{ "id": 9441578, "name": "CARL D. BUCKLAND, SR., and NORTHFIELD DEVELOPMENT COMPANY, INCORPORATED, Plaintiffs v. THE TOWN OF HAW RIVER, A Political Subdivision of the State of North Carolina, Defendant", "name_abbreviation": "Buckland v. Town of Haw River", "decision_date": "2000-12-29", "docket_number": "No. COA99-1347", "first_page": "460", "last_page": "468", "citations": [ { "type": "official", "cite": "141 N.C. App. 460" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "257 S.E.2d 142", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "143", "parenthetical": "holding that where various ditches and drainage systems in a watershed were in existence prior to annexation of area, the city accepted them by use or maintenance" } ], "opinion_index": 0 }, { "cite": "42 N.C. App. 548", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555111 ], "year": 1979, "pin_cites": [ { "page": "550", "parenthetical": "holding that where various ditches and drainage systems in a watershed were in existence prior to annexation of area, the city accepted them by use or maintenance" } ], "opinion_index": 0, "case_paths": [ "/nc-app/42/0548-01" ] }, { "cite": "122 S.E.2d 690", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "699", "parenthetical": "construing statutory equivalent of Section 160A-35(3)a, held \"primary duty of street maintenance in the area in question, after annexation, is upon the city, and it must in good faith make plans to maintain the streets, whether paved or unpaved\"" } ], "opinion_index": 0 }, { "cite": "255 N.C. 633", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572011 ], "year": 1961, "pin_cites": [ { "page": "645", "parenthetical": "construing statutory equivalent of Section 160A-35(3)a, held \"primary duty of street maintenance in the area in question, after annexation, is upon the city, and it must in good faith make plans to maintain the streets, whether paved or unpaved\"" } ], "opinion_index": 0, "case_paths": [ "/nc/255/0633-01" ] }, { "cite": "155 S.E.2d 252", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "pin_cites": [ { "page": "255", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "270 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570131 ], "year": 1967, "pin_cites": [ { "page": "684", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/270/0680-01" ] }, { "cite": "324 S.E.2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "72 N.C. App. 245", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526549 ], "year": 1985, "opinion_index": 0, "case_paths": [ "/nc-app/72/0245-01" ] }, { "cite": "628 A.2d 1277", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1993, "pin_cites": [ { "parenthetical": "affirming lower court's decision that road abutting developers land was off-site" } ], "opinion_index": 0 }, { "cite": "418 S.E.2d 232", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1992, "pin_cites": [ { "page": "235", "parenthetical": "citation omitted" }, { "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "332 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2508082 ], "year": 1992, "pin_cites": [ { "page": "144", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/332/0141-01" ] }, { "cite": "387 S.E.2d 655", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1990, "pin_cites": [ { "page": "662" } ], "opinion_index": 0 }, { "cite": "326 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5305891 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "12" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0001-01" ] }, { "cite": "463 S.E.2d 574", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "575", "parenthetical": "citation omitted" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 847", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11918512 ], "year": 1995, "pin_cites": [ { "page": "849", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0847-01" ] }, { "cite": "180 S.E.2d 823", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1971, "opinion_index": 0 }, { "cite": "278 N.C. 523", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561041 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nc/278/0523-01" ] }, { "cite": "68 S.E.2d 664", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1952, "opinion_index": 0 }, { "cite": "234 N.C. 687", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625718 ], "year": 1952, "opinion_index": 0, "case_paths": [ "/nc/234/0687-01" ] }, { "cite": "405 S.E.2d 125", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "135", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "329 N.C. 84", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553368 ], "weight": 2, "year": 1991, "pin_cites": [ { "page": "104", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/329/0084-01" ] } ], "analysis": { "cardinality": 774, "char_count": 17102, "ocr_confidence": 0.737, "pagerank": { "raw": 4.5330875625009783e-08, "percentile": 0.2843965034254893 }, "sha256": "677ea622cc7f3898d394774fe90c1e6b019996b725d9498fe9e230a8b228c69e", "simhash": "1:cbf0aa66a62f3d69", "word_count": 2681 }, "last_updated": "2023-07-14T21:28:13.659098+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and MARTIN concur." ], "parties": [ "CARL D. BUCKLAND, SR., and NORTHFIELD DEVELOPMENT COMPANY, INCORPORATED, Plaintiffs v. THE TOWN OF HAW RIVER, A Political Subdivision of the State of North Carolina, Defendant" ], "opinions": [ { "text": "EDMUNDS, Judge.\nPlaintiffs, Carl Buckland, Sr. and Northfield Development Co., Inc., appeal the trial court\u2019s order granting defendant Town of Haw River\u2019s, motion for summary judgment and denying plaintiffs\u2019 motion for summary judgment. We reverse.\nOn 21 July 1956, A.C. Simpson and his wife Hazel P. Simpson (the Simpsons) filed a plat for registration with the Alamance County Register of Deeds. The plat shows a road in the shape of a squared-off horseshoe, which begins and ends at U.S. Highway 70 (now U.S. Highway 70A). The eastern prong of the horseshoe is labeled Hollar Street and the western prong is labeled Fairview Street. There is no defined place along the horseshoe where Fairview Street becomes Hollar Street, although the transition appears to occur along a straight portion of the road furthest from Highway 70A. A copy of the plat is attached to this opinion and made part thereof. On 8 August 1972, the Simpsons deeded a right-of-way for the horseshoe-shaped road to the State Highway Commission, and on 6 October 1983, Ms. Simpson deeded 7.6 acres of her land to plaintiff Carl Buckland and his wife Anita Buckland (the Bucklands).\nDefendant annexed certain property that included the 7.6 acres owned by plaintiffs on 1 June 1986, and all property owners in the annexed area began paying municipal taxes. In 1987, after assessing the appropriate property owners, defendant extended sewer service into the newly annexed area; after another assessment, defendant extended water to the area in 1997.\nIn 1997 and thereafter, plaintiffs requested that defendant approve a subdivision plat dividing plaintiffs\u2019 property into eleven lots. The land plaintiffs sought to subdivide primarily rested south of and adjacent to the section of the horseshoe farthest from U.S. Highway 70A where Hollar and Fairview Streets merge, although a section of plaintiffs\u2019 property rested adjacent to the west side of Fairview Street. On 4 August 1998, defendant notified plaintiffs that the Town Council of Haw River had approved plaintiffs\u2019 subdivision plat with the condition that plaintiffs \u201cadhere to the subdivision regulations regarding the improvement of the public right-of-way and unopened portion of Fairview and Hollar Streets,\u201d specifically instructing plaintiffs that its \u201csubdivision ordinance requires paving and curb and gutter.\u201d\nPlaintiffs filed a complaint seeking an \u201cOrder in the nature of Mandamus requiring [defendant] to (1) approve their subdivision request\u201d without restrictions; and (2) \u201cprovide adequate street maintenance to the Fairview Street area.\u201d\nMandamus is the proper remedy to compel public officials to perform a purely ministerial duty imposed by law; it generally may not be invoked to review or control the acts of public officers respecting discretionary matters. However, mandamus will lie to review discretionary acts when the discretion appears to have been abused or the action taken arbitrarily, capriciously, or in disregard of law.\nIn re Alamance County Court Facilities, 329 N.C. 84, 104, 405 S.E.2d 125, 135 (1991) (citations omitted). Our Supreme Court has held that mandamus is the proper procedure to compel officials to issue a building permit when the plaintiff shows he has met all the requirements for a permit. See Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664 (1952). Both plaintiffs and defendant moved for summary judgment, and the trial court granted defendant\u2019s motion and denied plaintiffs\u2019 motion. Plaintiffs appeal.