Biltmore Square Associates v. City of Asheville

439 S.E.2d 211, 113 N.C. App. 459, 1994 N.C. App. LEXIS 114
CourtCourt of Appeals of North Carolina
DecidedFebruary 1, 1994
DocketNo. 9228SC814
StatusPublished

This text of 439 S.E.2d 211 (Biltmore Square Associates v. City of Asheville) 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
Biltmore Square Associates v. City of Asheville, 439 S.E.2d 211, 113 N.C. App. 459, 1994 N.C. App. LEXIS 114 (N.C. Ct. App. 1994).

Opinion

COZORT, Judge.

On 4 June 1991, the Asheville City Council adopted Ordinance No. 1911 which annexed a certain area of land southwest of the City. On 3 July 1991, petitioners filed a petition for judicial review of the annexation ordinance, alleging, in pertinent part that (1) petitioners are owners of real property located in the annexation area; (2) all annexation proceedings are invalid and that Ordinance 1911 is void because incorporation of the annexation area violates the Voting Rights Act of 1965; (3) the City failed to meet the requirements of N.C. Gen. Stat. §§ 160A-47, 160A-48, and 160A-49 (1987); (4) the ordinance was not adopted in accordance with pro[461]*461cedures of the City Council; (5) petitioners were not given proper notice and were deprived of due process of law; and (6) the annexation statutes as applied deprived petitioners of due process of law, equal protection, and benefits of law of the land. Petitioners asked the court to declare that the ordinance was void and that the area purported to be annexed was not eligible for annexation. They also requested a remand for proceedings in accordance with annexation statutes, costs of the action, and other relief.

On 10 March 1992, Superior Court Judge Robert W. Kirby found, in pertinent part:

Voting Rights Act
3. Petitioners in this matter include two general partnerships involved in a joint venture, with one of the partnerships being an Ohio General Partnership; a Pennsylvania corporation; a Tennessee corporation; and seven individual petitioners. All of the individual petitioners are white. None of the individual petitioners were registered to vote within the City of Asheville at the time of this annexation.
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Subdivision Test
* * * *
11. Respondent performed calculations for the subdivision test prior to approval by the Asheville City Council of the report setting forth plans to provide for extension of major municipal services to the Annexation Area (the “Plan”). The Plan was approved on March 19, 1991.
12. The Plan approved on March 19,1991, included a statement showing that the Annexation Area is developed for urban purposes as defined in N.C. Gen. Stat. sec. 160A-48 (c) (3). The Plan showed that of the 363.90 acres of land in the Annexation Area not used for commercial, industrial, governmental or institutional purposes, 262.25 acres, or 72.07%, are divided into lots and tracts of five acres or less.
13. Property owners in the Annexation Area caused changes to be made to the Buncombe County tax maps and records after the Plan was adopted on March 19, 1991, but before City of Asheville Ordinance No. 1911 (“Annexation Or[462]*462dinance”) was adopted on June 4,1991. The parties stipulated that those changes were made on May 6 and 7, 1991.
* * * *
16. The public hearing on the Annexation Area was held on April 23, 1991.
17. The Annexation Ordinance was adopted on three readings— May 7, 1991; May 21, 1991; and June 4, 1991. The effective date of the annexation, as established by the Annexation Ordinance, was July 31, 1991. The effective date of the annexation was stayed, however, by the filing of a petition in this matter on July 3, 1991.
18. Respondent made changes to the boundaries of the Annexation Area by deleting some lots and tracts at the southern end of the area described in the resolution of intent after the approval of the Plan and before the adoption of the Annexation Ordinance. Those changes were reflected in the second paragraph of subsection (2) of the “Statement of Statutory Standards” found on pages 1 and 2 of the Amendment to the Plan for Extension of Major Municipal Services approved on June 4, 1991 (“Amended Plan”). In addition, Respondent showed the addition of one lot within the Annexation Area which was inadvertently omitted from calculations made prior to adoption of the Plan.
19. At the trial of this matter, Respondent conceded that it had made an 18.0 acre error in its subdivision test calculations. As a result of that error the subdivision test calculation in paragraph 2 of subsection (2) of the “Statement of Statutory Standards” should be changed to show that of the 360.45 acres of land in the Annexation Area not used for commercial, industrial, governmental or institutional purposes, 240.80 acres, or 66.81%, are.divided into lots and tracts of five acres or less.
20. The General Assembly has determined that certain steps must be taken in the annexation process and those procedural steps require that there be a cutoff date for determining what changes had been made to lots and tracts for the purposes of the subdivision test in N. C. Gen. Stat. sec. 160A-48 (c) (3). That date can be no later than the date, of the public hearing, at which time the public has [463]*463ample opportunity to provide cities in North Carolina with information as to incorrect use or size determinations for the purposes of that test.
21. Respondent’s calculations of the subdivision test as set forth in paragraph 2, with the revision for the 18 acre error, are the calculations to be used as of the “time of annexation.”
22. At the time of annexation, therefore, the Annexation Area was subdivided into lots and tracts such that 68.81% of the total acreage, not counting the acreage used at the time of annexation for commercial, industrial, governmental or institutional purposes, consisted of lots and tracts five acres or less in size.
23. Respondent included in paragraphs 3 and 4 of subsection (2) of the “Statement of Statutory Standards” calculations which would result if one did take into consideration actions taken by various property owners within the Annexation Area following adoption of the Plan (and after the public hearing), by which they caused changes to be made to the size and number of lots shown on the Buncombe County tax maps and records. Respondent also included in paragraph 4 changes in use to an 18.0 acre tract and a 6.1 acre tract which occurred following the approval of the Plan.

Based upon the findings of fact, the trial court concluded in part:

2. This Court does not have jurisdiction in this proceeding to determine whether or not this annexation results in a violation of the Voting Rights Act of 1965, as amended.
3. Even if this Court had such jurisdiction, Petitioners herein do not have standing in this proceeding to challenge this annexation as violating the Voting Rights Act of 1965, as amended.
4. Even if this Court had such jurisdiction and Petitioners had such standing, Petitioners have failed to show that this annexation violates the Voting Rights Act of 1965, as amended.
5. The Annexation Area complies with the provisions of N. C. Gen. Stat. sec. 160A-48 (c) (3) in that it was subdivided [464]

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Bluebook (online)
439 S.E.2d 211, 113 N.C. App. 459, 1994 N.C. App. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biltmore-square-associates-v-city-of-asheville-ncctapp-1994.