Thrash v. City of Asheville

383 S.E.2d 657, 95 N.C. App. 457, 1989 N.C. App. LEXIS 830
CourtCourt of Appeals of North Carolina
DecidedSeptember 19, 1989
Docket8828SC1261
StatusPublished
Cited by4 cases

This text of 383 S.E.2d 657 (Thrash 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
Thrash v. City of Asheville, 383 S.E.2d 657, 95 N.C. App. 457, 1989 N.C. App. LEXIS 830 (N.C. Ct. App. 1989).

Opinions

JOHNSON, Judge.

I

Facts

On 9 June 1987, the City of Asheville adopted resolution number 87-104 stating its intent to consider the annexation of certain territory west of the City, known as the west annexation area, and announcing the date of a public hearing on the question. On 23 June 1987, the City adopted a resolution approving a plan for the extension of major municipal services into the west annexation area. This plan was amended twice during the month of August.

On 25 August, the City adopted resolution number 1649 which extended the City’s corporate limits to include the west annexation area. This resolution stated that the area to be annexed met the statutory requirements of G.S. sec. 160A-48, entitled “[character of area to be annexed” which sets forth the extent of urban development that is required before an area may be annexed. This statute includes the following relevant requirements:

(a) A municipal governing board may extend the municipal corporate limits to include any area
[462]*462(1) Which meets the general standards of subsection (b), and
(2) Every part of which meets the requirements of either subsection (c) or subsection (d).

(b) The total area to be annexed must meet the following standards:

(1) It must be adjacent or contiguous to the municipality’s boundaries at the time the annexation proceeding is begun.
(2) At least one-eighth of the aggregate external boundaries of the area must coincide with the municipal boundary.
(3) No part of the area shall be included within the boundary of another incorporated municipality.

(c) Part or all of the area to be annexed must be developed for urban purposes. An area developed for urban purposes is defined as any area which meets any one of the following standards:

(3)Is so developed that at least sixty percent (60%) of the total number of lots and tracts in the area at the time of annexation are used for residential, commercial, industrial, institutional or governmental purposes, and is subdivided into lots and tracts such that at least sixty percent (60%) of the total acreage, not counting the acreage used at the time of annexation for commercial, industrial, governmental or institutional purposes consists of lots and tracts five acres or less in size. (Emphasis added.)

The amended report of plans to extend services, which was fully incorporated into resolution 1649, stated that the City had met both of the requirements of G.S. sec. 160A-48(c)(3), known as the “use” test and the “subdivision” test, in the following manner:

The area to be annexed is developed for urban purposes as defined in the N.C. General Statutes 160A-48(c)(3) in that 558 of the total 724 lots and tracts in the area are used for residential, commercial, industrial, institutional, or governmental pur[463]*463poses or 77.1% and is subdivided into lots and tracts such that 64.9% of the total acreage, not counting the acreage used at the time of annexation for commercial, industrial, governmental, or institutional purposes, consists of lots and tracts five acres or less in size. Acres of land in this area not used for commercial, industrial, governmental or institutional purposes is 680.4 acres of which 441.8 acres are divided into lots and tracts of five acres or less.

II

Burden of Proof

Before addressing these and other issues, we note that an annexation ordinance before the Court which recites compliance with all applicable statutory provisions establishes prima facie substantial compliance with these provisions, and the burden is on the petitioners challenging the ordinance to show by competent evidence that the City in fact failed to meet the statutory requirements. In re Annexation Ordinance, 278 N.C. 641, 180 S.E.2d 851 (1971); Dale v. Morganton, 270 N.C. 567, 155 S.E.2d 136 (1967).

The issues raised by petitioners Thrash and BASF largely relate to the City’s compliance with the second half of G.S. sec. 160A-48(c)(3) above, the subdivision test. This test can be expressed as the following fraction:

vacant & residential acreage < 5 acres total vacant & residential acreage

III

Property Under Subdivision Test

(A) Owenby Property

First, petitioners contend that the court erred in finding that the City correctly classified property known as the Owenby property as eighteen separate lots, each less than five acres in size. This property, an undeveloped subdivision, was subdivided by a plat recorded 25 March 1976 showing eighteen lots and two roads. In 1984, the owner conveyed the entire property to his daughter by a deed in which the property was described by metes and bounds. The deed, however, restricted use of the property to residential purposes with construction to be similar to a certain adjacent subdivision.

[464]*464G.S. sec. 160A-42 provides that for purposes of complying with the land subdivision requirement of G.S. sec. 160A-36, “the municipality shall use methods calculated to provide reasonably accurate results.” The statute also provides that the reviewing court is to accept estimates “based on an actual survey, or on county tax maps or records, or on aerial photographs, or on some other reasonably reliable source.” G.S. sec. 160A-42(2).

The City substantiates subdivision of the Owenby property into eighteen lots each of five acres or less by a recorded plat which shows the subdivision. This source is one which under G.S. sec. 160A-42(2) should be considered to be reasonably reliable. To prevail on appeal, petitioners have the burden of showing by competent evidence that the City’s prima facie case must fail. Thompson v. City of Salisbury, 24 N.C. App. 616, 211 S.E.2d 856, cert denied, 287 N.C. 264, 214 S.E.2d 437 (1975). This petitioners have failed to do.

This Court addressed the issue of undeveloped subdivisions in the context of the “use” test in Williams v. Town of Grifton, 19 N.C. App. 462, 199 S.E.2d 288 (1973). In Williams, this Court held that where a map showing subdivision of an undeveloped tract in an area to be annexed had only been recorded with the tax collector and not in the office of the Register of Deeds, the town properly considered the property one tract since it did not have proper record notice of subdivision. No lots in Williams had been conveyed in the portion of the tract to be annexed. The opinion implied that if the subdivision plat of the undeveloped subdivision had been recorded with the Register of Deeds, the property could have been considered separate lots. In the instant case the subdivision was recorded with the Register of Deeds. Therefore, under Williams, the property may be considered as separate lots even though it remains undeveloped.

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Related

Denegar v. City of Charlotte
443 S.E.2d 778 (Court of Appeals of North Carolina, 1994)
Matheson v. City of Asheville
402 S.E.2d 140 (Court of Appeals of North Carolina, 1991)
Thrash v. City of Asheville
393 S.E.2d 842 (Supreme Court of North Carolina, 1990)
Thrash v. City of Asheville
383 S.E.2d 657 (Court of Appeals of North Carolina, 1989)

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Bluebook (online)
383 S.E.2d 657, 95 N.C. App. 457, 1989 N.C. App. LEXIS 830, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thrash-v-city-of-asheville-ncctapp-1989.