{ "id": 9190527, "name": "UNITED STATES COLD STORAGE, INC., Petitioner v. CITY OF LUMBERTON, Respondent", "name_abbreviation": "United States Cold Storage, Inc. v. City of Lumberton", "decision_date": "2003-03-04", "docket_number": "No. COA02-516", "first_page": "327", "last_page": "335", "citations": [ { "type": "official", "cite": "156 N.C. App. 327" } ], "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": "311 S.E.2d 296", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "310 N.C. 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2396262, 2400969, 2392659, 2399541, 2394682 ], "year": 1984, "opinion_index": 0, "case_paths": [ "/nc/310/0156-04", "/nc/310/0156-02", "/nc/310/0156-01", "/nc/310/0156-05", "/nc/310/0156-03" ] }, { "cite": "307 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "184" } ], "opinion_index": 0 }, { "cite": "64 N.C. App. 239", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526598 ], "year": 1983, "pin_cites": [ { "page": "242" } ], "opinion_index": 0, "case_paths": [ "/nc-app/64/0239-01" ] }, { "cite": "571 S.E.2d 221", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "356 N.C. 437", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1511608, 1511289, 1511570, 1511500 ], "year": 2002, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/356/0437-04", "/nc/356/0437-02", "/nc/356/0437-01", "/nc/356/0437-03" ] }, { "cite": "567 S.E.2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "211", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "152 N.C. App. 228", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9249645 ], "year": 2002, "pin_cites": [ { "page": "230", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/152/0228-01" ] }, { "cite": "265 S.E.2d 123", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "132" } ], "opinion_index": 0 }, { "cite": "300 N.C. 21", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559728 ], "year": 1980, "pin_cites": [ { "page": "35" } ], "opinion_index": 0, "case_paths": [ "/nc/300/0021-01" ] } ], "analysis": { "cardinality": 719, "char_count": 18027, "ocr_confidence": 0.753, "pagerank": { "raw": 6.665651525889828e-08, "percentile": 0.40596034749516285 }, "sha256": "6230c27c1362a3c8437f0dbf8a64c54d5c3ecd9f47dfd56876e7de8093f73b0d", "simhash": "1:c4a5d8add0600948", "word_count": 2953 }, "last_updated": "2023-07-14T21:05:49.893248+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HUDSON and STEELMAN concur." ], "parties": [ "UNITED STATES COLD STORAGE, INC., Petitioner v. CITY OF LUMBERTON, Respondent" ], "opinions": [ { "text": "MARTIN, Judge.\nPetitioner United States Cold Storage (\u201cUSCS\u201d) appeals from an order and judgment denying its petition challenging an involuntary annexation ordinance adopted by respondent City of Lumberton (\u201cLumberton\u201d).\nThe record indicates that USCS owns an unsubdivided 133-acre tract of land in Robeson County, approximately 28.5 acres of which is occupied by a cold storage facility for food products and supporting facilities such as loading docks, a parking area, a railroad spur line, and a pond. This improved portion of the tract is partially surrounded by a fence and the remaining acres of the tract are primarily vacant, containing only power lines and railroad easements and having been leased out continuously for agricultural purposes. The tract is located at the southeast corner of the intersection of Kenny Biggs Road and Starlite Drive, with the improved portion fronting onto Kenny Biggs Road.\nIn October and November 1998, the Lumberton City Council (\u201cthe Council\u201d) passed a resolution of intent and adopted an annexation report to annex a 255-acre area that included USCS\u2019s entire 133-acre tract. This plan was subsequently altered on 22 February 1999 when the Council \u201cre-adopted as amended\u201d a revised annexation report proposing an annexation of an area that would include a smaller portion of USCS\u2019s property, but still all of the 28.5-acre improved area. On the same date, the Council adopted the ordinance to annex the proposed area. USCS filed a petition challenging this ordinance (\u201cthe 1999 ordinance\u201d) on 23 March 1999, contending, inter alia, that the area to be annexed did not qualify under the pertinent statutes for annexation.