{ "id": 8158487, "name": "STEPHEN and MICHELLE ARNOLD, ROBERT P. and ELIZABETH M. BARR, DAVID E. and KRYSTAL D. BOTTOM, TIMOTHY A. and JEANETTE P. BRADLEY, CHARLES MICHAEL and DEBRA S. BRAUN, KENT and BARBARA CAMPBELL, ROBERT E. and AIDA V. DUNGAN, RICHARD R. and CHARLOTTE D. ELEY, JONATHAN A. and PEGGY J. HILL, STEVEN P. and CHRISTI W. HURD, JOHN P. and KIMBERLY J. KENNEDY, PIERCE A. KAHADUWE LIVING TRUST, MARK P. and JACQUELINE G. RUSCOE, BENJAMIN F. and SUSAN E. TURNER, JACQUELYN M. WEBB, TRUSTEE OF THE JACQUELYN M. WEBB LIVING TRUST, MARC B. and JACKIE LEE WESTLE, DERWIN J. and NANCY L.C. WILLIAMS, ROBERT L. and BECKY L. WILSON, STEPHEN M. and JULIA R. EARGLE, and ROBERT A. and JANE P. ERRICO, Petitionees v. CITY OF ASHEVILLE, Respondent", "name_abbreviation": "Arnold v. City of Asheville", "decision_date": "2007-11-06", "docket_number": "No. COA06-1167", "first_page": "542", "last_page": "555", "citations": [ { "type": "official", "cite": "186 N.C. App. 542" } ], "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": "483 S.E.2d 175", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1997, "opinion_index": 0 }, { "cite": "345 N.C. 345", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 54154, 54077, 53900, 54035, 53853 ], "year": 1997, "opinion_index": 0, "case_paths": [ "/nc/345/0345-05", "/nc/345/0345-03", "/nc/345/0345-02", "/nc/345/0345-04", "/nc/345/0345-01" ] }, { "cite": "478 S.E.2d 204", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1996, "pin_cites": [ { "page": "206" }, { "page": "207" } ], "opinion_index": 0 }, { "cite": "124 N.C. App. 603", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11890223 ], "year": 1996, "pin_cites": [ { "page": "607" } ], "opinion_index": 0, "case_paths": [ "/nc-app/124/0603-01" ] }, { "cite": "364 S.E.2d 139", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "321 N.C. 589", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2571529 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc/321/0589-01" ] }, { "cite": "356 S.E.2d 599", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "page": "605" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 13", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12121399 ], "year": 1987, "pin_cites": [ { "page": "23" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0013-01" ] }, { "cite": "642 S.E.2d 261", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 2007, "pin_cites": [ { "page": "264", "parenthetical": "internal citations and internal quotations omitted" }, { "page": "264" }, { "page": "264" } ], "opinion_index": 0 }, { "cite": "182 N.C. App. 486", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8173427 ], "year": 2007, "pin_cites": [ { "page": "490", "parenthetical": "internal citations and internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/182/0486-01" ] }, { "cite": "565 S.E.2d 671", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0 }, { "cite": "355 N.C. 751", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 220041, 220075, 219984, 220088, 220027 ], "year": 2002, "pin_cites": [ { "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/355/0751-01", "/nc/355/0751-02", "/nc/355/0751-03", "/nc/355/0751-04", "/nc/355/0751-05" ] }, { "cite": "562 S.E.2d 32", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2002, "pin_cites": [ { "page": "38", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0 }, { "cite": "149 N.C. App. 492", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 9129501 ], "year": 2002, "pin_cites": [ { "page": "503", "parenthetical": "citation and quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/149/0492-01" ] }, { "cite": "597 S.E.2d 717", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 10, "year": 2004, "pin_cites": [ { "page": "722", "parenthetical": "internal citations and internal quotations omitted" }, { "page": "719" }, { "page": "719" } ], "opinion_index": 0 }, { "cite": "358 N.C. 512", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2987016 ], "year": 2004, "pin_cites": [ { "page": "518", "parenthetical": "internal citations and internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/358/0512-01" ] }, { "cite": "392 S.E.2d 87", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "internal citation and internal quotations omitted" } ], "opinion_index": 0 }, { "cite": "326 N.C. 481", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 5307127, 5307981, 5306935, 5308441, 5308093 ], "year": 1990, "pin_cites": [ { "parenthetical": "internal citation and internal quotations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/326/0481-01", "/nc/326/0481-05", "/nc/326/0481-02", "/nc/326/0481-04", "/nc/326/0481-03" ] }, { "cite": "388 S.E.2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 9, "year": 1990, "pin_cites": [ { "page": "171", "parenthetical": "internal citation and internal quotations omitted" }, { "page": "177-78" }, { "page": "178", "parenthetical": "internal citations and internal quotations