Nash County No. 09 CVS 286.
CALABRIA, Judge.
Betty Edmondson, et al. ("petitioners") appeal the Superior Court's order granting summary judgment to the City of Rocky Mount, North Carolina ("respondent") and affirming respondent's annexation ordinance. We affirm.
I. Background
Petitioners own real property in Nash County, North Carolina, which is located on the west side of respondent's existing corporate limits. The Rocky Mount City Council ("the Council") is respondent's municipal governing board. On 8 September 2008, the Council adopted a resolution of intent to consider annexation. On 6 October 2008, the Council adopted a nearly identical resolution of intent.
The Council held a public informational meeting regarding the proposed annexation ordinance on 24 November 2008 and conducted a public hearing on 8 December 2008. On 18 December 2008, the Council adopted Ordinance O-2008-136, which annexed the Oak Level community ("Area 1").
On 9 February 2009, petitioners sought review of the Area 1 annexation ordinance before the Nash County Superior Court. On 12 October 2009, the Superior Court entered a "Consent Order" which dismissed three of the six claims raised by petitioners and remanded the ordinance to the Council to amend its Annexation Report and to hold a public hearing.
Pursuant to the Consent Order, the Council amended its Annexation Report. The Council then adopted an amended annexation ordinance on 11 January 2010. On 19 January 2010, petitioners filed an amended petition for review of the amended ordinance in Nash County Superior Court. On 21 January 2010, petitioners filed a second amended petition for review. Respondent filed an answer to these petitions on 4 February 2010 and then filed a motion for summary judgment. After a hearing, the Superior Court granted summary judgment to respondent and dismissed the second amended petition with prejudice on 16 February 2010. Petitioners appeal.
We note that our General Assembly has recently enacted a law which states that the annexation order at issue in the instant case has been "suspended effective June 1, 2011, and shall not become effective until completion of a petition to disallow the annexation process[.]" 2011 N.C. Sess. Laws 177. However, since this law did not actually repeal the annexation ordinance, this case is still properly before this Court.
II. Standard of Review
Judicial review of an annexation ordinance is limited to
a determination of whether applicable annexation statutes have been substantially complied with. When the record submitted in superior court by the municipal corporation demonstrates, on its face, substantial compliance with the applicable annexation statutes, then the burden falls on the petitioners to show by competent and substantial evidence that the statutory requirements were in fact not met or that procedural irregularities occurred which materially prejudiced their substantive rights. In determining the validity of an annexation ordinance, the court's review is limited to the following inquiries: (1) Did the municipality comply with the statutory procedures? (2) If not, will the petitioners
suffer material injury thereby? (3) Does the area to be annexed meet the requirements of G.S. 160A-48 . . .?
Huyck Corp. v. Town of Wake Forest, 86 N.C. App. 13, 15, 356 S.E.2d 599, 601 (1987) (internal quotations and citations omitted). In the instant case, petitioners do not contend that respondent failed to comply with any applicable statutory annexation procedures. Therefore, our review is limited to a determination of whether there was "failure on the part of the municipality to comply with the statutory requirements as a matter of fact[.]"
City of Kannapolis v. City of Concord, 326 N.C. 512, 516, 391 S.E.2d 493, 496 (1990). "The party challenging the annexation has the burden of showing error."
In re Annexation Ordinance, 296 N.C. 1, 10, 249 S.E.2d 698, 703 (1978).
In the instant case, the Superior Court determined that respondent was entitled to summary judgment.
Summary judgment is proper if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law. On a motion for summary judgment, [t]he evidence is to be viewed in the light most favorable to the nonmoving party. When determining whether the trial court properly ruled on a motion for summary
judgment, this court conducts a
de novo review.
Brown v. City of Winston-Salem, 171 N.C. App. 266, 270, 614 S.E.2d 599, 602 (2005) (internal quotations and citations omitted).
