Carolina Power & Light Co. v. City of Asheville

587 S.E.2d 490, 161 N.C. App. 1, 2003 N.C. App. LEXIS 1995
CourtCourt of Appeals of North Carolina
DecidedNovember 4, 2003
DocketCOA02-1518
StatusPublished
Cited by2 cases

This text of 587 S.E.2d 490 (Carolina Power & Light Co. 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
Carolina Power & Light Co. v. City of Asheville, 587 S.E.2d 490, 161 N.C. App. 1, 2003 N.C. App. LEXIS 1995 (N.C. Ct. App. 2003).

Opinions

LEVINSON, Judge.

Petitioner appeals from a judgment affirming City of Asheville Annexation Ordinance No. 2708. We affirm.

I.

On 13 June 2000, the City of Asheville (hereinafter “City”) adopted Ordinance No. 2708, “An Ordinance to Extend the Corporate Limits of the City of Asheville, North Carolina, Under the Authority Granted by Part 3, Article 4A, Chapter 160A of the General Statutes of North Carolina” (hereinafter “Annexation Ordinance”). This ordinance annexed into the City an area south of Asheville, which is referred to as the “Long Shoals Area.” The City determined that this area qualified for annexation pursuant to N.C.G.S. § 160A-48(c)(3) and (d).

Appellant, Carolina Power & Light (CP&L), owns most of the Long Shoals Area, including land associated with its electricity generating facility and the power plant’s man-made cooling pond (Lake Julian). CP&L contested the annexation in superior court pursuant to N.C.G.S. § 160A-50, and made two arguments at trial which are relevant to the present appeal.

CP&L’s first argument dealt with two separate tracts referred to as “Non-Urban Area 1” and “Non-Urban Area 4.” Non-Urban Areas 1 and 4 are adjacent along at least sixty percent of their external borders with land the City classified pursuant to G.S. § 160A-48(c)(3) as “developed for urban purposes.” Neither Non-Urban Area 1 nor 4 is contiguous along its external boundary with the pre-annexation City limits. The City classified both properties as adjacent non-urban areas pursuant to G.S. § 160A-48(d)(2). At trial, CP&L argued that G.S. § 160A-48(d)(2) requires a non-urban area to share a border with both the municipal boundary and the boundary of an area developed for urban purposes. Because neither Non-Urban Area 1 nor 4 shares an external boundary with the pre-annexation City limits, CP&L insisted that classification as a non-urban area was inappropriate.

CP&L’s second argument pertained to four tracts (Tracts 1-4) of land located within a larger tract. The larger tract is listed by the [3]*3Buncombe County Tax Office as PIN No. 9644.11-66-1056 (PIN 1056). The City classified more than five hundred acres of PIN 1056, including the four disputed tracts, as being in industrial use. At trial, CP&L contended that the City’s classification of the four tracts was erroneous because those tracts are not used “in support of’ CP&L’s power generating facilities.

Following a bench trial, judgment was entered for the City. The trial court found, in pertinent part:

13. Five Non-Urban Areas were identified in the Long Shoals Area.
15. The Plan as amended by the Annexation Ordinance reflects that each Non-Urban Area meets the 60% contiguity requirement [of G.S. § 160A-48(d)(2)]_
16. As to Non-Urban Areas 1 and 4, CP&L does not dispute that the boundaries of those areas are adjacent or contiguous along 60% of their length with urbanized areas within the Long Shoals Area.
17. CP&L contends, and the Plan shows, that the external boundaries of Non-Urban Areas 1 and 4 are at no point contiguous with or adjacent to the existing City limits. CP&L further contends that the City incorrectly applied N.C.G.S. [§] 160A-48(d)(2) with respect to Non-Urban Areas 1 and 4 because the statute requires that the boundaries of Non-Urban Areas be contiguous with both the existing City limits and one or more urbanized areas within the annexation areas.
18. For reasons set out in the Conclusions of Law below, the Court has determined as a matter of law that CP&L’s contentions on this issue are without merit, and that Non-Urban Areas 1 and 4 both satisfy the boundary contiguity requirement of N.C.G.S. [§] 160A-48(d)(2) because they are contiguous for more than 60% of their length with an area or areas developed for urban purposes.
19. In light of the foregoing, it is unnecessary for the Court to make any findings as to the issues raised by CP&L regarding the classifications and sizes of the lots and tracts within Non-Urban Areas 1 and 4. Nevertheless, the Court has considered the evidence presented as to Non-Urban Areas 1 and 4, and finds that:
[4]*4(a) Even though some use is made of one or more of the properties within those areas, the uses do not affect the overall character of the areas as not developed for urban purposes, and are not inconsistent with the designation of those areas as non-urban areas within the meaning of N.C.G.S. [§] 160A-48(d);
(b) Non-Urban Areas 1 and 4 both lie between two or more areas within the Long Shoals Area that are developed for urban purposes;
(c) Non-Urban Area 1 is completely surrounded by areas within the Long Shoals Area that are developed for urban purposes, with respect to which no issue has been raised;
(d) Non-Urban Area 4 is surrounded on three sides by areas within the Long Shoals Area that are developed for urban purposes, with respect to which no issue has been raised.
20. CP&L owns several tracts of land within the Long Shoals Area, including [a] tractf] identified at the time of the adoption of the Annexation Ordinance by PIN[] . . . 9644.11-66-1056 .... [This] tract[] will be referred to herein by the last four digits of [its] PIN[],
21. PIN 1056 is owned by CP&L, consists of 622.85 acres, and is the property upon which is located the Power Plant and most of Lake Julian. This property was classified [by the City] as being in industrial use, which CP&L does not dispute. 71.59 acres of this property was included as a portion of Non-Urban Area 1, including part of the dam and spillway for Lake Julian, and a power transmission line.
23. Within PIN 1056, CP&L identified 4 tracts of land (Tracts 1-4) that it contends are not used “in support of’ its power-generating facilities. . . .
24. ... The sizes of the tracts . . . are set out below:
Tract 1 — 4.4 acres
Tract 2 — 14.34 acres
Tract 3— 9.96 acres
Tract 4 — 9.87 acres
[5]*528. Tract 1 identified by CP&L within PIN 1056 is located on a peninsula jutting into Lake Julian. Tracts 2, 3, and 4 are on the periphery of areas in active use by the Power Plant. The accessibility of all of these tracts is limited. There was no evidence suggesting that the tracts, or any one of them, was suitable for use other than in support of the primary use of the property — the generation of electrical power.
30. ... The tracts are relatively small, isolated on the periphery of the combined CP&L property, and are essentially fragmentary remnants of the much larger Lake Julian/Power Plant facility.
31. The Court finds that these . . . tracts are used in support of the CP&L operation ....

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Related

Carolina Power & Light Co. v. City of Asheville
597 S.E.2d 717 (Supreme Court of North Carolina, 2004)
Carolina Power & Light Co. v. City of Asheville
587 S.E.2d 490 (Court of Appeals of North Carolina, 2003)

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Bluebook (online)
587 S.E.2d 490, 161 N.C. App. 1, 2003 N.C. App. LEXIS 1995, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carolina-power-light-co-v-city-of-asheville-ncctapp-2003.