{
  "id": 9496781,
  "name": "SONOPRESS, INC., Petitioner v. TOWN OF WEAVERVILLE, Respondent",
  "name_abbreviation": "Sonopress, Inc. v. Town of Weaverville",
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          "parenthetical": "after having \"specifically declared\" method of lost income calculation applicable to \"the usual situation[],\" General Assembly would have been \"equally specific\" if it intended a different method in \"the exceptional cases\""
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          "parenthetical": "after having \"specifically declared\" method of lost income calculation applicable to \"the usual situation[],\" General Assembly would have been \"equally specific\" if it intended a different method in \"the exceptional cases\""
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  "casebody": {
    "judges": [
      "Judges LEWIS and McGEE concur."
    ],
    "parties": [
      "SONOPRESS, INC., Petitioner v. TOWN OF WEAVERVILLE, Respondent"
    ],
    "opinions": [
      {
        "text": "JOHN, Judge.\nPetitioner Sonopress, Inc. (Sonopress), appeals the trial court\u2019s order affirming an annexation ordinance (the Ordinance) adopted 18 May 1998 by respondent Town of Weaverville (Weaverville). For reasons set forth herein, we vacate the order and remand this matter to the trial court.\nIn light of our disposition, a detailed recitation of the underlying facts is unnecessary. In brief, the Town Council of Weaverville adopted a \u201cResolution of Intent of Annexation\u201d (the Resolution) on 16 March 1998. Certain real property, including that owned by Sonopress, was thereby proposed for annexation.\nThe Resolution scheduled a public hearing on the proposed annexation for 4 May 1998. A \u201cNotice of Public Hearing\u201d (the Notice) was mailed 3 April 1998 to individual property owners directly affected by the annexation, including Sonopress. The Notice provided that the \u201cStandards of Service Report\u201d (the Report) required by N.C.G.S. \u00a7 160A-35 (1997) would be available at the Town Clerk\u2019s office thirty (30) days prior to the 4 May 1998 hearing. In addition, the Town Clerk certified that a legible map of the area to be annexed would likewise be available.\nFollowing the hearing, Weaverville amended the Report on 18 May 1998 to include a municipality map reflecting the present town boundaries and those resultant from the proposed annexation. The Town Council thereafter adopted the Ordinance, setting 30 June 1999 as the effective date. On .16 June 1998 and pursuant to N.C.G.S. \u00a7 160A-38 (1997), Sonopress filed a \u201cPetition for Review and Appeal of May 18, 1998 Annexation Ordinance\u201d in Buncombe County Superior Court. Following a 1 October 1998 review, the trial court filed a 5 October 1998 order (the Order) affirming the Ordinance. Sonopress appeals.\nOn appeal, Sonopress contends, inter alia, that Weaverville violated certain procedural requirements of N.C.G.S. \u00a7 160A-37 (1997), and failed to comply with G.S. \u00a7 160A-35 and N.C.G.S. \u00a7 160A-36 (1997). We conclude the trial court\u2019s utilization of an improper standard of review in considering Weaverville\u2019s alleged violations of G.S. \u00a7 160A-35 requires that the Order be vacated.\nG.S. \u00a7 160A-37 provides that a notice of public hearing shall inter alia\\\n(1) Fix the date, hour and place of the public hearing. (2) Describe clearly the boundaries of the area under consideration, and include a legible map of the area. . . .\nG.S. \u00a7 160A-37(b)(l)&(2).\nUnder G.S. \u00a7 160A-35, a municipality is required to prepare plans for extension of services to the area proposed to be annexed as well as a service report reflecting such plans. G.S. \u00a7 160A-35. The report must include:\n(1) A map ... of the municipality and adjacent territory to show . . . [t]he present and proposed boundaries of the municipality. . . .\n(2) A statement showing that the area to be annexed meets the requirements of G.S. \u00a7 160A-36.