\nOn 20 July 2000, Superior Court Judge Gregory A. Weeks, after hearing evidence, entered an order in which he determined the annexation ordinance did not meet the statutory requirements for involuntary annexation and remanded the ordinance to Lumberton with specific directives. The order provided, inter alia:\nthe area to be annexed pursuant to the Annexation Ordinance is not \u201can area developed for urban purposes\u201d as defined in [G.S.] \u00a7 160A-48(c)(3), in that 28\u00b1 acres of [USCS\u2019s] property is used for commercial purposes and the remaining acreage of [USCS\u2019s] property is vacant for the purpose of determining compliance with [G.S.] \u00a7 160A-48(c)(3).\nBased on this finding, Judge Weeks ordered that as part of amending or reformulating the ordinance:\nthe area to be annexed be re-defined to meet the definition of an \u201carea developed for urban purposes\u201d as defined in [G.S.] \u00a7 160A~48(c)(3) and that only the portion of [USCS\u2019s] property used for commercial purposes may be considered \u201ccommercial\u201d in order to determine compliance with [G.S.] \u00a7 160A-48(c)(3).\nIn addition, Judge Weeks ordered Lumberton to conduct another public hearing on any revised ordinance after providing adequate public notice. Finally, the order provided:\nthat upon the Respondent\u2019s failure to take action in accordance with this Order within three months of Respondent\u2019s receipt of this Order, the Petitioner may submit an Order to show cause as to why the Annexation challenged herein should be deemed null, void, and of no effect.\nLumberton did not appeal from Judge Weeks\u2019 order. On 8 September 2000, Lumberton adopted a document entitled \u201c2000 Annexation Study\u201d and set a public hearing for 9 October 2000 regarding annexation of the area outlined in the study. USCS alleges that it did not receive notice of the new annexation study or the public hearing from Lumberton, although USCS did learn of the hearing and was able to attend. The study proposed annexation of a 61.59-acre area that included about 57 acres of USCS\u2019s property, including the approximately 28-acre improved portion of the property. On 19 October 2000, the Council adopted an ordinance (\u201cthe 2000 ordinance\u201d) annexing the area described in the study. USCS filed a petition challenging the new ordinance on various grounds on 17 November 2000.\nUSCS\u2019s petition challenging the 2000 ordinance was heard on 25 June 2001 by Superior Court Judge E. Lynn Johnson. Each side submitted evidence tending to support its respective assertion that the unimproved approximately 29-acre portion of USCS\u2019s property included in the annexation area either was or was not in commercial use so as to qualify the area for annexation under G.S. \u00a7 160A-48(c)(3). Judge Johnson determined that the 2000 ordinance did not violate G.S. \u00a7 160A-48(c)(3) and denied USCS\u2019s petition. In particular, he found:\nThe commercial property used by Cold Storage encompasses not only the land their building sits on (28\u00b1 acres, as acknowledged by Judge Weeks) but also the area directly behind the property that includes the power lines and the railroad easement (30\u00b1 acres) because those areas actively support [USCS\u2019s] commercial enterprise.\nIt is from this order and judgment that USCS now appeals.\nOn appeal, USCS argues (1) the trial court erred in disregarding Judge Weeks\u2019 earlier finding with respect to the portion of USCS\u2019s property in use for commercial purposes and allowing re-litigation of the issue of qualification of the annexation area under G.S. \u00a7 160A-48(c)(3), (2) that even if it was not error to disregard Judge Weeks\u2019 finding, the trial court erred in determining that the annexation area qualified under G.S. \u00a7 160A-48(c)(3), and (3) the trial court erred in finding that Lumberton gave USCS adequate notice of the 9 October 2000 hearing.\nThe provisions of Chapter 160A, Article 4A, Part III, governing annexation of land by cities of 5000 or more, are applicable here. The parties agree that G.S. .\u00a7 160A-48, as in effect on 21 October 1998, the date the Resolution of Intent for the 1999 ordinance was adopted, controls the analysis of both the 1999 and 2000 ordinances in this case. The statute provides criteria for determining what areas are eligible for annexation:\n(a) A municipal governing board may extend the municipal corporate limits to include any area\n(1) Which meets the general standards of subsection (b), and\n(2) Every part of which meets the requirements of either subsection (c) or subsection (d).