omitted" }, { "page": "177-78" }, { "page": "187-88" }, { "page": "178" }, { "page": "178" }, { "page": "178" } ], "opinion_index": 0 }, { "cite": "97 N.C. App. 171", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520048 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "175-76", "parenthetical": "internal citation and internal quotations omitted" }, { "page": "187-88" } ], "opinion_index": 0, "case_paths": [ "/nc-app/97/0171-01" ] }, { "cite": "589 S.E.2d 887", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "589 S.E.2d 886", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 2003, "opinion_index": 0 }, { "cite": "357 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 491426, 491843, 491462, 491729, 491667, 491540, 491799, 491609, 491677 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/nc/357/0657-03", "/nc/357/0657-02", "/nc/357/0657-08", "/nc/357/0657-04", "/nc/357/0657-05", "/nc/357/0657-01", "/nc/357/0657-09", "/nc/357/0657-07", "/nc/357/0657-06" ] }, { "cite": "583 S.E.2d 733", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 12, "year": 2003, "pin_cites": [ { "page": "735" }, { "page": "735", "parenthetical": "internal citations and internal quotations omitted" }, { "page": "737", "parenthetical": "emphasis added" }, { "page": "735" }, { "page": "737" }, { "page": "735" }, { "page": "735" }, { "page": "735" }, { "page": "735" }, { "page": "735" } ], "opinion_index": 0 }, { "cite": "159 N.C. App. 558", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8957314 ], "weight": 6, "year": 2003, "pin_cites": [ { "page": "560" }, { "page": "563" }, { "page": "563" }, { "page": "560" }, { "page": "560" }, { "page": "560" } ], "opinion_index": 0, "case_paths": [ "/nc-app/159/0558-01" ] } ], "analysis": { "cardinality": 1000, "char_count": 32337, "ocr_confidence": 0.736, "pagerank": { "raw": 8.283159945918396e-08, "percentile": 0.47913623535580646 }, "sha256": "baa4ce3034283789ab7f47779458e3b7a6f7dfda4360011f95014406e15a5f71", "simhash": "1:59bcf126f6315db8", "word_count": 5255 }, "last_updated": "2023-07-14T19:31:40.090074+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges McCULLOUGH and ELMORE concur." ], "parties": [ "STEPHEN and MICHELLE ARNOLD, ROBERT P. and ELIZABETH M. BARR, DAVID E. and KRYSTAL D. BOTTOM, TIMOTHY A. and JEANETTE P. BRADLEY, CHARLES MICHAEL and DEBRA S. BRAUN, KENT and BARBARA CAMPBELL, ROBERT E. and AIDA V. DUNGAN, RICHARD R. and CHARLOTTE D. ELEY, JONATHAN A. and PEGGY J. HILL, STEVEN P. and CHRISTI W. HURD, JOHN P. and KIMBERLY J. KENNEDY, PIERCE A. KAHADUWE LIVING TRUST, MARK P. and JACQUELINE G. RUSCOE, BENJAMIN F. and SUSAN E. TURNER, JACQUELYN M. WEBB, TRUSTEE OF THE JACQUELYN M. WEBB LIVING TRUST, MARC B. and JACKIE LEE WESTLE, DERWIN J. and NANCY L.C. WILLIAMS, ROBERT L. and BECKY L. WILSON, STEPHEN M. and JULIA R. EARGLE, and ROBERT A. and JANE P. ERRICO, Petitionees v. CITY OF ASHEVILLE, Respondent" ], "opinions": [ { "text": "STROUD, Judge.\nThis is an appeal challenging the adoption of an annexation ordinance. Petitioners, landowners in the area to be annexed, instituted this action against respondent, the City of Asheville, to review respondent\u2019s adoption of an ordinance that would annex several acres of petitioners\u2019 property into the City of Asheville. The questions before this Court are: 1) whether the trial court erred in determining that the City of Asheville substantially complied with N.C. Gen. Stat. \u00a7 160A-48; 2) whether the trial court erred in determining that the City of Asheville was not required to hold a second public hearing under N.C. Gen. Stat. \u00a7 160A-49(e); and 3) whether the trial court erred in determining that the provisions of the City of Asheville\u2019s Services Plan in regard to police protection were sufficient under N.C. Gen. Stat. \u00a7 160A-147. In this appeal, we must consider whether the City of Asheville substantially complied with the applicable statutes for annexing land in North Carolina. Briggs v. City of Asheville, 159 N.C. App. 558, 560, 583 S.E.2d 733, 735, disc. rev. denied, 357 N.C. 657, 589 S.E.2d 886, disc. rev. denied, 357 N.C. 657, 589 S.E.2d 887 (2003). For the following reasons, we hold that the City of Asheville substantially complied with the applicable statutes for annexation. Accordingly, we affirm the superior court\u2019s order upholding the City of Asheville\u2019s annexation ordinance.\nI. Background\nOn 9 April 2002, the City of Asheville (\u201cCity\u201d) adopted a resolution of intent to consider annexing several acres generally referred to as the Huntington Chase Area (\u201cArea\u201d). On 23 April 2002 the City adopted an Annexation Services Plan (\u201cServices Plan\u201d) which included detailed findings on: \u201cStatutory Standards Statements;\u201d \u201cPlan for Extension of Services,\u201d including police protection, fire protection, solid waste collection, street maintenance, water distribution, sewer collection, and administrative and other services; \u201cFinancing Plan for Annexation Areas;\u201d and \u201cStatement of Impact for Annexation Areas.