Nolan v. Village of Marvin

615 S.E.2d 898, 172 N.C. App. 84, 2005 N.C. App. LEXIS 1432
CourtCourt of Appeals of North Carolina
DecidedAugust 2, 2005
DocketNo. COA04-1169.
StatusPublished

This text of 615 S.E.2d 898 (Nolan v. Village of Marvin) 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
Nolan v. Village of Marvin, 615 S.E.2d 898, 172 N.C. App. 84, 2005 N.C. App. LEXIS 1432 (N.C. Ct. App. 2005).

Opinions

MARTIN, Chief Judge.

Petitioner land owners appeal an order of the trial court affirming involuntary annexation of their property by respondent Village of Marvin. We affirm the order of the trial court.

On 22 September 2003, petitioners filed a petition for review of an annexation ordinance enacted by respondent. The petition alleged, inter alia, that respondent had failed to adequately respond to questions regarding the proposed annexation, and that annexation of petitioners' property violated express declarations of public policy as set forth in section 160A-33 of the North Carolina General Statutes. The matter came before the trial court on 3 May 2004. The court, based upon the pleadings, briefs, arguments by counsel and other materials submitted, made the following findings of fact:

1. [Respondent] adopted the annexation ordinance on July 24, 2003. Petitioners William J. Nolan III and Louise C. Hemphill-Nolan ("the Nolans") filed a petition challenging this annexation on September 22, 2003.

....

5. [Respondent's] Annexation Report and Amended Annexation Report provided information on the level of services [respondent] currently provides. In these reports, [respondent] committed itself to providing substantially the same level of services in the Annexation Area, and it identified how [respondent] will finance the extension of its services into the Annexation Area.

6. [Respondent] provides independent administrative, engineering, auditing, legal and planning services to its residents.

7. After annexation, the Annexation Area will receive services on substantially the same basis and in the same manner as services received elsewhere in [the municipality].

8.... [Respondent] is exploring options for obtaining additional police patrol services, and it has committed to providing its current and future levels of such services to its residents in a non-discriminatory manner.

9. [Respondent] conducted an informational meeting under N.C.G.S. § 160A-37(c1). At this meeting, [respondent] representatives declined to answer any questions concerning [its] motivations for annexing the territory. There is no evidence that [respondent] failed to answer any other questions asked.

Based on these findings, the trial court concluded respondent had satisfied statutory requirements regarding the provision of services to the annexation area, and that general policy declarations contained in section 160A-33 of the North Carolina General Statutes created no further procedural steps for respondent, nor created substantive rights for petitioners. The trial court further concluded that petitioners had failed to show any material injury as a result of respondent's refusal to answer questions regarding its motivation for pursuing annexation. The trial court entered an order affirming annexation. Petitioners appeal.

Petitioners argue the trial court erred in affirming annexation on the grounds that (1) such annexation violates state policy, and (2) respondent violated procedural requirements of the annexation process. Review of an annexation ordinance is limited to resolving the following three issues: (1) whether the annexing municipality has properly complied with the statutory procedures; (2) where the statutory procedures have not been properly followed, whether the petitioners will suffer material injury as a result of such procedural irregularities; and (3)

*901whether the area to be annexed meets the applicable statutory requirements. See N.C. Gen.Stat. § 160A-38 (2003); In re Annexation Ordinance, 278 N.C. 641, 646-47, 180 S.E.2d 851, 855 (1971).

Where an appeal is taken from the adoption of an annexation ordinance and the proceedings show prima facie that there has been substantial compliance with the statute, the burden is upon the party attacking the annexation to show, by competent evidence, failure on the part of the municipality to comply with the statutory requirements.

Thrash v. City of Asheville, 327 N.C. 251, 255, 393 S.E.2d 842, 845 (1990); In re Annexation Ordinance, 278 N.C. at 647, 180 S.E.2d at 855-56; Hayes v. Town of Fairmont, 167 N.C.App. 522, 605 S.E.2d 717, 718 (2004), disc. review denied, 359 N.C. 410, 612 S.E.2d 320 (2005). "Substantial compliance" is defined as compliance with the essential requirements of the statute. Thrash, 327 N.C. at 255, 393 S.E.2d at 845. Findings of fact made by the trial court are binding on this Court if supported by the evidence, even where there may be evidence to the contrary. Hayes, 167 N.C.App. at ___, 605 S.E.2d at 719.

Petitioners argue the annexation at issue violates state policy as declared in section 160A-33 of the North Carolina General Statutes. Section 160A-33 declares "as a matter of State policy" the following:

(1) That sound urban development is essential to the continued economic development of North Carolina;

(2) That municipalities are created to provide the governmental services essential for sound urban development and for the protection of health, safety and welfare in areas being intensively used for residential, commercial, industrial, institutional and government purposes or in areas undergoing such development;

(3) That municipal boundaries should be extended, in accordance with legislative standards applicable throughout the State, to include such areas and to provide the high quality of governmental services needed therein for the public health, safety and welfare; and

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615 S.E.2d 898, 172 N.C. App. 84, 2005 N.C. App. LEXIS 1432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nolan-v-village-of-marvin-ncctapp-2005.