (1982). There is no requirement that a second public hearing be held on an amended annexation proposal, when that amendment is adopted to achieve compliance with G.S. 160A-35, pursuant to the authority granted in G.S. 160A-37(e). Conover v. Newton, 297 N.C. 506, 256 S.E.2d 216 (1979); Williams v. Town of Grifton, 22 N.C.App. 611, 207 S.E.2d 275 (1974). The Plymouth City Council was directed, by order entered 2 March 1981, to more clearly set forth its proposals for the provision of certain municipal services to residents in the Liverman Heights area, in accordance with G.S. 160A-35. The petitioners have stipulated that the original annexation ordinance was adopted in accord with all statutory procedures, and that they were accorded proper notice and an opportunity to be heard. Thus, the relevant inquiry is whether the amendment effected a substantial change to the ordinance, necessitating notice to those affected thereby. The stated purpose of the 29 May 1981 amendment, is "to provide additional information clarifying those services to be extended to the annexation area and delineating how those services shall be financed." Our review of the record reveals that it does no more than that. Because this amendment was adopted by the Town of Plymouth pursuant to the authority conferred upon it by G.S. 160A-37(e), to achieve compliance with G.S. 160A-35, no public hearing was required prior to its adoption. Williams v. Town of Grifton, 22 N.C.App. at 613, 207 S.E.2d at 277 (1974). A second public hearing is not required on remand unless substantial changes are made in the amended plan that are not a part of the original notice of public hearing and are not provided for in the plans for service. Rexham v. Town of Pineville, 26 N.C.App. 349, 216 S.E.2d 445 (1975).

Because we find that no public hearing was required on remand, petitioners' arguments two, three and four, all concerning alleged procedural irregularities surrounding the 29 May 1981 meeting, need not be discussed.

Petitioners finally contend that the amended proposal does not provide for fire protection services on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation, as required by G.S. 160A-35(3)(a). They argue that because Liverman Heights is located south of the railroad that completely transverses the town and that because the fire station is north of these tracks, it is both possible and likely that fire personnel would be blocked from the annexed area by a train. While the juxtaposition of Liverman Heights, the railroad, and the fire station may foster this type of situation, we note from the record that at least 25% of the present corporate area of Plymouth lies south of the rail lines, and is thus served by and subject to the town's geography. Further, the Plymouth Volunteer Fire Department has and continues to serve as both the town's and Liverman Heights' sole fire department; the protection afforded the annexed area is the same as that given other areas in Plymouth. The new plan also provides for the enhancement of fire protection on the south side through the installation of new water mains and hydrants. Finally, should the Town fail to install promised improvements, petitioners have recourse pursuant to N.C.Gen.Stat. § 160A-37(h) (1982).

For the foregoing reasons, the judgment of the trial court is affirmed.

Affirmed.

WEBB and HILL, JJ., concur.