In re Annexation Ordinance Adopted by the City of Albemarle

266 S.E.2d 661, 300 N.C. 337, 1980 N.C. LEXIS 1077
CourtSupreme Court of North Carolina
DecidedJune 3, 1980
DocketNo. 111
StatusPublished
Cited by8 cases

This text of 266 S.E.2d 661 (In re Annexation Ordinance Adopted by the City of Albemarle) is published on Counsel Stack Legal Research, covering Supreme Court 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 Annexation Ordinance Adopted by the City of Albemarle, 266 S.E.2d 661, 300 N.C. 337, 1980 N.C. LEXIS 1077 (N.C. 1980).

Opinion

COPELAND, Justice.

We allowed discretionary review in this case because it was improper for the appeal to go initially to the Court of Appeals. Albemarle is a city of 5,000 or more people and pursuant to G.S. 160A-50(h) appeal lies directly to this Court. Humphries v. City of Jacksonville, 300 N.C. 186, 265 S.E. 2d 189 (1980).

Originally, appeals in cases involving cities of less than 5,000 people, G.S. 160-453.6(h) and (i) (1964) (now G.S. 160A-38(h)), and appeals in cases involving cities of 5,000 or more people, G.S. 160-453.18(h) and (i) (1964) (now G.S. 160A-50(h)), came directly to [339]*339this Court since the Court of Appeals was not then in existence. After creation of the Court of Appeals (effective 1 January 1967), this Court decided the case of Adams-Millis Corp. v. Town of Kernersville, 281 N.C. 147, 187 S.E. 2d 704 (1972).

The case involved a city with less than 5,000 people; therefore, the appeal was pursuant to G.S. 160-453.6(h) and (i). The appeal was taken to the Court of Appeals but this Court elected pursuant to G.S. 7A-31 to certify the appeal for initial appellate review by the Supreme Court. Nevertheless, this Court held that the appeal had been properly taken to the Court of Appeals. Justice (later Chief Justice) Sharp writing for the Court held that:

“When the Court of Appeals was created as of 1 January 1967, the appellate division of the General Court of Justice became the Supreme Court and the Court of Appeals. G.S. 7A-5, G.S. 7A-16; State v. Colson, 274 N.C. 295, 163 S.E. 2d 376. By a clear legislative oversight Sections (h) and (i) of G.S. 160-4-53.6 were not amended to include the Court of Appeals as one of the appellate courts. However, N.C. Sess. Laws, Ch. 108, Section 1 (1967), codified as G.S. 7A-25 to -35, defines the respective appellate jurisdiction of the Supreme Court and the Court of Appeals. By G.S. 7A-27 initial appellate jurisdiction of this cause is given to the Court of Appeals subject, however, to the provisions of G.S. 7A-31. The Court of Appeals, therefore, is now deemed to be included in Sections (h) and (i) of G.S. 160-453.6. Guilford County v. Estates Administration, Inc., 212 N.C. 653, 194 S.E. 295. This appeal was properly taken to the Court of Appeals, from which it was transferred to this Court upon our order entered under G.S. 7A-31.” Adams-Millis Corp. v. Town of Kernersville, supra at 149, 187 S.E. 2d at 705. [Emphasis added.]

Subsequently, in 1977, the statute dealing with appeals in annexation cases involving cities with less than 5,000 people was amended by the legislature to provide that the appeal is to go initially to the Court of Appeals. G.S. 160A-38(h) (Supp. 1979).

However, the statute dealing with appeals in annexation cases involving cities with 5,000 or more people still provides that the appeal is directly to this Court. G.S. 160A-50(h). Since the legislature amended G.S. 160A-38(h) to provide that those appeals [340]*340are to go to the Court of Appeals, we cannot say that its failure to amend G.S. 160A-50(h) is a “clear legislative oversight” as was the case in Adams-Millis. Where an Article (Article 4A.of Chapter 160A) has two distinct sections (160A-38(h) and 50(h)) dealing with related matters, an amendment to one section is not an amendment to the other because it is presumed that if the legislature had intended the amendment to apply to both sections, it would have expressed such intent. See, Arrington v. Stone & Webster Engineering Corp., 264 N.C. 38, 140 S.E. 2d 759 (1965) (dealing with two subsections within one statute); see also, Andrews v. Nu-Woods, Inc., 299 N.C. 723, 264 S.E. 2d 99 (1980) (legislature clearly expressed its intent in G.S. 97-29 to amend G.S. 97-38). The result is that G.S. 160A-38(h) provides for appeal to the Court of Appeals in cases involving less than 5,000 people and G.S. 160A-50(h), pursuant to which the appeal was taken in this case, provides for appeal to the Supreme Court in cases involving 5,000 or more people. Therefore, this case should have come directly to this Court. See, In re Annexation Ordinance [Goldsboro], 296 N.C. 1, 249 S.E. 2d 698 (1978) (direct appeal to this Court pursuant to G.S. 160A-50(h) decided without this issue being raised).

The first issue is whether the area to be annexed meets the statutory requirements of G.S. 160A-48(b), (c) and (d).

G.S. 160A-48(a)(l) requires that the area to be annexed meet the general standards of subsection (b). Subsection (b) then requires that the total area to be annexed meet certain contiguity requirements, G.S. 160A-48(b)(l) and (2), and that the area not already be included within the boundary of any other incorporated municipality, G.S. 160A-48(b)(3).

G.S. 160A-48(a)(2) then requires that “[ejvery part ... [of the area to be annexed must meet] the requirements of either subsection (c) or subsection (d).” [Emphasis added.] Subsection (c) states that “[p]art or all of the area to be annexed must be developed for urban purposes,” [emphasis added] and three tests for urban purposes are set forth in (c) (l)-(3). Part or all of the area to be annexed must meet the requirements of at least one of those three tests.

Subsection (d) provides:

“(d) In addition to areas developed for urban purposes, a governing board may include in the area to be annexed any [341]*341area which does not meet the requirements of subsection (c) if such area either:
(1) Lies between the municipal boundary and an area developed for urban purposes so that the area developed for urban purposes is either not adjacent to the municipal boundary or cannot be served by the municipality without extending services and/or water and/or sewer lines through such sparsely developed area; or
(2) Is adjacent, on at least sixty percent (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).
The purpose of this subsection is to permit municipal governing boards to extend corporate limits to include all nearby areas developed for urban purposes and where necessary to include areas which at the time of annexation are not yet developed for urban purposes but which constitute necessary land connections between the municipality and areas developed for urban purposes or between two or more areas developed for urban purposes.” [Emphasis added.]

Respondent followed precisely the requirements as set forth above. Cities with 5,000 or more people may annex an outlying urban area pursuant to G.S. 160A-48(c) and the intervening undeveloped lands pursuant to G.S. 160A-48(d) so long as the entire area meets the requirements of G.S. 160A-48(b).

Nothing contained in this opinion is inconsistent with this court’s decision in In re Annexation Ordinance [Charlotte], 284 N.C. 442, 202 S.E. 2d 143 (1974). In that case, the City of Charlotte did not attempt to utilize G.S. 160A-48(d) in its efforts to annex certain areas to the city. Instead, it sought to accomplish the annexation solely pursuant to G.S. 160-453.16(c)(1) (now G.S. 160A-48(c)(1)). The city divided the area to be annexed into study areas and applied the urban purpose test of (c)(1) to each study area individually rather than to the area to be annexed as a whole.

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Bluebook (online)
266 S.E.2d 661, 300 N.C. 337, 1980 N.C. LEXIS 1077, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-annexation-ordinance-adopted-by-the-city-of-albemarle-nc-1980.