\u201d The Services Plan also had several maps of the Area, including a map specifically addressing each of the following: \u201cpresent and proposed boundaries,\u201d \u201cgeneralized land use,\u201d \u201cexisting and proposed water lines,\u201d and \u201cpresent and proposed sanitary sewer lines.\u201d\nOn 3 June 2002 the City held a public informational meeting regarding annexation of the Area. On 11 June 2002 the City held a public hearing concerning the question of annexation of the Area. On 25 June 2002 one lot having the tax parcel identification number (PIN) 9659.11-76-1879 (herein \u201cLot 1879\u201d) was removed from the Area and the City amended the Services Plan to reflect the removal. On 27 June 2002 the City adopted Ordinance No. 2931, \u201cAn Ordinance to Extend the Corporate Limits of the City of Asheville, North Carolina, Under the Authority Granted by Part 3, Article 4A, Chapter 160A of the General Statues [sic] of North Carolina, by Annexing a Contiguous Area Known as the Huntington Chase Area\u201d (\u201cordinance\u201d). The ordinance was adopted as amended and did not include Lot 1879.\nOn 23 August 2002 several landowners in the Area (hereinafter \u201cpetitioners\u201d) filed a verified petition for review and appeal of the City\u2019s ordinance. On 31 January 2006, following a non-jury trial in Superior Court, Buncombe County, Judge James W. Morgan affirmed the City\u2019s ordinance. Petitioners appeal.\nII. Standard of Review\nWhen a petitioner seeks review of an annexation ordinance, the trial court may receive evidence (1) That the statutory procedure was not followed, or (2) That the provisions of G.S. 160A-47 were not met, or (3) That the provisions of G.S. 160A-48 have not been met. Regarding the questions presented on appeal, we note initially that the trial court concluded that the Report and the record of annexation proceedings demonstrated, prima facie, substantial compliance with applicable statutes. Thus, the burden was upon petitioners to show by competent evidence that the [. . .] municipality in fact failed to meet the statutory requirements or that there was irregularity in the proceedings which materially prejudiced their substantive rights.\nChapel Hill Country Club v. Town of Chapel Hill, 97 N.C. App. 171, 175-76, 388 S.E.2d 168, 171, disc. rev. denied, 326 N.C. 481, 392 S.E.2d 87 (1990) (internal citation and internal quotations omitted).\nJudicial review of an annexation ordinance is limited to determining whether the annexation proceedings substantially comply with the requirements of the applicable annexation statute. Absolute and literal compliance with the annexation statute [. . .] is unnecessary. The party challenging the ordinance has the burden of showing error. On appeal, the findings of fact made below are binding on this Court if supported by the evidence, even where there may be evidence to the contrary. However, conclusions of law drawn by the trial court from its findings of fact are reviewable de novo on appeal.\nBriggs at 560, 583 S.E.2d at 735 (internal citations and internal quotations omitted) (emphasis added).\nIII. N.C. Gen. Stat. \u00a7 160A-48\nPetitioners contend that the City has not complied with N.C. Gen. Stat. \u00a7 160A-48(c)(2)-(3). N.C. Gen. Stat. \u00a7 160A-48(c)(2)-(3) and (d) provides that:\n(c) Part or all of the area t\u00f3 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 puiposes is defined as any area which meets any one of the following standards:\n(2) Has a total resident population equal to at least one person for each acre of land included within its boundaries, and is subdivided into lots and tracts such that at least sixty percent (60%) of the total acreage consists of lots and tracts three acres or less in size and such that at least sixty-five percent (65%) of the total number of lots and tracts are one acre or less in size; or\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, industrial, governmental or institutional purposes, consists of lots and tracts three acres or less in size. For purposes of this section, a lot or tract shall not be considered in use for a commercial, industrial, institutional, or governmental purpose if the lot or tract is used only temporarily, occasionally, or on an incidental or insubstantial basis in relation to the size and character of the lot or tract. For purposes of this section, acreage in use for commercial, industrial, institutional, or governmental purposes shall include acreage actually occupied by buildings or other man-made structures together with all areas that are reasonably necessary and appurtenant to such facilities for purposes of parking, storage, ingress and egress, utilities, buffering, and other ancillary services and facilities.\n(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).\nN.C. Gen. Stat. \u00a7 160A-48(c)(2)-(3) and (d) (2001).