In Re Annexation Ordinance Adopted by Jacksonville

122 S.E.2d 690 (1961)

255 N.C. 633

In re ANNEXATION ORDINANCE ADOPTED BY the CITY OF JACKSONVILLE, NORTH CAROLINA, APRIL 18, 1961.

No. 167.

Supreme Court of North Carolina.

November 22, 1961.

*697 Ellis, Godwin & Hopper, Jacksonville, and Jones, Reed & Griffin, Kinston, for petitioners, appellants.

Venters & Dotson, Jacksonville, and Ward & Tucker, New Bern, for respondents, appellees.

MOORE, Justice.

In annexation proceedings under parts 2 and 3 of Article 36, Subchapter VI, Chapter 160 of the General Statutes of North Carolina (hereinafter referred to as the "Act"), the record of the proceedings, including the report and annexation ordinance, must show prima facie complete and substantial compliance with the Act, as a condition precedent to the right of the municipality to annex. Where an appeal is taken from an annexation ordinance and a petition has been filed requesting review of the annexation proceedings, and the proceedings show prima facie that there has been substantial compliance with the requirements and provisions of the Act, the burden is upon petitioners to show by competent evidence failure on the part of the municipality to comply with the statutory requirements as a matter of fact, or irregularity in proceedings, which materially prejudice the substantive rights of petitioners. Huntley v. Potter, N.C., 122 S.E.2d 681.

Our examination of the annexation proceedings in this case compels the conclusion that the report and ordinance show prima facie full compliance with the requirements of G.S. § 160-453.16 as to the "character of the area to be annexed," and full compliance with G.S. § 160-453.15 in *698 relation to plans for extension of police protection and fire protection to the area to be annexed on "substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation." The court below in substance made such finding and correctly so. Petitioners failed to carry the burden of showing otherwise, with respect to these matters.

Petitioners contend that the 15.5 acre undeveloped tract (referred to in the judgment as 16-acre tract) is not property of the character which may be annexed under the Act, does not comply with the standards set out in G.S. § 160-453.16, and should have been excluded from the area to be annexed. This contention is untenable. It is true that there are no buildings on the 15.5 acre tract, no persons reside thereon, and it has not been subdivided and contains no improved streets or utilities. But when considered with the remainder of the area to be annexed, the area as a whole complies with the requirements of G.S. § 160-453.16(b) and (c). Petitioners have not shown otherwise. This is sufficient to qualify this tract for inclusion in the annexation. Furthermore, the 15.5 acre tract qualifies for annexation under the provisions of G.S. § 160-453.16(d) which declares: "In addition to areas developed for urban purposes, a governing board may include in the area to be annexed any area which does not meet the requirements of subsection (c) if such area * * * is adjacent, on at least sixty per cent (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)." A casual examination of the annexation map shows that more than 60% of the external boundary of the 15.5 acre tract is adjacent to the city limits and the Forest Hills Development. The court found this to be a fact, though such finding was unnecessary since the area as a whole qualified under G.S. § 160-453.16(c). Where an area to be annexed, when considered as a whole, meets the requirements of G.S. § 160-453.16(b) and (c), a portion of the area may not, as a matter of right, be excluded from annexation merely because it, taken alone, does not meet these requirements. Petitioners' argument to the contrary is based on the following language in G.S. § 160-453.16(a): "A municipal governing board may extend the municipal corporate limits to include any area * * * every part of which meets the requirements of either subsection (c) or subsection (d)." (Emphasis added.) When considered with the other provisions of the section it is clear that the construction placed thereon by petitioners is contrary to the intent of the Legislature. A vacant lot in a subdivision does not comply with subsection (c), but the Legislature did not intend that all vacant lots in an otherwise qualified area be excluded from annexation. The language simply means that where a developed tract and an undeveloped tract are included in an area to be annexed, and the developed tract complies with subsection (c), but when the undeveloped tract is added the area as a whole does not so comply, then the undeveloped tract must be excluded unless it complies with one of the requirements of subsection (d).

In the report of plans and the annexation ordinance the plan for street maintenance is:

"Full and continuous street maintenance will be afforded for all streets in the area, which have complete permanent improvements including proper and adequate storm drainage, concrete curb and gutter and street paving. "It is the City's policy that streets and new developments shall be constructed and improved by the developer and shall include proper and adequate storm drainage, concrete curb and gutter and street pavingall meeting the specifications and requirements of the City. In the sections of the area proposed for annexation where full permanent improvements have not been *699 constructed, this policy will apply. At such time as the streets in these undeveloped portions are fully developed and improved in accordance with the above requirement, they shall be accepted for full and continuous maintenance."