\nA trial court may grant a motion for summary judgment where there is no genuine issue of material fact and where the movant is entitled to judgment as a matter of law. See N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (1999); Kessing v. Mortgage Corp., 278 N.C. 523, 180 S.E.2d 823 (1971). \u201cA trial court\u2019s grant of summary judgment is fully reviewable by this Court because the trial court rules only on questions of law.\u201d Metropolitan Prop. and Casualty Ins. Co. v. Lindquist, 120 N.C. App. 847, 849, 463 S.E.2d 574, 575 (1995) (citation omitted).\nI.\nPlaintiffs contend that the trial court erred by granting defendant\u2019s motion for summary judgment, thereby effectively requiring that plaintiffs improve or construct roads that abut or extend beyond their development. By granting defendant\u2019s motion, the trial court found as a matter of law that defendant can require plaintiffs to pave, curb and gutter all of Fairview and Hollar Streets as a condition of approving plaintiffs\u2019 subdivision plat.\nOur Supreme Court has held that if the reason articulated by a town for denial of a subdivision permit is supported by valid enabling legislation and competent evidence on the record, the decision must be affirmed. See Batch v. Town of Chapel Hill, 326 N.C. 1, 12, 387 S.E.2d 655, 662 (1990). Conversely, \u201c[a] subdivision plat may not be disapproved where the . . . developer fails or refuses to comply with unauthorized or irrelevant conditions.\u201d 8 Eugene McQuillin, The Law of Municipal Corporations \u00a7 25.118.30, at 373 (3d ed. 2000 rev. ed.).\nWe open our analysis by reviewing the statutes pertaining to subdivision regulation. \u201cStatutory interpretation properly begins with an examination of the plain words of the statute.\u201d Correll v. Division of Social Services, 332 N.C. 141, 144, 418 S.E.2d 232, 235 (1992) (citation omitted). Chapter 160A of the General Statutes of North Carolina contains enabling legislation for city and town ordinances. Section 160A-372 grants municipalities certain powers they may include in a subdivision control ordinance. N.C. Gen. Stat. \u00a7 160A-372 (1999). As to street construction, this statute reads in pertinent part, \u201c[a] subdivision control ordinance may provide for the orderly growth and development of the city; for the coordination of streets and highways within proposed subdivisions with existing or planned streets and highways and with other public facilities.\u201d Id. (emphasis added). Accordingly, a municipality\u2019s subdivision ordinance may require a developer to consider existing or planned streets when it plats streets or highways within its subdivision, see Batch, 326 N.C. 1, 387 S.E.2d 655, but the statute does not empower municipalities to require a developer to build streets or highways outside its subdivision.\nHowever, municipalities are not powerless to require developers to bear the cost of road construction outside the subdivision that is made necessary, in part or in full, because of the proposed subdivision. Doing so involves a tradeoff for the municipality. The last paragraph of N.C. Gen. Stat. \u00a7 160A-372 provides:\nThe ordinance may provide that in lieu of required street construction, a developer may be required to provide funds that the city may use for the construction of roads to serve the occupants, residents, or invitees of the subdivision or development and these funds may be used for roads which serve more than one subdivision or development within the area. All funds received by the city pursuant to this paragraph shall be used only for development of roads, including design, land acquisition, and construction. However, a city may undertake these activities in conjunction with the Department of Transportation under an agreement between the city and the Department of Transportation. Any formula adopted to determine the amount of funds the developer is to pay in lieu of required street construe- lion shall be based on the trips generated from the subdivision or development. The ordinance may require a combination of partial payment of funds and partial dedication of constructed streets when the governing body of the city determines that a combination is in the best interests of the citizens of the area to be served.\n(Emphases added.) The only related earlier reference to street construction in the statute is the language previously quoted requiring developers to consider existing or planned streets and highways when platting streets and highways within the subdivision. However, also pursuant to the language quoted above, a municipality \u201cin lieu of required street construction\u201d may require a developer to provide funds to be used to construct roads both within and outside of a development. N.C. Gen. Stat. \u00a7 160A-372. If the municipality selects this alternative, it undertakes to build these roads itself and foregoes the option of compelling the developer to build its own roads within the development. The provision allowing for \u201cpartial payment of funds and partial dedication of constructed streets\u201d supports this interpretation because a developer can only dedicate \u201cconstructed streets\u201d that lie within the subdivision.