\nN.C. Gen. Stat. \u00a7 160A-48(a) (1998). Qualification of the annexation areas under both the 1999 and 2000 ordinances under subsection (b) of the statute is not in dispute. Moreover, in its annexation reports, Lumberton did not seek to qualify the areas under subsection (d), but rather only under subdivision (3) of subsection (c), which states:\n(c) Part or all of the area to be annexed must be developed for urban puiposes. An area developed for urban purposes is defined as any area which meets any one of the following standards:\n(3) Is so developed that at least sixty percent (60%) of the total number of lots and tracts in the area at the time of annexation are used for residential, commercial, industrial, institutional, or governmental purposes, and is 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, ... purposes, consists of lots and tracts five acres or less in size ....\nN.C. Gen. Stat. \u00a7 160A-48(c)(3) (1998). The two requirements of G.S. \u00a7 160A-48(c)(3) have come to be known as the \u201cuse test\u201d and the \u201csubdivision test.\u201d See, e.g., Food Town Stores, Inc. v. Salisbury, 300 N.C. 21, 35, 265 S.E.2d 123, 132 (1980).\nUSCS challenged both the 1999 and 2000 ordinances on the grounds that the annexation areas did not meet the subdivision test because only approximately 28 acres of USCS\u2019s land is in use for commercial purposes and the remaining USCS acres are vacant and unsubdivided. Judge Weeks agreed with USCS in reviewing the 1999 ordinance and made a finding to that effect. USCS argues that in reviewing the 2000 ordinance, Judge Johnson should have applied Judge Weeks\u2019 finding under the doctrine of collateral estoppel.\nThe doctrine of collateral estoppel \u201c \u2018is designed to prevent repetitious lawsuits over matters which have once been decided and which have remained substantially static, factually and legally.\u2019 \u201d... In order for collateral estoppel to be applicable, certain requirements must be met. The elements of collateral estoppel, as stated by our Supreme Court, are as follows: (1) a prior suit resulting in a final judgment on the merits; (2) identical issues involved; (3) the issue was actually litigated in the prior suit and necessary to the judgment; and (4) the issue was actually determined.\nMcDonald v. Skeen, 152 N.C. App. 228, 230, 567 S.E.2d 209, 211, disc. review denied, 356 N.C. 437, 571 S.E.2d 221 (2002) (citations omitted). In the context of collateral estoppel, North Carolina follows the rule of mutuality, which requires \u201cnot only that issues be identical but that parties be identical or in privity with parties to the prior judgment.\u201d Tar Landing Villas Owners\u2019 Assoc, v. Town of Atlantic Beach, 64 N.C. App. 239, 242, 307 S.E.2d 181, 184 (1983), disc. review denied, 310 N.C. 156, 311 S.E.2d 296 (1984).\nLumberton contends, and Judge Johnson agreed, that Judge Weeks\u2019 finding that \u201c28\u00b1\u201d acres of USCS\u2019s property was used for commercial purposes did not mean that only 28 acres, give or take an acre, was in use for commercial purposes. Rather, Lumberton asserts that Judge Weeks\u2019 use of the \u201c\u00b1\u201d symbol denoted a great degree of flexibility. Based on this interpretation, Lumberton argues that the directive to Lumberton to \u201cre-define\u201d the area to be annexed to meet the definition of an \u201carea developed for urban purposes\u201d under G.S. \u00a7 160A-48(c)(3), when read together with the following directive stating that \u201cpursuant to [G.S.] \u00a7 160A-48(e) [Lumberton] may use natural topographic features or streets or setbacks from topographic features or streets as boundaries of the area to be annexed,\u201d authorized Lumberton on remand to draw new boundary lines that encompassed more of USCS\u2019s property than the approximately 28 improved acres and classify the additional acres as in use for commercial purposes.