Anthony v. City of Shelby

567 S.E.2d 222, 152 N.C. App. 144, 2002 N.C. App. LEXIS 904
CourtCourt of Appeals of North Carolina
DecidedAugust 6, 2002
DocketCOA01-1164
StatusPublished
Cited by4 cases

This text of 567 S.E.2d 222 (Anthony v. City of Shelby) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anthony v. City of Shelby, 567 S.E.2d 222, 152 N.C. App. 144, 2002 N.C. App. LEXIS 904 (N.C. Ct. App. 2002).

Opinion

MARTIN, Judge.

Petitioners appeal the trial court’s order affirming five annexation ordinances adopted by respondent City of Shelby (here *145 inafter “the City”) on 20 April 2000. For reasons set forth herein, we affirm.

Briefly summarized, the record discloses that on 7 December 1998, the Shelby City Council adopted “A Resolution of Consideration for Future Annexation Actions by the City of Shelby.” In this resolution, the area identified as the area of consideration for purposes of annexation planning was “ ‘Cleveland County (Shelby) Township No. 6.’ ” Subsequently, on 7 February 2000, the Shelby City Council approved and adopted resolutions of intent to extend the corporate limits which pertained to five separate proposed annexation areas: Area 1 (Melrose Drive Area); Area 2 (Bess Hoey Church Road Area); Area 3 (Rucker Downs Area); Area 3A (East Marion Street Area); and Area 4 (Northeast Area).

After providing notice to all property owners within the proposed annexation areas, a public informational meeting was held on 23 March 2000 in the city council chambers and was attended by approximately 200 people. Thereafter, on 10 April 2000, a public hearing on the proposed annexations was held and on 20 April 2000 the City Council adopted the ordinances annexing each of the five areas. The ordinances established an effective date of 30 June 2000 for the annexations of Areas 2, 3, 3A, and 4 and an effective date of 30 June 2001 for Area 1.

On 16 June 2000, petitioners filed, pursuant to G.S. § 160A-50, a petition for judicial review of the action of the City. Pursuant to G.S. § 160A-50(i), the effective dates of the annexation of all five annexation areas have been stayed pending a final judgment in this case. On 21 March 2001, the superior court entered its order affirming in all respects the actions of the City in annexing each of the five areas. Petitioners gave notice of appeal.

The record on appeal contains but one assignment of error:

The petitioners assign as error the Court’s findings, conclusions and order that the annexation proceedings conducted by the City of Shelby were in substantial compliance with the substantive and procedural requirements of the annexation statutes, that the petitioners failed to show procedural irregularities, and the Court’s affirmation of the City of Shelby’s annexation of the subject five areas.

*146 This assignment of error does not comply with Rule 10(c)(1) of the North Carolina Rules of Appellate Procedure which provides in relevant part:

Each assignment of error shall, so far as practicable, be confined to a single issue of law; and shall state plainly, concisely and without argumentation the legal basis upon which error is assigned.

N.C.R. App. P. 10(c)(1). The assignment of error contends three separate and distinct errors in a single assignment of error in violation of the rule. Moreover, it is broadside and does not specify plainly and concisely the legal basis upon which error is assigned. In addition, quite likely due to their failure to observe Rule 10(c)(1), petitioners have ignored the requirement of N.C.R. App. P. 28(b)(6) that, in an appellant’s brief, “[ijmmediately following each question shall be a reference to the assignments of error pertinent to the question, identified by their numbers and by the pages at which they appear in the printed record on appeal.” The Rules of Appellate Procedure are designed to expedite appellate review and petitioners’ failure to observe the requirements of the Rules subjects their appeal to dismissal. See Bowen v. N. C. Dept. of Health & Human Services, 135 N.C. App. 122, 519 S.E.2d 60 (1999); N.C.R. App. P. 25(b), 34(b)(1). Nevertheless, we have considered their arguments, N.C.R. App. P. 2, and affirm the trial court’s order upholding the annexation of the five areas.

“Judicial review of an annexation ordinance is limited to determination of whether the annexation proceedings substantially comply with the requirements of the applicable annexation statute.” Food Town Stores v. City of Salisbury, 300 N.C. 21, 40, 265 S.E.2d 123, 135 (1980). “[S]light irregularities will not invalidate annexation proceedings if there has been substantial compliance with all essential provisions of the law.” In re Annexation Ordinance, 278 N.C. 641, 648, 180 S.E.2d 851, 856 (1971). With respect to appellate review of an order entered after judicial review in the superior court of an annexation proceeding, this Court has stated:

[w]here the record upon judicial review of an annexation proceeding demonstrates substantial compliance with statutory requirements by the municipality, the burden is placed on petitioners to show by competent evidence a failure to meet those requirements or an irregularity in the proceedings which resulted in material prejudice ....

*147 Scovill Mfg. Co., Inc. v. Town of Wake Forest, 58 N.C. App. 15, 17-18, 293 S.E.2d 240, 243, disc. review denied, 306 N.C. 559, 294 S.E.2d 371 (1982). If the trial court’s findings of fact are supported by competent evidence, they are binding on appeal. Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 356 S.E.2d 599 (1987), affirmed, 321 N.C. 589, 364 S.E.2d 139 (1988). However, the conclusions of law drawn from these findings are subject to de novo review. Id.

In their appellate brief, petitioners first argue that the City has not made sufficient plans to extend police services to the annexed areas in violation of G.S. § 160A-47(3)a and that the City has failed to set forth a proposed timetable for the construction of water and sewer lines in violation of G.S. § 160A-47(3)c. However, these grounds for invalidation of the annexation ordinances were not alleged in the petition for judicial review nor were they presented to the trial court. It is well established that if an argument is not raised in the trial court, this Court will not consider it on appeal. Westminster Homes, Inc. v. Town of Cary Zoning Bd. of Adjustment, 140 N.C. App. 99, 535 S.E.2d 415 (2000), affirmed, 354 N.C. 298, 554 S.E.2d 634 (2001); Town of Chapel Hill v. Burchette, 100 N.C. App. 157, 394 S.E.2d 698 (1990). Therefore, we will not consider these contentions.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

In re: H.D.H.
Court of Appeals of North Carolina, 2020
Johnson v. Wornom
606 S.E.2d 372 (Court of Appeals of North Carolina, 2005)
In Re Adoption of Shuler
590 S.E.2d 458 (Court of Appeals of North Carolina, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
567 S.E.2d 222, 152 N.C. App. 144, 2002 N.C. App. LEXIS 904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anthony-v-city-of-shelby-ncctapp-2002.