\n(3) A statement setting forth the plans of the municipality for extending to the area to be annexed each major municipal service performed within the municipality at the time of annexation. Specifically, such plans shall:\na. Provide for extending police protection, fire protection, solid waste collection and street maintenance services to the area to be annexed on the date of annexation on substantially the same basis and in the same manner as such services are provided within the rest of the municipality prior to annexation. ... A contract with a private firm to provide solid waste collection services shall be an acceptable method of providing solid waste collection services.\n\u2022 c. Set forth the method under which the municipality plans to finance extension of services into the area to be annexed.\nG.S. \u00a7 160A-35(1),(2)&(3).\nUpon a petition challenging an ordinance, the trial court is to consider whether:\n(1) ... the statutory procedure was not followed or\n(2) ... the provisions of G.S. 160A-35 were not met, or\n(3) ... the provisions of G.S. 160A-36 have not been met.\nG.S. \u00a7 160A-38(f).\nShould the court determine that \u201cprocedural irregularities . . . materially prejudiced the substantive rights of any . . . petitioner!],\u201d G.S. \u00a7 160A-38(g)(l) (emphasis added), the statute mandates \u201cremand [ing] the ordinance to the municipal governing board for further proceedings,\u201d id. Additionally, the court must:\n(2) Remand the ordinance to the municipal governing board for amendment of the boundaries to conform to the provisions of G.S. \u00a7 160A-36 if it finds that [such] provisions . . . have not been met [and/or,]\n(3) Remand the report to the municipal governing board for amendment of the plans for providing services to the end that the provisions of G.S. \u00a7 160A-35 are satisfied.\nG.S. \u00a7 160A-38(g)(2)&(3).\nIn the case sub judice, we note at the outset that the Order reflects the trial court utilized a \u201cmaterial[] prejudice\u201d standard of review in considering Weaverville\u2019s alleged violations of G.S. \u00a7 160A-35. As noted above, G.S. \u00a7 160A-38(f)&(g) expressly provides that the standard of review for procedural irregularities in violation of G.S. \u00a7 160A-37, \u201cProcedure for Annexation,\u201d including contents of the Notice, see G.S. \u00a7 160A-37(b), is whether such irregularities \u201cmaterially prejudiced the substantive rights of any . . . petitioner[].\u201d G.S. \u00a7 160A-38(g)(l).\nHowever, review of a municipality\u2019s fulfillment of the requirements of G.S. \u00a7 160A-35 and G.S. \u00a7 160A-36 is governed, on the other hand, by assessment of compliance or noncompliance. See Weeks v. Town of Coats, 121 N.C. App. 471, 474, 466 S.E.2d 83, 85 (1996) (petitioners must show either failure on part of municipality to comply with statutory requirements, or that procedural irregularities occurred which materially prejudiced rights of petitioners), G.S. \u00a7 160A-38(f) (reviewing court to determine whether \u201cstatutory procedure was . . . followed\u201d or that provisions of G.S. \u00a7 160A-35 or \u00a7 160A-36 \u201chave not been met\u201d), and G.S. \u00a7 160A-38(g)(l),(2)&(3) (reviewing court may order ordinance remanded to municipality governing board (1) if procedural irregularities \u201cmaterially prejudiced\u201d substantive rights of petitioners or (2) for amendment of plans for providing services in satisfaction of G.S. \u00a7 160A-35 or amendment of boundaries in satisfaction of G.S. \u00a7 160A-36).\nPointedly absent from G.S. \u00a7 160A-38(g)(2) is any reference to remand for non-compliance with either G.S. \u00a7 160A-35 or \u00a7 160A-36 being conditioned upon a determination of \u201cmaterial prejudice.