In Re Annexation Ordinance, Etc. , 284 N.C. 442 ( 1974 )

202 S.E.2d 143 (1974) 284 N.C. 442

In re ANNEXATION ORDINANCE ADOPTED BY the CITY OF CHARLOTTE, DECEMBER 11, 1972, ALBEMARLE-YORK ROAD AREA.

No. 90.

Supreme Court of North Carolina.

January 25, 1974.

Craighill, Rendleman & Clarkson, PA, by J. B. Craighill, Charlotte, for petitioner appellant, Ruth S. Lucas.

Henry W. Underhill, Jr., H. Michael Boyd, W. A. Watts, City Attys., Charlotte, for respondent appellee, City of Charlotte.

HUSKINS, Justice:

Petitioner assigns as error the denial of her motion for a jury trial incident to review of the annexation proceeding. She contends the constitutional questions involved in this proceeding are matters with respect to which she is entitled to trial by jury and that the provisions of G.S. § 160-453.18(f) (now G.S. § 160A-50(f)) relating to review without a jury are (1) violative of Article I, Section 25 of the Constitution of North Carolina and (2) are superseded by the Rules of Civil Procedure.

The provisions of Article I, Section 25 of the present Constitution of North Carolina are similar to the provisions of the first sentence of Article I, Section 19 of the Constitution of 1868. A similar contention with respect to the unconstitutionality of G.S. § 160-453.18(f) was rejected by this Court in In re Annexation Ordinances, 253 N.C. 637, 117 S.E.2d 795 (1960). We there said:

"The procedure and requirements contained in the Act under consideration being solely a legislative matter, the right of trial by jury is not guaranteed, and the fact that the General Assembly did not see fit to provide for trial by jury in cases arising under the Act, does not render the Act unconstitutional.

"The right to a trial by jury, guaranteed under our Constitution, applies only to cases in which the prerogative existed at common law, or was procured by statute at the time the Constitution was adopted. The right to a trial by jury is not guaranteed in those cases where the right and the remedy have been created by statute since the adoption of the Constitution. Groves v. Ware, 182 N.C. 553, 109 S.E. 568; McInnish v. Bd. of Education, 187 N.C. 494, 122 S.E. 182; Hagler v. Highway Commission, 200 N.C. 733, 158 S.E. 383; Unemployment Comp. Com. v. Willis, 219 N.C. 709, 15 S.E.2d 4; Belk's Dept. Store, Inc. v. Guilford County, 222 N.C. 441, 23 S.E.2d 897; Utilities Commission v. Trucking Co., 223 N.C. 687, 28 S.E.2d 201."

Moreover, the provisions of G.S. § 160-453.18(f) authorizing review of annexation proceedings by the court without a jury have not been superseded by the North Carolina Rules of Civil Procedure. Rule 38(a) of the Rules of Civil Procedure provides: "The right of trial by jury as declared by the Constitution or statutes of North Carolina shall be preserved to the parties inviolate." This rule was not designed to expand the right of trial by jury but only to preserve the right where it had existed previously. Since the General Assembly has never granted the right to jury trial in judicial review of annexation proceedings, Rule 38(a) by its own language is inapposite. This assignment of error is overruled.

Petitioner contends that the City "acted arbitrarily, capriciously and unreasonably in that it did not uniformly apply the same standards throughout the entire Annexation Area."

Although the courts are vested with jurisdiction to review annexation proceedings, the scope of judicial review is limited by statute. G.S. § 160-453.18 (now G.S. § 160A-50) specifies the inquiries to which the courts are limited. These include the question presented by this case: Has the City met the requirements of G.S. § 160-453.16(c)(1) as they apply to petitioner's property? See G.S. § 160-453.18(a) and (f)(3); In re Annexation Ordinance, 278 N.C. 641, 180 S.E.2d 851 (1971).

As a general rule it is presumed that a public official in the performance of his official duties "acts fairly, impartially, and in good faith, and in the exercise of sound judgment or discretion, for the purpose of promoting the public good and protecting the public interest. [Citation omitted] The presumption of regularity of official acts is rebuttable by affirmative evidence of irregularity or failure to perform duty, but the burden of producing such evidence rests on him who asserts unlawful or irregular conduct. The presumption, however, prevails until it is overcome by. . . evidence to the contrary. . . . Every reasonable intendment will be made in support of the presumption. . . ." Huntley v. Potter, 255 N.C. 619, 122 S.E.2d 681, 687 (1961); accord, Styers v. Phillips, 277 N.C. 460, 178 S.E.2d 583 (1971). Hence the burden is on the petitioner to overcome the presumption by competent and substantial evidence. 6 N.C.Index 2d, Public Officers, § 8 (1968).

Ordinance 689-X to extend the corporate limits of Charlotte by annexation of the Albemarle Road-York Road Annexation Area discloses that the Charlotte City Council found and declared that the described annexation area met the requirements of G.S. § 160-453.16(b) and (c)(1) (now G.S. § 160A-48(b) and (c)(1)). Petitioner does not contend that the requirements of G.S. § 160-453.16(b) have not been met by the City but strongly insists that G.S. § 160-453.16(c)(1), properly interpreted and properly applied administratively, requires exclusion of her land from the Albemarle Road-York Road Annexation Area.