\nLumberton explains its \u201cre-definition\u201d of the area to be annexed by pointing to the affidavit of its surveyor, George T. Paris. In his affidavit, Mr. Paris states that because there were no natural topographical features within the USCS property, the new boundary lines were based on an 800-foot setback from Starlite Drive and an extension of the already existing city limit of Lumberton that bordered part of USCS\u2019s property. As these new lines encompassed 29 acres of USCS property outside the 28 improved acres, Lumberton then asserts that the 2.2 acres of power line and railroad easements present within the 29 acres support classification of these acres as \u201cin use for commercial purposes. \u201d\nIn his order with respect to the 2000 ordinance, Judge Johnson expressly \u201cacknowledge [d] that Judge Weeks decided as fact that 28+/- acres of the USCS property was commercial. This Court further notes that Lumberton was directed [by the] Order to determine the exact area that is used by USCS for commercial purposes.\u201d Based on this understanding of Judge Weeks\u2019 order, Judge Johnson entertained further litigation on the issue of whether the 29 acres of USCS\u2019s property outside the improved 28 acres was in use for commercial purposes and made additional findings reflecting acceptance of Lumberton\u2019s \u201cre-definition\u201d of the area to be annexed. We believe this interpretation of Judge Weeks\u2019 order was in error.\nIn his order, Judge Weeks found not only that the \u201c28\u00b1\u201d improved acres were in use for commercial purposes, but that the \u201cremaining acreage ... is vacant for the purpose of determining compliance with [G.S.] \u00a7 160A-48(c)(3).\u201d It is also important to note that as part of ordering Lumberton to \u201cre-define\u201d the area to be annexed, Judge Weeks ordered that \u201conly the portion of [USCS\u2019s] property used for commercial purposes may be considered \u2018commercial\u2019 in order to determine compliance with [G.S.] \u00a7 160A-48(c)(3).\u201d We interpret this language as a finding that the 1999 ordinance did not meet the mandatory provisions of G.S. \u00a7 160A-48(a) nor (c), and an order of remand, pursuant to G.S. \u00a7 \u2022 160A-50(g)(2), \u201cfor amendment of the boundaries to conform to [those] provisions.\u201d N.C. Gen. Stat. \u00a7 160A-50(g)(2) (1998). The order that \u201cthe area to be annexed be re-defined\u201d was an instruction to re-draw the boundaries of the area to exclude the vacant acres that frustrated compliance with G.S. \u00a7 160A-48(c)(3). Given the unequivocal nature of Judge Weeks\u2019 division of USCS\u2019s property into commercial and \u201cvacant\u201d portions and his order that only the commercial portion be used on remand to determine compliance with G.S. \u00a7 160A-48(c)(3), the use of a \u201c\u00b1\u201d symbol and statement permitting the use of topographical features, streets, or setbacks therefrom as boundaries for the revised annexation area cannot be construed as a license to attempt to re-classify the vacant acres.\nWe hold Judge Weeks\u2019 order was a final determination on the merits regarding the 1999 ordinance, including a final determination of the classification of the unimproved acres of USCS\u2019s property as vacant and not in use for commercial purposes. The other elements of collateral estoppel do not appear to be in dispute. The trial court obviously wished to give effect to Judge Weeks\u2019 order, but simply misinterpreted it. Because the approximately 29 undeveloped acres of USCS\u2019s property included in the area to be annexed by the 2000 ordinance have previously been adjudicated \u201cvacant,\u201d not in use for commercial or other designated purposes, and unsubdivided, we hold that the trial court erred in concluding that the area to be annexed by the 2000 ordinance met the subdivision test of G.S. \u00a7 160A-48(c)(3) and thus upholding the ordinance as valid. Due to our holding on this issue, we need not address USCS\u2019s second argument.\nLastly, this Court must determine whether to declare the ordinance null and void or to remand it. USCS argued at trial and on appeal that Lumberton failed to provide USCS with adequate notice of the 9 October 2000 public hearing in violation of G.S. \u00a7 160A-49(b)(3), which states in pertinent part:\nnotice shall be mailed at least four weeks prior to date of the hearing by first class mail, postage prepaid to the owners as shown by the tax records of the county of all freehold interests in real property located within the area to be annexed.