\u201d When a statute \u201cdealing with a specific matter is clear and understandable on its face, it requires no construction,\u201d Utilities Comm. v. Electric Membership Corp., 275 N.C. 250, 260, 166 S.E.2d 663, 670 (1969) (citation omitted), and courts \u201cmust give it its plain and definite meaning, and are without power to interpolate, or superimpose, provisions and limitations not contained therein,\u201d State v. Camp, 286 N.C. 148, 152, 209 S.E.2d 754, 756 (1974) (citation omitted); see id. at 151, 209 S.E.2d at 756 (\u201c[w]here a statute is intelligible without any additional words, no additional words may be supplied\u201d); see also Peele v. Finch, 284 N.C. 375, 382, 200 S.E.2d 635, 640 (1973) (citation omitted) (court\u2019s duty is to apply valid statute as written). Had the General Assembly intended a \u201cmaterial prejudice\u201d determination to be imposed upon the court\u2019s finding of non-compliance with G.S. \u00a7 160A-35 or \u00a7 160A-36, \u201cit would have been a simple matter [for it] to [have] include[d] th[at] explicit phrase,\u201d In re Appeal of Bass Income Fund, 115 N.C. App. 703, 706, 446 S.E.2d 594, 596 (1994), within G.S. \u00a7 160A-38(g)(2); see McAninch v. Buncombe County Schools, 347 N.C. 126, 133, 489 S.E.2d 375, 380 (1997) (after having \u201cspecifically declared\u201d method of lost income calculation applicable to \u201cthe usual situation[],\u201d General Assembly would have been \u201cequally specific\u201d if it intended a different method in \u201cthe exceptional cases\u201d). In short, application of the material prejudice standard of review to Weaverville\u2019s alleged violations of G.S. \u00a7 160A-35 constituted error by the trial court.\nSonopress complained the Report failed to comply with G.S. \u00a7 160A-35 in several respects, including the absence of:\n(1)adequate maps of the current and proposed boundaries of the municipality; (2) a statement that the area to be annexed meets the requirements of N.C. Gen. Stat. \u00a7 160A-36; and, (3) a statement setting forth the municipality\u2019s plan for the extension of services to the area being annexed and how the municipality intends to finance the extension of services.\nSonopress raised the issue of the illegibility of maps both with reference to the Notice and to the Report. The trial court resolved both complaints by concluding Sonopress \u201cwas not prejudiced in any way by the maps being illegible.\u201d Concerning the procedural requirements of G.S. \u00a7 160A-37, including that the Notice contain a \u201clegible map of the area,\u201d G.S. \u00a7 160A-37(b)(2), to be annexed, the court properly applied a \u201cmaterial prejudice\u201d standard of review. See G.S. \u00a7 160A-38(g)(l).\nRegarding maps incorporated into the Report, however, the trial court was required to determine whether the contents of the Report, including maps and plans for provision of services, complied or failed to comply, see G.S. \u00a7 160A-38(f)(2), with G.S. \u00a7 160A-35. The trial court erred in applying the material prejudice standard of review to the adequacy of maps contained in the Report.\nIn addition, Sonopress raised the question of whether Weaverville complied with G.S. \u00a7 160A-35(2) requiring that the Report contain \u201c[a] statement showing that the area to be annexed meets the requirements of G.S. 160A-36,\u201d dealing with the \u201ccharacter\u201d of areas to be annexed. The court concluded that \u201csince said property was eligible to be annexed, Petitioner cannot be prejudiced by this.\u201d Again, the trial court improperly applied a material prejudice standard of review as opposed to determining whether or not Weaverville had complied with G.S. \u00a7 160A-35(2).\nSonopress further argued that the Report failed to comply with G.S. \u00a7 160A-35(3) regarding provisions for extension of services and the financing thereof. Sonopress asserted deficiencies in the Report addressing the proposed provision of police services, solid waste collection, and road maintenance service, as well as the financing of extension of services.\nCareful reading of the trial court\u2019s order reveals no mention of proposed police service or road maintenance, although the court ultimately concluded \u201c[Sonopress] was not prejudiced by any . . . omissions found in the notice or report.