In Re Annex. Ord. No. 1219 Adopt. by Asheville

303 S.E.2d 380, 62 N.C. App. 588, 1983 N.C. App. LEXIS 2990
CourtCourt of Appeals of North Carolina
DecidedJune 21, 1983
Docket8228SC524
StatusPublished
Cited by8 cases

This text of 303 S.E.2d 380 (In Re Annex. Ord. No. 1219 Adopt. by 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
In Re Annex. Ord. No. 1219 Adopt. by Asheville, 303 S.E.2d 380, 62 N.C. App. 588, 1983 N.C. App. LEXIS 2990 (N.C. Ct. App. 1983).

Opinions

WELLS, Judge.

The first issue we must address is whether petitioners’ petition for review was properly served on Asheville. It is Asheville’s contention that the provisions of G.S. 160Á-50(a) and (b) are controlling, and require service by registered mail, return receipt requested. The statute, in pertinent part, is as follows:

Sec. 160A-50. Appeal
(a) Within 30 days following the passage of an annexation ordinance under authority of this Part, any person own[591]*591ing property in the annexed territory who shall believe that he will suffer material injury by reason of the failure of the municipal governing board to comply with the procedure set forth in this Part or to meet the requirements set forth in G.S. 160A-48 as they apply to his property may file a petition in the superior court of the county in which the municipality is located seeking review of the action of the governing board.
(b) Such petition shall explicitly state what exceptions are taken to the action of the governing board and what relief the petitioner seeks. Within five days after the petition is filed with the court, the person seeking review shall serve copies of the petition by registered mail, return receipt requested, upon the municipality.

Petitioners contend that under the provisions of G.S. 1A-1, Rule 4(j)(5), they were allowed the alternative method of service by certified mail, return receipt requested. That statute, in pertinent part, is as follows:

Rule 4. Process
(j) Process-manner of service to exercise personal jurisiction. —
In any action commenced in a court of this State having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in G.S. 1-75.4, the manner of service of process within or without the State shall be as follows:
(5) Counties, Cities, Towns, Villages and Other Local Public Bodies.—
a. Upon a city, town, or village by personally delivering a copy of the summons and of the complaint to its mayor, city manager or clerk or by mailing a copy of the summons and of the complaint, registered or certified mail, return receipt requested, addressed to its mayor, city manager or clerk.

[592]*592There is no dispute that the petition was sent by certified mail addressed to the City of Asheville, in care of its City Manager (by name), and was received by the City’s mail clerk, who signed the return receipt acknowledging its delivery. In addition, on Asheville’s motion to dismiss, the trial court heard the testimony of Lawrence Hoote, a 28 year veteran of the Asheville Post Office, who testified that he was familiar with the postal service methods and regulations pertaining to registered and certified mail; that both are “accountable” mail; and that generally, the only distinction between the two is that with registered mail, the post office retains a record of the transaction, while with certified mail, a duplicate of the customer receipt is not retained by the post office.

G.S. 1-75.10 provides in pertinent part as follows:
Where the defendant appears in the action and challenges the service of the summons upon him, proof of the service of process shall be as follows:
(4) Service by Registered or Certified Mail. — In the case of service by registered or certified mail, by affidavit of the serving party averring:
a. That a copy of the summons and complaint was deposited in the post office for mailing by registered or certified mail, return receipt requested.
b. That it was in fact received as evidenced by the attached registry receipt or other evidence satisfactory to the court of delivery to the addressee; and
c. That the genuine receipt or other evidence of delivery is attached.

The affidavit of service and receipt required by G.S. 1-75.10(4) was properly filed and presented at the hearing on Asheville’s motion to dismiss.

We are persuaded that the use of certified mail in this case accomplished exactly the same basis for proof of service as would have been accomplished by use of registered mail and that the trial court properly denied Asheville’s motion to dismiss.

[593]*593In the second issue raised by Asheville, it contends that Judge Jolly erred in declaring the annexation ordinance to be invalid and void. We agree. Our appellate courts have consistently held that the scope of judicial review of annexation ordinances is limited in scope.

The superior court’s review of the annexation ordinance of a municipal governing body is limited by statute. Moody v. Town of Carrboro, 301 N.C. 318, 271 S.E. 2d 265 (1980). Upon review the judge may examine the annexation proceedings to determine only whether the municipal governing board substantially complied with the requirements of the applicable annexation statutes. Id.; Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E. 2d 189 (1980); Food Town Stores v. City of Salisbury, 300 N.C. 21, 265 S.E. 2d 123 (1980).
G.S. 160A-50(f) provides in effect that on judicial review the court may hear oral arguments, receive written briefs, and may take evidence intended to show:
(1) that the statutory procedure was not followed, or
(2) that the provisions of G.S. 160A-47 were not met, or
(3) that the provisions of G.S. 160A-48 have not been met.
This section clearly specifies the inquiries to which the court is limited. In re Annexation Ordinance, 284 N.C. 442, 202 S.E. 2d 143 (1974).
This Court described the limitations of a court’s review of an annexation ordinance in In re Annexation Ordinance, 278 N.C. 641, 180 S.E. 2d 851 (1971). There the Court said:
“Thus, the court’s review is limited to these inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioners ‘suffer material injury’ by reason of the municipality’s failure to comply? (3) Does the character of the area specified for annexation meet the requirement of G.S. 160-453.16 as applied to petitioners’ property? G.S. 160-453.18(a) and (f).”
Id. at 646-47, 180 S.E. 2d at 855.

[594]*594In re Annexation Ordinance, 303 N.C. 220, 278 S.E. 2d 224 (1981); see also McKenzie v. High Point, 61 N.C. App. 393, 301 S.E. 2d 129 (1983).

Our task is to determine whether the trial court’s findings of fact, conclusions of law, and judgment are supported by the record before us.

Judge Jolly voided the ordinance in this case based on his perception that the description of the area to be annexed failed to meet statutory requirements. The following findings of fact in Judge Jolly’s order speak to that issue:

2. The aforesaid ordinance purports to contain a “metes and bounds” description of the territory intended to be annexed by the annexation ordinance, as follows:

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Bluebook (online)
303 S.E.2d 380, 62 N.C. App. 588, 1983 N.C. App. LEXIS 2990, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-annex-ord-no-1219-adopt-by-asheville-ncctapp-1983.