G.S. § 160-453.16(c)(1) (now G.S. § 160A-48(c)(1)) reads in pertinent part as follows: "(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. . . (1) Has a total resident population equal to at least two persons for each acre of land included within its boundaries. . . ." The narrow issue presented, and here decided, is whether the City used "population credits" arbitrarily, capriciously or in an unreasonable manner so as to produce unfair and inequitable results not in keeping with legislative intent. On this question we now consider the evidence hereinafter narrated.

The Albemarle Road-York Road Annexation Area covers 17,899 acres. That area was initially broken down by the City into six "study areas," numbered 1, 2, 3, 4, 11 and 12 on Respondent's Exhibit 1. (Other study areas numbered 5, 6, 7, 8, 9 and 10 on said exhibit, two of which are the subject of litigation in other annexation cases, have no pertinence here.)

Testimony of Michael Schneidermann, Charlotte City Planner, discloses that each study area encompasses land contiguous to the present City boundary and that Study Areas 1, 2, 3, 4, 11 and 12, comprising the Albemarle Road-York Road Annexation Area, are contiguous to each other. These six study areas were thus treated as one area to be annexed. However, the City applied the statutory standard of population density—at least two persons per acre —to each individual study area separately in order to qualify it for annexation. For example, petitioner's property is located in Study Area No. 4, and her 107 acres with a population of one person was annexed because there was enough population in excess of two per acre from the developed urbanized portion of Study Area No. 4 to "populate" it, and other vacant acreage around it, at the rate of two persons per acre.

Testimony of William E. McIntyre, the Planning Director for Charlotte-Mecklenburg Planning Commission, discloses that "the philosophy followed was, with sufficient population credit, just to move out and take in additional open area, whether that area was developed for urban purposes or not."

Petitioner's evidence discloses that her land, 107 acres with a population of one person, is located on the outer edge of Study Area No. 4, yet lies within the area to be annexed. Her evidence further shows that many tracts of land having a higher value per acre, and more densely populated than hers, which lie just outside the outer boundary of other study areas were not included in the Albemarle Road-York Road Annexation Area. One of these tracts lies along Providence Road, within Study Area No. 2 but outside the annexation boundary, and is designated by the figure 5 on Petitioner's Exhibit 8. This land contains 102 acres, is divided into sixteen separate tracts, and has a fairly large residential population. When explaining why petitioner's land was annexed and these sixteen tracts aggregating 102 acres were not, Mr. Schneidermann had this to say:

"In regard to Petitioner's Exhibit Number 8 and that area designated as Number 5, according to the evidence containing 102.49 acres, it was not included within the annexation area because the density would not have been sufficient to qualify the entire area. And in the light of the criteria, it was left out because we didn't have sufficient population. The criteria was that it have a density of two persons per acre.

* * * * * *

"It is very true that if we had left out Mrs. Lucas' 106 acres, completely undeveloped except for one person living on it, we could have taken in instead, without upsetting our population criteria in that area, Area Number 5 as shown on Plaintiff's [Petitioner's] Exhibit 8, with only 102 acres in it and with sixteen different tracts and lots of people living on it, but try to understand our procedure that was followed. When we performed these studies, we qualified each area individually, separately and independently from each other. Each area that is indicated on the maps was qualified separately. You can't really give credit to one area, because they were done separately. But we did lump them together in one annexation package.

* * * * * *

"We qualified each study area individually instead of all together but uniformly as far as criteria. We took a standard and applied it. The standard I have been speaking about was not applied to the entire area as a whole but to the smaller study areas that made up the entire area. [Emphasis added]

* * * * * *

"If we had applied that criteria to the whole area, we would have been able to take in, to the City's advantage, property around there (indicating property omitted in the Providence Road area) that has more population living on it and a higher tax value. We did have sufficient population credit to take in Mrs. Lucas' property, evidently, yes, because it qualified. . . . The whole story is not that we divided the entire area and applied the standard to the smaller study areas instead of to the overall area but that is part of what we did."

Mr. Schneidermann, still referring to areas excluded adjacent to the outer boundaries of Study Area No. 2, testified:

"As to whether if I had left out Mrs. Lucas' property, in addition to taking in that Area Number 5 that we mentioned, 102 acres, with sixteen tracts on it, we could easily have taken in Area Number 6 [on Petitioner's Exhibit 8] which has only 47 acres and has twenty-five different tracts and quite a number of different tracts on it, yes, when they were all grouped together, yes, we could have, yes. I think it is very important to keep in mind that these studies were performed and these surveys were done independently of one another and they qualified individually. . . . If we had taken in those areas, Numbers 5 and 6, (on Petitioner's Exhibit 8) which together total over 41 different tracts and less than 150 acres, we would have gotten credit there for a lot more than the one person that we got when we took in Mrs. Lucas' property."

Still other tracts of land in the Carmel Road-Providence Road area which were discussed by Mr. Schneidermann were excluded from the area to be annexed by reason of the "study area" formula used when applying population credits.