\nPetitioners contend that the trial court erred in affirming the City\u2019s ordinance because \u201cthe subdivision, classification, and calculations by the City are unfair, inaccurate, and violate the statutory intent and requirements.\u201d At trial, the City admitted that it wrongly designated 2.23 acres of a 5.73 acre lot having the PIN 9659.12-88-7529 (\u201cLot 7529\u201d) as \u201cin use for residential purposes\u201d. After the classification the City then excluded the 5.73 acres from calculations in N.C. Gen. Stat. \u00a7 160A-48(c). See N.C. Gen. Stat. \u00a7 160A-48(c). Petitioners argue that both the classification of Lot 7529\u2019s use and the calculations are incorrect. We disagree.\nFirst, we must address the classification of the 2.23 acres within Lot 7529. The City concedes that the land was originally improperly classified as \u201cresidential.\u201d \u201cIn classifying lots and tracts as either residential, commercial, industrial, institutional, or governmental, municipalities must look at the actual use of the land at the time of annexation.\u201d Briggs, 159 N.C. App. at 563, 583 S.E.2d at 737 (emphasis added).\nFor purposes of [N.C. Gen. Stat. \u00a7 160A-48(c)(3)], acreage in use for commercial, industrial, institutional, or governmental purposes shall include acreage actually occupied by buildings or other man-made structures together with all areas that are reasonably necessary and appurtenant to such facilities for purposes of parking, storage, ingress and egress, utilities, buffering, and other ancillary services and facilities . . .\nN.C. Gen. Stat. \u00a7 160A-48(c)(3). N.C. Gen. Stat. \u00a7 160A-53(2) states that \u201c \u2018[u]sed for residential purposes\u2019 shall mean any lot or tract five acres or less in size on which is constructed a habitable dwelling unit.\u201d N.C. Gen. Stat. \u00a7 160A-53(2) (2001).\nThe City concedes that the 2.23 acres within Lot 7529 were improperly classified as \u201cresidential\u201d because the entire lot exceeded five acres in size. See id. Furthermore, there is no evidence nor do petitioners argue that the land qualifies as \u201ccommercial, industrial, institutional or governmental\u201d use. See N.C. Gen. Stat. \u00a7 160A-47(c)(3). In \u201cPetitioners\u2019 Answers to Respondent\u2019s First Set of Interrogatories\u201d \u201cPetitioners state that all of lot . . . 7529 should be characterized as nonurban.\u201d Thus pursuant to petitioner\u2019s own contention, the City should have properly classified the 2.23 acres as land \u201c[i]n addition to areas developed for urban purposes\u201d under subsection (d) (hereinafter \u201cnon-urban\u201d) as it does not meet any of the qualifications to be classified as urban under N.C. Gen. Stat. \u00a7 160A-48(c). See N.C. Gen. Stat. \u00a7 160A-48(c)-(d). Therefore, though we find the City should not have classified the land as \u201cresidential\u201d we also find petitioners have failed to show a lack of substantial compliance with the requirements of the applicable annexation statute as petitioners themselves would classify the land as \u201cnon-urban,\u201d making the subsection (c) calculations inapplicable, pursuant to the reasoning below. See id; Briggs at 560, 583 S.E.2d at 735.\nNext we must address the proper classification of the 3.5 acres within Lot 7529. As previously noted, \u201cactual use\u201d determines how land should be classified. Briggs, 159 N.C. App. at 563, 583 S.E.2d at 737. Trial testimony indicated that the 3.5 acres was \u201cundeveloped\u201d and that there may have been an \u201cold chicken house\u201d on the tract. Again, petitioner\u2019s own answers to interrogatories characterize \u201call of lot. . . 7529 ... as nonurban.\u201d We therefore find the trial court\u2019s finding of fact that the 3.5 acres should be classified as \u201cnon-urban,\u201d to be supported by the evidence.\nWe next consider what land should be included within the N.C. Gen. Stat. \u00a7 160A-48(c)(2)-(3) calculations. Petitioners argue land being annexed under subsection (d), though it does not meet the requirements of subsection (c), should be included when calculating \u201ctotal acreage\u201d for the purposes of subsection (c). See N.C. Gen. Stat. \u00a7 160A-48(c) and (d). They contend that \u201ctotal acreage\u201d means both land \u201cdeveloped for urban purposes\u201d under subsection (c) and \u201cnon-urban\u201d land under subsection (d). We disagree.\nThe primary rule of statutory construction is that the intent of the legislature controls the interpretation of a statute. The foremost task in statutory interpretation is to determine legislative intent while giving the language of the statute its natural and ordinary meaning unless the context requires otherwise. Where 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. If the language is ambiguous or unclear, the reviewing court must construe the statute in an attempt not to defeat or impair the object of the statute [ . . .] if that can reasonably be done without doing violence to the legislative language.