The uncontradicted evidence is that there are unpaved streets and streets without curb and gutter within the area to be annexed and within the present limits of the city, and those within the city limits are maintained by the city. Yet the plan for extension of service states in effect that the city will maintain in the area to be annexed only such streets as are paved and have adequate storm drainage and concrete curb and gutter. It is stated that land owners and developers must put the streets in the annexation area in this condition before they will be accepted for "full and continuous maintenance." Whether the land owners and developers in the area in question are under a contractual duty to the city to make such improvements after annexation, whether the city has the legal right to impose such duty upon them after an annexation, peremptory and involuntary as to the land owners, or whether an ex parte statement of policy on the part of the city, if indeed there is such statement of policy, is binding on such owners, are questions beside the point and may not be determined in this case. Of course an established policy of the city may be considered in determining whether or not it plans to extend street maintenance service to the new area "on substantially the same basis and in the same manner as such services are provided within the rest of the municipality," but there is no evidence that the city has a policy not to maintain unpaved streets and streets without curb and gutter, even in newly annexed areas; the evidence is to the contrary. Even if the property owners and developers in the area to be annexed are under duty to the city to pave all streets and provide storm sewers and curb and gutter, the city is in no position to rely on this obligation in the annexation proceeding and thereby shift to others the duty which the Act imposes on the city as a condition precedent to annexation. So far as the annexation proceeding is concerned, the primary duty of street maintenance in the area in question, after annexation, is upon the city, and it must in good faith make plans to maintain the streets, whether paved or unpaved, "on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation." G.S. § 160-453.15(3)a. If there are others who have an obligation to relieve the city of the duty of maintaining streets which are not improved to the indicated level, it is a matter strictly between such other parties and the city, and the nature, extent and validity of the obligation may not be litigated in this cause. The court below should have found that the plans for street maintenance do not comply with the requirements of G.S. § 160-453.15.

The plans for water and sewer extension to the area to be annexed present a very similar problem. The plans for water and sewer set out in considerable detail proposed improvements in lines and mains and additional plant facilities and water feeder mains for the city as well as the area to be annexed, construction to begin within a year and to be financed from the proceeds of a bond issue heretofore authorized by vote of the citizens of Jacksonville. In this phase of the matter the plans are entirely adequate. But the over-all plans for water and sewer extension to the new area state that the developed portion is presently served by adequate water and sewer mains connected to city lines, that under an established policy of the city these facilities will become the property of the city when the area is annexed, and that in the undeveloped portions of the area city policy requires land owners and developers to install water and sewer mains, lateral lines and water meters for each individual lot. There are no plans for the city to extend water and sewer service beyond that presently in existence, unless *700 lines are extended by land owners and developers. The question as to whether or not the city will own the water and sewer installations upon annexation does not arise here; it will only arise if and when the city appropriates the installations. Styers v. City of Gastonia, 252 N.C. 572, 114 S.E.2d 348. The instant proceeding is concerned with extension of services, not ownership of facilities. Furthermore, the question as to whether or not the city may impose upon the owners of undeveloped portions of the area, after annexation and after city lines have been connected to facilities in the area, the obligation to install water and sewer mains, lateral lines and meters, has no place in this litigation.

The evidence as to city policy is that areas outside the city desiring to connect with city mains have been required to install lines and facilities in keeping with city standards, before connections were made and before those areas were annexed and brought within the city limits, all without any expense to the city. In these instances the developers requested annexation. In a public hearing relative to the annexation of an "Elizabeth Lake" area, it was stated:

"It would be the responsibility of any builder in an undeveloped area or subdivision to extend water and sewer thru their subdivision after it has been made available to their property line by the City. Work should be started or contracts let and construction begun on such water and sewer lines within 6 months following the effective date of annexation."

In this area the developers desired annexation and apparently agreed to the terms. In the instant case the annexation is peremptory and, as to the petitioners, adverse.

There is evidence that the 15.5 acre undeveloped tract may be served by making connections with facilities in the Northwoods development, but there is no plan for such service. In short, there is no plan to extend services to any parts of the area to be annexed other than those portions which have existing installations, and such additional portions in which land owners and developers shall install water and sewer mains, lateral lines and meters. Thus the plans for extension of water and sewer services are purely conditional. The Act requires that the services be provided on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. When a municipality engages in supplying water to its inhabitants, it owes the duty of equal service to consumers within its corporate limits, as a general rule. Fulghum v. Town of Selma, 238 N.C. 100, 76 S.E.2d 368. The city must furnish major municipal services to areas annexed as provided by the Act. The performance of this duty may not be made to depend upon a doubtful contingency, and may not be delegated to others by the city so as to relieve the city of the duty. If other parties are obligated to the city to perform such duty, the city must enforce the obligation directly against such parties and may not be otherwise relieved of its primary duty to the area which it seeks to make a part of the city for all other purposes. Plans for extension of services may, of course, take into consideration all circumstances and provide only for services if and when needed. Besides, the cost of water and sewer extensions may be assessed upon the lots or parcels of land abutting directly on lateral mains of water and sewer systems. G.S. § 160-241 to G.S. § 160-248, and G.S. § 160-255. The court should have found that the plans for water and sewer extensions are not in compliance with the Act.

The requirements of the Act that plans for extension to the area to be annexed of all major municipal services performed within the municipality at the time of annexation is a condition precedent to annexation. Huntley v. Potter, N.C., 122 S.E.2d 681; In re Annexation Ordinance, 253 N.C. 637, 647, 117 S.E.2d 795.

*701 Except as above indicated, the record shows full and substantial compliance with the Act.

This cause is remanded with direction that the Superior Court of Onslow County enter an order remanding the proceedings to the City Council of Jacksonville for amendment of plans as to street maintenance and water and sewer extension so that these plans will comply with the requirements of G.S. § 160-453.15. See G.S. § 160-453.18(g) (3).

Error and remanded.