\nN.C. Gen. Stat. \u00a7 160A-49(b)(3) (1998). USCS also contends that Lumberton\u2019s failure to give USCS notice of the hearing was a violation of Judge Weeks\u2019 order. Based on these alleged violations, USCS asserts that the trial court erred in failing to declare the ordinance null and void.\nUnder G.S. \u00a7 160A-50(g)(l), a trial court reviewing an annexation ordinance may \u201c[r]emand the ordinance to the municipal governing board for further proceedings if procedural irregularities are found to have materially prejudiced the substantive rights of any of the petitioners.\u201d N.C. Gen. Stat. \u00a7 160A-50(g)(l) (1998). In addition, \u201cif any municipality shall fail to take action in accordance with [a] court\u2019s instructions upon remand within three months from receipt of [the order], the annexation proceeding shall be deemed null and void.\u201d N.C. Gen. Stat. \u00a7 160A-50(g) (1998).\nJudge Weeks\u2019 order contains instructions to comply with G.S. \u00a7 160A-49(b)(2) and (c), public notice provisions Judge Weeks found Lumberton to have violated. USCS does not allege that Lumberton failed to comply with these or any other procedural instructions in the order. Assuming, arguendo, that any \u201cprocedural irregularities\u201d did occur that may have prejudiced USCS\u2019s substantive rights, the remedy under G.S. \u00a7 160A-50(g)(l) would have been a remand to the Council. Therefore, the trial court did not err in failing to declare the ordinance null and void on these bases.\nUSCS also argues that this Court should declare the ordinance null and void because it \u201cstill\u201d does not comply with G.S. \u00a7 160A-48(c)(3) in violation of Judge Weeks\u2019 order. In our review, we believe the more appropriate remedy, in light of Lumberton\u2019s attempt, though based upon a misinterpretation of Judge Weeks\u2019 order, to comply with such order within the three month period allowed, would be to remand the matter \u201cfor amendment of the boundaries to conform to the provisions of G.S. 160A-48.\u201d N.C. Gen. Stat. \u00a7 160A-50(g)(2) (1998). The trial court\u2019s order and judgment are reversed and this matter is remanded to the superior court for entry of an order remanding the ordinance to the Council for further proceedings in accordance with this opinion.\nReversed and remanded.\nJudges HUDSON and STEELMAN concur.\n. Article 4A of Chapter 160A was amended effective 1 November 1998. S.L. 1998, Ch. 150. Because the annexation proceeding at issue commenced prior to the effective date of the amendments, the amendments are inapplicable to this case.", "type": "majority", "author": "MARTIN, Judge." } ], "attorneys": [ "The Brough Law Firm,, by Robert E. Homik, Jr., for petitioner-appellant.", "Holt, York, McDarris & High, L.L.P., by Charles F. McDarris, and Lumberton City Attorney Albert M. Benshoff for respondent-appellee." ], "corrections": "", "head_matter": "UNITED STATES COLD STORAGE, INC., Petitioner v. CITY OF LUMBERTON, Respondent\nNo. COA02-516\n(Filed 4 March 2003)\nCities and Towns\u2014 annexation ordinance \u2014 subdivision test\nThe trial court erred by concluding that the area to be annexed by respondent city\u2019s 2000 annexation ordinance met the subdivision test of N.C.G.S. \u00a7 160A-48(c)(3) and this matter is remanded to the trial court for entry of an order remanding the ordinance to the council for further proceedings including amendment of the boundaries to conform to the provisions of N.C.G.S. \u00a7 160A-48, because the approximately twenty-nine undeveloped acres of petitioner\u2019s property included in the area to be annexed by the 2000 ordinance have previously been adjudicated vacant, not in use for commercial or other designated purposes, and unsubdivided.\nAppeal by petitioner from judgment entered 9 January 2002 by Judge E. Lynn Johnson in Robeson County Superior Court. Heard in the Court of Appeals 8 January 2003.\nThe Brough Law Firm,, by Robert E. Homik, Jr., for petitioner-appellant.\nHolt, York, McDarris & High, L.L.P., by Charles F. McDarris, and Lumberton City Attorney Albert M. Benshoff for respondent-appellee." }, "file_name": "0327-01", "first_page_order": 357, "last_page_order": 365 }