III. N.C. Gen. Stat. § 160A-48(c)(3)
Petitioners ultimately present one argument on appeal: that respondent's annexation ordinance fails to comply with the subdivision test of N.C. Gen. Stat. § 160A-48(c)(3):
(c) Part or all of the area to be annexed must be developed for urban purposes at the time of approval of the report provided for in G.S. 160A-47. Area of streets and street rights-of-way shall not be used to determine total acreage under this section. An area developed for urban purposes is defined as any area which meets any one of the following standards:
. . .
(3) . . . [I]s 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 three acres or less in size.
N.C. Gen. Stat. § 160A-48(c)(3) (2009).
N.C. Gen. Stat. § 160A-48(c)(3) also contains a "use test," requiring 60% of the lots/tracts to be used for residential, commercial, industrial, institutional or governmental purposes. However, the parties agree that respondent's annexation ordinance complied with this test.
In the instant case, the annexation ordinance, on its face, indicated that 73.37% of the total acreage in the area to be annexed was subdivided into lots or tracts of three acres or less in size. However, petitioners contend that four properties were misclassified by respondent, and further contend that if these properties were properly classified, only 55.1% of the acreage meets the statutory requirements. Petitioners concede that all four challenged properties must have been misclassified by respondent in order for them to succeed in their appeal.
Petitioners first argue that a portion of the annexation area classified by respondent in the ordinance as a necessary land connection ("NLC") does not comply with the requirements of N.C. Gen. Stat. § 160A-48(d)(2). We disagree.
N.C. Gen. Stat. § 160A-48(d) states, in relevant part:
(d) In addition to areas developed for urban purposes, a governing board may include in the area to be annexed any area which does not meet the requirements of subsection (c) if such area[:]
. . .
(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. For purposes of this subsection, "necessary land connection" means an area that does not exceed twenty-five percent (25%) of the total area to be annexed.
N.C. Gen. Stat. § 160A-48(d) (2009). Petitioners argue that the NLC does not meet the 60% adjacency requirement of the above-quoted portion of the statute. Specifically, petitioners contend that the NLC "is not `contiguous' for 60% of its length with corresponding city limit[s] and `urban area'" because it "does not `abut' or `touch' the external boundary of the existing limits of Rocky Mount for about 7,520 linear feet. . . ." In support of this argument, petitioners provided an expert affidavit which averred that "gaps" or "gores" existed between the boundaries of the NLC and the existing city limits and existing urban area boundaries.
Inherent in petitioners' argument is the treatment of the word "adjacent," which is what is contained in the statute, as synonymous with the word "contiguous." However, while the words adjacent and contiguous are closely related, they ultimately have distinct meanings. Contiguous is defined as "touching at a point or along a boundary." Black's Law Dictionary, 9th Edition 362 (2009). In contrast, adjacent is defined as "lying near or close to, but not necessarily touching." Id. at 46 (emphasis added).
It is an established canon of statutory interpretation that "[w]here the statutory language is clear and unambiguous, the Court does not engage in judicial construction but must apply the statute to give effect to the plain and definite meaning of the language." Carolina Power Light Co. v. City of Asheville, 358 N.C. 512, 518, 597 S.E.2d 717, 722 (2004) (internal quotations and citation omitted). Since the General Assembly used the term "adjacent" in N.C. Gen. Stat. § 160A-48(d)(2), petitioners' argument that physical touching is required under this statute fails. Under the circumstances of this case, there is no evidence that the "gaps" and "gores" which were identified by petitioners' expert were so significant that the boundaries of the NLC were not "lying near or close to" more than "sixty percent of the municipal boundary and the boundary of an area or areas developed for urban purposes." N.C. Gen. Stat. § 160A-48(d)(2). Thus, petitioners have failed to meet their burden of showing that the annexation ordinance did not comply with N.C. Gen. Stat. § 160A-48(d)(2). This argument is overruled.
IV. Conclusion
The portion of land designated as an NLC in respondent's annexation ordinance complied with the requirements of N.C. Gen. Stat. § 160A-48(d)(2). Petitioners have conceded that if any of their arguments on appeal fail, their appeal also necessarily fails. Thus, it is unnecessary to address petitioners' remaining arguments. The order of the superior court is affirmed.
Affirmed.
Judges HUNTER, Robert C. and ELMORE concur.
Report per Rule 30(e).