\nCarolina Power & Light Co. v. City of Asheville, 358 N.C. 512, 518, 597 S.E.2d 717, 722 (2004) (internal citations and internal quotations omitted).\nThe language of the statute makes the legislative intent in subsection (d) clear: \u201cThe 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.\" N.C. Gen. Stat. \u00a7 160A-48(d) (emphasis added). The clear purpose of subsection (d) is to allow cities to annex land which does not qualify as \u201curban\u201d under subsection (c) if it will qualify under subsection (d). See id. It would confound the very purpose of the statute to subject land which qualifies under subsection (d) to subsection (c) requirements, when the stated purpose of subsection (d) is to include land which does not meet the requirements of subsection (c). See N.C. Gen. Stat. \u00a7 160A-48(c)-(d).\nFurthermore, subsection (d) by its own terms applies to areas \u201c[i]n addition to areas developed for urban purposes.\u201d N.C. Gen. Stat. \u00a7 160A-48(d) (emphasis added). Such language demonstrates that land qualifying under subsection (d) is not meant to be subjected to the rigors of subsection (c), but rather may be included in the annexation \u201c[i]n addition to\u201d such land. See id. We find that \u201ctotal acreage\u201d under subsection (c) refers only to those acres that fall within subsection (c), those acres \u201cdeveloped for urban purposes.\u201d See N.C. Gen. Stat. \u00a7 160A-48(c). The City was correct under the language of the statute in excluding \u201cnon-urban\u201d land from its calculations for purposes of subsection (c). See N.C. Gen. Stat. \u00a7 160A-48(c)-(d).\nLastly, this Court must actually apply N.C. Gen. Stat. \u00a7 160A-48(c) to determine if the City is in substantial compliance. See N.C. Gen. Stat. \u00a7 160A~48(c); Briggs at 560, 583 S.E.2d at 735. Petitioners assign error to the trial court\u2019s calculations pursuant to N.C. Gen. Stat. \u00a7 160A-48(c)(2) and (3). See N.C. Gen. Stat. \u00a7 160A-48(c)(2)-(3).\n[Sjubsection (c)(3) ... is known as the \u201cUrban Use/Subdivision Test.\u201d This test, in essence, provides that an area is developed for urban purposes if at least sixty percent of the total number of lots in the area are used for residential, commercial, industrial, institutional, or governmental purposes and is subdivided into lots such that at least sixty percent of the total acreage of the area, not counting that used for commercial, industrial, governmental, or institutional purposes, consists of lots three acres or less in size.\nCarolina Power & Light Co. at 513, 597 S.E.2d at 719.\nWe are bound by the trial court\u2019s findings of fact \u201cif supported by the evidence.\u201d See Briggs, 159 N.C. App. at 560, 583 S.E.2d at 735. Petitioner assigns error to the trial court\u2019s decision to incorporate the City\u2019s mathematical calculations into its findings of fact because according to petitioners, they are incorrect. However, petitioner has failed to present any alternative calculations as to N.C. Gen. Stat. \u00a7 160A-48(c)(3) which would be supported by the evidence, beyond conclusory trial testimony and one exhibit with acreage and classification calculations, but no explanation of how petitioner made its calculations under N.C. Gen. Stat. \u00a7 160A-48. We overrule petitioner\u2019s assignment of error because the trial testimony and exhibits presented by the City\u2019s witnesses contain detailed information regarding the land to be annexed and its use, as well as its mathematical formulas and land classifications, upon which the trial court could properly base its finding that the mathematical calculations were supported by the evidence. See Briggs, 159 N.C. App. at 560, 583 S.E.2d at 735.\nSince the trial court\u2019s findings of fact as to the mathematical calculations of N.C. Gen. Stat. \u00a7 160A-48(c)(3) are supported by the evidence, we now apply the use/subdivision test. See id., Carolina Power & Light Co. at 513, 597 S.E.2d at 719. Assuming arguendo, as urged by petitioners, that the entire Lot 7529 should be classified as \u201cnon-urban\u201d, the trial court determined that 84.2% of the land was used for urban purposes. The statute requires that \u201c60% 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\u201d and thus the City has complied with the use test by having 84.2% so used. See N.C. Gen. Stat. \u00a7 160A-48(c)(3). The trial court also determined that 67.59% of the land \u201cnot counting the acreage used at the time of annexation for commercial, industrial, governmental or institutional purposes, consisted] of lots and tracts three acres or less in size.\u201d See id. The statute only requires 60% \u201cnot counting the acreage used at the time of annexation for commercial, industrial, governmental or institutional purposes, [to] consist[] of lots and tracts three acres or less in size.