\nIn the case at bar, defendant contends that plaintiffs can be required to pave, curb and gutter all of Fairview and Hollar Streets, arguing that because sections of plaintiffs\u2019 land abut one side of portions of these streets, the streets are within plaintiffs\u2019 subdivision. We disagree. See Property Group, Inc. v. Planning and Zoning Com\u2019n, 628 A.2d 1277 (Conn. 1993) (affirming lower court\u2019s decision that road abutting developers land was off-site). The plat provided in the record indicates that at least twelve lots not owned by plaintiffs are also adjacent to Fairview or Hollar Streets. Six of plaintiffs\u2019 proposed eleven lots are adjacent to these roads, bordering the roads on one side. Because the Simpsons deeded a right-of-way for the horseshoe shaped road to the State Highway Commission on 8 August 1972, there is no contention that plaintiffs are the fee simple owners of the roads. Therefore, defendant had no authority under N.C. Gen. Stat. \u00a7 160A-372 to require plaintiffs to pave, curb and gutter streets abutting their subdivision because these streets were not within plaintiffs\u2019 subdivision. See Nat\u2019l Medical Enterprises, Inc. v. Sandrock, 72 N.C. App. 245, 324 S.E.2d 268 (1985). In addition, although defendant had the option of requiring plaintiffs to provide funds for road construction pursuant to section 160A-372, there is no evidence that defendant sought such funds, nor does it appear that defendant\u2019s subdivision ordinance contains a provision allowing this action. Accordingly, the trial court\u2019s grant of summary judgment for defendant, implicitly finding as a matter of law that defendant could compel plaintiffs to construct access roads, was error.\nII.\nPlaintiffs\u2019 complaint also alleged that defendant has not taken proper care of Fairview Street, stating that \u201c[s]ince annexation, Defendant has failed to adequately maintain any portion of Fairview Street and all portions of said street are in need of maintenance and paving.\u201d Plaintiffs sought an \u201cOrder finding the Defendant in violation ofN.C.G.S. [\u00a7] 160A-33 Declaration of Policy and N.C.G.S. [\u00a7] 160A-35 in failing to provide street maintenance services and directing Defendant to provide such services.\u201d\nSection 160A-33 reads in pertinent part, \u201cIt is hereby declared as a matter of State policy: ... (5) That areas annexed to municipalities in accordance with such uniform legislative standards should receive the services provided by the annexing municipality in accordance with G.S. 160A-35(3).\u201d N.C. Gen. Stat. \u00a7 160A-33 (1999). Section 160A-35 sets forth prerequisites for annexation of an area by a municipality, providing:\nA municipality exercising authority under this Part shall make plans for the extension of services to the area proposed to be annexed and shall, prior to the public hearing provided for in G.S. 160A-37, prepare a report setting forth such plans to provide services to such area. The report shall include:\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 . . . 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.\nN.C. Gen. Stat. \u00a7 160A-35(3)a (1999). Defendant\u2019s annexation ordinance provides,\nUpon and after the 1st day of June, 1986, the above described territory and its citizens and property shall be subject to all debts, laws, ordinances and regulations in force in the (Town) of Haw River and shall be entitled to the same privileges and benefits as other parts of the (Town) of Haw River.\n\u201cThe statutory remedy for owners of property in the annexed territory where \u2018the municipality has not followed through on its service plans . . .\u2019 is by writ of mandamus.\u201d Safrit v. Costlow, 270 N.C. 680, 684, 155 S.E.2d 252, 255 (1967) (citation omitted). Plaintiffs sought this remedy, alleging defendant\u2019s inaction in maintaining Fairview Street is \u201cunreasonable, arbitrary and capricious.