Town of Valdese v. Burke, Inc. , 125 N.C. App. 688 ( 1997 )

EAGLES, Judge.

The dispositive issue here on appeal is whether, at the time the Town of Valdese purported to annex defendant Burke’s property, the Burke property was “contiguous” to the Town of Valdese’s then existing corporate limits within the meaning of G.S. 160A-31(f). We hold that it was not and accordingly reverse the order of the trial court.

G.S. 160A-31(a) allows the “governing board of any municipality [to] annex by ordinance any area contiguous to its boundaries upon presentation to the governing board of a petition signed by the owners of all the real property located within such area.” G.S. 160A-31(a) (1990). There is no dispute that the property owners here presented a proper petition, the only question is with regard to contiguity. Subsection © of G.S. 160A-31 defines the contiguity requirement and provides in pertinent part:

For purposes of this section, an area shall be deemed “contiguous” if, at the time the petition is submitted, such area either abuts directly on the municipal boundary or is separated from the municipal boundary by a street or street right-of-way, a creek or river, or the right-of-way of a railroad or other public service corporation, lands owned by the municipality or some other political subdivision, or lands owned by the State of North Carolina. In describing the area to be annexed in the annexation ordinance, the municipal governing board may include within the description any territory described in this subsection which separates the municipal boundary from the area petitioning for annexation.

G.S. 160A-31(f) (1990).

Under the plain language of this statute, were it not already annexed into the Town of Rutherford College, the intervening interstate right-of-way would not impede the Town of Valdese’s ability to annex the Burke property. We conclude, however, that where, as here, the intervening right-of-way has already been annexed into another municipality, the contiguity requirement embodied in G.S. 160A-31(f) is violated.

Our statutory construction here is bolstered by the language of G.S. 160A-48(b)(3) which provides in pertinent part that “[n]o part of the area [to be annexed] shall be included within the boundary of another incorporated municipality . . . .” G.S. 160A-48(b)(3) (1994). Allowing one municipality to skip over an incorporated portion of another and annex property on the other side would place the statutory prohibition embodied in G.S. 160A-48(b)(3) in conflict with the language of G.S. 160A-31(f) allowing an annexing municipality to include within the lands annexed the “territory described in [subsection (f)] which separates the municipal boundary from the area petitioning for annexation.” G.S. 160A-31(f). According to the plain language of G.S. 160A-31(f), when a municipality skips over public lands or rights-of-way in the course of annexing taxable and serviceable property on the other side, the annexing municipality, in effect, annexes the intervening public lands and rights-of-way. As we have recognized, the effect of G.S. 160A-31(f) would be at odds with the clear prohibition established in G.S. 160A-48(b)(3) if G.S. 160A-31(f) were read to allow municipalities to skip over incorporated portions of other municipalities.

Lastly, we note that the parties direct our attention to G.S. 160A-58.1 (1990), which governs the annexation of satellite corporate limits not contiguous with a municipality’s existing corporate limits. We do not believe that this statutory provision is applicable here. Accordingly, the order of the trial court is reversed and the cause is remanded for entry of an order declaring invalid the Town of Valdese’s attempted annexation and upholding the annexation completed by the Town of Rutherford College.

Reversed and remanded.

Judges GREENE and MARTIN, John C., concur.