The foregoing testimony discloses that the statutory standard of two persons per acre was not applied to the 17,899-acre "area to be annexed" but to the small study areas that made up the whole. The City argues that since each study area qualified under the two-persons-per-acre rule, the whole area to be annexed also met that standard. The argument misses the point. The initial decision to use the "study area" technique determined, and perhaps even predetermined, which tracts of land containing fewer than two persons per acre would be annexed, and which tracts would be excluded. Under this method the City never really considered the area to be annexed as a whole in applying the two-persons-per-acre standard. As a result, tracts of land more densely populated, considerably more valuable per acre, and better suited to annexation than petitioner's land were excluded. Some of these excluded areas are valued for tax purposes at more than $11,000 per acre, whereas petitioner's lands are appraised for taxation at $877 per acre.

G.S. § 160-453.16 deals with the character of the area to be annexed. In construing and interpreting the language of that statute, we are guided by the primary rule of construction that the intent of the Legislature controls. Underwood v. Howland, Comr. of Motor Vehicles, 274 N.C. 473, 164 S.E.2d 2 (1968); Freeland v. Orange County, 273 N.C. 452, 160 S.E.2d 282 (1968); 50 Am.Jur., Statutes, § 223 (1944). A construction which will operate to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language. Ballard v. Charlotte, 235 N.C. 484, 70 S.E.2d 575 (1952). If a strict literal interpretation of a statute contravenes the manifest purpose of the Legislature, the reason and purpose of the law should control and the strict letter thereof should be disregarded. Duncan v. Carpenter, 233 N.C. 422, 64 S.E.2d 410 (1951); State v. Barksdale, 181 N.C. 621, 107 S.E. 505 (1921). And, where possible, "the language of a statute will be interpreted so as to avoid an absurd consequence." Hobbs v. Moore County, 267 N. C. 665, 149 S.E.2d 1 (1966).

When G.S. § 160-453.16(c)(1) is subjected to these rules of construction, it is quite clear that the Legislature intended "the area to be annexed" to mean the entire 17,899 acres embraced in the Albemarle Road-York Road Annexation Area rather than numerous "study areas" into which the area to be annexed has been divided. Not only must the entire annexation area meet the requirements of G.S. § 160-453.16(c)(1), but even more importantly, the tests to determine whether an area is developed for urban purposes must be applied to the annexation area as a whole. The City has acted under a misapprehension of the law, and has misapplied the statutory standard, in deciding that population credits should be applied only in the study area in which such credits were accumulated rather than applied uniformly to the whole "area to be annexed."

We hold that petitioner's evidence is sufficient to overcome the presumption of regularity and demonstrates that the legislative standard prescribed by G.S. § 160-453.16(c)(1) has unwittingly been applied contrary to the legislative intent. The City's decision to follow the study area formula with respect to population credits was an unreasonable departure from the statutory standards.

Since this appeal, by virtue of the consent order, concerns annexation of petitioner's property only and permits annexation to be effective with respect to the remainder of Albemarle Road-York Road Annexation Area concerning which no appeal has been taken, see G.S. § 160-453.18(h), the annexation of the remainder of that area is now an accomplished fact insofar as this case is concerned. The statutory procedure prescribed by G.S. § 160-453.16(c)(1) not having been followed in annexing the property of Mrs. Lucas, petitioner herein, this case is remanded to Mecklenburg Superior Court with instructions to remand Ordinance 689-X to the Charlotte City Council for amendment of the boundaries excluding petitioner's property from the Albemarle Road-York Road Annexation Area.

The judgment below, insofar as it affects petitioner's property, but not otherwise, is

Reversed.

BOBBITT, Chief Justice (dissenting).

Upon compliance with standards prescribed by G.S. § 160-453.16, the General Assembly has authorized the governing body (city council) to determine what area is to be annexed. This area may lie wholly or in part to the north, or to the south, or to the east, or to the west, of the existing city limits. The court has no authority to substitute its discretion for that of the municipal governing body. Annexation of the area to be annexed may be completed when provision is made for the extension of municipal services to such area. G.S. § 160-453.17.

An annexation proceeding relates to land within a described area, without regard to the personal circumstances of the owner of any particular parcel or tract wholly or partly within its boundaries. In the present case, I find no valid objection to the annexation proceedings. Since each of the study areas is in full compliance, it follows that the composite of these areas is in full compliance.

The extension of the city limits to include undeveloped land is to enable the municipality to make plans for the orderly development of such areas. If the area to be annexed when considered as a whole meets the statutory requirements, the owner of an undeveloped tract is not entitled to have it excluded from the annexation because when considered alone it does not meet the statutory requirements. In re Annexation Ordinance, 255 N.C. 633, 642-643, 122 S.E.2d 690, 698 (1961).

The result of the Court's decision is to validate the annexation in all respects except as to property of appellant. The annexation boundary would be McAlpine Creek until appellant's property is reached. Thence it would diverge from McAlpine Creek and follow the lines of appellant's property until it reaches a new location on McAlpine Creek. Thence it would proceed with the creek. The city council has not approved an annexation area having such boundaries.

HIGGINS, J., joins in this dissenting opinion.