\u201d See id. Thus the City has also complied with the subdivision test. The trial court\u2019s mathematical calculations support its conclusions of law because the numbers show prima facie compliance with the statutory language of N.C. Gen. Stat. \u00a7 160A-48(c)(3). See id.\nSubsection (c) uses the conjunction \u201cor\u201d between each subsection, and thus it is clear that the requirements of only one subsection, not all, must be met to satisfy the requirements of subsection (c). See id. Thus by meeting the requirements of subsection (c)(3) the City has met the requirements of subsection (c) and this Court has no need to address subsection (c)(2). See id. The City has met the requirements of subsection (c)(3) and thus has substantially and strictly complied with the requirements of the annexation statute. See Briggs, 159 N.C. App. at 560, 583 S.E.2d at 735.\nIV. Second Public Hearing\nPetitioners next argue that upon amending the ordinance to exclude Lot 1879 the City was required to hold a second public hearing. N.C. Gen. Stat. \u00a7 160A-49(e) states that an additional public hearing is required for an amended annexation report \u201cif the annexation report is amended to show additional subsections of G.S. 160A-48(c) or (d) under which the annexation qualifies that were not listed in the original report.\u201d N.C. Gen. Stat. \u00a7 160A-49(e) (2001).\nIn Chapel Hill Country Club, after the initial public hearing the town of Chapel Hill amended a plat by dividing one lot into thirty, deleting approximately twenty-eight acres, and separately qualifying a strip of land. Chapel Hill Country Club at 187, 388 S.E.2d at 177-78. This Court found that\n[t]hese changes did not bring any new land within the scope of the annexation ordinance. Nor did the changes involve additional subsections of G.S. 160A-48(c) or (d), under which the annexation qualifies, that were not listed in the original report....\n[T]he relevant inquiry is whether the amendment effected a substantial change to the ordinance, necessitating notice to those affected thereby. We hold that, in the case below, the Town\u2019s amendment made no substantial change in the annexation ordinance and that petitioners were not prejudiced by the absence of a second public hearing.\nId., 97 N.C. App. at 187-88, 388 S.E.2d at 178 (internal citations and internal quotations omitted). In Chapel Hill Country Club, changes involving much larger areas of land were made to the ordinance, but the court still did not find a \u201csubstantial change\u201d in the ordinance which would require notice because no land was added and there were no changes which implicated additional subsections of N.C. Gen. Stat. \u00a7 160A-48(c) or (d). See Chapel Hill Country Club at 187, 388 S.E.2d at 177-78. Here, with the only change to the ordinance being the deletion of one lot and no change in the subsections of N.C. Gen. Stat. \u00a7 160A-48 under which the City sought annexation, we conclude there was no \u201csubstantial change to the ordinance, necessitating notice.\u201d See id. at 187-88, 388 S.E.2d at 178.\nPetitioners also argue that a second public hearing is required because the original ordinance did not comply with statutory requirements, but the amended ordinance does. However, Sonopress, Inc., states, \u201cThere is no requirement that a second public hearing be held on an amended annexation proposal, when that amendment is adopted to achieve compliance with G.S. 160A-35.\u201d Sonopress, Inc. v. Town of Weaverville, 149 N.C. App. 492, 503, 562 S.E.2d 32, 38, disc. rev. denied, 355 N.C. 751, 565 S.E.2d 671 (2002) (citation and quotations omitted).\nIn the present case no additions were made to the Area to be annexed but one lot was removed. There is no requirement that a second public hearing be granted for amendments to an annexation report of this nature. See N.C. Gen. Stat. \u00a7 160A-49(e); Chapel Hill Country Club, Inc., at 187-88, 388 S.E.2d at 178. We also concluded supra that no \u201csubstantial change to the ordinance, necessitating notice to those affected thereby\u201d was made. See id. at 188, 388 S.E.2d at 178. Therefore, we find that the trial court did not err in concluding that the City was not required to hold a second public hearing.\nV. Extension of Police Services to the Area\nLastly, petitioners argue the trial court erred in affirming the ordinance because the City\u2019s Services Report does not make adequate provision for the extension of police services to the annexed Area. N.C. Gen. Stat. \u00a7 160A-47 states,\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-49, 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 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.\nN.C. Gen. Stat. \u00a7 160A-47(3)(a).\nIn Nolan v. Town of Weddington, this Court stated that\nA town is required to extend its municipal services on a nondiscriminatory basis, meaning it must provide an annexed area with substantially the same services it provides to existing town residents.