\u201d See In re Alamance County Court Facilities, 329 N.C. 84, 405 S.E.2d 125. Fairview Street was in existence and appears on the plat accompanying defendant\u2019s ordinance annexing the area in dispute in 1986. Plaintiffs allege the street has been used by the public since at least 1983; in addition, plaintiff Buckland stated in an affidavit that defendant provided stone to smooth eroded portions of Fairview Street. Defendant has admitted installing a stop sign at Fairview and West Main Street. Accordingly, defendant is responsible for maintaining Fairview Street on \u201csubstantially the same basis and in the same manner as such service [] [was] provided within the rest of the municipality prior to annexation.\u201d N.C. Gen. Stat. \u00a7 160A-35(3)a; see In re Annexation Ordinance, 255 N.C. 633, 645, 122 S.E.2d 690, 699 (1961) (construing statutory equivalent of Section 160A-35(3)a, held \u201cprimary duty of street maintenance in the area in question, after annexation, is upon the city, and it must in good faith make plans to maintain the streets, whether paved or unpaved\u201d); Hooper v. City of Wilmington, 42 N.C. App. 548, 550, 257 S.E.2d 142, 143 (1979) (holding that where various ditches and drainage systems in a watershed were in existence prior to annexation of area, the city accepted them by use or maintenance).\nThe key issue is whether defendant has fulfilled its duty to maintain Fairview Street. As stated previously, summary judgment is only appropriate where there is no genuine issue of material fact and where the movant is entitled to judgment as a matter of law. N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c); Kessing, 278 N.C. 523, 180 S.E.2d 823. The record is undeveloped as to the current state of repair of Fairview Street and the customary maintenance provided by defendant on similar streets. Because we have only the parties\u2019 conflicting allegations, a question of fact exists. Accordingly, the trial court erred in granting summary judgment as to this claim.\nThis case is remanded to the trial court for entry of an order granting plaintiffs\u2019 motion for summary judgment as to the issue relating to approval of plaintiffs\u2019 subdivision plat and denying defendant\u2019s summary judgment motion as to this issue. We further hold that the trial court erred in granting summary judgment to defendant as to plaintiffs\u2019 claim that Fairview Street has not been adequately maintained.\nReversed and remanded.\nJudges GREENE and MARTIN concur.", "type": "majority", "author": "EDMUNDS, Judge." } ], "attorneys": [ "Smith, James, Rowlett & Cohen, L.L.R, by J. David James, for plaintiff-appellants.", "Averett Law Offices, by D. Melissa Averett, for defendant-appellee." ], "corrections": "", "head_matter": "CARL D. BUCKLAND, SR., and NORTHFIELD DEVELOPMENT COMPANY, INCORPORATED, Plaintiffs v. THE TOWN OF HAW RIVER, A Political Subdivision of the State of North Carolina, Defendant\nNo. COA99-1347\n(Filed 29 December 2000)\n1. Cities and Towns\u2014 approval of subdivision plat \u2014 improperly required to pave, curb, and gutter streets abutting subdivision\nThe trial court erred by granting defendant\u2019s motion for summary judgment thereby effectively requiring plaintiffs to improve or construct roads that abut or extend beyond their development as a condition of approving plaintiffs\u2019 subdivision plat, because: (1) defendant had no authority under N.C.G.S. \u00a7 160A-372 to require plaintiffs to pave, curb, and gutter streets abutting their subdivision when these streets were not within plaintiffs\u2019 subdivision; and (2) although defendant had the option of requiring plaintiffs to provide funds for road construction under N.C.G.S. \u00a7 160A-372, there is no evidence that defendant sought such funds, nor does it appear that defendant\u2019s subdivision ordinance contains a provision allowing this action.\n2. Cities and Towns\u2014 annexed territory \u2014 adequate maintenance of streets \u2014 summary judgment improper\nThe trial court erred by granting summary judgment in favor of defendant on plaintiffs\u2019 claim that the pertinent street in an annexed territory has not been adequately maintained because a question of fact exists since the record is undeveloped as to the current state of repair of the street and the customary maintenance provided by defendant on similar streets.\nAppeal by plaintiffs from judgment entered 2 August 1999 by Judge James C. Spencer, Jr., in Alamance County Superior Court. Heard in the Court of Appeals 11 October 2000.\nSmith, James, Rowlett & Cohen, L.L.R, by J. David James, for plaintiff-appellants.\nAverett Law Offices, by D. Melissa Averett, for defendant-appellee." }, "file_name": "0460-01", "first_page_order": 490, "last_page_order": 498 }