\u201d Concerning solid waste collection, the trial court found that the Report inaccurately stated Weaverville \u201cprovides no solid waste collection to private industry (such as Petitioner)\u201d, but concluded Sonopress had \u201cnot been prejudiced by this incorrect statement in the [R]eport.\u201d As to the financing of extension of services, the trial court found as fact that the Report contained\nno specific statement on how each service would be financed, [but that] . . . the [Report] as a whole shows that there are sufficient funds to finance the extension of services from the anticipated revenues resulting from the annexation.\nThe court thereupon concluded Sonopress had \u201cnot [been] prejudiced\u201d by failure of the Report to specify a method of payment for extension of services into the annexed area.\nOnce again, an alleged violation of G.S. \u00a7 160A-35 may not be reviewed on the basis of whether the purported error resulted in material prejudice, but rather in the light of compliance or lack thereof with the statutory requirements of G.S. \u00a7 160A-35. See G.S. \u00a7 160A-38(g)(3). At a minimum, therefore, the trial court again improperly applied a material prejudice standard of review to the questions of solid waste collection and the financing of services.\nHaving held that the trial court applied an improper standard of review to several matters raised by Sonopress, we next consider the latter\u2019s remedy on appeal. In another context, we recently noted that \u201c[i]n order for this Court to properly conduct its review, the trial court must first have properly reviewed the case.\u201d Jordan v. Civil Service Board for the City of Charlotte, 137 N.C. App., 575, 578, 528 S.E.2d 927, 930 (2000). We have also held that\nwhile the court\u2019s order in effect set out the applicable standards of review, it failed to delineate [the proper standard for review of the issues at bar].\nIn re Appeal of Willis, 129 N.C. App. 499, 503, 500 S.E.2d 723, 726 (1998).\nIn the case sub judice, the Order \u201cin effect set out [one of] the applicable standards of review,\u201d id., i. e., material prejudice as applied to procedural irregularities under G.S. \u00a7 160A-37. However, the Order \u201cfailed to delineate,\u201d id., the proper issues to which that standard applied, and indeed misapplied the standard in reference to alleged violations of G.S. \u00a7 160A-35. The trial court thus having failed to review the case properly, we are unable to conduct our review, see Jordan, 137 N.C. App. at 578, 528 S.E.2d at 930. As a consequence, the Order must be vacated and this matter remanded to the trial court for entry of \u201ca new order in accordance with our opinion herein.\u201d Willis, 129 N.C. App. at 503, 500 S.E.2d at 727.\nOn remand, the trial court shall consider the assertions of Sonopress of procedural violations by Weaverville contravening G.S. \u00a7 160A-37 as well as the contentions that Weaverville failed to comply with G.S. \u00a7 160A-35 and \u00a7 160A-36. In the former instance, should the court determine procedural irregularities occurred, it shall resolve whether such \u201cirregularities ... materially prejudiced the substantive rights,\u201d G.S. \u00a7 160A-38(g)(l), of Sonopress. In such event, the ordinance is to be remanded to the Weaverville Town Council \u201cfor further proceedings,\u201d id. If the court determines the provisions of G.S. \u00a7 160A-35 or \u00a7 160A-36 have not been met, G.S. \u00a7 160A-38(f)(2)&(3), it shall remand the ordinance to the Weaverville Town Council for appropriate amendment, see G.S. \u00a7 160A-38(g)(2)&(3). Finally, should the trial court reject assertions by Sonopress that requirements of either G.S. \u00a7 160A-35 or G.S. \u00a7 160A-36, or both, have \u201cnot [been] met,\u201d G.S. \u00a7\u00a7 160A-35 & 36, and determine either that no procedural violations of G.S. \u00a7 160A-37 took place or that those which may have occurred did not \u201cmaterially prejudice\u201d substantive rights of Sonopress, the court shall affirm adoption of the Ordinance by the Weaverville Town Council.\nVacated and remanded.\nJudges LEWIS and McGEE concur.",
        "type": "majority",
        "author": "JOHN, Judge."