\nThe sufficiency of services provided to an annexed area, therefore, is measured against what services are provided to existing town residents. A town must provide the annexed area with each major municipal service performed within the municipality, and it must provide those services on substantially the same basis that they are provided elsewhere within the town. If a town extends the services it currently provides, and if it extends them in a nondiscriminatory manner, it satisfies the statutory requirements.\nNolan v. Town of Weddington, 182 N.C. App. 486, 490, 642 S.E.2d 261, 264 (2007) (internal citations and internal quotations omitted) (emphasis added).\nThe City is required to provide in its Services Plan\n(1) information with respect to the current level of services within the Town, (2) a commitment to provide substantially the same level of services in the annexation area, and (3) information as to how the extension of services will be financed; this information is sufficient to allow the public and the courts to determine that the Town has committed itself to provide a nondiscriminatory level of services to the annexed area and to establish compliance with G.S. [160A-47].\nHuyck, Corp. v. Town of Wake Forest, 86 N.C. App. 13, 23, 356 S.E.2d 599, 605 (1987), aff'd, per curiam, 321 N.C. 589, 364 S.E.2d 139 (1988).\nPetitioners\u2019 argument as to police services is primarily based on the contention that \u201c[i]n North Carolina a ratio of one officer per 300 or 400 residents is typical for cities and towns. The current ratio in Asheville is one officer per 410 residents.\u201d The record also reveals a concern that the officer-to-resident ratio was up at the time of the hearing due to some vacancies in the police department. However, petitioners cite no law requiring a city to maintain a ratio of 300-400 residents per officer but only cite evidence that this ratio is an average throughout North Carolina. The City is required only to provide \u201cservices on substantially the same basis that they are provided elsewhere within the town,\u201d not a particular level of service based upon a statewide average. Nolan at 490, 642 S.E.2d at 264. The City\u2019s Services Report states that \u201c[t]he police/citizen ratio following annexation is estimated at one officer to 417 residents.\u201d The Services Report also stated that \u201c[b]ecause of the relatively small size of the annexation areas and close proximity to the existing municipal boundaries, no additional capital or operating expense is anticipated in adding these areas to the existing patrol districts.\u201d\nWe find this evidence to be sufficient to conclude that the City addressed the extension of police services and will be providing such services to the Area \u201con substantially the same basis that they are provided elsewhere within the town,\u201d see Nolan at 490, 642 S.E.2d at 264, because of the \u201csmall size\u201d and \u201cclose proximity\u201d of the area being annexed. In addition, there was no evidence to indicate that any vacancies in the police department\u2019s staff were anything beyond a temporary condition. Certainly the actual number of officers employed by a law enforcement agency may vary on a daily basis, considering officers who retire, become disabled, or leave their employment for other reasons. The relevant consideration is the City\u2019s commitment to provide a particular level of service. The City identified the level of police services \u201cnow available to city residents and committed to provide the same services to the annexed area. The statute and case law require no more.\u201d Parkwood Ass\u2019n, Inc. v. City of Durham, 124 N.C. App. 603, 607, 478 S.E.2d 204, 206 (1996), disc. rev. denied, 345 N.C. 345, 483 S.E.2d 175 (1997). Even if the petitioners have concern \u201cover whether they will receive city services in return for city taxes, the City fulfilled its statutory obligation by promising to provide those services [and] [i]f the City fails to provide the services as promised within the statutory time limits, petitioners may apply for a writ of mandamus to order the City to provide those services.\u201d Id. at 608, 478 S.E.2d at 207.\nWe conclude that the City substantially complied with N.C. Gen. Stat. \u00a7 160A-47(3)(a). See Briggs at 560, 583 S.E.2d at 735. Accordingly, this assignment of error is without merit.\nVI. Conclusion\nFor the reasons stated above, we hold that the trial court did not err in upholding the City\u2019s 27 June 2002 adoption of the ordinance to annex the area generally referred to as the Huntington Chase Area because 1) the City substantially complied with N.C. Gen. Stat. \u00a7 160A-48; 2) the City was not required to hold a second public hearing under N.C. Gen. Stat. \u00a7 160A-49(e); and 3) the City\u2019s Services Plan adequately addressed the provision of police services to the Area under N.C. Gen. Stat. \u00a7 160A-147. See N.C. Gen. Stat. \u00a7\u00a7 160A-47, 160A-48, and 160A-49(e). Accordingly, we affirm the judgment entered on 31 January 2006 by Judge James W. Morgan in Superior Court, Buncombe County.\nAFFIRMED.\nJudges McCULLOUGH and ELMORE concur.\n. Petitioner also argued that the City \u201carbitrarily divided Lot 7529 into two separate areas in effort [sic] to meet compliance with N.C. Gen. Stat. \u00a7 160A-48.\u201d However, because the City has conceded that it incorrectly classified the front portion of the lot as \u201cresidential\u201d and has remedied the classification error in its calculations, we need not address this argument. Assuming arguendo that petitioner\u2019s classification of the entirety of Lot 7529 as \u201cnon-urban\u201d is correct, the City has still conformed with the applicable annexation statute per the reasoning below. See N.C. Gen. Stat. \u00a7 160A-48(c) and (d).\n. Petitioners also argue that the trial court erred in affirming the City\u2019s ordinance because the City did not comply with N.C. Gen. Stat. \u00a7 160A-47(2). Petitioners contend the City failed to provide \u201c[a] statement showing that the area to be annexed meets the requirements of G.S. 160A-48\u201d regarding the subsection (c) calculations. N.C. Gen. Stat. 160A-47(2) (2001). Were this contention true, that the City did not comply with N.C. Gen. Stat. \u00a7 160A-48, the City\u2019s \u201cstatement showing that the area to be annexed meets the requirements of G.S. 160A-48\u201d would also logically fail. See N.C. Gen. Stat. \u00a7 160A-47(2). However, for the reasons set forth above, we conclude that the City did substantially comply with N.C. Gen. Stat. \u00a7 160A-48, that the City\u2019s statement as to such compliance with N.C. Gen. Stat. \u00a7 160A-48 was adequate. See Briggs at 560, 683 S.E.2d at 735.\n. N.C. Gen. Stat. \u00a7 160A-35 is the corollary to N.C. Gen. Stat. \u00a7 160A-47. See N.C. Gen. Stat. \u00a7 160A-35 (2001); N.C. Gen. Stat. \u00a7 160A-47. The only significant difference in these statutes is that N.C. Gen. Stat. \u00a7 160A-35 applies to cities less than 5,000 and N.C. Gen. Stat. \u00a7 160A-47 applies to cities of 5,000 or more. See id.", "type": "majority", "author": "STROUD, Judge." } ], "attorneys": [ "Dungan & Associates, P.A. by Jeffrey K. Stahl for Petitioners-Appellants.", "Robert W. Oast, Jr. for Respondent-Appellee." ], "corrections": "", "head_matter": "STEPHEN and MICHELLE ARNOLD, ROBERT P. and ELIZABETH M. BARR, DAVID E. and KRYSTAL D. BOTTOM, TIMOTHY A. and JEANETTE P. BRADLEY, CHARLES MICHAEL and DEBRA S. BRAUN, KENT and BARBARA CAMPBELL, ROBERT E. and AIDA V. DUNGAN, RICHARD R. and CHARLOTTE D. ELEY, JONATHAN A. and PEGGY J. HILL, STEVEN P. and CHRISTI W. HURD, JOHN P. and KIMBERLY J. KENNEDY, PIERCE A. KAHADUWE LIVING TRUST, MARK P. and JACQUELINE G. RUSCOE, BENJAMIN F. and SUSAN E. TURNER, JACQUELYN M. WEBB, TRUSTEE OF THE JACQUELYN M. WEBB LIVING TRUST, MARC B. and JACKIE LEE WESTLE, DERWIN J. and NANCY L.C. WILLIAMS, ROBERT L. and BECKY L. WILSON, STEPHEN M. and JULIA R. EARGLE, and ROBERT A. and JANE P. ERRICO, Petitionees v. CITY OF ASHEVILLE, Respondent\nNo. COA06-1167\n(Filed 6 November 2007)\n1. Cities and Towns\u2014 annexation \u2014 classification of tracts\u2014 subdivision test\nA city substantially and strictly complied with the requirements of the annexation statute where petitioners disputed the classification of certain tracts, but the evidence and petitioners\u2019 own contention supported the classification as non-urban (despite the erroneous classification of one portion as residential); the city correctly excluded non-urban land from its calculations for purposes of N.C.G.S. \u00a7 160A-48(c) because it would confound the purpose of the statute to subject land which qualifies under subsection (d) to subsection (c) requirements; the evidence supported the court\u2019s finding that the city\u2019s mathematical calculations were supported by the evidence; and the city complied with the subdivision test.\n2. Cities and Towns\u2014 change of ordinance \u2014 no notice or hearing required\nThere was no substantial change to an annexation ordinance necessitating notice or a second hearing where the only change to the ordinance was the deletion of one lot and there was no change in the subsections under which the city sought annexation.\n3. Cities and Towns\u2014 annexation \u2014 extension of police services\nA city substantially complied with N.C.G.S. \u00a7 160A-47(3)(a) in a disputed annexation in promising to extend services. Although petitioners\u2019 contention was based on the officer to resident ratio in North Carolina, the city is required only to provide services on substantially the same basis as elsewhere within the city.\nAppeal by petitioners-appellants from judgment entered 31 January 2006 by Judge James W. Morgan in Superior Court, Buncombe County. Heard in the Court of Appeals 28 March 2007.\nDungan & Associates, P.A. by Jeffrey K. Stahl for Petitioners-Appellants.\nRobert W. Oast, Jr. for Respondent-Appellee." }, "file_name": "0542-01", "first_page_order": 572, "last_page_order": 585 }