      }
    ],
    "attorneys": [
      "Robert E. Dungan, RA., by James Michael Lloyd, for petitioner.",
      "Roberts and Stevens, P.A., by Carl W. Loftin and Christopher Z. Campbell, for respondent."
    ],
    "corrections": "",
    "head_matter": "SONOPRESS, INC., Petitioner v. TOWN OF WEAVERVILLE, Respondent\nNo. COA99-56\n(Filed 1 August 2000)\n1. Cities and Towns\u2014 annexation \u2014 standard of review \u2014 compliance or noncompliance\nThe trial court\u2019s utilization of the improper \u201cmaterial prejudice\u201d standard of review in considering a municipality\u2019s alleged violations of N.C.G.S. \u00a7 160A-35 in its attempt to annex certain real property constitutes error and requires that the order affirming the ordinance be vacated, because the proper standard for review of a municipality\u2019s fulfillment of N.C.G.S. \u00a7\u00a7 160A-35 and 160A-36 is governed by assessment of compliance or noncompliance.\n2. Cities and Towns\u2014 annexation \u2014 standard of review\u2014 material prejudice\nIn an action involving a municipality\u2019s attempt to annex certain real property, the trial court properly applied the material prejudice standard of review in considering the procedural requirements of N.C.G.S. \u00a7 160A-37, including whether the notice of public hearing contained a \u201clegible map of the area,\u201d N.C.G.S. \u00a7 160A-37(b)(2).\n3. Cities and Towns\u2014 annexation \u2014 standard of review \u2014 maps incorporated in report\nIn an action involving a municipality\u2019s attempt to annex certain real property, the trial court erred by applying the material prejudice standard of review regarding maps incorporated into the service report because the trial court was required to determine whether the contents of the report, including maps and plans for provision of services, complied or failed to comply with N.C.G.S. \u00a7 160A-35.\n4. Cities and Towns\u2014 annexation \u2014 standard of review\u2014 statement showing area annexed meets requirements\nIn an action involving a municipality\u2019s attempt to annex certain real property, the trial court erred by applying the material prejudice standard of review regarding whether the municipality complied with N.C.G.S. \u00a7 160A-35(2) requiring that the service report contain a statement showing that the area to be annexed meets the requirements of N.C.G.S. \u00a7 160A-36, because the proper standard of review is governed by assessment of compliance or noncompliance.\n5. Cities and Towns\u2014 annexation \u2014 standard of review \u2014 solid waste collection \u2014 financing of services\nIn an action involving a municipality\u2019s attempt to annex certain real property, the trial court erred by applying the material prejudice standard of review regarding the questions of solid waste collection and the financing of services, because an alleged violation of N.C.G.S. \u00a7 160A-35 is reviewed in light of compliance or noncompliance.\n6. Cities and Towns\u2014 annexation \u2014 standard of review\nSince the trial court\u2019s utilization of the improper standard of review in considering a municipality\u2019s alleged violations of N.C.G.S. \u00a7 160A-35 in its attempt to annex certain real property constitutes error and requires that the order affirming the ordinance be vacated, on remand the trial court shall consider petitioner\u2019s assertions of procedural violations of the municipality contravening N.C.G.S. \u00a7 160A-37, as well as the contentions that the municipality failed to comply with N.C.G.S. \u00a7\u00a7 160A-35 and 160A-36.\nAppeal by petitioner from order filed 5 October 1998 by Judge Dennis J. Winner in Buncombe County Superior Court. Heard in the Court of Appeals 20 October 1999.\nRobert E. Dungan, RA., by James Michael Lloyd, for petitioner.\nRoberts and Stevens, P.A., by Carl W. Loftin and Christopher Z. Campbell, for respondent."
  },
  "file_name": "0378-01",
  "first_page_order": 410,
  "last_page_order": 418
}
